SANTOSH KANWAR,JAIPUR vs. ITO 6(4 ) JAIPUR, JAIPUR

Santosh Kanwar, Jaipur.

3.3. The details of purchase and sale of this particular scrip i.e. M/s Kailash Auto Finance Limited (hereinafter referred as The Scrip) were examined. The assessee bought 65,000 shares of M/s Careful Projects Advisory Ltd. @ Rs. 1 per share. Later on, as per the scheme of stake holders viz. Operators/Syndicate members/Brokers, M/s Careful Projects Advisory Ltd. got merged with M/s Kailash Auto Finance Limited. The assessee retained the shares with himself for almost one year. It was also found that the price of the scrip kept rising throughout the period when the shares were held by the assessee and its prices reached at level of around Rs. 31/-, i.e. a humongous rise of almost over 3000% over a very short period of just 14-15 months. These facts demanded a deeper study of the price movements and share market behavior of the entities involved in trade, of the scrip as the share price movements and the profit earned by the beneficiaries were beyond human probabilities. Thus a deeper study was needed to ascertain whether the Santosh Kanwar, Jaipur. transactions were genuine investment transactions or sham ones and colourable device only to convert the unaccounted cash into tax exempt income. In short, it was to be ascertained whether the apparent was real.

3.4. The scrip was thoroughly examined and following facts were noted:

3.4.1. The company history as culled from money control's site is given below: Kailash Auto Finance Limited was incorporated as a Public Limited Company on 14th November 1984, in the name of SHIVAM COMMERCIAL SERVICES LIMITED. contained the Certificate of Commencement of Business on 10.12.1984. It The Company commenced its operations during the year 1986, in the business of Hire-purchase and Lease financing, and has specifically focussed on and specialised in extending finance on hire purchase basis for the commercial transport vehicle industry (mainly TELCOLCVs and HCVs) and to a lesser extent for 2/3 wheelers, jeeps/cars and consumer durables.

The Company obtained dealerships of 2/3 wheelers from M/s. Bajaj Auto Limited and Maharashtra Scooters Limited during August 1989.

However, these dealerships have been parcelled out to a partnership firm constituted specifically for this purpose with effect from 1.9.92.

The name of the Company was also simultaneously changed to the present one (viz., KAILASH AUTO FINANCE LIMITED), effective from 8.4.92. The Company does not have any subsidiary at present.

2012 Santosh Kanwar, Jaipur. ……Registered office of the company has been shifted from 84/105 G.T.Road, Kanpur Uttar Predesh to 19, Tottant Complex, 37/17, The Mall, Kanpur, Uttar Pradesh-208001 2014 - Appointment of Mr. Deepak Kunjbihari Dave as Non-executive Independent Director.

3.4.2. The very nature of the business of the company is dubious. It was incorporated in 1984 and formerly known as SHIVAM COMMERCIAL SERVICES LIMITED and changed its name to Kailash Auto Finance Limited in 1992. However what is astonishing in this case is that a company running since 1985 has not earned any income from operations ever and still commanded such premium valuations. The financials of the company for a few years are given as below:

It is pertinent to mention here that the company's share prices were on the higher side during the period from December-2012 to March -2015 whereas on examination, it is detected that no such fundamentals had been existed which can act as a catalyst to boost the prices of shares. In such a high time, the Santosh Kanwar, Jaipur. revenue from operations was minimal as so the expenditure on Consumption of Raw Materials, purchase of traded goods, Stocks, Power & Fuel, Employee Cost. Even the company did not claim any depreciation. It only substantiate that the company was merely a paper company and the rise in share price were due to human intervention only. Conclusion: Therefore the reasons of this astronomical price rise were located somewhere else and certainly could not be related to the fundamentals or any hypothetical promising future of the company by any stretch of imagination.”

