M/S SHAILESH JAIN HUF,MUMBAI vs. ITO 19 (3)(3), MUMBAI

Date of Hearing 04/02/2021 Date of Pronouncement 16/02 /2021 आदेश आदेश / O R D E R आदेश आदेश PER RAJESH KUMAR (A.M): The present appeals by two different assessees have been preferred against the order dated 22.08.2019 & 20.09.2019 of the Commissioner of Income Tax (Appeals) [hereinafter A.Y. 2014-15

by the assessee are as under: “1. On the facts and in the circumstances of the case and in law the Hon’ble CIT(A) erred in upholding the assessing officer’s action of reopening of the completed assessment under section. 147 of the IT Act 1961 and the reason assigned for doing so are wrong and contrary to the provision of Income Tax Act and rules made there under.

2. On the facts and in the circumstances of the case and in law the Hon’ble CIT(A) erred in upholding the addition of Rs.1,86,64,374/- made to the returned income by treating genuine LTCG earned on purchase and sale of shares claimed as exempt under section 10(38) of the IT act as unexplained credit under section 68 of the IT Act, 1961 and the reason assigned for doing so are wrong and contrary to the provisions of Income Tax Act and rules made there under.

3. On the facts and in the circumstances of the case and in law the Hon’ble CIT(A) erred in upholding addition of Rs.3,73,287/- made to the returned income by wrongly assuming that commission has been paid to earn LTCG and the reason assigned for doing so are wrong and contrary to the provisions of Income Tax Act and rules made there under.

4. The Appellant craves leave to add to, amend, alter or delete any of the above grounds of appeal on or before the date of hearing.”

3. We are first adjudicating the ground No.2. The issue raised in ground No.2 is against the order of Ld. CIT(A) upholding the addition of Rs.1,86,64,374/- by Ld. CIT(A) which was made by the AO under section 68 of the Act by rejecting the claim of the assessee in respect of long term capital gain under section 10(38) of the Act on sale of shares.

5. Aggrieved by the order of the AO, the assessee preferred an appeal before the Ld. CIT(A). In the appellate proceedings, the Ld. CIT(A) also dismissed the appeal of the assessee after taking into account the details/explanations submitted by the assessee by observing and holding as under: “5.7 CONCLUSION 5.7.1 The facts of the case are that the appellant filed the return of income for the A.Y. 2014-15 on 30.06.2014 wherein long term capital gain exempt u/s 10(38) was made for Rs.1,86,04,374/-. The Ld. AO assessed the total income at Rs. 1,98,57,310/- against the returned income of Rs. 8,19,650/-. Addition of Rs. 1,86,64,374/- was made in respect of sale proceeds of shares u/s 68 and Rs. 3,73,287- in respect of commission paid on sale of shares u/s 69 of the Income Tax Act, 1961.

5.7.2 The appellant had purchased 20,000 shares of M/s Pine Animation Ltd. on 15.03.2013, in an off market transaction, @ Rs.3/-per share for a total consideration of Rs.60,000/-. Payment for the purchases was made by cheque. Quantity of shares increased from 20,000 to 2,00,000 shares due to stock split . Demat for the said purchases took place on 21.05.2013.

5.7.3 The appellant sold 200000 shares between the period 20.01. 2014 to 11.02.2014 at an average rate of Rs. 93.15 per share, for net sale consideration of Rs. 1,86,64,374/- on BSE and the sale consideration was received by cheque. The demat account of appellant in HDFC Bank at pp 29 of the paperbook reveals that 200000 shares of Pine Animation Ltd. was debited in January 2014 the last one being 22.01.2014 - this is strange as the last sale took place on 17.02.2014. These are placed at Annexure.

5.7.4 In view of the aforesaid facts, the purchase of the shares is held to be bogus/sham transaction. This transaction of purchase is an off - market transaction. The sale is debited in the demat account prior to the date of sale which is purportedly through the stock exchange. There is a spectacular gain in price from Rs. 3/-per share to Rs. 93/-per share. This challenges the test of human probability.

5.7.5 The Hon'ble Supreme Court in the case of Sumati Dayal (214 ITR 801 SC ) and Durga Prasad More ((1971) 82 ITR 540 SC ) has held that the apparent must be considered real until it is shown that there are reasons to believe that the apparent is not real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. Reliance is further placed on the decisions cited in para 5 supra. In this case, the surrounding circumstances, as detailed above, establish that the purchase is not real. Thus, the entire transaction is a sham transaction and the action of the Ld AO in holding the transaction to be bogus is upheld.

5.7.6 TheLd.AO has added Rs.1,86,64,374/- being sale proceeds of the sale of shares of M/s Pine Animation Ltd. which was held to be sham transaction, against which the appellant had claimed Long Term Capital Gain claimed as exempt u/s 10(38]. Addition of Rs.3,73,287/- u/s 69C of the Act, being 2% commission paid for the accommodation entries is also held to be reasonable and is upheld. Therefore, the action of the Ld. AO is upheld and the grounds of appeal 1 and 2 are dismissed. 5.8 Ground of appeal No. 3 is with respect to levy of penalty u/s 271(l)(c}. Levy of penalty is consequential in nature and is the discretion of the AO. This ground of appeal being premature is not adjudicated upon and is dismissed.

5.9 Ground of appeal No. 4 is general in nature and is therefore not adjudicated upon.

6 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain 6. The Ld. A.R. submitted that all the conditions for claiming exemption u/s 10(38) of the Act are fully satisfied by the assessee while claiming the exemption in the income tax return for the relevant assessment year under appeal. The date of purchase/allotment of equity shares, mode of payment of by account payee cheques only, period of holding, dates of sales of equity shares through the online screen based trading on the BOLT platform of stock exchange, identifications and details of SEBI and stock exchange registered reputed brokers and Stock Broker Ltd, transaction related expenses such as brokerage, service tax, STT, stamp duty, exchange and SEBI turnover charges etc are already on records of the revenue and also forms part of assessment order. The ld AR submits that the Ld. AO in the impugned assessment order has rejected the claim of exemption u/s 10(38) of the Act and made addition of the entire sale proceeds of shares as unexplained credit u/s 68 of the Act, alleging that the appellant has arranged bogus LTCG by trading in penny stock company on the basis of :i) investigation report of directorate of investigation wing, Kolkata; ii) alleged bogus LTCG resulting from steep movement of share prices etc detailed in the assessment order.; iii) statements recorded by the directorate of investigation wing, Kolkata of various parties. The ld AR submits that in essence the entire addition is based on preponderance of possibilities, circumstantial evidences and not based on justifiable/clinching evidences, human conduct in general and not specific findings or allegations in relation to the assessee. The ld AR submitted that there are several judicial pronouncements of ITAT and High Courts wherein it

7 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain has been categorically held that addition based on such general hypothesis is wrong and can not be sustained.

6.1. The ld AR also contended that during the course of assessment proceedings and also in appellate proceedings before CIT(A), the appellant filed all documents for establishing bonafide and genuineness of claim of exemption u/s 10(38) of the Act. Therefore, the denial of claim of exemption made by the Ld. AO ignoring the relevant and factual documentary evidences filed by the appellant is absolutely improper and against the principle of natural justice and equity.

