Shri Manoj Yadav, Indore v. ACIT5(1), Indore

ITA 149/Ind/2019 | 2014-2015
Pronouncement Date: 25-05-2021 | Result: Allowed

Appeal Details

RSA Number 14922714 RSA 2019
Assessee PAN AAGPY5452J
Bench Indore
Appeal Number ITA 149/Ind/2019
Duration Of Justice 2 year(s) 3 month(s) 10 day(s)
Appellant Shri Manoj Yadav, Indore
Respondent ACIT5(1), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 25-05-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted DB
Tribunal Order Date 25-05-2021
Date Of Final Hearing 13-04-2021
Next Hearing Date 13-04-2021
Last Hearing Date 19-11-2020
First Hearing Date 18-02-2021
Assessment Year 2014-2015
Appeal Filed On 15-02-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI MANISH BORAD ACCOUNTANT MEMBER AND MIS MADHUMITA ROY JUDICIAL MEMBER ITA NO.149/IND/2019 ASSESSM ENT YEAR:2014-15 SHRI MANOJ YADAV GF-SHEKHAR RESIDENCY 2 ND FLOOR FLAT NO.204 SCH NO.54 INDORE / VS. ACIT CIRCLE 5(1) INDORE (APPELLANT) (R ESPONDENT ) P.A. NO. AAGPY5452J APPELLANT BY SHRI GIRISH AGRAWAL MIS. NISHA LAHOTI & SHRI VIJAY BANSAL ARS REVENUE BY SHRI HARSHIT BARI SR. DR DATE OF HEARING: 13.04.2021 DATE OF PRONOUNCEMENT: 25.05.2021 / O R D E R PER MANISH BORAD A.M: THE ABOVE CAPTIONED APPEAL FILED AT THE INSTANCE OF ASSESSEE PERTAINING TO ASSESSMENT YEAR 2014-15 IS DIRECTED A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-II (IN SHOR T LD.CIT] INDORE DATED 26.12.2018 WHICH IS ARISING OUT OF THE ORDER U/S MANOJ YADAV 2 143(3) OF THE INCOME TAX ACT 1961(IN SHORT THE ACT ) DATED 16.12.2016 FRAMED BY ACIT-5(1) INDORE. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL: 1. THAT THE ORDER PASSED BY LD. CIT(A) IS BAD IN LAW AND ON FACTS. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.97 49 239/- UNDER SECTION 68 WHICH IS QUITE UNJ UST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 3. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E GENUINE INCOME OF LONG TERM CAPITAL GAIN EXEMPTED U/S 10(38) OF RS.97 49 2 39/- IS A SHAM TRANSACTION BY APPLYING TEST OF HUMAN PROBABILITY WITHOUT ANY EVIDENCE AGAINST THE ASSESSEE WHICH IS QUITE UNJUST ILLEGA L AND AGAINST THE FACTS OF THE CASE. 4. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE DEC ISION OF HON'BLE DELHI BENCH OF I.T.A.T. IN CASE OF SHIKHA DHAWAN (APPEAL NO.ITATNO.3035/DEL/2018) WHEREIN THE SIMILAR TRANSA CTION OF TURBOTECH ENGINEERING IS CONSIDERED AS GENUINE WHICH IS QUIT E UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 5. THAT THE LD. CIT(A) HAS ERRED IN WRONG APPLYING THE DECISION OF HON'BLE SUPREME COURT IN CASE OF THE ASSESSEE WHEREIN THE F ACTS OF THE CASE OF THE ASSESSEE IS ALTOGETHER DIFFERENT WHICH IS QUITE UN JUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 6. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THE SCR IPT AS PENNY STOCK WHEREAS NO SUCH WORD HAS BEEN DEFINED UNDER THE INC OME TAX ACT OR UNDER ANY LAW FOR THE TIME BEING IN FORCE WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 7. THAT THE LD. CIT(A) HAS ERRED IN HOLDING THAT TH E CAPITAL GAIN EARNED BY THE ASSESSEE BASED ON SOME INQUIRIES BUT NOT ON TH E ASSESSEE IS BOGUS AND/OR MANAGED AFFAIRS WHICH IS QUITE UNJUST ILLE GAL AND AGAINST THE FACTS OF THE CASE. 8. THAT THE LD. CIT(A) HAS ERRED IN NOT PROVIDING T HE COPY OF THE REPORT OF THE INVESTIGATION WING AND FURTHER NOT PROVIDING AN Y OPPORTUNITY TO CROSS EXAMINE THE PERSONS MENTIONED IN THE REPORT WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 9. APPELLANT CRAVES TO LEAVE ADD AMEND ALTER OR MODIFY OF ANY GROUND BEFORE FINAL DATE OF HEARING. ADDITIONAL GROUND: ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW LD. AO ERRED IN THE ALTERNATIVE TREATMENT OF THE LONG TERM CAPITAL GAIN OF RS.99 78 000/- AS ADVENTURE IN THE NATURE OF TRADE. MANOJ YADAV 3 3. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS AN INDIVIDUAL EARNING INCOME FROM SALAR Y AND OTHER SOURCES. RETURN OF INCOME FOR A.Y. 2014-15 E-FILED ON 30.09.2014 SHOWING INCOME AT RS.3 44 99 798/-. CASE SELECTED F OR SCRUTINY THROUGH CASS FOLLOWED BY SERVING OF NOTICES U/S 143 (2) & 142(1) OF THE ACT. DURING THE COURSE OF ASSESSMENT PROCEEDING S LD. AO OBSERVED THAT THE ASSESSEE HAD EARNED INCOME FROM S ALE OF 22000 EQUITY SHARES OF TURBOTECH ENGINEERING LIMITED SOL D AT A SALE CONSIDERATION OF RS.99 78 000/- AND WERE PURCHASED DURING THE F.Y. 2012-13 AT RS.2 75 964/-. ASSESSEE IN SUPPORT OF THE CLAIM OF EXEMPT INCOME U/S 10(38) OF THE ACT FILED VARIOUS D OCUMENTS INCLUDING CONTRACT NOTE FOR PURCHASE AND SALE AND D MAT ACCOUNT. HOWEVER THE LD. AO BASED ON ITS OBSERVATION OF THE FINANCIAL STATEMENTS OF TURBOTECH ENGINEERING LIMITED (IN SHO RT TEL) AND THE STATEMENT GIVEN BY THE ASSESSEE CAME TO A CONCLUSI ON THAT THE ASSESSEE HAD NO KNOWLEDGE ABOUT TURBOTECH ENGINEERI NG LIMITED AND PURCHASED IT ON ADVICE OF A PERSON WHOSE NAME I S NOT KNOWN. SHARE PRICES OF TEL INCREASED ABNORMALLY WHICH WE RE NOT SUPPORTED BY GROSS SALES/NET PROFIT/FINANCIAL STREN GTH OF THE COMPANY. HE THEREFORE CONCLUDED THAT TEL IS A PENNY STOCK COMPANY AND ASSESSEE HAS MANAGED BOGUS LONG TERM CA PITAL GAIN(LTCG) TO EVADE TAX. LD. AO ACCORDINGLY ADDED T HE SALE VALUE OF EQUITY SHARES AT RS.99 78 000/- AS ADDITION U/S 68 OF THE ACT FOR UNEXPLAINED CASH CREDIT. INCOME ASSESSED AT RS.4 44 77 800/-. MANOJ YADAV 4 4. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) BUT FAILED TO SUCCEED. LD. CIT(A) CONFIRMED THE VIEW OF THE LD. ASSESSING OFFICER PLACING RELIANCE ON VARIOUS DECISIONS HOLDI NG THAT THE ASSESSEE HAD INDULGED INTO BOGUS LTCG BY WAY OF TAK ING ACCOMMODATION ENTRY AND HAD EARNED EXCESSIVE RETURN WITHIN A SHORT SPAN OF PERIOD WHICH IS EXTREMELY UNUSUAL. LD . CIT(A) FURTHER HELD THE TRANSACTION AS SHAM AS IT CANNOT STAND T HE TEST OF HUMAN PROBABILITY. 5. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. LD. COUNSEL FOR THE ASSESSEE FILED WRITTEN SUBMISSIONS DATED 12 TH APRIL 2021 RUNNING FROM PAGES 1 TO 27 WHICH ALSO REFERRED TO V ARIOUS JUDGMENTS AND DECISIONS. IT WAS ALSO SUBMITTED THAT THE ISSUE RAISED IN THE INSTANT APPEAL IS SQUARELY COVERED BY THE DECISION OF COORDINATE BENCH DELHI IN THE CASE OF SWATI LUTHRA [2020] 115 TAXMANN.COM 167 DATED 28 TH JUNE 2019(TRIB-DELH I). RELIANCE WAS ALSO PLACED ON THE RATIO LAID DOWN BY HON'BLE DELHI HIGH COURT IN THE CASE OF KRISHNA DEVI ITANO.125/2020 & ORS DATED 15.01.2021(DELHI-HC) . 6. THE CRUX OF THE ARGUMENT OF THE LD. COUNSEL FOR THE ASSESSEE ARE THAT THE ADDITIONS MADE BY THE LD. AO ARE VAGUE AND BASED MERELY ON SURMISES AND CONJECTURES. NO REPORT OR STATEMENT RECORDED UNDER OATH OF THE THIRD PARTY HAS BEEN MADE AVAILA BLE TO THE ASSESSEE WHICH IS GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. THE TERM LISTED PENNY STOCK HAS MENTIONED BY THE LD. AO HAS NOT BEEN DEFINED UNDER THE LAW. NO EVIDENCE HAS BEEN BROUGHT ON RECORD TO MANOJ YADAV 5 ESTABLISH THAT THE ASSESSEE IS INVOLVED IN RIGGING OF THE PRICES HAVING ACQUAINTANCE WITH ANY OPERATOR OR ANY CONN ECTION TO PROMOTER/DIRECTOR/KEY MANAGEMENT OF TEL. FURTHER TE L IS NEITHER INCLUDED IN THE LIST OF SHELL COMPANIES NOR HAS BEE N STRUCK DOWN FROM THE RECORDS OF REGISTRAR OF COMPANY. DOCUMENTA RY EVIDENCES FILED BY THE ASSESSEE HAVE NOT BEEN FOUND TO BE INC ORRECT. TRANSACTION OF PURCHASE OF SHARES HAS BEEN ACCEPTED AND NO DOUBT HAS BEEN RAISED. THE ASSESSEE IS REGULARLY DEALING IN EQUITY SHARES. ALL THE CONDITIONS PROVIDED IN SECTION 10(38) OF TH E ACT FOR CLAIMING EXEMPTION OF LTCG HAVE BEEN DULY FULFILLED AND LAST LY IT WAS SUBMITTED THAT PROVISIONS OF SECTION 68 OF THE ACT ARE NOT APPLICABLE ON THE IMPUGNED TRANSACTIONS OF SALE OF EQUITY SHAR ES OF TEL EFFECTED ON A RECOGNIZED STOCK EXCHANGE AS IDENTIT Y IS NOT DISPUTED CREDITWORTHINESS IS PROVED AND THE TRANSACTION IS G ENUINE BEING EFFECTED THROUGH DEMAT ACCOUNT AND REGISTERED BROKE R. 7. WITH REGARD TO THE ADDITIONAL GROUND RAISED THRO UGH APPLICATION DATED 01.01.2021 SUBMITTING THAT THE ASSESSEE IS NO T ENGAGED IN THE BUSINESS OF SHARE AS THE ASSESSEE IS MAINLY EN GAGED IN THE CAPACITY OF A DIRECTOR IN THE COMPANY AND TRANSACTI ONS OF PURCHASE AND SALE OF EQUITY SHARES ARE DONE OCCASIONALLY. LIST OF DECISIONS RELIED ARE REPRODUCED BELOW: 1. SONA BUILDERS [2001] 119 TAXMAN 430 DATED 24.07 .2001 (SC) 2. KRISHNA DEVI ITA NO. 125 OF 2020 DATED 15.01.202 1 (DELHI HC) 3. UTTAMCHAND JAIN [2009] 182 TAXMAN 243 DATED 02 .07.2009 (BOMBAY HC) 4. SWATI LUTHRA [2020] 115 TAXMANN.COM 167 DATED 