AVI AGGARWAL, H.NO. 171-R, MODEL TOWN, LUDHIANA,PUNJAB vs. ASSESSMENT UNIT NFAC, DELHI, JAO ITO WARD6(1), AAYAKAR BHAWAN, RISHI NAGAR, LUDHIANA, PUNJAB

The facts as gathered from the assessment order and order of CIT(A) are that the assessee had filed the original return of income for the assessment year under consideration on 31.03.2013, disclosing business income and long-term capital gain, which was claimed as exempt u/s 10 (38) of the I.T. Act. The said return was accepted as it is, u/s 143(1). Later on, certain information was received from the DDIT, Inv. Wing Kolkata, about the list of beneficiary of bogus long term capital gain from the sale of shares of 'Twenty First Century India Ltd. As per information, it was found that the assessee had sold 1,55,800/- shares of 'Twenty First Century India Ltd.' for Rs. 5,05,29,200/- and, accordingly, notice u/s 148, dated 30.03.2019 was issued and served upon the assessee. In response to that, the assessee filed the return of income on 3 24.04.2019, declaring the same income as per the original return of income.

The assessee has taken ground of appeal

It was further brought to our notice that such objections in detail were disposed off without assigning any reasons. The objections were disposed off by mentioning as under: - "Thus, your all objection is disposed off now."

The Ld. Counsel of the assessee also referred to the 'demat account' statement of the assessee where after selling shares in Asstt. Year 2012-13, totaling to 17140 and 40360 shares in Asstt. Year 2013-14, equivalent to 57,500/-. Deducting the same from the total number of shares of 155800/-, the balance shares left are 98300 as per copy of D-mat account.

The Ld. Counsel on the basis of above said facts argued vehemently that from the above facts, it is very much clear, that wrong reason to believe have been formed by the AO by blindly relying upon the letter of the Investigation Wing, Kolkata without any enquiries. He relied upon on various judgments of Gujarat High Court, ITAT, Chandigarh Bench, Amritsar Bench on this wrong reason to believe as under:-

It was also argued that the reopening has been made on 'wrong reasons' to believe and on incorrect facts. It was further argued that even there was no tangible material and it was merely a change of opinion. There was no nexus of the conclusion sought to be drawn and the information as received from the 'Investigation Wing'. He relied upon the judgment of Hon'ble 'Apex Court' in Sh. Lakhmani Mewal Dass, reported in 103 ITR 437. It was further argued that no reopening could be made on borrowed satisfaction, for which, reliance was made on the following judgments: - i). Holyfaith International Pvt. Ltd. Vs DCIT of ITAT Amritsar Bench in ii). PCIT Vs G & G Pharma Ltd. as reported in [2017] 81 taxmann.com 109 (Delhi iii). CIT Vs. Fair Finvest Limited as reported in [2014] 44 taxmann.com 356 (DEL-HC) iv). PCIT vs. Meenakshi Overseas Pvt. Ltd. as reported in [2017] 82 taxmann.com 300 (Del-HC) v). Judgment in the case of Signature Hotels (P) Ltd. vs. ITO as reported in [2012] 20 taxmann.com 797 (Del-HC).

It was further argued that there was no incriminating material, except the statement recorded at the back of assessee of Sh. Anil Kumar Khemka and on that also, no reopening could be made.

Lastly, it was argued that though, the original assessment was framed u/s 143(1) still there has to be a reason to belief. Since the assessment is sought to be reopened, beyond four years. The Counsel relied upon the judgement in the case of 'Samrat Plywood Ltd.' in vide order dated 25.01.2021. He further, relied upon the judgment of M/s. Amit Engineers vs. ACIT reported in 156 ITD 556 and of 'Shiva Exports' of Chandigarh Bench of ITAT, reported in (2009) 28 SOT 512. He also relied on Delhi High Court in the case of 'Orient Craft' reported in 350 ITR 536, for the preposition that that even for reopening of the case, where the assessment has been framed u/s 143(1), there has to be proper reason to believe that the income of the assessee has escaped assessment which is lacking in this case.

The Ld. Counsel of the assessee relied upon the judgment of ITAT, Delhi Bench “C” in the case of Kavya Satija in in which, similar issue was there with regard to the Long Term Capital Gain on the shares where the assessee had 8 claimed exemptions u/s 10(38) of the Income Tax Act. Later on, on the basis of certain information received from Investigation Wing regarding that the Long-Term Capital Gain as disclosed by the assessee is in the nature of accommodation entries. After recording the reasons u/s 148 and relying upon the information as received from the Investigation Wing, the Assessing Officer disallowed the exemption u/s 10(38) and made the addition being in the nature of penny stock. The CIT (A) confirmed the addition. When the matter was taken to the ITAT, both on the issue of reopening of the case u/s 148 and on merits, the appeal of the assessee was allowed.

