NIRMAL KUMAR AGRAWAL,JAIPUR vs. DCIT, CIRCLE - 4 , JAIPUR

5.2 Having gone through the assessee’s aforesaid application for condonation of delay, I find that there is a delay of 114 days in filing of appeal and no case has been made out by the assessee explaining delay.

5.3 It is thus seen that no circumstances have been explained nor any evidence for existence of any circumstances which prevented the assessee from filing the appeal in time has been filed.

5.4 The aforesaid application, therefore does not explain reasons much less showing and demonstrating sufficient cause. It is a settled position of law that the assessee is duty bound to explain each day's delay after the last date of limitation. It is a clear case of sheer negligence for non-pursuing available remedy in time. It is for the appellant concerned to explain the delay and it is not the function of the appellate authorities to find the cause of delay. The appellate authority has to examine whether sufficient cause has been shown by the party for condoning delay and whether such cause is acceptable or not. In that view of the matter, the Tribunal cannot condone the delay without asking the party concerned to explain the delay, by giving its own reason for the delay [DCM Ltd. vs. State of Tamil Nadu, (1995) 96 STC 263, 264 (Madras)].

5.5 In this regard, it will be relevant to examine how the Courts have dealt with similar cases. A reference may be made to decision of Hon'ble High Court of Madras in the case of Madhu Dadha vs. ACIT reported 317 ITR 458 (Mad); (2010) 186 Taxmann 8 (Madras). In this case, there was delay of 558 days in filing appeal. The Hon'ble Court observed that though liberal approach is to be adopted while deciding the condonation of delay. however, there is always a requirement of sufficient cause to explain the delay. In para 8, the Hon'ble Court examined the reasons and has observed as under:

"8. From a reading of the above, it is clear that the appellant has not explained the cause of delay in filing the appeal, especially when authorised representative viz, representative who was given charge to file the appeal had died exactly one Nirmal Kumar Agrawal vs. DCIT year after the last date of filing of the appeal. When that be so, it is pertinent to point out that actually the filing of the appeal was not done and even after the death of Ashok Kumbat, the assessee had taken more than six months in filing the present appeal. The assessee had neither given any particular or details in the affidavit as on which date the papers were handed over to the counsel for preparing the appeal and on what occasion the assessee enquired about the progress in preparing the appeal and filing the same.”

5.5.1 The Hon'ble Court, in para 9, observed that averments in the affidavit were quite vague. Further, in para 11 and 12, Hon'ble court referred to the judgment of Hon'ble Supreme Court in the case of Collector, Land Acquisition v. Mst. Katiji [1987] 167 ITR 471 (SC)., wherein the Honourable Supreme Court had explained the fact for sufficient cause for condonation of delay. The Hon'ble court observed as under "In this case, considering the fact that the Government is the appellant and also the delay in filing the appeal is only four days, condoned the delay. It is specifically mentioned that the sufficient cause is adequately elastic to enable the courts to apply the law in a meaningful manner which sub-serves the ends of justice and they may liberal approach only for the reason that every day's delay must be explained, which does not mean that a pedantic approach should be made. The doctrine must be applied in a rational common sense and pragmatic manner. Finally the Supreme Court had rightly held that turning to the facts of that particular case giving rise to that appeal, the Honourable Supreme Court was satisfied that sufficient cause exists for the delay. Therefore, the delay was condoned only after the Court came to the conclusion that the sufficient cause was shown and proved and which has been accepted by the said Court.

5.5.2 In the subsequent paragraph 14, Hon'ble Court, observed as under "14. At this juncture, we have to be guided by the judgment in the case of T.N.M. Bank Ltd. v. App. Auty [1990] 1 LLN 457. In that particular case, the Division Bench of this court has held that,

"……We are of the view that the question of limitation is not merely a technical consideration. Rules of limitation are based on principles of sound policy and principles of equity. Is a litigant liable to have a In that decision, this Court has held that the delay of 285 days in preferring the appeal could not be condoned. It was held that the condonation of delay was not justified on facts and evidence of the case. As rightly pointed out that the Rules of limitation are based on principles of sound public policy and principles of equity. Though there is no presumption that the delay is occasioned deliberately or on account of culpable negligence, if the admitted facts in that case are taken note of, there is no doubt that the delay on the part of the appellant is deliberate and the appellant is clearly guilty of culpable negligence. Such negligent attitude of the appellant was not taken care to preserve the right of appeal and having been slept over for more than 558 days and not explained the delay without any reasonable doubt, the appellant cannot avail sympathy or discretion of this Court". (emphasis supplied)

5.6 It is also a settled position of law that the delay is unexcusable unless sufficient cause is shown. In this regard, reliance is placed on Supreme Court decision in the case of Calcutta Municipal Corporation vs. Pawan Kumar Saraf (1999) 1 SC 39. This case was referred to and considered by Hon'ble ITAT Chandigarh in para 6.1 in the case of ACIT vs. Ranbir Chemicals 114 ITD 121. Relevant para.

6.1 is reproduced below: "6.1 Hon'ble Supreme Court in the case of UOI v. Tata Yodogawa Ltd. 1988 (38) ELT 739 held that delay due to inter departmental correspondence and processing is not a sufficient cause for condonation of delay. Similarly in the case of Calcutta Municipal Corpn v. Pawan Kumar Saraf J.T. 1999 (1) S.C. 39 it was held by the Hon'ble Apex Court that even if the Court should be liberal in condonation of delay, it should be unexcusable unless sufficient cause is shown. Their Lordships in para 20 in the above case held as under:

"It was submitted that the Court should be liberal in condoning the delay. Liberal alright, but delay is unexcusable unless sufficient cause is shown. It is not the law that when an application seeking the condonation of delay is filed by the State or any authority, this Court must invariably condone the delay irrespective of whether sufficient cause is shown or not." (emphasis supplied)

5.7 It is also a settled position of law that a Proper Explanation and Reasons have to be given for explaining delay. Reliance is placed on the decision of Hon'ble Calcutta High Court in the case of CIT v. Metal Distributors Ltd.[1988] 172 ITR Nirmal Kumar Agrawal vs. DCIT 356. This case was referred to and considered by Hon'ble ITAT Chandigarh in para 6.2 in the case of ACIT vs. Ranbir Chemicals 114 ITD 121. Para 6.2 is reproduced below:

"6.2 Hon'ble Calcutta High Court in the case of CIT v. Metal Distributors Ltd. [1988] 172 ITR 3561 held - "that in the absence of proper explanation for the delay in presenting for leave to appeal to the Hon'ble Supreme Court, the delay could not be condoned."

On the similar matter and facts, the Hon'ble Rajasthan High Court in the case of State of Rajasthan v. Chaudhury Construction AIR 1988 Raj. 123 held-

"that in the absence of material particulars as to why delay had been caused, the delay could not be condoned by merely accepting the explanation that the delay occurred in the Government Office." (emphasis supplied)

5.8 In view of the foregoing discussion, factual matrix and the judicial precedents, I find that no case has been made out by the assessee for existence of sufficient cause in the application for condonation of substantial period of delay of 114 days in filing of appeal. I also find that it is also a settled position of law that the delay is un-excusable unless sufficient cause is shown. I further find that proper explanation and reasons for delay have not been given. Therefore, I am of the view that in the absence of existence of reasonable cause and also in the absence of proper explanation and reasons, without being supported by proper evidence, the appeal filed by the assessee late by 114 days, the delay is not condonable. Hence, the appeal of the assessee is not admitted and the same is dismissed in limine.”