2 8.06.2019 I.T.A.T. DELHI) 5. LALCHAND BHAGAT AMBICA RAM [1959] 37 ITR 288 (SC) MANOJ YADAV 6 6. SHAKTI HARDWARE COLLECTIONS PRIVATE LIMITED ITA N O. 6301/MUM/2014 (I.T.A.T. MUMBAI) 7. ACHAL GUPTA ITA NO. 501/LKW/2019 DATED 16.12.20 20 (I.T.A.T. LUCKNOW) 8. ADITYA MUNDRA ITA NO. 632/IND/2019 DATED 13.01.2 021 (I.T.A.T. INDORE) 9. SHWETA AGRAWAL ITA NO. 280/IND/2019 DATED 21.1 2.2020 (I.T.A.T. INDORE) 10. GTC INDUSTRIES LIMITED [2017] 80 TAXMANN.COM 284 DATED 07.03.2017 (I.T.A.T. MUMBAI (SB) 11. RIAZ MUNSHI ITA NO. 8314/DEL/2018 DATED 11.03 .2020 (I.T.A.T. DELHI) 12. DIPESH RAMESH VARDHAN ITA NO. 7648/IND/2019 D ATED 11.08.2020 (I.T.A.T. MUMBAI) 13. ANOOP JAIN [2020] 114 TAXMANN.COM 550 DATED 10.01.2020(I.T.A.T. DELHI) 14. VIJAY RATAN MITTAL ITA NO. 3429 OF 2019 DATED 01.10.2019 (I.T.A.T. MUMBAI) 15. KARUNA GARG [2019] 109 TAXMANN.COM 403 DATE D 06.08.2019 (I.T.A.T. DELHI) 16. VIDHI MALHOTRA [2019] 101 TAXMANN.COM 361 DA TED 20.12.2018(I.T.A.T. DELHI) 17. SAURABH MITTAL ITA NO. 16 OF 2018 DATED 29 .08.2018 (I.T.A.T. JAIPUR) 18. PRAMOD KUMAR LODHA [2018] 100 TAXMANN.COM 8 D ATED 16.07.2018 (I.T.A.T. JAIPUR) 19. RUNGTA PROPERTIES ITA NO. 105 OF 2016 DATED 0 8.05.2017 (CALCUTTA HC) 20. M/S. ALPINE INVESTMENTS ITA NO. 620 OF 2018 DATED 26.08.2008 (CULCUTTA HC) 8. PER CONTRA LD. DR VEHEMENTLY ARGUED SUPPORTING T HE ORDERS OF BOTH THE LOWER AUTHORITIES AND BY THE DECISIONS REL IED BY LD. ASSESSING OFFICER AND LD. CIT(A) IN THE IMPUGNED OR DER. 9. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE WRITTEN SU BMISSIONS FILED BY THE LD. COUNSEL FOR THE ASSESSEE AND THE JUDGMEN T REFERRED AND RELIED BY BOTH PARTIES. THOUGH THE ASSESSEE HAS RAI SED 9 GROUNDS OF MANOJ YADAV 7 APPEAL AND ONE ADDITIONAL GROUND BUT ALL REFERS TO A SINGLE ISSUE ABOUT THE GENUINENESS OF CLAIM OF LONG TERM CAPITAL GAIN AS EXEMPT INCOME U/S 10(38) OF THE ACT ARISING FROM SA LE OF 22000 EQUITY SHARES OF TURBOTECH ENGINEERING LIMITED. 10. THE ASSESSEE HAS CONTENDED THROUGHOUT THIS PROC EEDINGS BEFORE LOWER AUTHORITIES AND BEFORE US THAT IT IS A GENUIN E TRANSACTION OF PURCHASE AND SALE OF EQUITY SHARES THROUGH REGISTER ED BROKERS AND SALE AFFECTED ON RECOGNIZED STOCK EXCHANGE AND TRAN SFER OF SHARES MADE FROM DMAT ACCOUNT. 11. ON THE OTHER HAND REVENUE IS CONTENDING THAT T HE ALLEGED TRANSACTION IS SHAM AND ASSESSEE HAS MANAGED BOGUS LTCG BY WAY OF ACCOMMODATION ENTRY. TEL IS A PENNY STOCK COMP ANY AND THE ABNORMAL RISE IN SHARE PRICES IS NOT SUPPORTED BY F INANCIAL RESULTS THAT ARE CONTROLLED THROUGH OPERATORS AND SHARE BRO KERS. 12. WE NOTE THAT THE ASSESSEE PURCHASED 22000 EQUIT Y SHARES OF TEL FROM REGISTERED SHARE BROKER NAMELY PRAGATI S HARES AND STOCK SERVICES LIMITED MUMBAI HAVING SEBI REGN NO. INB241 426817 AT COST OF RS.2 75 964/-. THE SOURCE OF INVESTMENT IS NOT IN