SUDHIR N CHEKE (HUF),MUMBAI vs. ITO, WARD 28(3)(3), MUMBAI

IN THE INCOME TAX APPELLATE TRIBUNAL
“SMC” BENCH MUMBAI

BEFORE HON’BLE SHRI SANDEEP GOSAIN, JUDICIAL MEMBER
Sudhir N Cheke (HUF)
501, Hill view CBD Belapur
400614. Vs.
ITO – 28(3)(3)
Room No. 319, tower
No. 06, Vashi Rly Stn
Vashi – 400 703. PAN/GIR No. AACHC2767A
(Applicant)
(Respondent)

Assessee by Shri Tushar Modi
Revenue by Smt. Usha Gaikwad, Sr. DR

Date of Hearing
03.03.2025
Date of Pronouncement
03.03.2025

आदेश / ORDER

PER SANDEEP GOSAIN, JM:

The present appeal has been filed by the assessee challenging the impugned order 14.11.2024 passed u/s 250 of the Income Tax Act, 1961 (‘the Act’), by the National
Faceless Appeal Centre, Delhi / CIT(A) Mumbai, for the A.Y
2013-14. The assessee has raised the following grounds of appeal:
1) The learned CIT (A) erred in facts or in law in upholding the order of the Ao adding Rs. 1,50,340/-to the income of assessee.

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Sudhir N Cheke (HUF), Mumbai.

2) The Learned CIT (A) erred in adding entire Traded value of the scrip as income from Long Term Capital Gains.
3) The Learned CIT (A) erred in concluding that the assessee traded during F.Y. 2012-13 A.Y. 2013-14 in the scrip Aricent
Infra presently known as Kyra Landscape Ltd.
4) The learned CIT (A) erred in treating the traded value Rs.
1,50,340/- as long term gain and adding the same to income of the assessee.
5) The learned CIT(A) erred in adding alleged addition treating as long term gain as cash credit U/s 68 of the Act,
2. The ground No. 1 to 5 raised in the present appeal are interrelated and interconnected and relates to challenging the order of Ld. CIT(A) in upholding the additions made by the AO u/s 68 of the Act. Therefore I have decided to take up all these grounds together and to adjudicate the same through the present consolidated order.
3. As per the facts of the present case, the assessee originally filed his return of income for the year under consideration declaring income as Rs. 30,383/-. However on the basis of information received from ITO(Inv), Thane that assessee is beneficiary, who had traded in the bogus script of M/s Aricent Infra Ltd., (Presently known as Kyra
Landscape Ltd.) to acquire bogus long term capital gain
(LTCG) / short term capital loss (STCL). The AO in the present case issued notice for reopening the assessment and consequently issued a show cause notice dated

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Sudhir N Cheke (HUF), Mumbai.

said order of Ld. CIT(A), the assessee has preferred the present appeal before me.
6. I have heard the counsels for both the parties and have perused the material placed on record, orders passed by the revenue authorities. From the records I noticed that from day one assessee has taken a categorical stand that he has never dealt with in any manner whatsoever with the said script of M/s Aricent Infra Ltd., (Presently known as Kyra Landscape Ltd.). And in this regard assessee has also submitted all the required documents as called for by the AO. It is pertinent to mention here that AO is not merely adjudicator but he is also an investigator therefore, duty cast upon the AO to verify the said facts once a specific stand has been taken by the assessee and by not doing so the AO has committed great injustice to the assessee. It is also pertinent to mention that addition cannot be made in the hands of the assessee in a casual and cavalier manner on the basis of conjectures and surmises but the addition can only be made on the basis of cogent, convincing documentary evidences. Which in my view is missing in the present case.
7. After having thoroughly gone through the facts placed on record I noticed that assessee had moved an application before the AO requesting him to provide the details in respect of transactions carried out in script of M/s Aricent

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Sudhir N Cheke (HUF), Mumbai.

Infra Ltd., (Presently known as Kyra Landscape Ltd.) as the AO has mentioned the said fact in his order of assessment.
But the AO has failed to provide / supply any such details in respect of dealing of assessee in the script of M/s
Aricent Infra Ltd., (Presently known as Kyra Landscape
Ltd.). Therefore in the absence of any documentary proof to connect assessee with the said Aricent Infra Ltd.,
(Presently known as Kyra Landscape Ltd.) I am of the considered view that no additions could have been made in the hands of the assessee.

Therefore taking into consideration all the facts and circumstances of the present case as discussed by me above, I direct the AO to delete the said additions and consequently Ground No. 1 to 5 raised by the assessee stands allowed.
8. In the net result, appeal filed by the assessee stands allowed with no order as to cost.
Order pronounced in the open court on 03.03.2025. (SANDEEP GOSAIN)
JUDICIAL MEMBER

Mumbai, Dated 03/03/2025

KRK, SPS

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Sudhir N Cheke (HUF), Mumbai.

आदेश की ितिलिप अेिषत/Copy of the Order forwarded to :
1. अपीलाथ / The Appellant
2. थ / The Respondent.
3. संबंिधत आयकर आयु / The CIT(A)
4. आयकर आयु(अपील) / Concerned CIT
5. िवभागीय ितिनिध, आयकर अपीलीय अिधकरण, मुबई / DR, ITAT, Mumbai
6. गाड फाईल / Guard file.
आदेशानुसार/ BY ORDER,
सािपत ित ////