5. As is evident from the above finding of the ld. CIT(A) that he has not condone the delay in filling the appeal by the assessee before him which was delayed by 114Days. The assessee submitted that the appeal was filed delayed because the accountant of the assessee was not regular in attending the office due to medical emergency and therefore, the email received serving the order remained unattended. The assessee came to the cause notice for levy of penalty was received by the assessee and therefore, that delay was there in the filling the appeal before him.

5.1 The ld. AR of the assessee argued that even if ld. CIT(A) was not satisfied with the reasons provided by the assessee, ld. CIT(A) could have asked the assessee to furnish the evidence in support of the claim and thereby he has violated the principles of natural justice. He also submitted that even otherwise ld. CIT(A) is supposed to decide the appeal of the assessee on merits and cannot dismissed on limine.

5.2 On the aspect of the delay before the ld. CIT(A), ld. DR relied upon the order of the ld. CIT(A) stating that the assessee has to explain each day delay and his contention was general without any evidence placed on record.

5.3 The bench noted the ld. CIT(A) has not condoned the delay because the assessee has not supported the delay with the evidence, but the contention raised was not proved to be wrong. Even otherwise, the Bench is of the view that lis between the parties has to be decided on merits so that nobody’s rights could be scuttled down without providing an opportunity of being heard to the assessee. In the light of this observation, we condone the delay in filling an appeal by the assessee before the ld. CIT(A). assessee submitted a detailed written submission and paper book. The main contention raised by the assessee that once the income which the alleged to have been arise out of the penny stock has been settled down by filling a declaration under Income declaration scheme. The source of investment so made by the assessee cannot be taxed u/s. 68 of the Act and thereby the ld. AO is taxing the whole receipt without giving the benefit of the money which the assessee invested. Ld. AR of the assessee submitted that the similar issue was raised in the case of his wife and the revenue has dropped that proceeding. Based on that fact ld. AR of the assessee submitted to consider the appeal filed by the assessee challenging that amount added which was already paid by declared sources. The written submission so filed and relied upon by the assessee reads as under :

“Ground of Appeal

No. 1: In this grounds of appeal, assessee has challenged the action of Ld. CIT(A) in dismissing the appeal of assessee without condoning the delay in filing of appeal and not deciding the matter on merits. Brief facts of this ground of appeal is that there is delay in filing of appeal by 114 days by assessee on account of fact that accountant of assessee was unable to attend the office due to medical emergency at the time when the order was passed/served at assessee registered e-mail id as a result of which certain mail received by the assessee remain unattended. It is further submitted that the assessee came to know about the order later when assessee received a show cause notice u/s 271(1)(c) of the Act, wherein it was show caused why the penalty should not be imposed. It is further submitted that assessee narrated the aforesaid facts in condonation of delay application (APB 108) and also submitted Affidavit (APB 109-110) before the ld. CIT(A) along with Appeal Memo. Ld. CIT(A) without Nirmal Kumar Agrawal vs. DCIT considering the condonation delay application along with Affidavit arbitrarily dismiss the appeal of assessee. Relevant para of ld. CIT(A) observation is reproduced as under— “5.8 In view of the foregoing discussion, factual matrix and the judicial precedents, I find that no case has been made out by the assessee for existence of sufficient cause in the application for condonation of substantial period of delay of 114 days in filing of appeal. I also find that it is also a settled position of law that the delay is inexcusable unless sufficient cause is shown. I further find that proper explanation and reasons for delay have not been given. Therefore, I am of the view that in the absence of existence of reasonable cause and also in the absence of proper explanation and reasons, without being supported by proper evidence, the appeal filed by the assessee late by 114 days, the delay is not condonable. Hence, the appeal of the assessee is not admitted and the same is dismissed in limine.” In this regard, at this juncture it is submitted that there was sufficient cause in the case of assessee on account of which assessee was not able to file appeal on time. As stated above, it is again reiterated that assessee’s accountant who has the access of assessee email id in which assessment order u/s 147 of the Act, was unable to attend office due to personal medical emergency. It is further submitted when he returned to office assessment order remained unattended and assessee came to know about the order for the first time when he has received the penalty show cause notice u/s 271(1)(c) of the Act. Assessee in support of his claim along with condonation delay application also provided the affidavit as per the law, It is further submitted that even if ld. CIT(A) was not satisfied with the reasons provided by the assessee, ld. CIT(A) could have asked assessee to furnish other evidences in support of his claim. However, ld. CIT(A) without providing opportunity to assessee to justify the delay in filing the appeal, arbitrarily held that there is no sufficient cause involved. Thus depriving assessee from right to be heard and same is against the principle of natural justice. It is also submitted that ld. CIT(A) has relied upon various case laws, however all the case laws favors the assessee as all the case laws states that delay should be condone and matter should be decided on merits when there is a sufficient cause which resulted in delay in filing of the appeal. Further reliance is placed on the following judicial pronouncements – Meenachil Taluk Cooperative Employees Cooperative Society Ltd. vs. Commissioner of Income-tax. (Appeals) [2024] 165 taxmann.com 366 (Kerala High Court)[25-06-2024] Section 249, read with sections 246A and 80P, of the Income-Tax Act, 1961 - Commissioner (Appeals) - Form of appeal and limitation (Condonation of delay) - Assessing Officer disallowed deduction claimed by assessee under section 80P - Assessee against impugned order filed appeal before Commissioner (Appeals) with a delay of 11 days and sought condonation of delay in filing appeal stating that delay was due to non-availability of its legal consultant - Commissioner (Appeals) refused to condone delay and dismissed appeal in limine - Whether since filing an appeal in tax matters required legal and technical assistance, reason advanced by assessee for condoning delay was sufficient and delay had to be condoned by Commissioner (Appeals) - Held, yes - Whether Commissioner (Appeals) was to be directed to consider assessee's appeal on merits - Held, yes [Paras 8 and 9] [Matter remanded] Shilpaben Nileshbhai Gami vs. Assistant Commissioner of Income-tax [2024] 169 taxmann.com 595 (Gujarat High Court)[19-11-2024] Section 68, read with section 45 and 254, of the Income-tax Act, 1961 - Cash credit(Condonation of delay) - Assessment year 2007-08 - Commissioner (Appeals) passed an order upholding capital gain of certain amount to be bogus - Assessee filed appeal before Tribunal after delay of 2208 days - Assessee filed an application to condone delay along with affidavit explaining cause for delay that order passed by Commissioner (Appeals) was never served upon assessee - Tribunal dismissed application observing that order of Commissioner (Appeals) was delivered on address mentioned in Form no. 35, hence , department could not be blamed - It was noted that assessee mentioned address of communication of notice etc. in Form no. 35 - However, order of Commissioner (Appeals)was not served on aforesaid address - Further, assessee filed appeal before Tribunal within prescribed period of 60 days from date of receipt of order of Commissioner (Appeals) -Whether, therefore, there was no delay on part of assessee to prefer appeal after receipt of order of Commissioner (Appeals) - Held, yes - Whether, therefore, Tribunal ought to have condoned delay in preferring appeal by assessee and decide case on merits - Held, yes[Paras 23 to 25] [In favour of assessee] In view of aforesaid facts, it is submitted that in the instant case there is sufficient cause with assessee on account of which appeal could not be filed on time. Even if ld. CIT(A) was not satisfied with the explanation provided an opportunity should have been given to assessee to furnish the necessary evidence before it and the case should be decided on merits. It is further also submitted that it is evident that all the facts are on record and tt is therefore requested before your honours that since all the facts relevant to the appeal under consideration were already filed before ld.AO, appeal may please be decided on merits of the case instead of restoring the same to the file of Ld. CIT(A) as it will cause genuine hardship and only postpone the proceedings. Reliance is placed on the following case laws: Hon’ble Gujrat High Court in the case of ‘Saurashtra Packaging (P.) Ltd v. Commissioner of Income-tax [1993] 204 ITR 443 (GUJ.)’ Section 254, read with section 41(1) of the Income-tax Act, 1961 - Appellate Tribunal – Order of – Assessment year 1984-85 – Assessee-company took over running business of a firm in which it was a partner – During relevant accounting period assessee received refund of sales-tax – ITO held that said refund was assessable as income of assessee – On appeal, Commissioner (Appeals) held that since deduction was allowed to partnership firm, section 41(1) was not applicable and amount was not assessable as income of assessee – Tribunal observed that deed of dissolution was not on record and that it would be necessary to examine relevant provisions of State Sales Tax Act and Rules to know as to who would be entitled to refund – Accordingly, Tribunal remanded matter to Nirmal Kumar Agrawal vs. DCIT Commissioner (Appeals) – However, a copy of dissolution deed was on record, which provided rights and liabilities of assessee – Whether Tribunal could have easily looked into relevant provisions of State Act and Rules, if that was found necessary, and decided appeals – Held, yes – Whether, therefore, Tribunal was not justified in setting aside order of Commissioner (Appeals) and sending matter back to him for a fresh decision holding that it was unable to decide point in controversy finally in absence of relevant materials – Held, yes Zuari Leasing & Finance Corporation Ltd. Vs ITO, 18(4), Delhi (2008) 112 ITD 205 (Del) (Trib.) "10. It is clear from above that primary power, rather obligation of the Tribunal, is to dispose of the appeal on merits. The incidental power to remand, is only an exception and should be sparingly used when it is not possible to dispose of the appeal for want of relevant evidence, lack of finding or investigation warranted by the circumstances of the case. Remand in a casual manner and for the sake of remand only or as a short cut, is totally prohibited. …………. Having regard to aforesaid principle, it is necessary to look into records to see whether there is sufficient material on record to dispose of the issue on merit and there is no need to remand the issue to provide a fresh inning to the Revenue." Shrimanta Shankar Academy Vs. ITO, 2(2), (2007) 107 ITD

