M/S GANESHMULL BIJAY SINGH BAID (HUF),KOLKATA vs. D.C.I.T CC - XXVII,KOLKATA, KOLKATA

SHRI M.BALAGANESH, AM :

These appeals of the assessee arise out of independent orders of the Learned CIT(A)-II, Kolkata in Appeal No. 195/CC-XXVII/CIT(A)C-II/08-09 dated 4.1.2013 for AY 2005-06 in the case of Basant Kumar Baid (HUF) ; Appeal No. 196/CC- XXVII/CIT(A)C-II/08-09 dated 4.1.2013 for AY 2005-06 in the case of Basant Kumar Baid ; Appeal No. 193/CC-XXVII/CIT(A)C-II/08-09 dated 4.1.2013 for AY 2005-06 in the case of Bijoy Singh Baid (since deceased) rep. by Legal Heir Basant Kumar Baid and Appeal No. 194/CC-XXVII/CIT(A)C-II/08-09 dated 4.1.2013 for AY 2005- 06 in the case of Ganeshmull Bijoy Singh Baid (HUF).

2.1. The brief facts of this issue is that the assessee claimed long term capital gains from transactions in shares of M/s Continental Fiscal Management Limited and M/s Swastik Securities & Finance Ltd. There was a search and seizure operation u/s 132 of the Act conducted in the premises of one Shri Narendra Kumar Shyamsukha on 24.10.2006 wherein inter alia various incriminating materials were found and seized. One such seized document vide page numbers 7 to 10 of the loose paper bunch marked as NKS /3 seized from his premises revealed certain notings regarding certain persons including the assessee. In the course of search, the statement of Shri Narendra Kumar

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Shyamsukha was recorded and he was asked to explain the notings made on the seized documents under reference. In response, it was stated by him that the seized papers contain the details of bogus long term capital gain taken by the persons appearing in the seized papers. It was further stated that these persons had laundered cash aggregating to Rs. 1,49,50,000/- and he was acting as one of the intermediary to facilitate the bogus transactions and had, in turn, earned a commission of 1% of the said amount. The calculation of commission income was also recorded on the seized documents. The seized paper No. 7 & 8 of NKS / 3 contained details in tabular form having date, name, broker name, number of shares, cheque and cash paid. The pages No. 9 & 10 of NKS /3 contained details like the party name, script name, quantity purchased and amount, sale amount and profit on sale. The names of the assessee and his family members appeared on these seized documents. However, when assessee was enquired, he denied knowing any person by the name of Shri Narendra Kumar Shyamsukha. The broker, through whom transactions of purchase and sale of shares took place, also denied knowing Shri Narendra Shyamsukha. However, the fact remains that the transactions recorded on the seized papers exactly matched with the details of long term capital gain filed by the various persons in their return of income including the assessee. Therefore, in the course of re-assessment proceedings, the Learned AO asked the assessee to explain as to why the transactions of long term capital gain shown in the return of income should not be treated as bogus and the addition is made u/s 68 of the Act. It was pleaded before the Learned AO that the assessee had disclosed long term capital gain on sale of shares of Continental Fiscal Management Limited and Swastik Securities and Finance Limited. These shares were bought by the assessee during the Financial Year 2002-03 and were duly shown in the Balance Sheet as on 31.3.2003 and 31.3.2004. The shares were purchased by making the payment through account payee cheques. The shares were sold by receiving account payee cheque through the broker Ahilya Commercial Pvt Ltd and the broker had also issued the contract notes for purchase and sale of shares. The assessee also denied making any payment in cash to a person called Narendra Shyamsukha and ITA Nos.544, 546-548/Kol/2013-A-AM 3 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

pleaded that merely on the basis of his statement, the transactions should not be termed as bogus. In the course of re-assessment proceedings, the assessee has filed all the documentary evidences which were not disputed by him. The Learned AO disbelieved the version of the assessee and made the addition u/s 68 of the Act in respect of sale consideration received by the respective assesses by making the following observations:-

“The documents on which the assesee have relied upon only speaks about the process of transacting in listed shares and does not prove the genuineness of the transaction itself. The furnishing of particulars is not enough and mere payment by account payee cheque is neither sacrosanct nor can make a non genuine transaction a genuine one. Relied on Precision Finance vs CIT reported in 208 ITR 462 (Cal). I, therefore, infer that the activities of all members of the family including the assessee were a product of a design to receive the bogus entry of the L.T.C.G.. I, therefore, add the entire alleged L.T.C.G. as unexplained cash credit u/s 68 of the IT Act, 1961.”