Investigation by SEBI

“3.4.3. Investigation by SEBI Sudden unusual price movement and volume was noticed during the period from November 07, 2014 to December 31, 2015 in the scrip of Kailash Auto Finance Ltd. (hereinafter referred to as "Kailash Auto"), a company having its shares listed on the Bombay Stock Exchange Ltd. (BSE'). It was observed that during November 07, 2014 to December 31, 2015, price of the scrip fell from 28.05/- per share to a low of 2.01/-per share and daily average trading volume in the scrip was 7 lakh shares. Prior to this period, during July 22, 2013 to November 05, 2014, the price of the scrip ranged between 36.85/- and 28.45/-, with daily average trading volume of 15 lakh shares with daily average number of trades of 685. Thus, substantial fall in price and average traded volume was noted during November 07, 2014 to December 31, 2015. On further scrutiny it was observed that earlier, during January 17, 2013 to June 04, 2013, the price of the scrip had increased from 11/- to 36.25/ in 36 trading days and average trading volume during this period was merely 280 shares per day with average number of trade as low as 3 per day. For the purposes of preliminary examination of facts and circumstances prevailing during these periods these periods were taken in three patches i.e., (a) January 17, 2013 to June 04, 2013 (Patch-1), (b) July 22, 2013 to November 05, 2014 (Patch-2) and (c) November These activities needed examination of several aspects of interconnected transactions These activities needed examination of several aspects of interconnected transactions amongst the large number of entities. As a part of preliminary examination by SEBI, the bank statement of the concerned suspected entities for the relevant period were analysed. The data and information available in public domain such as Ministry of Corporate Affairs ("MCA") website, BSE website and other databases had to gathered and examined. During the course of examination, Kailash Auto, Registrar to Issue and Share Transfer Agent of Kailash Auto, and suspected entities who had been holding shares in concerned private unlisted companies were also asked to provide information relevant to the matter. However, no satisfactory response were provided by these entities. SEBI had also advised BSE to conduct surprise inspection at the registered office of Kailash auto to determine, inter alia, the following: (a). Whether the company exists at the registered office/corporate office; Santosh Kanwar, Jaipur. (b). Whether any operations of the company are conducted at the said address. BSE conducted a surprise inspection at the registered office of Kailash Auto (i.e., 19, Rollant Complex, 37/17, The Mall, Kanpur, Uttar Pradesh-208 001) and reported that the said premises was occupied by a chartered accountant firm M/s Ajay Kedia & Associates and only one office boy of Kailash Auto was available at the time of site visit. On further inquiry, it was learnt that the said chartered accountant firm had given Kailash Auto a small table space in its office for collecting posts, couriers, and other documents received in the name of the company for which one office boy Mr. Atul Verma was appointed. BSE conducted inspection at corporate office of Kailash Auto (i.e., 'Room no. 10, Ground Floor, Rajsheela Premises Co-op Society Ltd., Building no. 597, J.S.S. Road, Mumbai- 400 002) also and reported that the claimed corporate office was locked and no company officials were available at the time of visit of BSE officials at that address. Thus, it was gathered that no operation was carried out by Kailash Auto at the said registered office/corporate office addresses. The investigation by the SEBI further revealed that with effect from November 19, 2012 the management and control of Kailash Auto was acquired by Careful Projects Advisory Ltd. (hereinafter referred to as "CPAL") and Panchshul Marketing Ltd. (hereinafter referred to as "PML") who had together acquired shares amounting to 69.81% of the total paid-up share capital of the company from Padma Impex Ltd., the erstwhile promoter of Kailash Auto through a share purchase agreement dated May 02, 2012. Consequently, the board of directors of Kailash Auto had approved CPAL and PML as promoters of Kailash Auto. During the Financial Year 2011-12, CPAL had a paid up share capital of 285,686,800/-consisting of 285,686,800 shares of 1/- each. CPAL had increased its authorised share capital from 3,450,000/- to 290,000,000/- and then its shares were split from 10/-each to 1/- each, thereby converting 340,155 equity shares of 10/- each into 3,401,550 equity shares of 1/- each. Thereafter, during the same financial year, CPAL had issued 187,085,250 equity shares of 1/- each as bonus shares in the ratio of 55 shares for 1 share and further issued 95,200,000 equity shares of 1/- each through private placement. The list of the persons who received bonus shares, and persons who were allotted shares in this private placement amongst others (hereinafter referred to as the "recipients of CPAL shares"). Moreover, it was observed from the balance sheet of Kailash Auto for Financial Year 2011-12, the aforesaid recipients of CPAL shares were its existing shareholders prior to bonus issue as well the private placement. The primary Santosh Kanwar, Jaipur. allottees of CPAL were the only shareholders as there was no other issuance of shares after the first private placement and before the bonus issue and second private placement. This implies that the aforesaid recipients of CPAL shares had become shareholders of CPAL on purchase of shares from the primary allottees of CPAL before the bonus issue and second private placement. The bank statement of the primary allottees of CPAL and PML for the period of December 2010 to June 2011 revealed that same funds were being churned among CPAL, PML and their respective primary allottees. Further, these companies, in concert with their primary allottees had developed a mechanism by virtue of which CPAL, PML and their primary allottees made book entries of purported investment in each others' equity shares. Accordingly, there was no infusion of cash in respect of private placements by CPAL and PML but it resulted in generation of fictitious share premium value in the books of accounts of CPAL and PML. The entities of Kailash Auto Group I and Kailash Auto Group II (comprising of 34 entities and 54 entities respectively) accounted for total buy volume of 17.50 crores of equity shares of Kailash Auto. Further, both these entities were the shareholders of Sri Karani Exports Pvt. Ltd. (the present promoter of Kailash Auto). It was also observed that 6 entities namely, Ecstatic Merchandise Pvt. Ltd., Pragyan Vincom Pvt. Ltd., Wondrous Marketing Pvt. Ltd., Sonnet Mercantile Pvt. Ltd., Ecstatic Traders Pvt. Ltd. and Casuarina Tradelink Pvt. Ltd. were recipients of CPAL shares and recipients of PML shares (that acted as conduit to distribute the equity shares of CPAL/PML to beneficiaries) and were also part of Kailash Auto Group I (that had acted as buyer to such beneficiaries to provide exit from market at high value).

