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Income Tax Appellate Tribunal, ‘D’ BENCH: CHENNAI
Before: SHRI GEORGE MATHAN & SHRI S.JAYARAMAN
आयकर अपील"य अ"धकरण,’डी’ "यायपीठ, चे"नई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘D’ BENCH: CHENNAI "ी जॉज" माथन, "या"यक सद"य एवं "ी एस जयरामन, लेखा सद"य के सम$ BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI S.JAYARAMAN, ACCOUNTANT MEMBER आयकर अपील सं./ITA Nos. 2563/Chny/2017 & 2392/Chny/2018 "नधा"रण वष" /Assessment Years: 2014-15 & 2014-15
Vs. Shri Mahesh Kumar (HUF), Income Tax Officer, 76,Jani Jan Khan Road, Non-Corporate Ward-11(2), Royapettah,Chennai 600 014. Chennai. [PAN: AAEHM 1194 F] (अपीलाथ&/Appellant) ('(यथ&/Respondent)
: अपीलाथ& क) ओर से/ Appellant by Mr.T.Banusekar,Advocate '(यथ& क) ओर से /Respondent by : Ms.R.Anita,C.I.T, D.R : 10.12.2019 सुनवाई क) तार"ख/Date of Hearing : घोषणा क) तार"ख /Date of 16.12.2019 Pronouncement आदेश / O R D E R PER S.JAYARAMAN, ACCOUNTANT MEMBER:
ITA No.2563/Chny/2017 is the quantum appeal filed by the assessee
against the order of the Commissioner of Income-tax (Appeals)-13, Chennai
dated 12.07.2017 for the assessment year 2014-15, and ITA
No.2392/Chny/2018 is the penalty appeal filed by the assessee against the order of the CIT(Appeals)-13, Chennai dated 31.05.2018 for the assessment
ITA No.2563 /Chny/2017 2392/Chny/2018 :- 2 -:
year 2014-15 confirming the levy of penalty u/s.271(1)(c) of the Act made by ld. Assessing Officer. Since the quantum appeal and the penalty appeal are interlinked, they are disposed of by this common order for the sake of convenience.
Shri Mahendra Kumar Bhandari (HUF), the assessee filed its return of 2. income for the assessment year 2014-15 and admitted long term capital gains
of Rs.31,78,385/-, but claimed it as an exempt income u/s. 10(38) of the Income Tax Act, 1961 (in short ‘the Act’). The Assessing Officer (AO) selected
the case for scrutiny on the basis of suspicious sale transaction in shares
(penny stock) report. During the course of assessment proceedings, the AO
found that the assessee purchased 10,000 shares of M/s.Essar India Ltd., @
Rs.1/- per share. Subsequently, one share was split into 10 shares and the assessee’s total holding became 1,00,000 shares. The assessee sold the 1,00,000 shares during the period relevant to assessment year for Rs.31.80,831/-, claimed the profit of long term capital gains of Rs. 31,70,831
as an exempt income. Based on the information received from the Directorate
of Investigation, Kolkata, and after examining the assessee’s explanation and the material available on record, and also after analyzing these transactions,
the AO held, inter alia, that the long term capital gains claimed by the assessee is not genuine one and it is only representing the undisclosed income
of the assessee. Therefore, the AO disallowed the claim of assessee u/s.10(38)
of the Act and assessed Rs.31,80,831/- as an unexplained credit u/s.68 of the ITA No.2563 /Chny/2017 2392/Chny/2018 :- 3 -:
Act and added to the same to the returned income of assessee. Further, the AO disallowed the commission of Rs.95,425/- claimed by the assessee holding
that the commission is charged for providing arranged capital gains and initiated penalty proceedings u/s.271(1)(c) of the Act. Aggrieved against that order, the assessee filed an appeal before the CIT(A). The Ld. CIT(A),
dismissed the appeal of the assessee. Aggrieved against that order, the assessee filed this appeal in ITA No.2563/Chny/2017. 3. Consequent to the disposal of the quantum appeal by the Ld.CIT(A), the AO initiated penalty proceedings u/s.271(1)(c) of the Act and after considering
the assessee’s explanation etc., the AO levied penalty u/s.271(1)(c) of the Act
by an order dated 28.02.2018. Aggrieved against that order, the assessee
filed an appeal before the CIT(A). The Ld. CIT(A), dismissed the appeal of the assessee. Aggrieved against that order, the assessee filed the appeal in ITA
No.2392/Chny/2018. 4. There was a delay of 3 days in filing of this appeal for which the assessee filed an affidavit submitting that the assessee handed over the appeal papers to the consultant. While the appeal was ready, the assessee
suffered from viral fever which was prevalent at the time in Chennai from 15.10.2017 to 24.10.2017. Therefore, he could not go to the consultant office
to sign the appeal papers. It was submitted that the delay was not due to negligence and beyond the control of the assessee. Therefore, it was a prayer
ITA No.2563 /Chny/2017 2392/Chny/2018 :- 4 -:
that the delay of 3 days in filing of this appeal may be condoned and the appeal be decided on merits.