6.2. The ld AR, while referring to the assessment order, submits that none of the descriptions, allegations, observations, findings, statements reproduced etc in the impugned order of AO are relevant or having any cogent, collaborative, identifiable or clinching to the LTCG realized by the appellant. The ld AR submits that the appellant had never transacted with any operator or such intermediary in the process of carrying out investments and further that the alleged operators and their records do not in any manner mention any connection with appellant. The ld AR submits that the shares were duly allotted to the appellant and were recorded into the D-mat account upon such purchase/allotment. Shares were sold on stock exchange through regular registered brokers of assessee under screen based trading where the seller and buyer of shares are wholly unaware of the identity of the other person. STTs were paid at the time of sale of shares and proceeds were received into bank accounts of the assessee only through proper banking channel.

6.3. The ld AR submits that based on inquiry and investigation by Investigation Wing of the deptt., the AO has surmised that assessee routed his black money without establishing any money trail. The ld AR argued that the Ld. AO has hopelessly failed to establish that the assessee has paid his unaccounted money to any of the parties referred by the Ld. AO in the impugned AO. None of the replies to the questions of such parties indicates that they have received any unaccounted money from the assessee at the time of selling of these equity shares by the assessee. The findings of the Investigation Wing of the Revenue are general in nature and it is basically a study report and not specifically mentioning which cases were investigated. The ld AR argues that nowhere in the assessment order, the AO has established any linkage between the reports of the investigation wing and assessee's transactions. Moreover the assessee was not confronted with the investigation report which was relied by the AO. The AR strongly argued that this is a fatal and incurable mistake on the part of the AO and can not be rectified as reliance on such investigation report, without confronting the assessee with the same, renders the assessment framed as bad in law. The ld AR in defense of his arguments relied on the decision of the Hon’ble Supreme Court in the case of Adamine Construction Pvt. Ltd. 99 Taxmann 45 wherein while dismissing the appeal, the Hon’ble court has referred to observations of Delhi HC that what is evident is that the AO went by only the report received and did not make the necessary further enquiries such as into the bank accounts or other particulars available with him but rather based the 9 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain entire findings on the report, which cannot be considered as primary material. The assessee had discharged the onus initially cast upon it by providing the basic details which were not suitably enquired into by the AO.

6.4. The ld AR submits that the Ld. AO placed reliance on statements of several third parties without providing opportunities for cross examination which is contrary to the decision of Hon’ble Supreme Court in M/s Andaman Timber Industries V/s CCE (CA No.4228 of 2006) wherein it was held that not allowing the assessee to cross-examine the witnesses by the adjudicating authority whereas the statement of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity in as much as it amounts to violation of principal of natural justice because of which the assessee was adversely affected. The whole basis of making the addition is third party statement without there being any tangible material. The ld. AR submits that it is trite law that additions merely on the basis of suspicion, conjectures or surmises could not be sustained in the eyes of law as held by Hon’ble Supreme Court in Omar Salay Mohamed Sait V/s CIT (1959 37 ITR 151). The ld AR submitted that the suspicion however strong could not partake the character of legal evidence as held by Hon’ble Supreme Court in Umacharan Shaw & Bros. V/s CIT (1959 37 ITR 271).

6.5. The ld AR submits that movement in prices of shares is governed by several factors without there being any nexus to the projects, projection etc and this fact gets clearly established if one refers to the present movement in shares of several 10 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain companies. The Ld. AO has failed to establish any link to the process of rigging and manipulating of prices of shares in connivance with parties whose names are mentioned in the impugned assessment orders.

6.6. The ld AR also argues that the provisions of section 68 of the income tax Act, 1961 deals with a case, where any sum found credited in the books of accounts of an assessee in any financial year and assessee offers no explanation about the nature and source or explanation offered by the assessee is not satisfactory in the opinion of the AO, then sum credited may be charged to tax for that assessment year u/s 68 of the Act which is not the case of the assessee. The assessee has received consideration from sale of shares on which he has made LTCG and furnished all evidences before the authorities below. The ld AR relied heavily on the decision of the coordinate bench in the case of Shri Kunal Dedhia ITA no. 3893/Mum/2019. The ld AR also relied on the following decisions wherein the similar issue has been decided in favour of the appellant: a. Shri Vijayrattan Balkrishan Mittal Vs DCIT (ITA No. 3429/Mum/2019) (Mumbai ITAT) b. Shri Kunal Dedhia Vs DCIT (ITA No. 3893/Mum/2019) (Mumbai ITAT) c. Mukesh B Sharma Vs ITO (ITA No. 6249/Mum/2018) (Mumbai ITAT)

6.7. The ld AR also distinguished the decision relied upon by the Ld. AO and Ld. CIT(A).

6.8. Finally, the ld AR prayed before the bench that in view of the facts and merits and decisions as discussed above the , the ground no. 2 may kindly be allowed.

7. Per Contra, the ld DR strongly rebutted the arguments as made by the ld AR by submitting that the LTCG is nothing but own money routed into the books through accommodation entries in the form of sales consideration from sales of penny stock which was part of a organized racket in which several brokers/exit providers were involved as has been brought to light by the search operation by investigation wing of the deptt. It has been found that the value of scrip was gradually raised substantially within a period of about one year and the shares were sold through a set of exit providers who manipulated and booked huge losses. It is gathered that initially nationwide searches were carried out by Investigation Wing, Kolkata of the Income Tax Department in December 2014, during the course of which it was found that various persons had received entries of Long Term Capital Gains through rigging of shares of small listed companies and the name of the present assessee prominently appeared therein. During the course of search it was accepted by the stock brokers that relevant companies were bogus companies (Jama Kharchi companies) and that they were being used only for providing accommodation entries. Statements of various entry operators, directors of companies were also recorded wherein they had accepted that these companies were being used for providing bogus Long Term Capital Gains. These facts have been elaborately discussed by the CIT(A), and also by the AO in their respective orders , which are the subject matter of the present appeal. The ld 12 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain DR even refers to the SEBI report 18.11.2019 and submitted that the share as was purchased and sold by the assessee was held to be rigged by the operators/exit providers. The ld DR takes us through various findings of the SEBI and submitted that the shares prices were clrearly rigged by the operators in an organized manner on the stock exchange so that undue bogus gains are realized in favour of the sellers including the assessee.

8. In the rejoinder, the ld AR submitted that SEBI order has nothing to do with the long term capital gain earned by the assessee. The ld AR submitted that SEBI is a forum which regulates the markets so that the interest of the investors are protected and in no way goes into the issue of bogus or non bogus capital gain.