Santosh Kanwar, Jaipur. SEBI investigation revealed that the entire scheme is fraudulent and manipulative and accordingly banned the trading of the scrip w.e.f. 29.03.2016. 3.4.4. It was found that the shares of the company were very scarcely traded in the past but all of a sudden after the purchase by the assessee, the prices of the shares increased abnormally for almost one year without any reason whatsoever. As soon as, the assessee sold its last of shares in March 2015, the price and volume became disproportionate to real financial position of the company. “ Balance sheet of the abovesaid scrip

Share Price Movement of the scrip

Santosh Kanwar, Jaipur.

(c) There was no need that the assessee purchase shares from a Broker, who was indulged in the racket of providing bogus entries of Capital Gain/Loss, living in Kolkata when every facility of purchase was available at Jaipur where the assessee was residing. (d) Of Late, the Department started Income Declaration Scheme-2016. In the said Scheme, many investors who have taken bogus entries for the sake of Long Term Capital Gain/loss in the very scrip i.e. M/s Kailash Auto Finance Limited, while accepting the modus operandi, has surrendered on account of bogus Long Term Capital Gain/Loss. It further substantiate that whole scheme was for some particular investors started by some particular brokers in connivance with operators/entities.

(e) As evident from the above, assessee has purchased the share M/s Kailash Auto Finance Limited in physical form and thereafter, the same have been converted into electronic mode. In such case off market transactions, as per SEBI guidelines, a broker cannot issue a brokerage note containing time stamp of stock exchange traded time even though the transactions are not routed through stock exchange and such transactions are off market transactions. SEBI had vide Circular No. SMDRP/Policy/CIT-21/99, dated 14th September 1999 banned all negotiated deals including cross deals and all such deals are required to be executed only on the screens of exchanges in the price and order matching mechanism of the exchange just like any other normal trade. Thus from the above, it can be seen that such transactions are illegal, and are not in conformity with regulatory guidelines.

Santosh Kanwar, Jaipur. (f) The shares in which the assessee has claimed to have made a deal, are identified as Penny Shares by the investigation wing of the department because rates of these shares are not based on business results of the companies but same are fluctuated by insider's trading from zero value (negligible price) to very high price and vice versa without any reason or basis to accommodate or generate bogus capital gain or loss.”

