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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy]
Appearances by: Shri Miraj D. Shah, A/R, appeared on behalf of the assessee. Shri C.J. Singh, Addl. CIT, appearing on behalf of the Revenue. Date of concluding the hearing : October 10th, 2018 Date of pronouncing the order : October 24th , 2018 O R D E R Per J. Sudhakar Reddy :-
Both these appeals filed by the assessee are directed against the common order of the ld. Commissioner of Income Tax (Appeals)-10, Kolkata (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 19/01/2018, for the Assessment Year 2014-15.
As the issues arising in both these appeals are common, for the sake of convenience they are heard together and disposed off by way of this common order. The sole issue that arises for my adjudication is whether the Assessing
2 Assessment Year: 2014- Assessment Year: 2014-15 Sri Gaurav PinchaSri Gautam Kumar Pincha & Sons (HUF) Officer was right in rejecting the claim of the assessee that he had earned Long Term Capital Gains on purchase and sale of the shares of M/s. NCL Research & Financial Services Ltd. The AO based on a general report and modus operandi adopted generally in these cases and on general observations has concluded that the assessee has claimed bogus long term capital gain. He made an addition of the entire sale proceeds of the shares as income and rejected the claim of exemption made u/s 10(38) of the Act. The evidence produced by the assessee in support of the genuineness of the transaction was rejected.
The assessee carried the matter in appeal and the ld. CIT(A), Kolkata, had upheld the addition. The ld. CIT(A) has in his order relied upon “circumstantial evidence” and “human probabilities” to uphold the findings of the AO. He also relied on the so called “rules of suspicious transaction”. No direct material was found to controvert the evidence filed by the assessee, in support of the genuineness of the transactions. In other words, the overwhelming evidence filed by the assessee remains unchallenged and uncontroverted. The entire conclusions drawn by the revenue authorities, are based on a common report of the Director of Investigation, Kolkata, which was general in nature and not specific to any assessee. The assessee was not confronted with any statement or material alleged to be the basis of the report of the Investigation Wing of the department and which were the basis on which conclusion were drawn against the assessee. Copy of the report was also not given.
Under the circumstances, in a number of cases this bench of the Tribunal has consistently held that decision in all such cases should be based on evidence and not on generalisation, human probabilities, suspicion, conjectures and surmises. We have in all cases deleted such additions. Some of the cases were detailed finding which are listed below :-
Sl.No of the Assessee Date of order /Judgment
1236-1237/K/17 Manish Kumar Baid & Others vs ACIT 18.08.2017 ITAT - Kolkata 2 443/Kol/2017 Kiran Kothari (HUF) vs ITO 15.11.2017
3 Assessment Year: 2014- Assessment Year: 2014-15 Sri Gaurav PinchaSri Gautam Kumar Pincha & Sons (HUF) 3. 22 of 2009 CIT, Kolkata-III vs Bhagwati Prasad 29.04.2009 Calcutta High Court Agarwal 4. 456 if 2007 CIT vs Shri Mukhesh Ratilal Marolia 07.09.2011 Bombay High Court 5. 18 of 2017 Punjab Pr. C.I.T. (Central)Ludhiana vs Sh.Hitesh 16.02.2017 and Haryana High Gandhi, Court 6. 95 of 2017 Pr. C.I.T. vs Prem Pal Gandhi 18.01.2018. Punjab and Haryana High Court 7. 2281/Kol/2017 Navneet Agarwal, Legal Heir of Late 20.07.2018 ITAT - Kolkata Kiran Agarwal vs ITO,Ward- 35(3),Calcutta
I am bound by the proposition of law laid down in these case law. They are squarely applicable to the facts of the case. The ld. Departmental Representative, though not leaving his ground, could not controvert the claim of the ld. Counsel for the assessee that the issue in question is covered by the above cited decisions of the Hon’ble High Courts and the ITAT.
In view of the above discussion the addition in question is deleted and both the appeals of the assessee are allowed.
In the result both the appeals of the assessee are allowed.