4.1 We have heard the rival submissions and condoned the delay.
It was submitted by ld.A.R that the assessee is a regular investor in shares and makes profits on transaction of shares both long term capital gains
as well as short term capital gains, thereby accumulates profits and reported
the same to the Department. The assessee has invested the shares in M/s.Essar India Ltd., and got the impugned gain by sale of shares at recognized stock share through recognized stock broker. The ld.A.R submitted
that the Ld.CIT(A) erred in confirming such assessment by treating the purchase and sale of shares by the assessee as a penny stock transaction.
The Ld.AR submitted on the lines of grounds of appeal and relied on the order
of this Tribunal in the case Mr Sunil Kumar Lalwani Vs ITO & others, Non
Corporate Circle 9(4), Chennai in ITA No 659 & 660/ CHNY/2018 dt.
09.01.2019. Per Contra, the Ld DR submitted that the assessee has claimed
deduction U/s 10 (38) but he has not proved the genuineness, therefore,
reiterating the facts and circumstances of this case from the orders of the lower authorities, the Ld. DR supported those orders and pleaded that the appeal be decided accordingly.
We have considered the rival submissions. It is noticed the assessee has not been given a fair opportunity to prove the genuineness but the assessment has been made primarily, based on the evidences collected by the ITA No.2563 /Chny/2017 2392/Chny/2018 :- 5 -:
Revenue in the course of the investigation conducted by them on the brokers /
share broking entities etc. This is not permissible. This being so, in the interests of natural justice, the issue of the genuineness of the transactions
require re-adjudication. Since, the right to exemption must be established by those who seek it, the onus therefore lies on the assessee. In order to claim
the exemption from payment of income tax, the assessee had to put before
the Income Tax authorities proper materials which would enable them to come
to a conclusion. (35 ITR 312 (SC)).Thus, the AO must keep in mind that the onus of proving the exemption rests on the assessee. If the AO does have any evidence to the contrary, it is to be put to the assessee for his rebuttal.
The internal communications of the Revenue are evidences for drawing an opinion on possible wrong claims but they are not the final evidence. The relevant portion of the order of this Tribunal in the case of Mr. Sunil Kumar
Lalwani Vs ITO & others, Non Corporate Circle 9(4), Chennai in ITA No 659
& 660/ CHNY/2018 dt. 09.01.2019 is extracted as under: “5. Per contra, Id. A.R submitted that the Hon'ble Delhi High Court in the case of Pr.CIT Vs. M/s.Laxman Industrial Resources Ltd., in ITA N'o.169/2017, C.M.APPL.7385/2017 vide order dated 14.03.2017 has held the issue in favour of the assessee. The Id. A.R also placed before us the decision of the Co-ordinate Bench of this Tribunal in the case of Shri Aravind Nandlal. Khatri Vs. Income Tax Officer, in ITA No.2035/Chny/2038 for assessment year 2011-12 vide order dated 03.12.2018 wherein the Co-ordinate Bench of this Tribunal has held as follows:-
"5. We have considered the rival submissions on either side and perused the relevant material available on record. Admittedly, the A.O received information from Investigation Wing of the Department at Kolkata with regard to investment of the assessee in penny stock company, namely, M/s. Concrete Credit Limited. The assessee also admittedly sold the said shares and claimed exemption under Section 10(38) of the Act during the year wider consideration. Therefore,, the Assessing Officer has not disputed the source
ITA No.2563 /Chny/2017 2392/Chny/2018 :- 6 -:
for investment. The Assessing Officer disallowed the claim of exemption on the ground that the investment was in a penny stock company. From the material available on record it appears that a copy of information said to be received from the Investigation Wing of the Department at Kolkata was not furnished to the assessee. It is not brought on record the relationship of the assessee with the promoters of M/s Concrete Credit Limited. It is also not brought on record the role of the assessee in promoting the company, namely, M/s Concrete Credit Limited, issue of public shares, inflation of price of shares, etc. In those circumstances, this Tribunal is of the considered opinion that the matter needs to be re-examined by the Assessing Officer. Accordingly, the orders of both the authorities below are set aside and the entire issue is remitted back to the file of the Assessing Officer. The A.O shall bring on record the role of the assessee in promoting the company and relationship of the assessee with other promoters, role of the assessee in inflating the price of shares, etc.. The Assessing Officer shall also furnish a copy of the report said to be received from the Investigation Wing of the Department at Kolkata to the assessee and thereafter decide the issue afresh in accordance with law, after giving a reasonable opportunity to the assessee."