99. (Gauhati) (Trib.) "10. It is true that remand of a matter is discretionary but such discretion is required to be shown to be exercised in a judicial manner In the case of Saurashtra Packaging (P) Ltd vs CIT (1996) 131 CTR (Guj)

40. (1993) 204 ITR 443 (Guj), their Lordships of Gujarat High Court have observed that where matter can be disposed of by the Tribunal on the basis of material already on record, a remand should not be resorted to. It is always necessary to avoid multiplicity of proceeding and to save time." Ground of Appeal No. 2 & 2.1: In these grounds of appeal, assessee has challenged the action of Ld. CIT(A) is dismissing the appeal of assessee, without considering the fact that ld. AO has grossly erred in reopening of assessment u/s 147 of the Income tax Act, even though there assessee has already offered the gain earned on sale of Shares of M/s Midland Polymers Ltd. under the Income Disclosure Scheme 2016 which is also accepted by the ld. AO in the order u/s 148A(d) of the Act. Brief facts pertaining to these ground of appeal, as stated above, is that assesse has not entered into any transaction related to penny stock shares and transactions entered into are genuine and no record of whatsoever nature was provided by the Ld. AO to the assesse for cross examination and further there is no escapement of Income in the hands of assessee, as assessee has already disclosed the Short Term Capital Gain earned on sale of shares of M/s Midland Polymers Ltd while filing the return of income u/s 139(1) of the Act. Thereafter IDS- 4 form (APB 61-62) was issued by the Income Tax Department for the year under consideration, wherein the short term capital gain earned of Rs. 15,72,409/- on equity shares of MIDPOLY has already been offered by the assessee in the Income Declaration Scheme in the year 2016 and relevant taxes @ 45% has also been paid thereon and same fact has also been acknowledged in the order passed Nirmal Kumar Agrawal vs. DCIT u/s 148A(d) of the Income Tax Act, 1961 dated 21.07.2022 (APB 26-37). Despite of all these facts ld. AO still initiated the proceedings u/s 148 of the Act to examine the source of investment in purchased of shares of Midland Polymers Ltd. At the cost of repetition, your attention is once again invited to the fact that assessment for the year under consideration was completed u/s 143(3). At this juncture it is also relevant to state that ld. AO himself on very same identical issue in the case of Smt. Hema Agarwal (assessee’s wife), having PAN: AASPA6448C, for the same assessment year i.e. A.Y. 2013-14, in the proceedings u/s 148A, vide order u/s 148A(d) dated 28.07.2022 in para

5. (APB 71-72) held that it is not a fit case for issuance of notice u/s 148 of the Act. Relevant extract of Order is reproduced as under for ready reference— “5. The aforesaid reply furnished by the assessee is considered. On going through reply filed by the assessee for AY 2013-14, it is noticed that the assessee declared total income of Rs. 39,74,600/- in the return of income for the under consideration and also declared exempt income of Rs. 1,28,65,591/- in the shape of Long Term Capital Gain on sale of share of Midland Polymers Ltd. Later on the assessee voluntarily disclosed the amount of Rs. 1,28,65,591/- (Long Term Capital Gain) during the course of Income Declaration Seheme (IDS) in 2016 and paid due tax thereupon. Thus the assessee offered her undisclosed income which was earlier claimed exempt under the garb of Long Term Capital Gain on sale of share. It is well settled principle that the same income cannot be taxed twice. The assessee also furnished copy of ITR and computation on income. The assessee has also furnished copies of Form No. 1, 2 & 3 of the Income Declaration Scheme- 2016 in support of income offered and taxes paid as per IDS Scheme, 2016. Further, it is observed that the assessee is able to provide explanation regarding above transaction along with supportive evidence. In light of the above facts and on the basis of material available on record, it is clear that it is not a fit case for issuance of notice u/s 148 of the Act for A.Y. 2013-14.” In the instant case, it is submitted that ld. AO acted in whims and fancy manner by taking two separate views on exactly identical facts i.e. same assessment year, same share, same nature of income i.e. “Capital Gains” taking a divergent view in case of two assessee’s of one family, is beyond judicial prudence. The Hon’ble Supreme Court has held in the case of Parashuram Pottery Works Co. Ltd. Vs. ITO (1977) (106 ITR 1) that there must be a point of finality in all legal proceedings and the stale issues should not be reactivated beyond a particular stage and the lapse of time must induce repose in and set at rest judicial and quasi-judicial controversies as it must in other spheres of human activity and in the case under consideration this act of the department in again reopening the case on the issue which is not only examined in the assessment completed u/s 143(3) but also stood accepted by the department by issue of certificate in IDS, 2016 is an attempt to unsettle the already accepted and settled issue. It also submitted that ld. AO ITO, Ward 5(2), Jaipur in the case of M/s N.K. Agarwal & Sons, PAN: AAAHN5067J, [assessee’s HUF] after taking approval of the Pr. Chief Commissioner of Income-tax, Rajasthan, Jaipur vide her office letter No. PR.CCIT/ITO(Tech.)/F-115.1/2022-23/3543 dated 21.07.2022 has also held that assessee’s HUF case is not a fit case for issuance of notice u/s 148 of the Act vide order u/s 148A(d) dated 29.07.2022 in para 6 &

7. (APB 74-75). Relevant extract of Order is reproduced as under for ready reference— “6. The reply of the assessee has been considered. The assessee has furnished reply alongwith supporting documentary evidence, which is acceptable. In this case the assessee had suo moto offered income of Rs 46,26,450/- being long term capital gain on sale of shares of M/s Midland Polymers Ltd. under IDS, 2016 and due taxes has already been paid. Further, it is clear that Assessee has earned long term capital gain of Rs 46,26,450/- only and remaining amount is the cost price of shares which cannot be treated as income of the assessee.