9. We have heard the rival submissions and perused the material on record. We find that in this case the assessee has applied for 20,000 equity shares of Rs.3 each of M/s. Four K Animation Ltd. in the preferential allotment for a consideration of Rs.60,000/- which were allotted on 7.12.2012. These shares were credited in the D-,mat account of the assesse on 01.05.2012. Thereafter, the shares were split in the ratio of 1:10 i.e. 10 shares were allotted for every one share held and accordingly the assessee was allotted 2,00,000 equity shares in lieu of 20,000 equity shares. The assessee sold these 2,00,000 shares during the year for a consideration of Rs. 1,86,64,674 and claimed the resultant gain on the sale of said shares of Rs. 1,86,04,374/-as exempt under section 10(38) of the Act. We note that the assessee has invested in these shares by making 13 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain a payment through account payee cheques from the regular bank account of the assessee and these were held in D-Mat account before the date of sale and after being held for more than 12 months these shares were sold through the recognized stock exchange through the registered brokers as stated above thereby making a long term capital gain of Rs.1,86,04,374/-. Now the issue before us is whether the claim of the assessee under section 10(38) of the Act is correct or not. We also note that the company M/s. Four K Animation Ltd. in which the assessee invested money and earned long term capital gain of Rs.1,86,04,374/- is a listed company on the stock exchange and subjected to various rules and regulations and compliances which has to be complied with before making any allotment to the applicant under preferential allotment process. We have also examined the various documents filed by the assessee in the paper book regarding date of application for preferential allotment, allotment of equity shares, mode of payment of shares through account payee cheque, period of holding and sales of these shares through online screen based trading on Bolt platform of stock exchange and also the proof of expenses incurred by the assessee by way of brokerage, service tax, STT, stamp duty, Exchange and SEBI turnover charges etc. The assessee has filed all these proofs before the AO as well as the Ld. CIT(A) as has been stated hereinabove and are being reproduced for the sake of convenience. i. Evidence of purchase of shares – Application of shares, allotment of shares, share certificates ii. Evidence of payment for purchase of shares made by account payee cheques, copy of bank statements iii. Copy of Demat statement reflecting purchase iv. Copy of Demat statement showing sale of shares v. Copies of contract note of sales of shares The AO has rejected the claim of the assessee by disbelieving all the above documents which are a third party documents and treated the sale of shares as unexplained cash credit under section 68 of the Act on the ground that assessee has earned this long term capital gain by trading in penny stock company and relied heavily on the investigation report of Directorate of Investigation Wing, Kolkata, upward movement of share prices, statements recorded by the Directorate of Investigation Wing, Kolkata of various operators/exit providers. Thus we note that AO has relied mainly on the statement of third parties and circumstantial evidences and no substantive and specific material was brought on record to prove these allegations. Similarly Ld. CIT(A) has reproduced the entire order of AO and upheld the same by holding that assessee was beneficiary of accommodation racket and doubted only the manifold increase in the share price by rejecting the facts on record and various evidences corroborating those facts. The assessee has furnished various documents as stated hereinabove to corroborate the claim under section 10(38) of the Act. We note that assessee has furnished all the details qua bank accounts, D-Mat and trading account, process of preferential allotment and the person through whom the investments were made and also the contract note qua the sale of shares on the recognized stock exchange through registered stock brokers. We also note that in the investigation carried out by the Directorate of Investigation Wing, Kolkata and also in the statements recorded of various individuals as stated hereinabove. We find that nowhere the assessee’s name 15 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain figured nor evidences were found during the course of search and the entire allegations were based upon the surmises and conjunctures. The shares were duly allotted to the assessee and were recorded in the D-Mat account and thereafter were sold on the Bombay Stock Exchange through the registered broker and screen based trading where the buyer and seller of the shares are not aware of each other and the fact that the consideration was paid and received through banking channels. Moreover, the authorities below have failed to establish the money trail involved in the transaction and has only guessed that assessee might have paid his own money to route the same into books of accounts. Thus we note that the finding of the AO in discussing the modus operandi of the scam and also discussed various statements of the exit providers is only general in nature which nowhere state the name of the assessee. The AO has also failed to establish a link among these reports, statements and the investment made by the assessee and therefore the addition made can not be sustained. The case of the assessee finds support from the decision of the Hon’ble Apex Court in the case of Adamine Construction Pvt. Ltd. 99 taxman 45 wherein while dismissing the appeal of the Revenue has referred to the following observation of the Hon’ble Delhi High Court. “What is evident is that the AO went by only the report received and did not make the necessary further enquiries - such as into the bank accounts or other particulars available with him but rather received the entire findings on the report, which cannot be considered as primary material. The assessee had discharged the onus initially cast upon it by providing the basic details which were not suitably enquired into by the AO.”

16 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain 9.1. Further, we note that the AO has relied on the statement of his third parties without affording any reasonable opportunity to the assessee to cross examine those parties which is in violation of principle of natural justice as has been held by the Hon’ble Apex Court in the case of Andaman Timber Industries vs. CCE (CA) No.4228 of 2006 wherein it was held that not allowing assessee to cross examine the witness by adjudicating authority though the statements of 6 witnesses were made the basis of the impugned order is nullity in as much as which amounts to violation of principles of natural justice because of which the assessee was adversely affected. Besides the addition merely on the basis of suspicion, conjuncture and surmises can not be sustained. The case of the assessee finds support from the decision of Hon’ble Apex court in the case of Omar Salay Mohamed Sait V/s CIT (1959) 37 ITR 151(SC). The Hon’ble Apex Court in the case of Umacharan Shaw & Bros. vs CIT (1959 37 ITR 271) has held that suspicion how so far strong could not take the character of legal evidence. Thus we note that none of the parties alleged by the Revenue such as broker, operator, directors, exit providers etc. whose statements were recorded by the Directorate of Investigation Wing, Kolkata stated the name of the appellant. The case of the assessee is supported by a series of decisions as has been relied upon by the Ld. Counsel of the assessee during the appellate proceedings before us as under:

(a) In the case of Kunal Dedhia vs. DCIT A.Y. 2014-15 & ors. order dated 31.07.2020 the Bench observed as under:

17 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain “22. The provisions of section 68 of the Income Tax Act, 1961 deals with a case, where any sum found credited in the books of accounts of an assessee in any financial year and assessee offers no explanation about nature and source or explanation offered by the assessee is not satisfactory in the opinion of the AC, then sum credited may be charged to tax for that assessment year. In case, any sum found credited in any financial year, the assessee is required to prove, the identity, genuineness of transaction and credit worthiness of the creditor. In this case, although the AO has brought sum received towards sale of shares as unexplained credit, but the same-needs to be examined with reference to first two aspects of section 68 of the Act, being the identity and genuineness of the transaction and the other aspect being credit worthiness is strictly not necessary, because the sum received towards sale of shares is neither a loan nor a credit. Therefore, the transaction is required to be tested under first two limbs, i.e. the identity and the genuineness of the transaction. To prove identity of sum received towards sale of shares, the assessee has filed complete details of amount received from the broker who facilitate transfer of shares including, contract note issued by the broker for sale of shares in BSE, ledger polio signed by the broker, confirmation from the broker. In fact, there is no dispute with regard to identity of the broker, because the broker who sold shares for the assessee was a registered broker with BSE/NSE, In so far as genuineness of transaction, transfer of shares is made through demat format in BSE platform. There is no link or nexus between the buyer of shares and the assessee. Although, the AO, linked sale of shares to so called exit providers from whom the assessee had initially purchased shares, but said transaction was done almost two year later. The assesses has paid STT on transfer of shares. The shares have been transferred to the buyer after payment of applicable stamp- duty and the share transfer agent endorsed the sale. The sale proceeds have been paid thorough bank. The sale has been made on the prevailing quoted rate in stock exchange on the date of sale. As regards allegation of the AO regarding jacking of shares price through group of persons involved in the alleged scam, we find that although SEBI has suspended trading particular Script in BSE/NSE pending enquiry, but after enquiry suspension was revoked and only after the script, was again starts trading in exchanges, the assessee has purchased shares. From the above, it is very clear that the observations of the AO in his assessment order on the basis of report of investigation wing, Kolkata is a general observation of modus operandi of certain brokers may be involved in alleged scam of LTCG, but it cannot be a conclusive evidence to draw an adverse inference against the assessee of having benefited from so called alleged scarn. No doubt, an alleged scam may have taken place. But, it has to be seen whether the assessee is part of an alleged scam and he had any direct or indirect role in alleged scam. Unless, the evidences in the possession of the AO directly or indirectly linked to the assessee, it is difficult to implicate the assessee in the alleged scam. This is because, suspicion however strong, cannot take place of evidence as held by the Hon'ble Supreme Court in the case of Umacharan Shaw & Bros vs. CIT(1959) 37 ITR 271(SC). In our considered view, on the basis suspicion, modus operand!, preponderance of human probabilities, the claim of assessee cannot be discarded, unless specific evidences are brought on record to controvert voluminous evidences filed by the assessee. This view is fortified by the decision of Hon'ble Supreme Court in the 18 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain case of Oman Salay Mohamed Sait vs. CIT (1959) 37 ITR 151(SC> where it was held that no addition can be made on the basis of suspicion and conjectures. In the case of CIT vs. Daulat Ram Rawatmuil (1973) 87 ITR 349 (SC) it was held that the onus to prove that apparent is not real is on the person who claims it to be so.”