2.2. On first appeal, the Learned CITA dismissed the ground raised by the assessee and confirmed the addition made by the Learned AO. Aggrieved, the assessee is in appeal before us . The grounds raised in the case of Ganeshmull Bijoy Singh Baid (HUF) alone are reproduced herein below as the same grounds are raised for other assesses also except with change in figures :- “1. The orders passed by the lower authorities are arbitrary, unreasoned, erroneous, invalid and bad in law. 2(a) On the facts and in the circumstances of the case, the learned CIT(A) erred in holding that the appellant had paid cash money to one Shri Narendra Shyamsukha to arrange for bogus long term capital gains in shares of M/s. Continental Fiscal management Ltd and M/s. Swastick Securities & Finance Ltd simply on the basis of certain papers found during a search in the premises of the said Shri Narendra Shyamsukha, in spite of the complete denial by the appellant and also the concerned broker in this regard and also presence of all the relevant papers and documents establishing the genuineness of the transqactions in the shares concerned. 2(b) In arriving at his conclusion that the appellant had purchased bogus capital gains by paying cash money to Shri Narendra Shyamsukha in the ITA Nos.544, 546-548/Kol/2013-A-AM 4 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

year corresponding to AY 2005-0-6 the learned CIT(A) completely neglected to take into account the fact that the relevant shares had been purchased by the appellant two years back i.e in the FY 2002-03 and shown in its Balance Sheet for successive years, and about which purchases, no papers/documents had been found during the search in the premises of Shri Narendra Shyamsukha. 2( c ) In arriving at his conclusion that the appellant had purchase bogus capital gains by paying cash money to Shri Narendra Shyamsukha, the learned CIT(A) glossed over the fact that the seized papers showed the name of a different broker viz ‘Ashika’whereas the sale transactions were actually through a different broker viz. ‘Ahila Commercial P.Ltd.’ 2(d) In arriving at his conclusion that the appellant had purchased bogus capital gains by paying cash money to Shri Narendra Shyamsukha, the learned CIT(A) gloss over the facts that although Shri Narendra Shyamsukha had mentioned the name of another intermediary, viz.’’Sureskh Kumar’. However, neither the seized papers showed that name nor even the AO had conducted any enquiry from the said intermediary Suresh Kumar. 2(e) In arriving at his consluion that the appellant had purchased bogus capital gains by paying cash money to Shri Narendra Shyamsukha, the learned CIT(A) glossed over the facts that the neither Shri Narendra Shyamsukha could adduce any evidence about receipt of cash money from the appellant nor could the AO get any evidence in that regard and also that the actual broker viz. Ahila Commercial P.Ltd had completely denied and knowledge of Shri Narendra Shyamsukha and also of receipt of cash money. 2(f) On the facts and in the circumstances of the case, the learned CIT(A) erred in invoking the provisions of Section 292C of the Income-tax Act, 1961, in raising presumption in respect of recordings in documents seized from the premises of a third party viz. Shri Narendra Shyamsukha, in the unrelated case of the appellant. 2(g) On the facts and in the circumstances of the case, the learned CIT(A) erred in confirming the addition of rs.14,02,678/- made u/s. 68 of the Act, on the basis of nil/insufficient materials and evidences.”