On merits, it was argued that the facts, which are borne out from the reasons that the assessee purchased 4100 shares of 'Sarthi Dealers' and, thereafter, the above company alongwith three other companies were amalgamated into 'Twenty first Century (India) Ltd.' The assessee was allotted 38 shares of TFCIL in lieu of one share of amalgamation and this amalgamation was approved by the Hon'ble Kolkata High Court on 26.09.2011, where the department was also party to the said amalgamation and it had submitted 'no objection' for such amalgamation.

It has also been brought on record that the merger of the Company was approved by the Hon'ble High Court on 24.12.2010. Key points considered by High Court before approving the Amalgamation of Companies are as following: 1. Compliance with Legal Procedures:  Proper filing of application/petition under the relevant provisions  (e.g., Sections 230-232 of the Companies Act, 2013).

Solvency and Financial Health • The companies involved should be solvent (unless it's a restructuring of a sick company). • Viability of the merged entity and its impact on the market and stakeholders.

It was further argued that such transactions of sale of shares were made through Sh. Sunil Kumar Kayan & Company, for which, the contract note have been furnished and also the 'contract notes' for the purchase of shares was also furnished in respect of 4100 shares. In the said contract note, the date, sale in quantity, rate and amount of sale and 'securities tax paid' have been given, both on purchases and sales of shares. It was also argued that all such sale proceeds were received through banking channels and confirmed copy of account of assessee in the books of broker had been submitted, along with the bank statement of assessee. Except the statement of Mr. Khemka, there was no material for the allegation of handing over alleged cash by the assessee to the broker for any accommodation entry.

It was further argued by Ld. Counsel that, how, the total number of shares of 5,05,29,200/- and 1,11,11,519/- have been arrived at by the Assessing Officer has not been substantiated by the AO or by the Ld. CIT(A). He relied upon the submissions made during assessment proceedings vide letter, dated 04,11,2019 and 25.12.2019 alongwith relevant Annexures. It was further argued that even the cross examination was sought for, right at the time of filing the objections and, later on, during assessment proceedings, but no such opportunity for cross examination of Sh. Anil Kumar Khemka was given. Neither any copy of the statement of Sh. Anil Khemka or so called 'investigation report' was shared with the assessee. It was pointed out that the department in its 11 own Assessment order for Asstt. Year 2013-14, the sale of shares of same company, numbering 40360 have been assessed and no adverse finding has been given. The 'demat account' shows the balance number shares to the tune of 98300. While framing the assessment for the year under consideration, considered the value of entire shares of 1,55,800, as having been sold for 5,05,29,200/- in the impugned assessment order. No opportunity of cross examination was allowed. It was argued that the assessment was not valid relying upon on the following judgments: - i). [2024] 162 taxmann.com 5 (SC) Principal Commissioner of Income-tax v. Kishore Kumar Mohapatra ii). [2023] 157 taxmann.com 193 (SC) SUPREME COURT OF INDIA Principal Commissioner of Income-tax v. Hadoti Punj Vikas Ltd iii). [2015] 281 CTR 0241 (SC) Andaman Timber Industries Vs. Commissioner of Central Excise. iv). [2024] 161 taxmann.com 586 (Punjab & Haryana) Principal Commissioner of Income-tax (Central) v. DSG Papers (P.) Ltd.

It was further argued by Ld. Counsel that though, in the reasons, the escapement is in respect of shares of Twenty First Century Pvt. Ltd.' amounting to sale value of Rs. 5,05,29,200/-, but while passing the order, the Assessing Officer had made another addition of sale of shares in respect of a company, namely 'DLC Exports Ltd.' to the tune of Rs. 1,11,11,519/-, in which, the assessee never dealt. Reliance was also placed on the judgment of Hon'ble 'Apex Court' and judgment of 'Chandigarh Bench' and Others for the preposition that, where the documentary evidence is there of the purchase and sale of shares and the assessee had not been allowed cross examination, the exemption u/s 10(38) cannot be denied and all such judgments relate to the alleged penny stock 12 and for which, the reliance was made on the following judgments:- • PCIT vs. Parasben Kasturchand Kochar as reported in [2021] 130 taxmann.com 177 (SC). • Jatinder Kumar Jain vs. ITO as reported in [2022] 142 taxmann.com 234 (CHD-Trib.) • ACIT vs. Bhavik Bharatbhai Padia as reported in [2017] 78 taxmann.com 133 (Ahmedabad-Trib.) • Rama Mittal vs. ITO, NFAC as reported in [2024] 163 taxmann.com 612 (ASR-Trib.) • Durga Devi Bagree vs. ITO as reported in [2023] 157 taxmann.com 607 (Raipur-Trib.) • Sheela Ashok Bafna vs. ITO as reported in [2025] 170 taxmann.com 307 (MUM-Trib.)3.