(b) In the case of Vijayrattan Balkrishan Mittal vs. DCIT & ors. order dated 01.10.2019, the co- ordinate Bench has held under similar facts by following various decisions of the Apex Court and Hon’ble Bombay High Court that addition made while rejecting the claim of the assessee under section 10(38) of the Act be deleted vide para No.30 to 37 of the said decision.

(c) In the case of Mukesh B. Sharma vs. ITO A.Y. 2014-15 order dated 29.05.2019 the scip involved was of the same company and the addition was deleted by the co-ordinate Bench by observing and holding as under: “6. We have heard the rival submissions. The primary facts stated hereinabove remain undisputed and hence the same are not reiterated for the sake of brevity. The assessee submitted the following details with regard to purchase of shares :- a) Copy of relevant extract of bank statement reflecting the payment of Rs 30 lacs made by the assessee by account payee cheque to the company directly and source thereof along with allotment letter issued by the said company (i.e GIFL) and copy of share certificate issued by GIFL to the assessee on 12.6.2012. These documents are enclosed in pages 71 to 73 of Paper Book. b) Demat account held with NKGSB Co-operative Bank Limited reflecting credit of shares purchased (enclosed in page 154 of Paper Book). c) Copy of approval letter from GIFL. d) Copy of allotment letter from GIFL for shares allotted to the assessee. e) Copy of share certificate issued by GIFL. f) Various events reported by GIFL to BSE.

6.1. The assessee submitted the following details with regard to sale of shares:- a) Copy of demat statement reflecting the sale of shares. b) Copies of Contract Notes issued by both the brokers for sale of shares.

19 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain c) Copy of Holding Statement for financial years 2012-13 and 2013-14. d) Price chart of GIFL from the date of purchase of shares till the recent period. e) Copy of relevant extract of bank statement of the assessee reflecting the sale proceeds received from the broker and credited to the bank account.

6.2 We find that the assessee pleaded that in an online platform, there would be no nexus between the purchasers and the seller and the delivery of shares and payments would be made through their respective stock brokers. Hence the ld AO ought to have summoned the assessee’s brokers to examine the authenticity of the sale of shares of GIFL and the amount received on sale of shares. We find that the ld AR also placed evidences on record to prove that the said company GIFL is still listed in the stock exchange and shares of this company are being traded and SEBI had not passed any adverse order against the said company. We find that the details of revenue and profits of GIFL for various years are as under:- Financial Year ending Revenue Profit 31.3.2012 191 lacs 7.97 lacs 31.3.2013 1515.58 lacs 105.13 lacs 31.3.2014 2487 lacs 161 lacs 31.3.2015 3836 lacs 76 acs 6.3. We find that the ld AO had placed reliance on certain statements recorded by the Investigation wing of Kolkata Income Tax Department during some survey proceedings conducted in third party cases. We find that in none of those statements, the name of the assessee or the name of the brokers through whom assessee had transacted were mentioned. We also find that there is no mention of any connivance on the part of the assessee with the share broker and stock exchange to launder the unaccounted monies of the assessee and bring it back in the form of sale proceeds of shares and claim exemption u/s 10(38) of the Act for the long term capital gains derived thereon. None of the parties on whom survey actions were conducted in Kolkata were related to assessee or the brokers in any manner whatsoever. We find that the various purchase and sale details together with the supporting evidences were not controverted by the revenue before us. Even the cross examination of the parties mentioned in the show cause notice issued to the assessee by the ld AO were sought by the assessee and the same were refused by the ld AO . We find that the ld AO had also placed reliance on the order passed by SEBI while concluding that the transactions carried out by the assessee in the form of sale of shares as sham and bogus. From the perusal of the SEBI order dated 25.8.2016 in the case of First Financial Services Ltd, we find that from the extracts thereon, that it was stated that M/s GIFL was involved in providing exit to the sellers of equity shares of First Financial Services Ltd and no where stated that this company was involved in providing accommodation entries in the form of capital gains by 20 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain transacting its own shares through the alleged bogus operators. We also find that the SEBI had passed on order dated 8.1.2018 in the case of GIFL, wherein it was found that the name of the assessee herein or the brokers through whom the assessee transacted were not even included in the said order as parties against whom any adverse inference / findings were found in respect of violation of provisions of SEBI. We find that SEBI had issued a show cause notice vide Reference SEBI/EAD- 12/SM/EE/693/25/2018 dated 8.1.2018 which are enclosed in pages 252 to 266 of the paper book. In pages 257 and 258 of the Paper Book, the list of parties to whom show cause notices were issued by SEBI is listed out. In the entire list, neither the name of the assessee nor his lbrokers were included. Later there was another show cause notice vide Reference EFD/DRA3/OW/NB/6663/2018 dated 1.3.2018 was issued by Enforcement Department of SEBI mentioning the list of parties to whom show cause notices were issued. Even in this list, the name of the assessee or his broker was not included by SEBI. Hence it could be safely concluded that SEBI did not allege any wrong doing on the part of the assessee or his brokers with regard to carrying out transactions in sale of shares of GIFL in open market in online platform. In this subsequent show cause notice dated 1.3.2018, the SEBI also takes records the fact of issuance of shares on preferential allotment basis on 12.6.2012 by GIFL to various parties (which includes the assessee also though not named in the SEBI show cause notice). In this show cause notice also, the SEBI only accused Notice No. 1 to 7 listed in the said notice which admittedly does not include the assessee or his brokers, to have engaged in manipulation of price of the scrip of GIFL. The said show cause notice dated 1.3.2018 also stated that Notice Nos. 13 to 46 listed in the said notice which admittedly does not include the assessee or his brokers, to have sold the shares at inflated price and booked substantial profit. The said show cause notice dated 1.3.2018 also stated Notices Nos. 8 to 12 (which admittedly does not include the assessee or his brokers) were part of the manipulative scheme to make preferential allotment and manipulate the price, through, entities connected to company and promoter, to benefit promoter, promoter related entities and connected preferential allottees. It is not the case of the revenue that the assessee or his brokers were either the promoters of GIFL, or promoter related entities of GIFL or related to connected preferential allottees thereon. Hence it could be safely concluded that the SEBI had not found any adverse findings with regard to the assessee or his registered share brokers vis a vis GIFL. Hence there is absolutely no iota of evidence linking the assessee or the registered brokers to even remotely allege that they were involved in artificial rigging of price of scrips which were dealt by the assessee herein.