2.3. The Learned AR argued that the Learned CIT(A) erred in holding that the assessee had paid cash money to one Shri Narendra Kumar Shyamsukha to arrange for bogus long term capital gains in shares of M/s Continental Fiscal Management Limited and one of M/s Swastik Securities &Finance Ltd , simply on the basis of certain papers

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found during a search in the premises of th said Shri Narendra Kumar Shyamsukha, inspite of the complete denial by the assessee and also the concerned stock broker in this regard and also presence of all the relevant papers and documents establishing the genuineness of the transaction in shares concerned. The assessees also submitted in support of their transactions with the aforementioned companies viz Continental Fiscal Management Limited and Swastik Securities & Finance Limited which were done through a registered share broker of the Kolkata Stock Exchange, the following documents were submitted by the assessee:-

a) Copies of purchase bill, contract note and delivery challan issued by the broker. b) Copy of the demat account. c) The entire transactions in respect of the aforesaid were done through proper banking channels.

The Learned AO / Learned CIT(A) have not found these documents to be false or fabricated. They, however, allege that these documents speak about the process of transacting in listed shares and do not prove the genuineness of the transaction itself. The allegation that the assessees have converted their cash into cheque by way of trading in shares and raising bogus LTCG on the basis of documents found from the possession of a third person, is, in fact, avoiding the valid documents already placed on record without assigning any reason, whatsoever. The Learned AO/ Learned CIT(A) have not brought any evidence on record to falsify the claim of the assessee or that the share transactions were bogus. He argued that the contents of the seized documents vide reference NKS / 3 were not in the handwriting of the assesses herein. He further argued that in the relevant seized documents, the broker’s name is mentioned as ‘Ashika’ whereas the assesses have done their share transactions through ‘Ahilya Commercial Pvt Ltd’. He argued that when the ground itself is based on no evidence, the question of raising a presumption against the assesses does not arise. ITA Nos.544, 546-548/Kol/2013-A-AM 6 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

He further argued that just because Sri Narendra Kumar Shyamsukha had disclosed the commission income on the transactions of shares in his returns, the assesses are in no manner concerned with such disclosure and no adverse inference could be drawn against the assesses for such disclosure of commission income by a third party. He further argued that since the seized documents were not found in the premises of the assesses, there is no onus on them to disprove the claim of Shri Narendra Kumar Shyamsukha that the transactions of long term capital gains listed in the seized documents are bogus. He further argued that according to the statement of Shri Narendra Kumar Shyamsukha, he was an intermediary between the broker, Ahilya Commercial Pvt Ltd and another person named as Suresh Kumar and that Suresh Kumar was an intermediary of beneficiaries on whose behalf bogus capital gain was booked. However, on the seized documents there is no mention of Suresh Kumar and further Shri Narendra Kumar Shyamsukha also did not provide the address of Suresh Kumar and hence there is no credibility that could be attached to the statement given by Shri Narendra Kumar Shyamsukha. He further argued that even during the course of cross examination proceedings, Shri Narendra Kumar Shyamsukha could not prove that the assesses had paid any cash to him or any other person.

2.4. In response to this, the Learned DR vehemently supported the orders of the lower authorities.

2.5. We have heard the rival submissions and perused the materials available on record. We find lot of force in the arguments of the Learned AR that just because Sri Narendra Kumar Shyamsukha had disclosed the commission income on the transactions of shares in his returns, the assesses are in no manner concerned with such disclosure and no adverse inference could be drawn against the assesses for such disclosure of commission income by a third party.

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2.5.1 We find that the assesses have categorically denied making any cash payment to Shri Narendra Kumar Shyamsukha and had also denied even knowing him. We also find that even the broker, through whom the transactions of sale of shares that gave led to long term capital gains, was also examined by the revenue and he also had denied knowing Shri Narendra Kumar Shyamsukha. There is absolutely no direct evidence that is brought on record that the assesses indeed had paid any cash to Shri Narendra Kumar Shyamsukha or to any other person with an intention to launder their cash for converting into cheque in the guise of long term capital gains. We find that even during the course of cross examination proceedings, Shri Narendra Kumar Shyamsukha could not prove that the assesses had paid any cash to him or any other person.