Further, perusal of assessee’s case shows that it is similar to the facts in the case of Shri Heerachand Kanunga, a decision of the Co-
ordinate Bench of this Tribunal made for assessment years 2010-11 &
2011-12 in ITA Nos. 2786 & 2787/Mds/2017 dated 03.05.2018 . The relevant portion from that order is extracted as under:-
“9. A perusal of the facts in the present case admittedly given room for suspicion. However, assessments are not to be done on the basis of mere suspicion. It has to be supported by facts and the facts are unfortunately not forthcoming in the Assessment Order, in the order of the Ld.CIT(A) nor from the side of the assessee. The main foundation of the assessment in the present case is the statement of one Shri Ashok Kumar Kayan who has admitted to have provided bogus Long Term Capital Gains to his clients. The said Shri Ashok Kumar Kayan also allegedly seems to have provided the assessee’s name and PAN as one of the beneficiaries. However, this statement given by Shri Ashok Kumar Kayan cannot be the foundation for the purpose of assessment in so far as Shri Ashok Kumar Kayan has not been provided to the assessee for cross-examination. In the absence of opportunity of cross-examination, the statement remains mere information and such information cannot be foundation for assessment.
Admittedly, the assessee has claimed to have purchased 15000 shares from M/s.BPL @ Rs.20/- per share totaling into Rs.3,00,000/-. The ITA No.2563 /Chny/2017 2392/Chny/2018 :- 7 -:
assessee claims to have paid cash for the purchase of these shares. The primary question would be as to where the purchase was done? If the purchase has been done in Kolkata, how was the cash transferred? When did the assessee received the share certificates and the share transfer forms? How did the assessee overcome the provisions of Sec.40A(3)? Was there adequate cash availability in the books of the assessee on 24.04.2008? Did the assessee travelled to Kolkata? How was the transaction done? Who applied for the demating of the shares? When were they demated? When were the shares transferred to the demat account of the assessee? To whom were the shares sold during the Assessment Years 2010-11 & 2011-12? When were the cheques received by the assessee? From whom did the assessee received the cheques? Was there any cash deposit immediately prior to the issuing of the cheque from the bank account of the purchaser of the shares of the assessee?
A perusal of the Assessment Order at Para No.7.1 shows that in the Written Submissions, the assessee states that he has purchased 15000 shares of M/s.BPL from M/s.ABPL, Kolkata. However, in Para No.8.3, it is mentioned that the assessee in good faith has purchased the shares of M/s.BPL from a sub-broker in his friends circle. What is the true nature of the transaction? From whom did the assessee actually purchase the shares? Did the assessee take possession of the shares in its physical form? In Para No.8.1 of the Assessment Order, it is mentioned that the assessee is an investor and has been regularly trading in shares. If this is so, does the demat account show such transactions being done by the assessee or is this the only one of transaction. Thus, clearly the facts required for adjudicating the appeals are not forthcoming. There is no evidence whatsoever to show that the assessee has held the shares for more than 12 months. This is because assuming that the demat has been done and the shares of M/s.BPL has come into the assessee’s demat account and has immediately flown out. Then the factum of the possession of the shares for more than 12 months have to be proved by the assessee. This is also not forthcoming. In reply to a specific query, as the date of the demat of shares, it was submitted by the Ld.AR that the demat was done on various dates. Then the question rises as to why there is so much of difference in the dates of demating when 15000 shares have been purchased together on 24.04.2008. No details in respect of M/s.BPL company is known, what is the product of the company which had lead to the share value of the company to go up from Rs.20/- to Rs.352/- in a period of two years. This would clearly be a case where the share value of the company was hitting the circuit breaker of the stock exchange on a daily basis and obviously it would have drawn attention. This being so, as the facts are not coming out of the Assessment Order nor the order of the Ld.CIT(A) nor from the side of the assessee, we are of the view that the issues in this appeal must be ITA No.2563 /Chny/2017 2392/Chny/2018 :- 8 -:
restored to the file of the AO for re-adjudication after granting the assessee adequate opportunity to substantiate its case and we do so.