Reasons recorded by CIT(A)

Santosh Kanwar, Jaipur.

Santosh Kanwar, Jaipur. At this stage, reference may be made to decision in PCIT vs. Swati Bajaj, “[2022] 139 taxmann.com 352 (Cal.), wherein the Hon’ble Court observed as under:

The report submitted by the Investigation department could not be thrown out on the grounds urged on behalf of the assessees. The assessees have not been shown to be prejudiced on account of non-furnishing of the investigation report or non-production of the persons for cross examination as the assessee has not specifically indicated as to how he was prejudiced, coupled with the fact as admitted by the revenue, the statements do not indict the assessee. That apart, the investigation has commenced targeting the individuals who dealt with the penny stocks and after examining the modus seeing the cash trail the report has been submitted recommending the same to be placed before the DGIT (Investigation) of all the States of the country. It is thereafter the concerned Assessing Officers have been informed to consider as to the bonafideness and genuineness of the claims of LTCG/LTCL of the respective assessees qua the findings which emanated during the investigation conducted on the individuals who dealt with the penny stocks. Therefore, the assessments have commenced by the Assessing Officers calling upon the assessee to explain the genuineness of the claim of LTCG/LTCL made by them. In all the assessment orders, substantial portion of the investigation report has been noted in full. A careful reading of the same would show that the assessee has not been named in the report. If such be the case, unless and until the assessee shows and proves that she/he was prejudiced on account of such report/statement mere mentioning that non-furnishing of the report or non-availability of the person for cross examination cannot vitiate the proceedings. The assessees have miserably failed to prove the test of prejudice or that the test of fair hearing has not been satisfied in their individual cases. In all the cases, the assessees have been issued notices under sections 143(2) and 142(1) they have been directed to furnish the documents, the assessee have complied with the directions, appeared before the Assessing Officer and in many cases represented by Advocates/Chartered Accountants, elaborate legal submissions have been made both oral and in writing and thereafter the assessments have been completed. Nothing prevented the assessee from mentioning that unless and until the report is furnished and the statements are provided, they would not in a position to take part in the inquiry which is being conducted by the Assessing Officer in scrutiny Santosh Kanwar, Jaipur. assessment under section 143(3). The assessee were conscious of the fact that they have not been named in the report, therefore made a vague and bold statement that the non-furnishing of report would vitiate the proceedings. Therefore, merely by mentioning that statements have not been furnished can in no manner advance the case of the assessee. If the report was available in the public domain as has been downloaded and produced by the revenue, nothing prevented the assessees who are ably defended by the Chartered Accountants and Advocates to download such reports and examine the same and thereafter put up their defense. Therefore, the based on such general statements of violation of principles of natural justice the assessees have not made out any case. [Para 65] To prove the allegations, against the assessee, can be inferred by a logical process of reasoning from the totality of the attending facts and circumstances surrounding the allegations/charges made and leveled and when direct evidence is not available, it is the duty of the Court to take note of the immediate and proximate facts and circumstances surrounding the events on which the charges/allegations are founded so as to reach a reasonable conclusion and the test would be what inferential process that a reasonable/prudent man would apply to arrive at a conclusion. Further proximity and time and prior meeting of minds is also a very important factor especially when the income tax department has been able to point out that there has been a unnatural rise in the price of the scrips of very little known companies. Furthermore, in all the cases, there were minimum of two brokers who have been involved in the transaction. It would be very difficult to gather direct proof of the meeting of minds of those brokers or sub-brokers or middlemen or entry operators and therefore, the test to be applied is the test of preponderance of probabilities to ascertain as to whether there has been violation of the provisions of the Income-tax Act. In such a circumstance, the conclusion has to be gathered from various circumstances like the volume from trade, period of persistence in trading in the particular scrips, particulars of buy and sell orders and the volume thereof and proximity of time between the two which are relevant factors. Therefore, the methodology adopted by the revenue cannot be faulted. [Para 69] A holistic approach is required to be made and the test of preponderance of probabilities have to be applied and while doing so, the court cannot lose sight of the fact that the shares of very little known companies with in- significant business had a steep rise in the share prices within the period of little over a year. The revenue was not privy