2.5.2. We also find that the Learned CIT(A) had confirmed the addition by making the following observations among others :- I also do not find any merit in the submission of the appellant that there is no direct evidence that any amount of cash was paid by the appellant. I am of the opinion that there could not be any eye witness for this, but, there are documentary and circumstantial evidences that the appellant had paid cash to obtain entry of long term capital gain. It is an open secret that during the Financial Years 2002-03 , 2003-04 and 2004-05 etc. the practice of taking accommodation entries of long term capital gain was rampant in Kolkata. Thus, the documents seized from the possession of Shri Narendra Shyamsukha cannot be ignored or cannot be treated as waste pieces of paper.

We hold that the above observations only goes to prove that the entire addition has been confirmed by the Learned CIT(A) out of mere suspicion, surmise and conjecture ignoring the legal provisions of the Act and the principles of onus of proof. This is a case wherein the revenue had completely shifted its focus on the different persons ( i.e the assesses herein) instead of proceeding in the hands of Shri Narendra Kumar Shyamsukha in whose premises the entire seized documents were found. We find lot of force in the arguments of the Learned AR that since the seized documents were not ITA Nos.544, 546-548/Kol/2013-A-AM 8 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

found in the premises of the assesses, there is no onus on them to disprove the claim of Shri Narendra Kumar Shyamsukha that the transactions of long term capital gains listed in the seized documents are bogus.

2.5.3. We find that the presumption u/s 292C of the Act would have to be applied only in the hands of Shri Narendra Kumar Shyamsukha in the facts and circumstances of this case . Strangely we find that no addition has been made in the hands of Shri Narendra Kumar Shyamsukha with regard to the subject mentioned capital gains as unexplained cash credit and the assessments have been completed in his hands by just accepting the commission income offered by him on all these transactions. The Presumption contemplated u/s 292C of the Act is not available against the third parties (ie the assesses herein). We place reliance on the decision of the coordinate bench of this tribunal in the case of Niranjan Kumar Agarwal vs ACIT in ITA No. 558 / Kol /1998 wherein it was held that :

“the books and documents on which the department relied upon solely were not found from the premises of the assessee. No involvement of the assessee with such books has been established in any way like the assessee himself writing the books etc. therefore, there would be no onus on the part of the assessee to disprove the genuineness of recitals in the aforesaid seized books. Burden of proving lies fully with the department to show beyond doubt that the receipts of the two amounts under consideration were actually made by the assessee.”

2.5.4. We also find that according to the statement of Shri Narendra Kumar Shyamsukha, he was an intermediary between the broker, Ahilya Commercial Pvt Ltd and another person named as Suresh Kumar and that Suresh Kumar was an intermediary of beneficiaries on whose behalf bogus capital gain was booked. However, from the seized documents, there is no mention of Suresh Kumar and further Shri Narendra Kumar Shyamsukha also did not provide the address of Suresh

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Kumar and hence there is no credibility that could be attached to the statement given by Shri Narendra Kumar Shyamsukha.

2.5.5. We find that the director of M/s Ahilya Commercial Pvt Ltd (stock broker) in his deposition u/s 131 of the Act also denied to have known Shri Narendra Kumar Shyamsukha. The seized documents reflect that the share transactions were carried out through the broker ‘Ashika’ but enquiry from stock exchange revealed that M/s Ahilya Commercial Pvt Ltd was the broker for the said transaction. This itself goes to prove that the assesses herein have nothing to do with the seized papers found from the premises of Shri Narendra Kumar Shyamsukha.

2.5.6. With regard to the finding recorded by the Learned AO that the concerned broker M/s Ahilya Commercial Pvt Ltd had made a disclosure of Rs. 65 lacs on account of receipt of commission for raising bogus long term capital gains for his clients, we hold that the assesses are not concerned with the modus operandi of that broker’s trading with his other clients. We hold that as long as the assesses had purchased and sold the shaers through known and accepted procedure, the brokers’ misdealing with others should not be a criterion to suspect the assessees’ genuine share transactions and capital gains thereon. Similarly we hold that the assesses have no control over Shri Narendra Kumar Shyamsukha nor is it a matter of their concern in what manner he had maintained his documents and what he records in these documents.

