M/S. VIKASH AGARWAL(HUF),TINSUKIA vs. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-2, TINSUKIA

आदेश / ORDER संजय गग�, �या�यक सद�य �वारा / Per Sanjay Garg, Judicial Member: The captioned appeals have been preferred by the different assessees against the separate orders of the Commissioner of Income Tax (Appeals) (hereinafter referred to as the ‘CIT(A)’) passed u/s 250 of the Income Tax Act (hereinafter referred to as the ‘Act’). Since the facts and issues involved in all these appeals are identical, hence these have been heard together and are being disposed of by this common order. 2. At the outset, the ld. Counsel for the assessee has submitted that in all the appeals the issue involved is relating to the addition made by the Assessing Officer u/s 69A of the Income Tax Act in respect of sale proceeds of shares of Kailash Auto Finance Ltd. treating the same as income of the assessee from unexplained sources after rejecting the assessee’s claim of long-term capital gain on the sale of such shares. The ld. Counsel for the assessee has submitted that the Assessing Officer had made the impugned additions without giving proper opportunity to the assessee to prove the genuineness of the transaction. The ld. Counsel though has admitted that the Hon’ble Calcutta High Court vide common order dated 14.06.2022 in a batch of 90 appeals with a lead case titled as PCIT vs. Swati Bajaj reported in [2022] 139 taxmann.com 352 (Calcutta) confirmed the additions in respect of trading in penny stock/unquoted scrip of Kailash Auto Finance Ltd. also. However, he has submitted that the facts of the case of the assessee were distinguishable. He has submitted that the assessees, who are related to each other, had traded in the said scrip in routine course. That the assessees were regularly investing in shares and the assessees have also suffered losses I.T.A No.253, 254,255,256,257/GTY/2018 & Mrs. Mamta Bansal, Mr. Anand Kumar Bansal, M/s. Anand Kumar Bansal & Sons, HUF, Mr. Sunil Kumar Bansal, M/s. Vikash Agarwal (HUF), Mrs. Nidhi Agarwal, M/s. Lalit Kumar Bansal & Sons, HUF in other scrips. The assessees were having losses prior to the sale of shares of Kailash Auto Finance Ltd. and even the assessees have suffered future losses also. That the cases of the present assessees, it was not case of introduction of any unaccounted money. The ld. counsel has further submitted that the Hon’ble Calcutta High Court was not the jurisdictional High Court of the assessee, and that there are other judgements of Hon’ble High Courts, wherein, the additions made by the lower authorities in respect of similar issue have been deleted. The ld. Counsel in this respect has relied upon the decision of the Guwahati Bench of the Tribunal in the case of M/s Sanidhya Mittal vs. ACIT in ITA No.223&224/Gau/2017 vide order dt. 12.07.2019. He has further submitted that the Hon’ble Calcutta High Court in the case of Swati Bajaj (supra) has held that initial burden was upon the assessee to prove the genuineness of the transaction and upon his failure to do so, the assessing authority would be justified in considering the surrounding circumstances, human conduct and preponderance of probabilities. The ld. Counsel has submitted that however in the present case of the assessees, the Assessing Officer had not given such an opportunity to the assessees, rather, the Assessing Officer proceeded to frame the assessments on the basis of his own assumptions without giving any opportunity to the assessees to prove the genuineness of the transactions. The ld. counsel, therefore, has submitted that in view of the above circumstances, it would not be just to say that the assessees have failed to discharge the burden cast upon them to prove the genuineness of the transactions. That the surrounding circumstances and preponderance of probability, in the facts and circumstances of the case of the assessees, also did not suggest that the assessees had introduced any unaccounted income.