6.4 We find that the ld AO had stated that GIFL is a company of no value. The revenue stream and the profitability chart reproduced hereinabove does not support the case of the ld AO. Moreover, the status reported by the ld AO about GIFL was in Asst Year 2008-09 which is neither the year of purchase of shares by the assessee 21 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain nor the year of sale of shares in open market. Hence those findings are totally irrelevant for adjudication of the issue before us. 6.5. We find that the revenue had merely disbelieved the entire documentary evidences on record and alleged the share sale transactions made in the open market as bogus based on the statements recorded during survey, which does not have any evidentiary value. Reliance in this regard is placed on the decision of Hon’ble Madras High Court in the case of S.Khader Khan (2008) 300 ITR 157 (MAD) assumes significance, wherein it was held that :- “An admission is an extremely important piece of evidence , but it cannot be said that it is conclusive and it is open to the person , who made it, to show it has incorrectly been made and the person, making the statement should be given proper opportunity to show that it does not show the correct state of facts.” The materials found in the course of survey could not be the basis for making any addition in the assessment. The word “may” used in section 133A(3)(iii) makes it clear that the material collected and statement recorded during the survey u/s 133A of the Act are not conclusive piece of evidences by itself. The aforesaid decision was affirmed by the Honourable Supreme Court in CIT , Salem vs S.Khader Khan in Civil Appeal No. 13224 of 2008 & 6747 of 2012 dated 20.9.2012, wherein their Lordships of Supreme Court held as under:- CIT vs S Khader Khan Son reported in (2012) 25 taxmann.com 413 (SC) / 210 Taxman 248 (SC) and 254 CTR 228 (SC)

“Heard Counsel on both the sides. Leave granted. The civil appeal filed by the department pertains to Assessment Year 2001- 02. In view of the concurrent findings of fact, this civil appeal is dismissed. ” In any case, we find that these statements were never subjected to any cross examination by the assessee despite the request made by the assessee in this regard, which has been summarily rejected by the ld AO. This fact is also recorded by the ld AO in his assessment order. Hence in these circumstances, we hold that no addition could be made merely based on the statements recorded during survey. 6.6. One more excruciating factor which goes in favour of the assessee is that the assessee had sold only 883000 shares out of 2000000 shares held by him and the remaining shares were retained by the assessee. Hence the allegations leveled on the assessee that assessee had converted his unaccounted money in the form of long term capital gains claimed as exempt does not hold water . Even these 883000 shares were sold after holding the same for a substantial minimum period of 26 months by the assessee from the date of its purchase. Moreover, when the purchase of shares made by the assessee has been accepted as genuine which was done in Asst Year 2013-14, the sale of the very same shares in part in Asst Year 2014-15 in open market at prevailing market prices after suffering STT should not be doubted . None of the documents filed by the assessee with regard to purchase and sale of shares have been found to be deficient in any manner whatsoever by the revenue. From the turnover chart stated hereinabove, it could be seen that the revenue of GIFL had increased from Rs 191 lacs as on 31.3.2012 to Rs 2487 lacs as on 31.3.2014. This goes to prove that the projections given by the said company in its invitation letter to the assessee requesting for making preferential application of shares had proved to be correct and cannot be doubted.

22 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain 6.7. We find that the ld AO had furnished certain list of parties who were alleged purchasers of shares from the assessee when it was sold in the open market by the assessee. The assessee had pleaded that since the shares were sold in the open market in online platform, he is not aware of the name of the parties as to who had bought the same in the open market. The ld AO sought to issue summons to those alleged purchasers of shares u/s 131 of the Act, which remain uncomplied by those parties. Based on this, the ld AO had drawn an adverse inference against the assessee disregarding the entire documentary evidences on record and the prevailing market practices with regard to purchase and sale of shares in the open market in online platform. It is not in dispute that the assessee had received the sale proceeds of shares from the registered broker through the stock exchange only and not from the alleged purchasers of shares directly. Moreover, the ld AO states that the assessee had sold the shares at Rs 211.76 per share whereas the average sale price of the assessee was only Rs 89 per share. 6.8. We find that the ld DR made general submissions with regard to the investigations carried out by Kolkata Income Tax Department after identifying 84 scrips to be penny stocks and the modus operandi adopted by those scrips with the connivance of various entry operators, brokers and stock exchange. We find that the ld DR was not specifically able to controvert the documentary evidences filed by the assessee for purchase and sale of shares and various other documents referred to in the Paper Book more particularly the SEBI show cause notice as detailed hereinabove, except stating that SEBI show cause notice was issued in the name of GIFL, the scrip in which assessee dealt. The ld DR also sought permission from the Bench to grant time for filing his written submissions with regard to the entire appeal. No such written submission was filed by the ld DR till the date of dictation of this order. The ld DR drew our attention to the statement recorded from the assessee by the ld AO during the course of assessment proceedings on 19.12.2016, the gist of which is mentioned in page 31 of Assessment Order. We have gone through the same and we find that the assessee had stated before the ld AO that he had made investment in shares of GIFL without looking into the fundamentals of the said company and based on information given by a family friend. We have already seen the documentary evidences available on record wherein the assessee in response to an invitation letter issued by GIFL for making investment in preferential allotment basis, had issued account payee cheques and got the shares allotted in his name on preferential allotment basis. These facts have also been noted by SEBI in the second show cause notice dated 1.3.2018 which has been discussed hereinabove. Merely because the assessee himself is engaged in independent manufacturing business , it cannot be said that all his investment decisions would be prudent and would be done only after analyzing the entire fundamentals and financials of the investee company. It is in everybody’s knowledge, that an investor would try to take calculated risks by investing his money on an unknown scrip based on certain information from friends, relatives, or in some stock market related websites and take a chance. Since the scrip purchased by the assessee was showing considerable growth from the time of purchase, the assessee being a gullible investor, continued to hold it for a period of 26 months and later sold it in open market in online platform at prevailing market prices. 6.9. We find that the co-ordinate bench of Kolkata Tribunal in ITA No.354/Kol/2018 in Sanjeev Goel (HUF) vs. ITO dated 24.08.2018 on similar set of facts and circumstances had held as follows:-

23 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain “4. We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 5. In identical cases, the submission of the assessee, findings of the Assessing Officer, findings of the ld. CIT(A) and the conclusion of the Tribunal have been brought out as under:- 6. The addition was made by the Assessing Officer by observing as under:- i. The initial allotment of shares to beneficiaries is generally done through preferential allotment. ii. The market price of shares of these companies rise to very high level within a span of one year. iii. The trading volume of shares during the period, in which manipulations are done to raise the market price, is extremely thin. iv. Most of the purported investors are returned their initial investment amount in cash. Only small amount is retained by the operator as security. Thus, an enquiry would reveal that most of the capital receipts through preferential allotment or other means would have found their way out of system as cash. v. Most of these companies have no business at all. Few of the companies which have some business do not have the credentials to justify the sharp rise in Market Price of their shares. vi. The sharp rise in market price of the shares of these entities is not supported by fundamentals of the company or any other genuine factors. vii. An analysis in respect of persons involved in transactions apparently carried out in order to jack up the share prices has been done in respect of 84 companies. It has been noted that many common persons/entities were involved in trading in more than 1 LTCG companies during the period when the shares were made to rise which implies that they had contributed to such price rise. viii. Names of most of the LTCG companies are changed during the period of the scam. ix. Most of the companies split the face value of shares [this is probably done to avoid the eyes of market analysts]. x. The volume of trade jumps manifold immediately when the market prices of shares reach at optimum level so as to result in LTCG assured to the beneficiaries. This maximum is reached around the time when the initial allottees have held the shares for one year or little more and thus, their gain on sale of such shares would be eligible for exemption from Income Tax. xi. An analysis of share buyers of some of LTCG companies was done to see if there were common persons/entities involved in buying the bogus inflated shares. It was noted that there were many common buyers [which were paper companies]. xii. The prices of the shares fall very sharply after the shares of LTCG beneficiaries have been off loaded through the pre-arranged transactions on the Stock Exchange floor/portal to the Short Term Loss seekers or dummy paper entities.