to such peculiar trading activities as they appear to have been done through the various stock exchanges and it is Santosh Kanwar, Jaipur. only when the assessees made claim for a LTCG/STCL, the investigation commenced. As pointed out the investigation did not commence from the assessee but had commenced from the companies and the persons who were involved in the trading of the shares of these companies which are all classified as penny stocks companies. Therefore, the argument of the assessee that the copy of the investigation report has not been furnished, the persons from whom statements have been recorded have not been produced for cross examination are all contention which has to necessarily fail. To reiterate, the assessee was not named in the report and when the assessee makes the claim for exemption the onus of proof is on the assessee to prove the genuinity. Unfortunately, the assessees have been harping upon the transactions done by them and by relying upon the documents in their hands to contend that the transactions done were genuine. Unfortunately, the test of genuinity needs to be established otherwise, the assessees are lawfully bound to prove the huge LTCG claims to be genuine. In other words if there is information and data available of unreasonable rise in the price of the shares of these penny stock companies over a short period of time of little more than one year, the genuinity of such steep rise in the prices of shares needs to be established and the onus is on the assessee to do so as mandated in section 68. Thus, the assessees cannot be permitted to contend that the assessments were based on surmises and conjectures or presumptions or assumptions. The assessee does not and cannot dispute the fact that the shares of the companies which they have dealt with were insignificant in value prior to their trading. If such is the situation, it is the assessee who has to establish that the price rise was genuine and consequently they are entitled to claim LTCG on their transaction. Until and unless the initial burden cast upon the assessee is discharged, the onus does not shift to the revenue to prove otherwise. It is incorrect to argue that the assessees have been called upon to prove the negative in fact, it is the assessees duty to establish that the rise of the price of shares within a short period of time was a genuine move that those penny stocks companies had credit worthiness and coupled with genuinity and identity. The assessees cannot be heard to say that their claim has to be examined only based upon the documents produced by them namely bank details, the purchase/sell documents, the details of the D-Mat Account etc. The assessees have lost sight of an important fact that when a claim is made for LTCG or STCL, the onus is on the assessee to prove that credit worthiness of the companies whose shares the assessee has dealt with, the genuineness of the price rise which is undoubtedly alarming that to within a short span of time. [Para 73] Santosh Kanwar, Jaipur. While it may be true that assessees could have been regular investors, investors could or could not have been privy to the information or modus adopted. What is important is that it is the assessee who has to prove the claim to be genuine in terms of section 68. Therefore, the assessee cannot escape from the burden cast upon him and unfortunately in these cases the burden is heavy as the facts establish that the shares which were traded by the assessees had phenomenal and fanciful rise in price in a short span of time and more importantly after a period of 17 to 22 months, thereafter has been a steep fall which has led to huge claims of STCL. Therefore, unless and until the assessee discharges such burden of proof, the addition made by the Assessing Officer cannot be faulted. [Para 75] While proposing to invoke the power under section 263, the question as to whether the Commissioner was justified in invoking the power under section 263 has to be decided based on facts of each case. The assessee cannot be allowed to contend that the language employed in the orders passed by the Commissioner under section 263 does not mention about how the assessments order was erroneous in so far as it is prejudicial to the interest of the revenue. These words or phrases are contained in section 263. Merely because the Commissioner has not used these words or phrases occurring in section 263 will not vitiate the assumption of jurisdiction. What is required to be seen is the content of the order and the discussion and findings rendered by the Commissioner. This is because the cardinal principle is that substance over form has to be preferred. The Commissioner while issuing the show cause notice had come to the prima facie conclusion that the Assessing Officer did not conduct an enquiry as required to justify such prima facie opinion. The Commissioner was required to set out as to why in his opinion the enquiry by the Assessing Officer was not proper or insufficient. On reading of the orders passed by the Commissioner under section 263, it is seen that the Commissioner has disclosed to the assessee as to why in his case the power under section 263 has to be invoked. The assessments orders which are subject matter of section 263 action shows that an enquiry has not been conducted by the Assessing Officer in the manner it ought to have been conducted. The Assessing Officers of the income tax department were