7. In light of the above facts and on the basis of material available on record, the case of NK Agarwal & Sons (PAN AAAHN5067J) is not a fit case for issuance of notice u/s 148 of the Act for A.Y. 2013-14.” It is again reiterated that different theories adopted by the Income Tax Department on the same and identical facts i.e. same assessment year, same share, same nature of income under the head “Capital Gains” is beyond judicial prudence. It is also submitted, the assessment for the year under reference was completed u/s 143(3) and during the assessment proceedings all the details including the cost of acquisition of shares of Midland Polymer Ltd. was examined by the than AO and after considering the same no adverse inference has been drawn. Now, again doubting the cost of acquisition tantamount to revisit the accepted fact and is more change of opinion for which proceedings u/s 148 cannot be initiated which is settled proportion of law more particularly when the equity shares of MIDPOLY has been purchased in the month of March 2013 (APB 76-86) as well as sold in the same month i.e. March 2013 (APB 76-86). In such a scenario there cannot arouse any question with respect to the verification of genuineness of the amount utilized in purchase of shares. Details of Shares purchased along with Sold are reproduced as under— Details Quantity Amount (Rs.) APB Remarks Sales made in the month of March 33,740 86,23,055/- 76-80 2013 (Less) Purchases made in the 33,740 70,39,711/- 81-86 month of March 2013 Capital Gain 15,72,409/- 58-62 Offered in IDS

At this juncture, reliance is placed on decision of Hon’ble Apex court in the case of Killick Nixon Ltd., Mumbai vs Deputy Commissioner Of Income Tax, wherein it has been held as under: “As far as the provisions of KVSS are concerned, we agree with the contention of the learned Senior Counsel for the assessee that the order to be made by the Designated Authority under Section 90 is a considered order which is intended to Nirmal Kumar Agrawal vs. DCIT be conclusive in respect of tax arrears and sums payable after such determination towards full and final settlement of tax arrears. Once the declarant makes payment of the amount so determined under Section 90, the immunity under Section 91 springs into effect. We are also of the view that upon such declaration being made, tax arrears being determined, paid and certificate issued under the KVSS, there is no jurisdiction for the Assessing Officer to reopen the assessment by a notice under Section 143 of the Act except where the case falls under the provisio (2) of sub-section (1) of Section 90 as it is found that any material particular furnished in the declaration is found to be false. In the present case, it is not the case of the Revenue that any material particular furnished by the appellant-assessee in the declaration was found to be false. Consequently, the Assessing Officer could not have re-opened the assessment by a notice under Section 143 of the Act. In our view, the High Court erred in both counts in dismissing the writ petition.” Hon’ble Bombay High Court in the case of Uma Corporation Vs krishna prabhakar, ACIT and Others. wherein it has been held as under: “VOLUNTARY DISCLOSURE OF INCOME-CERTIFICATE GRANTED UNDER SCHEME EFFECT-AMOUNT IN RESPECT OF WHICH CERTIFICATE IS GRANTED REASSESSMENT PROCEEDINGS IN RESPECT OF SUCH AMOUNT- NOT VALID INCOME-TAX ACT, 1961, S. 147-VOLUNTARY DISCLOSURE OF INCOME SCHEME, 1997-FINANCE ACT, 1997, SS. 68, 78” Hon’ble Calcutta High Court in the case of PCIT vs Manju Osatwal in Appeal No. ITAT/96/2021 has held as under: “In the case at hand, the tax paid by the assessee is under the IDS which is a scheme framed under the provisions of the Finance Act, 2016. That apart, in the declaration filed by the assessee in terms of Section 183 of the Act, in Form 1 the assessee has mentioned about the undisclosed income and also the undisclosed income which is eligible under the scheme (IDS). This declaration was considered by the appropriate authority, who incidentally is the PCIT and having been satisfied that the assessee is eligible to the benefit of IDS, the acknowledgement of declaration was given in Form 2 mentioning the undisclosed income as declared by the assessee in Form 1 and the undisclosed income eligible for the Scheme. The acknowledgement issued in Form 2 is issued after consideration of relevant material and the determination is made by the PCIT on the amount payable by the assessee with respect to the declaration made by her under the Scheme. Therefore, it will be too late in the day for the PCIT to now invoke the power under Section 263 of the Income Tax Act to set at naught the finality arrived at under the IDS which was a Scheme notified in exercise of powers conferred under Section 199(1) and (2) of the Finance Act, 2016. That apart, the order of assessment under Section 143(3), upon the declaration being accepted has worked itself out and as on 13th October, 2017, the tax, sur-charge and penalty having been fully paid in terms of the declaration issued in Form 4, there is nothing more to be revised by the PCIT by invoking his power under the Income tax Act. If such revision of assessment is permitted, it would work against the object and purpose Nirmal Kumar Agrawal vs. DCIT of IDS. Section 189 of the Finance Act, places an embargo on the assessee to the effect that an assessee who is a declarant under the IDS shall not be entitled, in respect of undisclosed income, declared or any amount of tax and sur- charge paid thereon, to reopen any assessment or re-assessment made under the Income tax Act.” Hon’ble Income Tax Appellate Tribunal , Amritsar bench, Amritsar in the case of Smt. Lata Narang Vs Principal Commissioner Of Income Tax wherein it has been held as under: “5. That having regard to the facts and circumstances of the case, Hon'ble Principal Commissioner of Income Tax has erred in law and on facts, ignoring the fact that assessee has opted for Vivad Se Vishwas scheme for dispute resolution and proceedings under the scheme are completed and Certificate in form no. 5 has been issued to the assessee which contains order for full and final settlement of tax arrears u/s 5(2) read with section 6 of The Direct Tax Vivad Se Vishwas Act, 2020. The (Vivad se Vishwas) scheme also highlights the point that once the taxpayers decide to resolve the dispute with the tax authority under this scheme, then the amount payable would be considered final and such cases will not be opened again for proceeding under the Income Tax Act. But Hon'ble Principal Commissioner of Income Tax ignored this fact and initiated Lata Narang v. Pr. CIT proceedings u/s 263 and set aside the Assessment made by A.O. u/s 147/143(3) of Income Tax Act, 1961 vide his order u/s 263 dated 23/03/2021 which is null and void.” Therefore, in light of the submissions made above and case laws cited, it is prayed that the initiation of reassessment proceedings u/s 147 of the Act is against the law and order passed by ld. CIT(A) confirming the action of ld. AO has not adjudicated on it and thus order of ld. CIT(A) as well as ld. AO deserves to be quashed. Grounds of Appeal No.3 to 3.1 & 4 to 4.2: In the ground of appeal No. 2, assessee has challenged the action of ld. CIT(A) in confirming the action of ld. AO in making the addition of Rs. 70,59,315/- (being cost of shares purchased) u/s 68 of the Act, after allowing the credit of Short Term Capital Gain of Rs. 15,72,409/- from the sale consideration of Rs, 86,31,724/- from sale of shares of M/s Midland Polymers Ltd. In the ground of appeal No. 2.1, assessee has challenged the action of ld. CIT(A) in confirming the action of ld. AO in presuming that assessee had paid commission at the rate of 3% to entry provider for arranging aforesaid accommodating entry and thus making addition of Rs. 2,11,779/- (being cost of shares purchased) u/s 69C of the Act arbitrarily In the grounds of appeal No. 3 to 3.2, assessee has challenged the action of ld. CIT(A) in confirming the action of ld. AO in making the addition of Rs. 70,59,315/- & 2,11,779/- u/s 68 & 69C of the Act respectively solely on the basis of relying on the statement of third parties.