24 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain xiii. The shares of these companies are not available for buy/sell to any person outside the syndicate. This is generally ensured by way of synchronized trading by the operators amongst themselves and/or by utilizing the mechanism of upper/lower circuit of the Exchange.

7. Aggrieved the assessee carried the matter in appeal.

8. The First Appellate Authority upheld the order of the Assessing Officer by giving his findings as follows:- a) The AO had placed on record the entire gamut of finding and there is no further requirement for elaboration. b) There is direct evidence to clearly indicate that the entire transaction undertaken by the assessee was merely an accommodation taken for the purpose of bogus long term capital gains to claim exempt income. The authorities such as SEBI have after investigating such abnormal price increase of certain stocks, suspended certain scrips. c) The submissions of the assessee pointed out towards elaborate documentation such as : i) Application of shares. ii) Allotment of shares. iii) Share Certificates iv) Payment by cheques v) Filings before Registrar of Companies. vi) Proof of amalagamation of companies. vii) Copies of bank statement, viii) Bank contract notes. ix) Delivery instruction to the broker etc. d) The elaborate paper book is filed to strengthen the matter relevant to bogus claim of LTCG, and this is clearly been schemed and pre-planned with malafide intention. Therefore, all these documents are not evidence. e) The transactions are unnatural and highly suspicious. There are grave doubts in the story propounded by the assessee before the authorities below. Banking documents are mere self-serving recitals.

25 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain 11. The Kolkata Bench of the ITAT in a number of decisions have, on similar facts and circumstances of the case, decided the issue in favour of the assessee. We list some of these decisions:- • Shri Gautam Kumar Pincha vs. ITO, ITA No. 569/Kol/2017, dt. 15/11/2017 • ITO vs. Shri Shaleen khemani, ITA No. 1945/Kol/2014, dt. 18/10/2017 • Mahendra Kumar Baid vs. ACIT, Circle-35; ITA No. 1237/Kol/2017; order dt. 18/08/2017 • Kiran Kothari HUF vs. ITO, ITA No. 443/kol/2017, order dt. 15/11/2017 The Hon’ble Jurisdictional High Court on similar facts, had in the following cases, upheld the claim of the assessee:- • CIT vs. Shreyashi Ganguli (ITA No. 196 of 2012) (Cal HC) 2012 (9) TMI 1113 • CIT vs. Rungta Properties Private Limited (ITA No. 105 of 2016) (Cal HC)dt. 08/05/2017 • CIT vs. Bhagwati Prasad Agarwal (2009 TMI-34738 (Cal HC) in ITA No. 22 of 2009 dated 29.04.2009

11. Recently, the Kolkata ‘C’ Bench of the Tribunal in the case of Navneet Agarwal,-vs- ITO, Ward-35(3), Kolkata; Assessment Year: 2014-15, while dealing with identical issue of sale of shares of M/s. Cressenda Solutions Pvt. Ltd., decided the issue in favour of the assessee by relying upon a plethora of judgments of various Courts. It held as follows:- “12. The assessing officer as well as the Ld. CIT(A) have rejected these evidences filed by the assessee by referring to “Modus Operandi” of persons for earning long term capital gains which his exempt from income tax. All these observations are general in nature and are applied across the board to all the 60,000 or more assessees who fall in this category. Specific evidences produced by the assessee are not controverted by the revenue authorities. No evidence collected from third parties is confronted to the assesses. No opportunity of cross-examination of persons, on whose statements the revenue relies to make the addition, is provided to the assessee. The addition is made based on a report from the investigation wing.

13. The issue for consideration before us is whether, in such cases, the legal evidence produced by the assessee has to guide our decision in the matter or the general observations based on statements, probabilities, human behavior and discovery of the modus operandi adopted in earning alleged bogus LTCG and STCG, that have surfaced during investigations, should guide the authorities in arriving at a conclusion as to whether the claim in genuine or not. An alleged scam might have taken place on LTCG etc. But it has to be established in each case, by the party alleging so, that this assessee in quesiton was part of this scam. The chain of events and the live link of the assesee’s action giving her involvement in the scam should be established. The allegation imply that cash was paid by the assessee and in return the assessee received LTCG, which is income exempt from income tax, by way of cheque through Banking channels. This allegation that cash had changed hands, has to be proved with 26 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain evidence, by the revenue. Evidence gathered by the Director Investigation’s office by way of statements recorded etc. has to also be brought on record in each case, when such a statement, evidence etc. is relied upon by the revenue to make any additions. Opportunity of cross examination has to be provided to the assesee, if the AO relies on any statements or third party as evidence to make an addition. If any material or evidence is sought to be relied upon by the AO, he has to confront the assessee with such material. The claim of the assessee cannot be rejected based on mere conjectures unverified by evidence under the pretentious garb of preponderance of human probabilities and theory of human behavior by the department.

14. It is well settled that evidence collected from third parties cannot be used against an assessee unless this evidence is put before him and he is given an opportunity to controvert the evidence. In this case, the AO relies only on a report as the basis for the addition. The evidence based on which the DDIT report is prepared is not brought on record by the AO nor is it put before the assessee. The submission of the assessee that she is just an investor and as she received some tips and she chose to invest based on these market tips and had taken a calculated risk and had gained in the process and that she is not party to the scam etc., has to be controverted by the revenue with evidence. When a person claims that she has done these transactions in a bona fide and genuine manner and was benefitted, one cannot reject this submission based on surmises and conjectures. As the report of investigation wing suggests, there are more than 60,000 beneficiaries of LTCG. Each case has to be assessed based on legal principles of legal import laid down by the Courts of law.

Adverting to the various probabilities which weighed with the Income-tax Officer we may observe that the notoriety for smuggling food grains and other commodities to Bengal by country boats acquired by Sahibgunj and the notoriety achieved by Dhulian as a great receiving centre for such commodities were merely a background of suspicion and the appellant could not be tarred with the same brush as every arhatdar and grain merchant who might have been indulging in smuggling operations, without an iota of evidence in that behalf. The cancellation of the food grain licence at Nawgachia and the prosecution of the appellant under the Defence of India Rules was also of no consequence inasmuch as the appellant was acquitted of the offence with which it had been charged and its licence also was restored. The mere possibility of the appellant earning considerable amounts in the year under consideration was a pure conjecture on the part of the Income-tax Officer and the fact that the appellant indulged in speculation (in 28 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain Kalai account) could not legitimately lead to the inference that the profit in a single transaction or in a chain of transactions could exceed the amounts, involved in the high denomination notes,--- this also was a pure conjecture or surmise on the part of the Income-tax Officer. As regards the disclosed volume of business in the year under consideration in the head office and in branches the Income-tax Officer indulged in speculation when he talked of the possibility of the appellant earning a considerable sum as against which it showed a net loss of about Rs. 45,000. The Income-tax Officer indicated the probable source or sources from which the appellant could have earned a large amount in the sum of Rs. 2,91,000 but the conclusion which he arrived at in regard to the appellant having earned this large amount during the year and which according to him represented the secreted profits of the appellant in its business was the result of pure conjectures and surmises on his part and had no foundation in fact and was not proved against the appellant on the record of the proceedings. If the conclusion of the Income-tax Officer was thus either perverse or vitiated by suspicions, conjectures or surmises, the finding of the Tribunal was equally perverse or vitiated if the Tribunal took count of all these probabilities and without any rhyme or reason and merely by a rule of thumb, as it were, came to the conclusion that the possession of 150 high denomination notes of Rs. 1,000 each was satisfactorily explained by the appellant but not that of the balance of 141 high denomination notes of Rs. 1,000 each The observations of the Hon’ble Apex Court are equally applicable to the case of the assessee. In our view the assessing officer having failed to bring on record any material to prove that the transaction of the assessee was a collusive transaction could not have rejected the evidences submitted by the assessee. In fact in this case nothing has been found against the assessee with aid of any direct evidences or material against the assessee despite the matter being investigated by various wings of the Income Tax Department hence in our view under these circumstances nothing can be implicated against the assessee.