The statement recorded by the Revenue from Shri Ashok Kumar Kayan cannot be used as an evidence against the assessee in so far as the statement has not been given to the assessee nor has Shri Ashok Kumar Kayan been provided to the assessee for cross-examination. However, the assessee shall prove the transaction of the Long Term Capital Gains in respect of which the assessee has claimed the exemption u/s.10(38) by providing all such evidences as required by the AO to substantiate the claim as also by producing the persons through whom the assessee has undertaken the transaction of the purchase and sale of the shares which would include the sub-broker, friend and the broker through whom the transaction has been done, before the AO for examination.
In the result, the appeals filed by the assessee in ITA Nos.2786 & 2787/Chny/2017 are partly allowed for statistical purposes.”
Respectfully following the above orders, on the facts and circumstances of this case, we deem it fit to remit the issue of exemption
in this appeal back to the file of the Assessing Officer for re-adjudication on the lines indicated above. Therefore, the Assessing Officer concerned
shall require the assessee; to establish who, with whom, how and in what
circumstances the impugned transactions were carried out etc., to prove
that the impugned transactions are actual, genuine etc. The assessee shall comply with the Assessing Officer’s requirements as per law. The Assessing Officer is also free to conduct appropriate enquiry as deemed fit.
The Assessing Officer shall also bring on record the role of the assessee in promoting the company and relationship of the assessee with other
promoters, role of the assessee in inflating the price of shares, etc. as had been held by the Co-ordinate Bench of this Tribunal in the case of ITA No.2563 /Chny/2017 2392/Chny/2018 :- 9 -:
Kanhaiyalal & Sons (HUF) v. ITO in I.T.A. No.1849/Chny/2018, dated
06.02.2019 referred to supra. The Assessing Officer shall furnish adequate
opportunity to the assessee on the material etc to be used against him and on appreciation of all the aspects, the Assessing Officer would decide the matter in accordance with law. Thus, the issue of exemption claim u/s 10(38) is restored to the file of the Assessing Officer for re-adjudication on the lines indicated above.
In the result, the quantum appeal of assessee is treated as partly
allowed for statistical purposes. 10. There was a delay of 15 days in filing of this appeal for which the assessee filed an affidavit submitting that on receipt of order of the Ld.CIT(A),
the assessee handed over the appeal papers to the consultant. While the matter was under consideration, the assessee suffered from Knee ligament
strain and he was advised to take bed rest for a period of 20 days. On recovery from medical ailments, the assessee approached the consultant and on due process, the assessee filed this appeal with a delay of 15 days. It was submitted that the delay was not due to negligence and beyond the control of the assessee. Therefore, it was a prayer that if the delay in filing of this appeal
is not condoned, it would cause injustice to the assessee. Hence, it was pleaded that in the interest of justice, the delay be condoned and the appeal
be decided on merits.
ITA No.2563 /Chny/2017 2392/Chny/2018 :- 10 -: 10.1 We have heard the rival submissions and condoned the delay.
Since the quantum appeal in respect of the issues raised in this appeal is being remitted back to the file of AO for a fresh examination supra, the assessee’s appeal on the penalty order passed u/s.271(1)(c) becomes
infructuous and hence, it is dismissed.
In the result, the penalty appeal of assessee is dismissed as infructuous.
To sum up, the quantum appeal of assessee in ITA No.2563/Chny/2017 is partly allowed for statistical purposes and the penalty appeal of assessee in ITA
No.2392/Chny/2018 is dismissed.
Order pronounced on the 16th December, 2019 in Chennai. (जॉज" माथन) (एस जयरामन) (GEORGE MATHAN) (S. JAYARAMAN) "या"यक सद"य/JUDICIAL MEMBER लेखा सद"य/ACCOUNTANT MEMBER
चे"नई/Chennai, 0दनांक/Dated: 16th December, 2019. K S Sundaram
आदेश क) '"त1ल2प अ3े2षत/Copy to: 1. अपीलाथ&/Appellant 4. आयकर आयु4त/CIT 5. 2वभागीय '"त"न"ध/DR 2. '(यथ&/Respondent 6. गाड" फाईल/GF 3. आयकर आयु4त (अपील)/CIT(A)