Nirmal Kumar Agrawal vs. DCIT Brief facts pertaining to the grounds of appeal are that assessee had purchased 33,740 shares of M/s Midland Polymers in the month of March 2013 (APB 76-86) in the year under consideration for a consideration of Rs. 70,59,315/-. And thereafter same has been sold in March 2013 itself (APB 76-86) for total consideration of Rs. 86,31,724/- and realized a short term capital gain of Rs. 15,72,402/- which was offered for taxation in return of Income u/s 139(1) of the Act. Thereafter when the Income Disclosure Scheme 2016 was introduced by the Government of India, assessee in order to obtain peace of mind, suo-moto offered the gain on such transaction for taxation the rate of 45% and necessary form under IDS, 2016 i.e Form 2,3 & 4 were issued by the department and the assessment had attained the finality. However, ld.AO, on the basis of certain information obtained as a result of Survey conducted by the Investigations wing of the department in the case of third parties held that M/s Midland Polymers Ltd was a penny stock company and accordingly held the Entire Sale consideration after providing credit of Short Term Capital Gain which offered for Taxation under IDS, 2016 as bogus and made addition u/s 68 on that account. With this background, it is submitted that during the course of assessment proceedings. On the basis of general modus operandi, and statements recorded by investigation wing of some third parties not related to assessee in any manner, ld.AO drawn inference that shares transaction of assessee was also bogus though no direct evidence whatsoever has been brought on record by ld.AO before making such huge additions. As stated by Ld. AO, Investigation wing of the department had shared information, according to which, survey actions were conducted in the case of M/s Midland Polymers Ltd, wherein statement of Shri Satnarayan Rathi, Shri Rupesh Soni & Smt. Radhika Soni were recorded u/s 132(4)/133A and on the basis of these statements additions were made. As per version of ld.AO, on the basis of statements so recorded u/s 132(4)/133A, it is alleged that M/s Midland Polymers Limited is penny stock companies and provide accommodation entries on commission basis through operators. The relevant extracts of the statements of such persons were reproduced by the Ld. AO in the assessment order. From the perusal of the said statements, it is noticed that none of these persons had stated that assessee has taken any accommodation entry from them nor any reference of the assessee was made in any manner that assessee has approached them for providing accommodation entry. Further in the statements/information provided it is stated that preferential allotment of shares were made to 36 persons. However, in that list also assessee name was not mentioned. Thus by, relying upon the generalized statements of such parties, ld. AO concluded that M/s Midland Polymers is a Penny stock company and further went on holding that entire consideration received by the assessee after adjusting Short Term Capital declared in IDS 2016 as unexplained cash credit in the hands of assessee and even without considering the fact addition so confirmed by him is merely cost price of share purchased, which is never challenged.

Nirmal Kumar Agrawal vs. DCIT At the outset, it is submitted that the impugned assessment order is prima facie illegal in as much as on the basis of following facts— • That the assessment u/s 143(3) of the Act was completed vide order dated 09.03.2016 and at the time of assessment all the details were furnished before than ld. AO and after considering all the evidence adduced before her certain disallowances were made which were never challenged, • That, it is again reiterated that the assessee already offered short term capital gain of Rs. 15,72,409/- earned on equity shares of MIDPOLY in the Income Declaration Scheme in the year 2016 and relevant taxes @ 45% has also been paid thereon and same fact has also been acknowledged in the order passed u/s 148A(d) of the Income Tax Act, 1961 dated 21.07.2022. • That reopening assessment again solely on the basis of the so-called statements of third parties who are completely unknown and unrelated to the assessee. It must be noted that the statements of the said third parties were not recorded by the Assessing Officer of assessee during the course of assessment proceedings, but were recorded in some other proceedings carried out by the Investigation Wing of Indore/Hyderabad. In the present case, the Ld. AO has based his entire assessment order upon the statements of third parties which were recorded by some other authorities and that too behind the back of the assessee. • That it can be seen from the assessment order itself, no corroborative material mentioning name of assessee being beneficiary of accommodation entry, was brought on record by the Ld. AO during the course of assessment proceedings. • That in support of the transaction undertaken by assessee in the year under consideration, the assessee has filed various documents duly evidencing purchase/sale of shares in March 2013 made online through recognized stock exchange broker namely M/s Maverick Share Brokers Limited (APB 76-86), copy of D-mat Account Transaction Statement (APB 103-104), copy of D-mat Account Statement of Holding (APB 105-107), copy of Broker Ledger (APB 101-102) and payments being made through banking channels (APB 87-100). However, all these evidences were just ignored and not rebutted by the AO before making addition. In view of these facts, it is submitted that the impugned addition being solely based upon such uncorroborated statements of third parties is clearly bad in law. Ld.AO has further observed that shares held by the assessee was held as “Penny Stock”. In this regard, it is submitted that assessee invested in shares genuinely, thereafter certain investigation by the department took place and it was held a shell company. Since, a bonafide investor is not aware about complete day to day working of a company, he should not be held liable for misdeeds of company officials. Further in order to avoid hardship and to obtain peace of mind, once assessee came to know about the misdeeds of the company suo-moto offered the gain for taxation under IDS, 2016. At juncture it is also that additions were based solely on the basis of statement of third parties, recorded by some other officals behind the back of the assessee. Thus before confirming the additions, ld. AO should have given an opportunity to Nirmal Kumar Agrawal vs. DCIT assessee to cross-examine the witnesses, on whose statements heavy reliance is being placed, which was not done in the instant case. In this regard, it is also submitted that such requirement is not a technical rules of evidence, but is one of the principles of natural justice which the Assessing Officer being a quasi-judicial authority is bound by law to follow. In this regard, reliance is placed on decision of Hon’ble Apex court in the case of CCE Vs. Andaman Timber Industries, (324) ELT 641wherein it has been held as under: “6. According to us, not allowing the assessee to cross-examine the witnesses by the Adjudicating Authority though the statements of those witnesses were made the basis of the impugned order is a serious flaw which makes the order nullity inasmuch as it amounted to violation of principles of natural justice because of which the assessee was adversely affected. It is to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them.