fully aware of the investigation which was done and the report been circulated and therefore at that stage that the officer had to take note of such report to put the assessee on notice and commenced an enquiry by calling upon the assessee to justify the genuineness of the claim of LTCG/STCL. The Assessing Officer turned a blind eye to the project investigation which was carried out by the revenue. The Assessing Officer lost sight of the fact that the enquiry did not commence from that of the assessee and more particularly the Santosh Kanwar, Jaipur. name of the assessee did not feature in the investigation report. Therefore the Assessing Officer was bound to cause an enquiry by calling upon the assessee to explain and justify the genuineness of the claim for exemption made by them. If the assessee has not established the genuinity at the 'other end' the Assessing Officer would have no other operation except making the addition under section 68. In these cases the Assessing Officers missed an important point as to what is the nature of enquiry which he is required to do. The Assessing Officer merely went by the submission that the stock broker is a public sector company. Unfortunately this is not the manner in which the enquiry should have been conducted. The entire case before the revenue was the genuinity of the claim for LTCG/STCL and the basis was unhealthy and steep rise of the price of the shares of mostly the paper companies though listed before the stock exchanges their shares were very rarely traded and in the background of these facts the enquiry should have been conducted by the Assessing Officer. Therefore the assumption of jurisdiction under section 263 by the respective Commissioners was fully justified and is shown to be proper exercise of power. The Tribunal while interfering with the orders of the Commissioner once again posed a wrong question to it and failed to approach the matter in the proper perspective considering the backgrounds in which the power was invoked. The Tribunal brushed aside the surrounding circumstances which have led to such assessments or orders under section 263. The manipulative practice adopted by the stock brokers and entry operators was not even adverted to by the Tribunal and the entire matter was dealt within a very superficial manner without dwelling deep into the core of the issue. The Tribunal being the last fact finding authority was required to go deeper into the issue as the matter has manifested large scale scam. Thus, the orders of the Tribunal are not only perfunctory but perverse as well. The exercise that was required to be done by the Tribunal is to consider the totality of the circumstances because the transactions are shown to be very complex, the meeting of minds of the 'players' can never be established by direct evidence and therefore the surrounding circumstances was required to be taken note of by the Tribunal which exercise has not been done. [Para 99] None of the assessees have been shown to be big time investor. This is evident from the income details of the assessee which has been culled out by the respective Assessing Officers. Assuming that the assessee is a regular investor as was submitted by the assessees that in any manner cannot improve the situation as the claim for LTCG has been only restricted to the shares which were purchased and sold by the assessees in penny stocks companies. Therefore merely because the assessee had invested in other blue chip companies had earned profit or incurred loss cannot validate the tainted transactions. It has been Santosh Kanwar, Jaipur. established by the revenue that the rise of the prices of the shares was artificially done by the adopting manipulative practices. Consequently whatever resultant benefits which accrue from out of such manipulative practices are also to be treated as tainted. However, the assessee had opportunity to prove that there was no manipulation at the other end and whatever gains the assessee has reaped was not tainted. This has not been proved or established by any of the assessee. Therefore, the Assessing Officers were well justified in coming to a conclusion that the so called explanation offered by the assessee was not to their satisfaction. Thus, the assessee having not proved the genuineness of the claim, the creditworthiness of the companies in which they had invested and the identity of the persons to whom the transactions were done, have to necessarily fail. In such factual scenario, the Assessing Officers as well as the Commissioner (Appeals) have adopted an inferential process which is found to be a process which would be followed by a reasonable and prudent person. The Assessing Officers and the Commissioner (Appeals) have culled out proximate facts in each of the cases, took into consideration the surrounding circumstances which came to light after the investigation, assessed the conduct of the assessee, took note of the proximity of the time between the buy and sale operations and also the sudden and steep rise of the price of the shares of the companies when the general market trend was admittedly recessive and thereafter arrived at a conclusion which is a proper conclusion and in the absence of any satisfactory explanation by the assessee, the Assessing Officers were bound to make addition under section 68. [Para 99] On the issue involved, reference may also be made to decision in Sumati Dayal vs. CIT (214 ITR 801).