“23. A Constitution Bench of this Court in State of M.P. v. Chintaman Sadashiva Vaishampayan AIR 1961 SC 1623, held that the rules of natural justice, require that a party must be given the opportunity to adduce all relevant evidence upon which he relies, and further that, the evidence of the opposite party should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party. Not providing the 29 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain said opportunity to cross-examine witnesses, would violate the principles of natural justice. (See also: Union of India v. T.R. Varma, AIR 1957 SC 882; Meenglas Tea Estate v. Workmen, AIR 1963 SC 1719; M/s. Kesoram Cotton Mills Ltd. v. Gangadhar and Ors. ,AIR 1964 SC 708; New India Assurance Co. Ltd. v. Nusli Neville Wadia and Anr. AIR 2008 SC 876; Rachpal Singh and Ors. v. Gurmit Singh and Ors. AIR 2009 SC 2448; Biecco Lawrie and Anr. v. State of West Bengal and Anr. AIR 2010 SC 142; and State of Uttar Pradesh v. Saroj Kumar Sinha AIR 2010 SC 3131).

“4. We have heard Mr. Kavin Gulati, learned senior counsel appearing for the Assessee, and Mr. K. Radhakrishnan, learned senior counsel who appeared for the Revenue.

6. As mentioned above, the Appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the 31 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain Adjudicating Authority to presuppose as to what could be the subject matter of the cross- examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17-3-2005 [2005 (187) E.L.T. A33 (S.C.)] was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions.

7. In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on the basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the show cause notice.”

c) The Hon’ble Punjab and Haryana High Court in the case of PREM PAL GANDHI [ITA-95-2017 (O&M)] dated 18.01.2018 at vide Page 3 Para 4 held as under: “….. The Assessing Officer in both the cases added the appreciation to the assessee’s’ income on the suspicion that these were fictitious transactions and that the appreciation actually represented the assessee’s’ income from undisclosed sources. In ITA-18-2017 also the CIT (Appeals) and the Tribunal held that the Assessing Officer had not produced any evidence whatsoever in support of the suspicion. On the other hand, although the appreciation is very high, the shares were traded on the National Stock Exchange and the payments and receipts were routed through the bank. There was no evidence to indicate for instance that this was a closely held company and that the trading on the National Stock Exchange was manipulated in any manner.” The Court also held the following vide Page 3 Para 5 the following: “Question (iv) has been dealt with in detail by the CIT (Appeals) and the Tribunal. Firstly, the documents on which the Assessing Officer relied upon in the appeal were not put to the assessee during the assessment proceedings. The CIT (Appeals) nevertheless considered them in detail and found that there was no co-relation between the amounts sought to be added and the entries in those documents. This was on an appreciation of facts. There is nothing to indicate that the same was perverse or irrational. Accordingly, no question of law arises.” d) The BENCH “D” OF KOLKATA ITAT in the case of GAUTAM PINCHA [ITA No.569/Kol/2017] order dated 15.11.2017 held as under vide Page 12 Para 8.1: “In the light of the documents stated i.e. (I to xiv) in Para 6(supra) we find that there is absolutely no adverse material to implicate the assessee to have entered gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts 33 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain supported with material evidences which are on record and could only rely on the orders of the AO/CIT (A). We note that in the absence of material/evidence the allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore also fail. At the cost of repetition, we note that the assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. These evidences were neither found by the AO nor by the ld. CIT (A) to be false or fictitious or bogus. The facts of the case and the evidence in support of the evidence clearly support the claim of the assessee that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee that income from LTCG is exempted u/s 10(38) of the Act.”

Further in Page 15 Para 8.5 of the judgment, it held: “We note that the ld. AR cited plethora of the case laws to bolster is claim which are not being repeated again since it has already been incorporated in the submissions of the ld. AR (supra) and have been duly considered by us to arrive at our conclusion. The ld. DR could not bring to our notice any case laws to support the impugned decision of the ld. CIT (A)/AO. In the aforesaid facts and circumstances of the case, we hold that the ld. CIT (A) was not justified in upholding the addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 of the Act. We, therefore, direct the AO to delete the addition.” e) The BENCH “D” OF KOLKATA ITAT in the case of KIRAN KOTHARI HUF [ITA No. 443/Kol/2017] order dated 15.11.2017 held vide Para 9.3 held as under: “…….. We find that there is absolutely no adverse material to implicate the assessee to the entire gamut of unfounded/unwarranted allegations leveled by the AO against the assessee, which in our considered opinion has no legs to stand and therefore has to fall. We take note that the ld. DR could not controvert the facts which are supported with material evidences furnished by the assessee which are on record and could only rely on the orders of the AO/CIT(A). We note that the allegations that the assessee/brokers got involved in price rigging/manipulation of shares must therefore consequently fail. At the cost of repetition, we note that the assessee had furnished all relevant evidence in the form of bills, contract notes, demat statement and bank account to prove the genuineness of the transactions relevant to the purchase and sale of shares resulting in long term capital gain. Neither these evidences were found by the AO nor by the ld. CIT(A) to be false or fictitious or bogus. The facts of the case and the evidence in support of the evidence clearly support the claim of the assessee 34 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain that the transactions of the assessee were genuine and the authorities below was not justified in rejecting the claim of the assessee exempted u/s 10(38) of the Act on the basis of suspicion, surmises and conjectures. It is to be kept in mind that suspicion how so ever strong, cannot partake the character of legal evidence. It further held as follows: “We note that the ld. AR cited plethora of the case laws to bolster his claim which are not being repeated again since it has already been incorporated in the submissions of the ld. AR (supra) and have been duly considered to arrive at our conclusion. The ld. DR could not bring to our notice any case laws to support the impugned decision of the ld. CIT(A)/AO. In the aforesaid facts and circumstances of the case, we hold that the ld. CIT(A) was not justified in upholding the addition of sale proceeds of the shares as undisclosed income of the assessee u/s 68 of the Act. We therefore direct the AO to delete the addition.” f) The BENCH “A” OF KOLKATA ITAT in the case of SHALEEN KHEMANI [ITA No. 1945/Kol/2014] order dated 18.10.2017 held as under vide Page 24 Para 9.3:

We therefore hold that there is absolutely no adverse material to implicate the assessee to the entire gamut of unwarranted allegations leveled by the ld AO against the assessee, which in our considered opinion, has no legs to stand in the eyes of law. We find that the ld DR could not controvert the arguments of the ld AR with contrary material evidences on record and merely relied on the orders of the ld AO. We find that the allegation that the assessee and / or Brokers getting involved in price rigging of SOICL shares fails. It is also a matter of record that the assessee furnished all evidences in the form of bills, contract notes, demat statements and the bank accounts to prove the genuineness of the transactions relating to purchase and sale of shares resulting in LTCG. These evidences were neither found by the ld AO to be false or fabricated. The facts of the case and the evidences in support of the assessee’s case clearly support the claim of the assessee that the transactions of the assessee were bonafide and genuine and therefore the ld AO was not justified in rejecting the assessee’s claim of exemption under section 10(38) of the Act. g) The BENCH “H” OF MUMBAI ITAT in the case of ARVIND KUMAR JAIN HUF [ITA No.4682/Mum/2014] order dated 18.09.2017 held as under vide Page 6 Para 8:

……We found that as far as initiation of investigation of broker is concerned, the assessee is no way concerned with the activity of the broker. Detailed finding has been recorded by CIT (A) to the effect that assessee has made investment in shares which was 35 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain purchased on the floor of stock exchange and not from M/s Basant Periwal and Co. Against purchases payment has been made by account payee cheque, delivery of shares were taken, contract of sale was also complete as per the Contract Act, therefore, the assessee is not concerned with any way of the broker. Nowhere the AO has alleged that the transaction by the assessee with these particular broker or share was bogus, merely because the investigation was done by SEBI against broker or his activity, assessee cannot be said to have entered into ingenuine transaction, insofar as assessee is not concerned with the activity of the broker and have no control over the same. We found that M/s Basant Periwal and Co. never stated any of the authority that transactions in M/s Ramkrishna Fincap Pvt. Ltd. On the floor of the stock exchange are ingenuine or mere accommodation entries. The CIT (A) after relying on the various decision of the coordinate bench, wherein on similar facts and circumstances, issue was decided in favour of the assessee, came to the conclusion that transaction entered by the assessee was genuine. Detailed finding recorded by CIT (A) at para 3 to 5 has not been controverted by the department by bringing any positive material on record. Accordingly, we do not find any reason to interfere in the findings of CIT (A). h) The Hon’ble Punjab and Haryana High Court in the case of VIVEK MEHTA [ITA No. 894 OF 2010] order dated 14.11.2011 vide Page 2 Para 3 held as under: “On the basis of the documents produced by the assessee in appeal, the Commissioner of Income Tax (Appeal) recorded a finding of fact that there was a genuine transaction of purchase of shares by the assessee on 16.3.2001 and sale thereof on 21.3.2002. The transactions of sale and purchase were as per the valuation prevalent in the Stocks Exchange. Such finding of fact has been recorded on the basis of evidence produced on record. The Tribunal has affirmed such finding. Such finding of fact is sought to be disputed in the present appeal. We do not find that the finding of fact recorded by the Commissioner of Income Tax in appeal, gives give rise to any question(s) of law as sought to be raised in the present appeal. Hence, the present appeal is dismissed.” i) The Hon’ble Jurisdictional Calcutta High Court in the case of CIT vs. Bhagwati Prasad Agarwal in dated 29.04.2009 at para 2 held as follows: “The tribunal found that the chain of transaction entered into by the assessee have been proved, accounted for, documented and supported by evidence. The assessee produced before the Commissioner of Income Tax(Appeal) the contract notes, details 36 ITA No. 6068/M/2019 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain of his Demat account and, also, produced documents showing that all payments were received by the assessee through bank.” j) The Hon’ble Supreme Court in the case of PCIT vs. Teju Rohitkumar Kapadia order dated 04.05.2018 upheld the following proposition of law laid down by the Hon’ble Gujarat High Court as under: “It can thus be seen that the appellate authority as well as the Tribunal came to concurrent conclusion that the purchases already made by the assessee from Raj Impex were duly supported by bills and payments were made by Account Payee cheque. Raj Impex also confirmed the transactions. There was no evidence to show that the amount was recycled back to the assessee. Particularly, when it was found that the assessee the trader had also shown sales out of purchases made from Raj Impex which were also accepted by the Revenue, no question of law arises.”

12. Consistent with the view taken therein, as the facts and circumstances of this case are same as the facts and circumstances of the cases of Navneet Agarwal (supra), we delete the addition made u/s 68 of the Act, on account of sale of shares in the case of both the assessees. The consequential addition u/s 69C is also deleted. Accordingly both the appeals of the assessee are allowed.”

6.10. It would be pertinent to address the case law relied upon by the ld DR before us on the decision of Hon’ble Bombay High Court (Nagpur Bench) in the case of Sanjay Bimalchand Jain vs Pr.CIT (Nagpur) reported in (2018) 89 taxmann.com 196 (Bombay) dated 10.4.2017 on the impugned issue. From the facts of Sanjay Bimalchand Jain supra, we find that (i) in that case, the broker company through which the shares were sold did not respond to AO’s letter regarding the names and address and bank account of the person who purchased the shares sold by the assessee ; (ii) Moreover, at the time of acquisition of shares of both the companies by the assessee, the payments were made in cash ; (iii) The address of both the companies were interestingly the same ; (iv) The authorized signatory of both the companies were also the same person ; (v) The purchase of shares of both the companies was done by that assessee through broker, GSSL and the address of the said broker was incidentally the address of the two companies. Based on these crucial facts, the Hon’ble Bombay High Court rendered the decision in favour of the revenue. None of these factors were present in the facts of the 37 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain assessee before us. Hence it could be safely concluded that the decision of Hon’ble Bombay High Court supra is factually distinguishable. 6.11. We find that the Hon’ble Jurisdictional High Court in the case of CIT vs Mukesh Ratilal Marolia in ITA No. 456 of 2007 dated 7.9.2011 had held as under:- 5. On further appeal, the ITAT by the impugned order allowed the claim of the assessee by recording that the purchase of shares during the year 1999- 2000 and 2000-2001 were duly recorded in the books maintained by the Assessee. The ITAT has recoded a finding that the source of funds for acquisition of the shares was the agricultural income which was duly offered and assessed to tax in those Assessment Years. The Assessee has produced certificates from the aforesaid four companies to the effect that the shares were in-fact transferred to the name of the Assessee. In these circumstances, the decision of the ITAT in holding that the Assessee had purchased shares out of the funds duly disclosed by the Assessee cannot be faulted.

6. Similarly, the sale of the said shaers for Rs 1,41,08,484/- through two Brokers namely, M/s Richmond Securities Pvt Ltd and M/s Scorpio Management Consultants Pvt Ltd cannot be disputed, because the fact that the Assessee has received the said amount is not in dispute. It is neither the case of the Revenue that the shares in question are still lying with the Assesse nor it is the case of the Revenue that the amounts received by the Assessee on sale of the shares is more than what is declared by the Assessee. Though there is some discrepancy in the statement of the Director of M/s Richmand Securities Pvt Ltd regarding the sale transaction, the Tribunal relying on the statement of the employee of M/s Richmand Securities Pvt Ltd held that the sale transaction was genuine.

In the result, the appeal of the assessee is allowed.” 7.

38 & I TA No.7064/M/2019 M/s. Shailesh Jain HUF& Smt. Kritika Rajendra Jain 9.2. Considering the facts and circumstances of the case in the light of various decisions of the co-ordinate Benches and Hon’ble Jurisdictional High Court, we are not in agreement with the conclusion drawn by the Ld. CIT(A) that the long term capital gain earned by the assessee from sale of shares is a non genuine transaction and accordingly we set aside the order of Ld. CIT(A) and direct the AO to delete the addition made under section 68 of the Act and further direct the AO to grant exemption under section 10(38) of the Act in respect of long term capital gain. The ground no. 2 is allowed.

10. The issue raised in ground no. 3 is in respect of confirmation of addition by the CIT(A) of Rs.3,73,287/- as made by the AO towards commission @5% of the total transaction value is consequential to ground no. 2 which have been allowed by us. Consequently ground no. 3 is allowed and the AO is directed to delete the addition.