7. 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 Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above.” Hon’ble Apex Court in the case of CIT vs Odeon Builders Pvt. Ltd. in Civil Appeal No. 9604-9605 of 2018 has held as under: S. 68/69 Bogus Purchases: Disallowance cannot be made solely on third party information without subjecting it to further scrutiny. The assessee has prima facie discharged the initial burden of substantiating the purchases through various documentation including purchase bills, transportation bills, confirmed copy of Nirmal Kumar Agrawal vs. DCIT accounts and the fact of payment through cheques, & VAT Registration of the sellers & their Income Tax Return. The AO has also not provided a copy of the statements to the assessee, thus denying it opportunity of cross examination. Hon’ble Jaipur Bench of Tribunal in the case of Sh. Pramod Jain vs. DCIT in DB has relied upon the view taken by Hon’ble Apex Court in Andaman Timbers and held that the statements of witness cannot be made sole basis of making assessment without giving an opportunity of cross examination and consequently it is a serious flaw which renders the order a nullity. Hon’ble Jaipur Bench of Tribunal in the case of DCIT vs Saurabh Mittal ITA No. 16/JP/18 has deleted the additions made on similar issues. Excerpts of decision are as under: S. 68 Bogus capital gains from penny stocks: Reliance by AO on statements recorded by the Investigation Wing to conclude that the capital gains are bogus without giving an opportunity of cross examination is a complete violation of principles of natural justice as held in CCE Vs Andaman Timber Industries 127 DTR 241(SC). The AO has not controverted the evidence of purchase bills, payment of consideration through bank, DEMAT account, allotment of amalgamated shares, sale of shares through stock exchange at prevailing price, payment of STT etc. Hon’ble Ahmedabad bench of ITAT also in the case of Smt. Sunita Jain vs ITO in ITA No 501/AHD/2016 quashed the assessment order by placing reliance on Apex Court judgement in the case of Andaman Timber (cited supra) as entire assessment was based upon the statements of Sh. Mukesh Choksi, which were neither supplied to assessee nor was opportunity of cross examination was provided. Moreover recently Hon’ble Supreme Court of India in the case of PCIT vs Kuntala Mohapatra in SLP No. 5269/2024 dated 04.03.2024 has dismissed the SLP of Revenue and affirmed the order of the Hon’ble High Court of Orissa wherein Revenue appeal was dismissed and matter was decided in the favour of assessee, in respect of same issue i.e. LTCG claim. Relevant operating para of High Court Order is reproduced as under for ready reference— “3.The impugned order of the ITAT has sufficiently dealt with the factual details concerning the Respondent-Assessee. The question was regarding the claim of long-term capital gains on shares in terms of Section 10(38) of the Act. During the course of scrutiny assessment, a revised return was filed by the Assessee claiming the above exemption. After the AO rejected the plea, the Assessee went before the CIT(A). The CIT(A) was satisfied that the purchase of liquid shares have been made through Account Payee Cheques and the shares themselves were held in Demat Account for more than 12 months and then sold through the recognized stock exchange after payment of security transaction tax. A reference was made to the CBDT circular which debarred the Revenue from obtaining admissions/ statements during the course of a survey. The ITAT also noted the Nirmal Kumar Agrawal vs. DCIT settled position in law that if an Assessee has wrongly offered an item of income or omitted to make a claim of deduction in the return, he was entitled to correct such a mistake by making a request to the AO to that effect.

Nirmal Kumar Agrawal vs. DCIT “The same facts were considered in the above cited cases regarding purchase of shares of M/s. Careful Projects Advisory Ltd which was subsequently merged with M/s. Kailash Auto Finance Ltd. and after analyzing the relevant documentary evidence which includes purchase bill, payment consideration through bank, dematerialization of shares, allotment of the shares amalgamated new entity in lieu of earlier company, the Tribunal has held that in the absence of any contrary evidence it cannot be held that the assessee has introduced his own unaccounted money by way of bogus Long Term Capital Gain. The Tribunal has also followed the decision of Hon’ble Jurisdictional High Court in case of CIT vs. Smt. Pooja Agarwal (supra) wherein the Hon’ble High Court has also upheld the finding of the ld. CIT (A) and this Tribunal when the assessee produced all the relevant details and evidence in support of the transaction of purchase and sale of shares. Accordingly, in view of the facts and circumstances as discussed above, when the assessee has produced all the relevant documentary evidences to establish the genuineness of the transaction and there is no contrary evidence to doubt the correctness of the evidences produced by the assessee then treating the transaction of purchase and sale as sham by the AO is not justified. The assessee has also produced the financial statements of M/s. Kailash Auto Finance Ltd. to show that the company has earned a handsome profit. Further, the alleged SEBI order was also subsequently revoked. Therefore, all these facts established the genuineness of the transaction. Hence we do not find any error or illegality in the order of the ld. CIT (A) in deleting the addition made by the AO under section 68 of the IT Act by treating the Long Term Capital Gain on sale of shares as unexplained cash credit. The addition of Rs. 1,51,869/- being the deemed commission for taking the accommodation entry, is consequential to the main issue. Hence, the same is also not sustainable.” We are of the view that the present appeal does not involve any substantial question of law. Learned ITAT has specifically held that the assessee has produced all the relevant documentary evidence to establish genuineness of the transaction and there is no contrary evidence to doubt the correctness of the evidences produced by the assessee and therefore treating the transaction of purchase and sale as sham is not justified. Further, learned ITAT has also relied upon the decision of the jurisdictional High Court reported in 2018 (99) taxmann.com 451 (Raj.) titled as Commissioner of Income Tax, Jaipur Vs. Smt. Pooja Agarwal, wherein learned ITAT has relied upon the judgment of Division Bench involving the same facts wherein the Division Bench has dismissed the appeal filed by the Revenue. In the light of above facts, this Court is of the view that the order of learned ITAT requires no interference and therefore, the appeal is dismissed.” Hon’ble Rajasthan High Court in the case of CIT vs Pooja Agrawal reported in 160 DTR 198 has categorically held by Hon’ble Court that so far as assessee has furnished all the supporting documents in the shape of copy of contract notes regarding purchase and sale of shares, copy of D-mat account etc. the fact of transaction entered into cannot be denied simply on the ground that in his Nirmal Kumar Agrawal vs. DCIT statements appellant denied having made any transactions. Further as payments and receipts were made through account payee cheques and transactions were routed through Kolkata Stock Exchange and there was no evidence that the cash has gone back in appellant’s account, it was held by the Court that simply mentioning that findings were on the basis of appraisal report prepared by Investigation wing after considering all the material facts available on record is not sufficient. It was thus observed by the Hon’ble Court that “The AO has failed to prove through any independent enquiry or relying on some material that the transactions made by the appellant through share P.K. Agrawal were non genuine or there was any adverse mention about the transaction in question in statement of Sh. Pawan Purohit.” Hon’ble Jaipur bench of ITAT in the case of Arnav Goyal vs ITO in has held as under: “Considering the above facts and circumstances and taking into consideration, the various documentary evidences furnished by the assessee in support of his claim and further relying upon the decisions of this tribunal as well as decision of Hon’ble Jurisdictional High Court including the decision in the case of CIT Vs. Pooja Agarwal (supra) and in the case of PCIT Vs. Pramod Jain &Ors. (supra), it is held that claim of long term capital gain of exemption u/s 10(38) of I.T. Act do not suffer from infirmities and cannot be held as bogus and accordingly addition so made by the AO and confirmed by the CIT(A) is hereby deleted. Further Hon’ble Rajasthan High Court confirm the decision of Hon’ble ITAT in the case of Principal Commissioner Of Income Tax-1 vs. Shri Arnav Goyal in D.B. Income Tax Appeal No. 14/2014 . Relevant operating para is reproduced as under:- “6. It was considered that the statements recorded at the back of the respondent, without affording an opportunity of cross examination was no evidence in eyes of law. Further the statements nowhere stated that the transactions of the respondent with regard to sale and purchase of the shares of the company was an accommodating entry. It would be appropriate to note that second addition on account of undisclosed expenditure of commission paid was consequent upon addition made of long term capital gain.