DISPUTE AS THE ASSESSEE IS HAVING REGULAR SOURCE OF INCOME FRO M SALARY AND INCOME OF RS.20 35 020/- WAS DISCLOSED IN THE RETUR N FOR A.Y. 2012- 13. THESE SHARES WERE HELD IN THE POOL ACCOUNT OF T HE BROKER WHICH WERE SUBSEQUENTLY TRANSFERRED TO THE DEMAT ACCOUNT IN NAME OF ASSESSEE MAINTAINED WITH ARIHANT CAPITAL MARKETS LI MITED. AFTER HOLDING THE SHARES FOR MORE THAN 12 MONTHS THE ASSE SSEE SOLD THESE MANOJ YADAV 8 EQUITY SHARES THROUGH THE BROKER ARIHAND CAPITAL MA RKETS LIMITED HAVING SEBI NO. INB/INF230783938. THE SHARES OF TE L ARE LISTED ON BOMBAY STOCK EXCHANGE. DURING THE F.Y. 2013-14 22 000 SHARES WERE SOLD IN PARTS AND CONTRACT NOTES ARE PL ACED AT PAGE 12 TO 22 OF THE PAPER BOOK. GROSS SALE VALUE IS RS.99 78 000/-. THE NET LONG TERM CAPITAL GAIN COMES TO RS.97 02 036/-. SOU RCE OF SALE CONSIDERATION IS NOT IN DISPUTE AS IT CAME THROUGH A REGISTERED BROKER DIRECTLY IN THE BANK ACCOUNT OF ASSESSEE AND SALE EFFECTED ON PORTAL OF REGISTERED STOCK EXCHANGE WHERE IDENTITY OF BUYER AND SELLER IS NOT DISCLOSED. 13. WE FURTHER NOTE THAT BOTH THE LOWER AUTHORITIES HAD NOT DISPUTED ANY OF THE DOCUMENTS MENTIONED ABOVE I.E. A CONTRACT NOTE AT THE TIME OF PURCHASE AND SALE DEMAT ACCOUNT FI NANCIAL LEDGER SHARE PRICES APPEARING ON THE PORTAL OF BOMBAY STOC K EXCHANGE AS ON THE DATE OF PURCHASE/SALE. RATHER THAN DISPUTING ANY OF THE DOCUMENTS LD. AO MADE A GENERAL OBSERVATION ABOUT S EARCHE U/S 132 AND SURVEY U/S 133A OF THE ACT CONDUCTED BY THE DEPARTMENT ON VARIOUS BROKERS OF STOCK EXCHANGE AND COMPANIES. 14. LD. AO DISCUSSED ABOUT THE SCHEME HATCHED BY VARIOUS PLAYERS TO OBTAIN/PROVIDE ACCOMMODATION ENTRY OF BOGUS LTCG TH ROUGH MANIPULATION OF STOCK MARKET. LD. AO ALSO REFERRED TO THE PARTICULARS OF PROFIT AND LOSS ACCOUNT OF VARIOUS YEARS OF TEL T O SHOW THAT THERE IS HARDLY ANY INCOME IN THE YEAR OF SALE OF SHARES AND IT SHOWS THAT THE MARKET CAPITALIZATION IS VERY SMALL AND NO BUSINESS HAS BEEN DONE DURING LAST FIVE YEARS. LD. AO ALSO OBSERVED THAT T HE COMPANY DID NOT MANOJ YADAV 9 HAVE ANY EARNINGS AND HAS SHOWN LOSS DURING THE PER IOD AND THESE DOCUMENTS CLEARLY SHOWS THAT COMPANY DOES NOT HAVE THE POTENTIAL NOR FUNDAMENTAL TO FETCH SUCH HUGE PRICE. 15. WE ALSO NOTE THAT LD. AO HAS NOT REFERRED TO AN Y SPECIFIC REPORT OF THE INVESTIGATION WING IN WHICH THE NAME OF ASSESSEE IS APPEARING OR ANY CONNECTION OF THE ASSESSEE WITH THE BROKER/PROMOTER S OF THE COMPANY IS ESTABLISHED. NO SUCH REPORT WAS MADE AVAILABLE TO T HE ASSESSEE IN ORDER TO PROVIDE OPPORTUNITY TO CROSS EXAMINE. THE ONLY C OMMON THING IS THE NAME OF COMPANY TEL. 16. WE FIND THAT THE ABOVE STATED FACTS ARE VERBATIM SIMILAR TO THE FACTS DEALT BY COORDINATE BENCH DELHI IN THE CASE OF SWATI LUTHRA (SUPRA) AND THE ISSUE ALSO REMAINS THE SAME ABOUT THE GENUINENE SS OF CLAIM OF LTCG