In the case titled as Suman Poddar v. ITO, (2019) 112 taxmann. Com 330(SC), based on almost similar facts, the assessee was found to have failed to prove that the share transactions are genuine. Therein earnings @ 491% over a priod of 5 months were held to be beyond human probability and defying business logic of any business enterprise dealing with share transactions. In the given facts and circumstances, Hon’ble Santosh Kanwar, Jaipur. Apex Court observed that same lent credence to the unreliability of the entire transaction of shares giving rise to such capital gains. Reference may also be made to decision by this Bench in a similar matter titled as Karuna Jain v. ITO, ITA No. 190(A.Y. 2015-16)/JPR/2025, delivered on 30.04.2025.

As a result, we find that the Assessing Officer was justified in arriving at the conclusion that a sum of Rs. 19,10,972/- introduced/credited by the assessee out of the purported share sale receipt in the capital account as income from other sources and to further hold that the same were taxable @ 30% as provided u/s 115BBEE of the Act.

As noticed above, the appellant has failed to appear or argue the appeal despite ample notices and opportunities. Learned DR has rightly relied on decision by Co-ordinate Bench in Suresh B. Agrawal HUF v. The Having regard to the material available and the reasons recorded by Ld. CIT(A) we find merit in the contention raised by Learned DR for the department that the assessment order has been rightly upheld.

Consequently, there is no merit in the appeal as regards this addition.

Another addition of Rs. 1,14,658/- i.e. on the commission paid

In this regard, the Assessing Officer resorted to the provisions of Section 69C of the Act . Said addition came to be made while observing that the material collected in the course of investigation by the Investigation Wing revealed that the beneficiaries were found to have paid commission paying 0.5% to 8%, for the accommodation entries for bogus LTCG.

In this case, the Assessing Officer treated a sum of Rs. 1,14,972/- i.e. 6% of the above said amount of Rs. 19,10,972/- for acquiring accommodation entry.

Santosh Kanwar, Jaipur. 27. Said addition has been upheld by Learned CIT(A), while observing in the impugned order that the appellant failed to prove her claim and rebut the cogent evidence.

In view of the given facts, circumstances and the material considered while dealing with the first mentioned addition, and there being nothing to the contrary on behalf of the appellant, we uphold the impugned order as regards the second addition as well.

Addition on Business Income due to sale of flat/lands

The assessee was found to have shown profit of Rs. 3,45,850/- from transfer of the said flat under the head ‘long term capital gain’.

Santosh Kanwar, Jaipur. 29. As observed by the Assessing Officer, record revealed that the assessee had purchased said flat in Feb. 2012 and investment by the assessee was not by way of capital asset and rather, it was to construct flat/units and to earn profit.

Accordingly, the Assessing Officer treated the said transaction as business in real estate sector and further that the said income of Rs. 3,45,850/- was not a long term capital gain. That is how, the Assessing Officer assessed the said income as business income of the assessee.

On the other hand, assessee did not bring on record any material to suggest that it was a case of long term capital gain by way of investment in capital asset.

Said addition has been upheld by Learned CIT(A), while observing in the impugned order that the appellant failed to prove her claim and rebut the cogent evidence.

Admittedly, the flat was purchased in the February, 2012. The assessee transferred her share in the said flat in March 2012.

Santosh Kanwar, Jaipur. In the given facts and circumstances, we do not find any ground for setting aside the impugned order passed by Learned CIT(A) or the assessment order passed by the Assessing Officer.

Sale of 24 plots of land

Cost of the land was shown as Rs. 33,07,227/-.

In this manner the assessee reflected a short term capital gain of Rs. 2,04,773/-.

Santosh Kanwar, Jaipur. Taking into consideration all this, the Assessing Officer was of the view that the transaction was of the nature of his business, and as such could not be considered as short term capital gain.