The assessee referred to order of CIT(A) and argued that the submissions of the assessee have been recorded by the CIT(A) from pages 3 to 15 of the order. The reopening u/s 148 have been held to be valid on conjectures and surmises, without discussing anything about the detailed submissions of the assessee. On merits, without relying upon the documentary evidences, as furnished and other facts as highlighted in the written submissions, the Ld. CIT(A) has dismissed the appeal of assessee.

The Ld. CIT (DR) argued that the reopening was made on the basis of valid information received from the Investigation Wing, Kolkata and there was proper reason to believe as formed by the AO as per reasons recorded by him and, as such, there was no justification in the arguments of the Ld. Counsel. Further, the ld. DR argued that the assessment was framed u/s 143(1) could be reopened any time, since there was no application of mind as assessment framed u/s 143(3). It was further argued by the CIT(DR), that there is a statement of Anil Kumar Khemka, in which, he has accepted that all the transactions, including the merger was made to provide the accommodation entries to the 13 beneficiary and all such facts were brought to the notice of the assessee during assessment proceedings. He relied upon the order of AO and CIT(A) for confirmation of addition and also justified the reopening of the case u/s 148.

In the rejoinder, the Ld. Counsel of the assessee summarized his arguments as under:- a). There was wrong reason to believe as formed by the AO for reopening of the case u/s 148. b). The reopening was made on borrowed satisfaction. c). The reopening was made without there being any fresh tangible material. d). It was just information received from the 'Investigation Wing' without any documentary evidence and there was no independent application of mind by the AO. e). The reopening was based on conjectures and surmises and without there being any incriminating material. f). The reopening was in respect of assessment completed u/s 143(1) and, for which, also, there has to be proper reason to believe and relied upon the case laws as cited above. g). No opportunity of cross examination was allowed by the department, despite request and even objections were raised with regard to the reopening were disposed off by way of non- speaking order and relied upon the judgment of Hon'ble Gujarat High Court in the case of Chandrika Dhansukhlal Gandhi Vs ACIT [2024] 167 tqaxmann.com 638 (Guj.), dated 23.09.2024. for the preposition that merely on the information received from DDI, 'Investigation Wing' without any positive material on record, impugned notice u/s 148 was not tenable and it could not be formed reason to believe. h). The assessee also again referred to the judgment of Hon'ble Apex in the case of Parasben Kasturchand Kochar as reported in [2021] 130 taxmann.com 177 (SC)., which was also the case of penny stock, besides the other judgments.

We have considered the rival submissions and the order of AO and CIT(A) and have also considered the submissions

We have considered the findings given by the Assessing Officer in the assessment order. We have also considered the detailed written submissions filed by the ld. Counsel for the Assessee and his arguments. We have gone through the relevant papers and documents and we find that in this case the Assessee got shares of 'Twenty First Century India Ltd. after amalgamation of three companies duly approved by the Hon'ble Calcutta High Court on 24.12.2010. As discussed above, before according approval for amalgamation, the Hon'ble Calcutta High Court had taken a No Objection Certificate from the Income Tax Department which means that the Department had made necessary verification before giving No Objection for amalgamation / merger of such companies into 'Twenty First Century India Ltd. Once, No Objection had been given by the Income Tax Department for the amalgamation and three companies for allotment of shares by 'Twenty First Century India Ltd., we fail to understand how the Income Tax Department has come out (on the basis of statement of Mr. Ashok Kumar Khemka) that 'Twenty First Century India Ltd., was just a paper company. The Income Tax Department either did not make proper verification before giving No Objection to the Hon'ble High Court for the amalgamation of these companies or merely on the basis of a statement or findings regarding 'Twenty First Century India Ltd. (the basis of statement of Shri Ashok Kumar Khemka) is wrong.

During proceedings before us, the Revenue could not produce any evidence regarding trading of shares of DLC exports Ltd. by the Assessee other than the assessment order and the appellate orders of the authorities below. The Counsel of the Assessee clearly and categorically stated that the Assessee has 17 never dealt in the shares of DLC Exports Ltd, so this addition has been made on the basis of information of some other person. We have considered it and we find that this addition has been made without bringing any documentary evidence against the Assessee on record by the authorities below. Therefore, along with the addition for 'Twenty First Century India Ltd’, the addition made of Rs. 1,11,11,519/- for shares dealing in DLC Exports Ltd by authorities below are deleted and the exemption as claimed u/s 10(38) by the Assessee are allowed.

Since the appeal of the Assessee has been allowed on merit, therefore, discussion and findings on technical issue of reopening, just remains as an academic issue. We are not inclined to discuss in detail this academic issue here and accordingly, Assessee’s appeal on this technical issue is dismissed just for statistical purposes.

In the result, appeal of the Assessee is partly allowed.