Nirmal Kumar Agrawal vs. DCIT Recently Hon’ble Jaipur bench of ITAT vide order dated 31.08.2022 in the case of Manohar Lal Chug vs. ITO in has held that: “6.3. The issue of penny stock and consequent additions made has elaborately dealt with by ITAT Jaipur Bench in the case of Pramod Jain & Others (supra) and relying on the decision of Hon’ble Rajasthan High Court in the case of CIT vs. Pooja Agarwal, 160 DTR 0198 (Raj.) deleted the addition by observing as under :- "In view of the above facts and circumstances of the case, we are of the considered opinion that the addition made by the AO is based on mere suspicion and surmises without any cogent material to show that the assessee has brought back his unaccounted income in the shape of long term capital gain. On the other hand, the assessee has brought all the relevant material to substantiate its claim that transactions of the purchase and sale of shares are genuine. Even otherwise the holding of the shares by the assessee at the time of allotment subsequent to the amalgamation/ merger is not in doubt, therefore, the transaction cannot be held as bogus. Accordingly we delete the addition made by the AO on this account." On further appeal by the department to the Hon’ble Rajasthan High Court, the Hon’ble High Court by referring to the decision of CIT vs. Pooja Agarwal in DB IT Appeal No. 385/2011 dated 11.09.2017 (Raj)(HC) held that no substantial question of law arise in this case. 6.4. Thus in view of the above discussion and taking into consideration various documentary evidences produced by the assessee in support of his claim and further relying upon various decisions of this Tribunal as well as the decision of Hon’ble Jurisdictional High Court including the decision in case of CIT vs. Pooja Agarwal (supra) as well as in case of PCIT vs. Pramod Jain & Others (supra), we allow the claim of exemption under section 10(38) of the Act and accordingly delete the addition made by the AO. The order of ld. CIT (A) is set aside.” Hon’ble Jaipur bench of ITAT vide order dated 14.10.2021 in the case of Lt. Sh Satpal Singh vs ACIT in ITA No. 289/JP/2020 has also decided the issue on favour of assessee. Reliance is also placed on judgement delivered by Hon’ble Punjab and Haryana High Court in the case of The Pr. CIT vs Sh. Hitesh Gandhi, wherein it has been observed that when: • Shares were actually purchased as these were reflecting in D-mat accounts; • AO rejected the contention of purchase on the basis of suspicion arising out of reckless/ casual replies given by assessee during assessment proceedings ; • No post search enquiries were conducted in the form of recording statements of broker so as to bring on record any evidence of the said transaction being an accommodation entry ; • STT has been on sale of shares and shares had been sold through National Stock Exchange ; Nirmal Kumar Agrawal vs. DCIT • Payment for sale of shares was received through banking channels; Thus, when all the documentary evidences filed before the Ld. AO were in favour of assessee, solely on the basis of some casual replies given by assessee, transactions cannot be held as sham. It is pertinent to note here that in the case before Hon’ble Punjab and Haryana High Court, shares were purchased for cash, then too, transaction was held as genuine as all the documents were in favour of assessee,. Thus instant case of assessee is far better as payment for purchase of such shares were made through banking channels. It is further submitted that the other reason of addition is the enquiry made by SEBI and thereafter suspension of the trading of shares of “Midpoly” by SEBI cannot be considered as conclusive evidence to hold the assessee as liable for making addition in the income tax proceedings. In this regard reliance is placed on the decision of Hon’ble Jharkhand High Court in the case of CIT v. Arun Kumar Agarwal (HUF) (2013) 085 DTR 0219 wherein it has been held as under: 10. We have considered the submissions of the learned counsel for the parties and we are of the considered opinion that the learned Assessing Officer was much influenced by the enquiry report which may has been brought on record by the efforts of the Assessing Officer and that enquiry report was prepared by the SEBI and from the observations made by the Assessing Officer himself, it is clear that after getting that enquiry report, the SEBI prima facie found involvement of some of the share brokers in unfair trade practices. Even in a case where the share broker was found involved in unfair trade practice and was involved in lowering and rising of the share price, and any person, who himself is not involved in that type of transaction, if purchased the share from that broker innocently and bonafidely and if he show his bonafide in transaction by showing relevant material, facts and circumstances and documents, then merely on the basis of the reason that share broker was involved in dealing in the share of a particular company in collusion with others or in the manner of unfair trade practices against the norms of S.E.B.I and Stock Exchange, then merely because of that fact a person who bonafidely entered into share transaction of that company through such broker then only by mere assumption such transactions cannot be held to be a shame transaction. Fact of tinted broker may be relevant for suspicion but it alone necessarily does lead to conclusion of all transaction of that broker as tinted. In such circumstances, further enquiry is needed and that is for individual case. Such further enquiry was not conducted in that case…………………… ……………………” In the case of assessee, no material was found which could support the allegation of the Ld. AO that assessee has converted his undisclosed money in the guise of STCG. Therefore, in the circumstances, it is humbly submitted that the assessee had entered into a genuine transaction of purchases and sales of shares routed Nirmal Kumar Agrawal vs. DCIT through the recognized stock exchange and the funds have been transacted through banking channels and the shares were kept by the assessee in D-mat account maintained by independent third party and the sales were subject to STT. Thus, all the conditions enumerated in section 10(38) for holding the profit from the sale of shares as exempt have duly been fulfilled by the assessee, thus in no circumstances it could be held as bogus or sham transaction more particularly when no corroborative evidence was brought on record by the department to hold that assessee had introduced his undisclosed income in the garb of long term capital gain. The reliance is also placed on the following decisions: Pr. CIT vs Jatin Investment Pvt. Ltd. (Delhi High Court) S 68 Bogus Capital Gains: A transaction cannot be treated as fraudulent if the assessee has furnished documentary proof and proved the identity of the purchasers and no discrepancy is found. The AO has to exercise his powers u/s 131 & 133(6) to verify the genuineness of the claim and cannot proceed on surmises.” CIT vs Mukesh Ratilal Marolia (Bombay High Court) S.10(38)/69: Fact that a small amount invested in “penny” stocks gave rise to huge capital gains in a short period does not mean that the transaction is “bogus” if the documentation and evidences cannot be faulted. Surya Prakash Toshniwal HUF vs ITO (ITAT Kolkata) Bogus capital gains from penny stocks: Long Term capital gains claimed exempt u/s 10(38) cannot be treated as bogus unexplained income if the paper work is in order. The fact that the company whose shares were sold has violated SEBI norms is not traceable does not mean that the assessee is at fault. Farrah Marker vs ITO (ITAT Mumbai) S. 10(38)/68: Long Term capital gains on sale of “penny” stocks cannot be treated as bogus & unexplained cash credit if the documentation is in order & there is no allegation of manipulation by SEBI or the BSE. Denial of right of cross- examination is fatal flaw which renders the assessment order a nullity. Dolarrai Hemani vs. ITO (ITAT Kolkata) Penny Stocks: The fact that the stock is thinly traded and there is unusually high gain is not sufficient to treat the long term capital gains as bogus when all the paper work is in order. The revenue has to bring material on record to support its finding that there has been collusion/ connivance between the broker and the assessee for the introduction of its unaccounted money. Identical issue has been decided in favour of assessee in the following cases:

Nirmal Kumar Agrawal vs. DCIT i. Mahesh Mundra Mumbai vs ITO 21(1)ITA No. 1176/Mum/2012 ii. ITO ward 20(1) vs Naveen Gupta in (Delhi) SOT 2006 94 Delhi iii. Mayur M Shah HUF Mumbai vs ITO 25(3) ITA No.2390/Mum/2013 iv. ITO v SmtKusumlata in ITA No. 387 105 TTJ (2006) 265 Jodhpur v. ChandrakantBabulal Shah vs ITO 16(2)(4) ITA No.6108/Mum/2009 vi. Dalpat Singh Choudhary vs ACIT (2012) 143 TTJ 500 (Jodhpur Trib) vii. ACIT v Shri Ravindra Kumar ToshnivallTA No. 5302/Mum/2008 viii. Jafferali K Rallonse v DCIT Central 5 in ITA No. 68/Mum/2009 ix. Mrs Rajinidevi A. Chowdhary v ITO ITA No. 6455/M/07 dated 30/04/2008 x. DCIT v Shri Pinakir L Shok in ITA No. 3030 & 3453/M/08 Dated 14/0712009 xi. CIT Vs. Shyam R. Pawar reported in [2015] 54 taxmann.com 108 (Bom) xii. ITO Vs. M/s Indravadan Jain, HUF, ITA No. 4861 & 5168 / Mum / 2014 xiii. Purushottam Soni vs ITO (Jaipur ITAT) ITA No. 288/JP/2017 xiv. Dipesh Ramesh Vardhan vs DCIT (Delhi ITAT) ITA No. 7648/Mum/2019

Therefore, in light of the submissions made above and case laws cited, it is prayed that the addition of Rs. 70,59,315/- made by ld.AO u/s 68, may please be directed to be deleted. Further with regard to Ground No. 2.1, it is submitted that while holding the capital gain declared by assessee as bogus merely on the basis of statements of a third party, the Ld. AO has further presumed that a commission of the above mentioned amount @ 3% might have been paid by assessee as a consideration for arranging such accommodation entry. It is submitted that firstly, the transaction entered into by the assessee and the STCG arising therefrom is completely genuine as has been submitted above in detail in grounds of appeal above. Further it is relevant to state that assessee only went for IDS, 2016 only to obtain peace of mind and to avoid litigation on account of speculation going on with regard to script “M/s Midland Polymers Ltd”. Thus, in view of the same there arises no question of any commission payment. Secondly, this addition also is solely based upon the statements of third party absolutely uncorroborated in much as there is no material available on record to show any such payment. No such material has been referred by the Ld. AO and merely on the basis of assumptions and presumptions; the impugned addition has been made. Therefore, when the capital gain has already been established as genuine which was treated as bogus by Ld. AO solely on the basis of uncorroborated statements of a third party, no further addition could have been made solely on the basis of such statements on assumptions and presumptions. Hence, it is prayed that the addition of Rs. 2,11,779/- respectively deserves to be deleted. ”

7. To support the contention so raised reliance was placed on the following evidence / records:

S. No PARTICULARS PAGE NOS.

Copy of Return of Income along with Computation of Income filed u/s 139 of 1-6 1. Income Tax Act, 1961

Copy of Balance Sheet and Capital account along with notes of accounts as on 7-10 2. 31.03.2013

Copy of notice u/s 148A(b) dated 31.05.2022 11-14 3. Copy of reply to Show Cause notice u/s 148A(b) dated 15.06.2022 15-25 4. Copy of order dated 21.07.2022 issued under section 148A(d) of Income Tax 26-37 5. Act, 1961

Copy of notice dated 21.07.2022 issued under section 148 of Income Tax Act, 38-39 6. 1961

Copy of Return of Income along with Computation of Income filed u/s 148 of 40-45 7. Income Tax Act, 1961

Copy of reply dated 20.08.2022 & 01.03.2023 during the course of 46-51 8. reassessment proceedings.

Copy of assessment order u/s 143(3) dated 09.03.2016 52-57 9. Copy of IDS Form 2,3 & 4 58-62 10. Copy of order u/s 148A(d) dated 28.07.2022 of Hema Agarwal 63-72 11. Copy of order u/s 148A(d) dated 29.07.2022 of N K Agarwal & Sons 73-75 12. Copy of details of shares bought and sold 76-86 13. Copy of bank statement 87-100 14. Copy of ledger of Maverick Share Brokers Limited 101-102 15. Copy of D-Mat transaction statement 103-104 16.

S. No PARTICULARS PAGE NOS.

Copy of D-Mat statement of holdings 105-107 17. Copy of Condonation Delay Application along with Affidavit from assessee filed 108-110 18. along with appeal memo in form 35. Copy of Written Submission filed before ld. CIT(A) 111-136 19.

8. Per contra, ld. DR relied upon the orders of lower authorities and submitted that the whole amount which was received by the assessee was on account of penny stock and therefore, the receipt as a whole is required to be taxed and therefore, the action of the AO adding purchase price is on that reason required to be sustained. The ld. DR also filed a detailed report of the ld. AO dated 11.02.2025 repeating the same facts as reported in the orders of the lower authority.

Vide ground no. 3 the only issue in this case that whether the action of the ld. AO taxing the purchase price which was paid from the declared assessee has already settled the amount of income by filling an income declaration as announced by the revenue and thereby that dispute was settled by the assessee. Now the revenue in the re-opened proceeding intended to tax the profit plus purchase price so as to tax the entire receipt as from the undisclosed sources. The issue is narrated by way of chart herein below :

Details Quantity Amount (Rs.) APB Remarks Sales made in the month of March 33,740 86,23,055/- 76-80 2013 (Less) Purchases made in the 33,740 70,39,711/- 81-86 month of March 2013 Capital Gain 15,72,409/- 58-62 Offered in IDS As the assessee has paid the purchase price from his disclosed source the same cannot be taxed and the income for Rs. 15,72,409/- has already settled in the IDS the action of the revenue in taxing the purchase price again is not correct as the assessee has already paid tax when the income is duly offered in the income disclosure scheme by paying tax as prescribed and the investments for an amount of Rs. 70,39,711/- was made from the disclosed sources and therefore, action of ld. AO and making addition for that amount is not in accordance with the law and therefore, required to be deleted. We note that the similar issue was raised in the case of wife of the the Act having similar set of facts and to drive home to this contention, he relied upon the order of his wife placed on record at page No. 63 to 71 of the paper books so filed. Considering the overall discussion recorded herein above we consider the merits of the case raised by the assessee vide ground no. 3.

Since we considered ground 3 on merits ground no. 2 challenging the re-opening of the case becomes educative in nature.

Ground no. 3.1 and 4 raised by the assessee is for the addition of 3 % commission on the purchase price added in the case of the assessee becomes educative when we have directed to delete the addition itself.

Ground no. 4.1 & 4.2 becomes consequential when we have allowed the appeal of the assessee on merits. Ground no. 5 being general does not require any finding.

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

Order pronounced in the open court on 18/02/2025.

Sd/- Sd/- ¼ Mk0 ,l- lhrky{eh ½ ¼ jkBksM deys'k t;UrHkkbZ ½ (Dr. S. Seethalakshmi) (Rathod Kamlesh Jayantbhai) U;kf;d lnL;@Judicial Member ys[kk lnL;@Accountant Member Nirmal Kumar Agrawal vs. DCIT Tk;iqj@Jaipur fnukad@Dated:- 18/02/2025 *Ganesh Kumar, Sr. PS आदेश की प्रतिलिपि अग्रेf’ात@ब्वचल वf जीम वतकमत वितूंतकमक जवरू 1. The Appellant- Nirmal Kumar Agarwal, Jaipur 2. izR;FkhZ@ The Respondent- DCIT, Circle-04, Jaipur 3. vk;dj vk;qDr@ The ld CIT vk;dj vk;qDr¼vihy½@The ld CIT(A) 4. विभागीय प्रतिनिधि] आयकर अपीलीय अधिकरण] जयपुर@क्त्ए प्ज्Aज्ए Jंपचनत 5. xkMZ QkbZy@ Guard File (ITA No. 1224/JP/2024) 6. vkns'kkuqlkj@ By order,

सहायक पंजीकार@Aेेज. त्महपेजतंत