2.5.7. We find that the purchase of shares of M/s Continental Fiscal Management Limited and M/s Swastik Securities and Finance Ltd were duly disclosed in the balance sheets of the assesses as on 31.3.2003 and 31.3.2004 and the same has been accepted as genuine by the revenue. The payments for purchase of shares were made by account payee cheques. These shares were sold during the Asst Year 2005- 06 through a registered broker with Calcutta Stock Exchange who had given proper ITA Nos.544, 546-548/Kol/2013-A-AM 10 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

contract notes evidencing the sale of shares and made payment of sale proceeds to the assesses by account payee cheques. We also find that the revenue had not brought any evidence on record that the documents comprising of purchase bills, contract notes, delivery challans and demat account were found to be false or fabricated. We hold that the transactions cannot be treated as bogus merely on the basis of the statement of Shri Narendra Kumar Shyamsukha, unless some independent enquiry has been conducted and a finding has been drawn by the Stock Exchange that these transactions are bogus. We find that this is a cas wherein the assesses had carried out all their transactions through a recognized medium i.e through a registered share broker and Calcutta Stock Exchange, wherein the price of shares are determined by the market forces and assesses have bought the shaers when the price was low through their Demat accounts and duly accounted for it in their respective books and when they found a hike in the price of these shares, they sold them to make a gain and transaction was again done through their Demat account. We don’t find any abnormality or improbability in such a procedure adopted by the assesses. Thus the allegation that the assesses had laundered their cash for conversion into cheque by raising bogus long term capital gains does not hold water in the facts and circumstances of the case. No evidence is brought on record that the entire transactions had been carried out with some kind of connivance with the registered stock brokers for the introduction of unaccounted money and hence we hold that no addition could be made in these circumstances. Reliance in this regard is placed on the decision of Hon’ble Calcutta High Court in the case of CIT vs Korlay Trading Co. Ltd reported in (1998) 232 ITR 820 (Cal) wherein it was held :- “The assessee has given the name of the company, who issued the concerned shares, number of shares purchased, when purchased, for how much amount the same was purchased, when it was sold, for how much amount it was sold and through whom it was sold. Even the broker appeared before the ITO and prayed for time to produce his proper books. It is not the case of the Revenue that the assessee has not maintained the books. The case of the Revenue is that as the broker did not maintain the books and has failed to produce the books, the ITA Nos.544, 546-548/Kol/2013-A-AM 11 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

transaction is not genuine. Once the assessee has discharged its initial burden, no proper steps have been taken by the ITO to bring on record, the materials to controvert the claim of the assessee. The claim of the assessee cannot be denied only on the ground that the broker through whom the transaction was made has failed to produce the proper books. Therefore, the transaction could not but be said to be genuine. Considering the facts of the case, the assessee has discharged its initial burden. No proper investigation was made by the ITO. No material has been brought to disbelieve such transaction. In view of the above, it cannot be said that the findings of the Tribunal is perverse. When the finding is not perverse, no interference is called for. Hence for the assessee’s claim for loss on sale of shares was allowable.

2.5.8. We find that the action u/s 68 of the Act has been taken merely on the basis of the statement of the third party. We find that the assessees have duly proved the identity, creditworthiness and genuineness of the broker from whom the sale proceeds of shares were received by the assesses and hence the resultant long term capital gains thereon cannot be doubted with. Hence there is no scope for making any addition u/s 68 of the Act in the facts and circumstances of the case.

2.5.9. This issue is squarely covered by the coordinate bench decision of this tribunal in the case of Ashok Kumar Gupta and Mrs Amita Gupta vs DCIT in ITA Nos. 500-502 / Kol / 2013 dated 2.6.2015. The relevant operative portion of the said order is reproduced herein below:- “6. I have heard the rival contentions and carefully gone through orders of the Tax Authorities Below. I noted the fact in each of the cases, the shares which has been sold by the assessee were brought during the financial year 2002-03 and were shown in the balance sheet as on 31-03-2003 and 31-03-2004. The shares were sold only during the impugned assessment year. The shares were purchased by making the payment through account payee cheque. Similarly, the shares were sold by receiving of the account payee cheque through the broker Ahilya Commercial Pvt. Ltd. It is not the case that the shares were brought or sold through cash. The statement of Broker CMFL was also recorded but he denied that he knows Shri Narendra Kumar Shyamsukha. The presumption available u/s. 292C of the Act relied on by the ld.DR are available against the person in whose possession the ITA Nos.544, 546-548/Kol/2013-A-AM 12 M/s. Ganeshmull Bijay Singh Baid(HUF), Mr. Basant Kumar Baid, M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid

books of account other documents etc., were found. The presumption is not available against the third party and transactions are through Demat account. The assessee filed all the documents and these purchases were made by the assessee through account payee cheque have not been doubted by the Revenue. The action u/s. 68 of the Act has been taken on the basis of the statement of the third party. During the course of search at the premises of Shri Narendra Kumar Shyamsukha no iota of evidence was found which could prove/lead to any inference that assessee had paid cash to Shyamsukha or the cheque has been received or paid to the broker in lieu of cash except a statement which is not in the handwriting of the assessee and which contains numerous details. No action has been taken by the Revenue in treating the purchase to be the bogus. Under these facts and circumstances, I am of the view that it is not the case where the addition u/s. 68 of the Act could be made. The assessee duly proved the identity, creditworthiness and genuineness of the broker as well as that assessee received the consideration on the sale of the shares from the broker. I accordingly set aside the order of CIT(A).” 7. In the result, all the appeals filed by the respective assessee are allowed.”

2.5.10. In view of the aforesaid facts and circumstances and respectfully following the aforesaid judicial precedents relied upon, we have no hesitation in directing the Learned AO to delete the addition made u/s 68 of the Act. Accordingly, the grounds raised by all the assesses in this regard are allowed.

3.1. We have heard the rival submissions and perused the materials available on record. We find that though the provisions of Section 14A of the Act which provides for disallowance of expenditure incurred by the assessee for the purpose of earning an income which do not form part of the total income is brought in the statute book bny

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the Finance Act 2001 with retrospective effect from 1.4.1962, the computation of disallowance is provided in Rule 8D of the IT Rules. Rule 8D of the Rules came into effect from 24.3.2008. We find that the Hon’ble Bombay High Court in the case of Godrej & Boyce Manufacturing case reported in 328 ITR 81 (Bom) had held that provisions of Rule 8D could be made applicable only from Asst Year 2008-09. The assessment year under appeal for all the assesses before us is Asst Year 2005-06 and hence the Learned AO erred in invoking Rule 8D of the Rules for making disallowance u/s 14A of the Act. We also find that there is absolutely no discussion in the entire assessment order for all the assesses regarding the following facts :-

a) Whether there is any receipt of exempt income which has been claimed by the assesses? b) Whether any expenditure was incurred by the assessee for the purpose of earning exempt income?

In the absence of these factual findings, the Learned AO cannot straight away resort to make disallowance u/s 14A of the Act and hence the addition made on this account for all the assesses are deleted. Accordingly, the grounds raised by all the assesses in this regard are allowed.

ORDER PRNOUNED IN THE OPEN COURT ON 4 /12/2015

Sd/- Sd/- ( Mahavir Singh, Judicial Member ) (M. Balaganesh, Accountant Member)

Date 4 /12/2015

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Copy of the order forwarded to:- The Appellant: M/s. Ganeshmull Bijay Singh Baid (HF)/ Mr. Basant Kumar Baid [L/R of 1.. Bijoy Singh Baid since deceased)/M/s. Basant Kumar Baid (HUF) & Mr. Basant Kumar Baid 7 Swallow Lane, Kol-1/ Forum Projects Pvt. Ltd 4/1 Red Cross Place, Kol-1. 2 The Respondent-The DCIT, Central Circle-XXVII, Aaykar Bhawan Poorva, 110 Shanti Pally Kolkata-107.

3 /The CIT, 4.The CIT(A)

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