U/S 10(38) OF THE ACT AND WHETHER TEL IS A PENNY STOCK COMPANY. WE FIND THAT THE COORDINATE BENCH DELHI IN THE CASE OF SWATI LUTHRA (SUPRA) AFTER EXAMINING THE FACTS OF THE CASE AND THE SETTL ED JUDICIAL PRECEDENT ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE AND CL AIM OF LTCG U/S 10(38) OF THE ACT FROM TEL WAS HELD TO BE GENUINE THUS HOLDING THAT TEL IS NOT A PENNY STOCK COMPANY OBSERVING AS FOL LOWS: 12.WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD . WE FIND THAT THE TRANSACTIONS OF THE ASSESSEE OF PURCHASE OF SHARES OF M/S ESTEEM BIO AND M/S TURBOTECH. HOLDING OF THE SHARES FOR MORE THAN ONE YEAR AND THE SALE OF SHARES THROUGH A REGISTERED SHARE BROKER IN A RE COGNIZED STOCK EXCHANGE AND PAYMENT OF SECURITIES TRANSACTION TAX THEREON ALL WERE SUPPORTED BY DOCUMENTARY EVIDENCES WHICH WERE PLACE D BEFORE THE LOWER AUTHORITIES. THE REVENUE COULD NOT POINT OUT ANY SP ECIFIC DEFECT WITH REGARDS TO THE DOCUMENTS SO SUBMITTED BY ASSESSEE. IN OUR CONSIDERED VIEW EFFECT OF A TRANSACTION WHICH IS SUPPORTED BY DOCUMENTARY EVIDENCES CANNOT BE BRUSHED ASIDE ON SUSPICION OR PROBABILITI ES WITHOUT POINTING OUT ANY DEFECT THEREIN. MANOJ YADAV 10 13. IN THE INSTANT CASE THE ASSESSING OFFICER HIMS ELF OBSERVED THAT THE MOVEMENT IN PRICE OF SHARES OF M/S ESTEEM BIO AND M /S TURBOTECH WERE WITHOUT ANY BACKING OF FINANCIAL PERFORMANCE OF THE SAID COMPANIES. IN OUR CONSIDERED VIEW THE ABOVE FACTOR AT BEST WAS A POI NTER OR CAUSE FOR CAREFUL SCRUTINY OF THE TRANSACTION BY THE ASSESSING OFFICE R BUT FROM IT CANNOT BE CONCLUDED THAT TRANSACTIONS WERE SHAM. IT IS A MATT ER OF COMMON KNOWLEDGE THAT PRICES OF SHARES IN THE SHARE MARKET DEPENDS UPON INNUMERABLE FACTORS AND PERCEPTION OF THE INVESTOR AND NOT ALONE ON THE FINANCIAL PERFORMANCE OF THE COMPANY. FURTHER WE A LSO FIND FROM RECORD THAT LD. AO ALSO DIDN'T CONFRONT COPIES OF STATEMEN TS RECORDED BY INVESTIGATION WING KOLKATA OF SH NIKHIL JAIN SH. SANJAY VORA SH. RAKESH SOMANI SH. ANIL KUMAR KHEMKA AND SH. BIDYOO T SARKAR TO THE APPELLANT DURING ASSESSMENT PROCEEDINGS AND MERELY EXTRACTED COPIES OF THEIR STATEMENT IN THE ASSESSMENT ORDER ONLY. THE L D. AO HAS NOT CONFRONTED ANY MATERIAL TO THE ASSESSEE NOR PROVIDE D ANY ADEQUATE OPPORTUNITY TO THE ASSESSEE TO DEFEND HER CASE. SIN CE THE STATEMENTS WERE NOT CONFRONTED TO THE ASSESSEE SHE WAS DEPRIVED OF HER RIGHT TO CROSS EXAMINE THE WITNESSES. ALSO WHATEVER THEY HAVE STAT ED IN THEIR STATEMENT IS NO GOSPEL TRUTH AND CANNOT BE APPLIED BLINDLY TO ALL THE PERSONS WHO HAVE BROUGHT THE SCRIPS IN THE ENTIRE COUNTRY. THUS UNDER THESE CIRCUMSTANCES ATLEAST SOME INQUIRY SHOULD HAVE DON E FROM THESE PERSONS WHETHER THEY HAVE PROVIDED ANY ENTRY TO THE ASSESSE E IF THE REQUEST FOR CROSS EXAMINATION WAS NOT POSSIBLE AT THAT STAGE. C ROSS EXAMINATION OF A PERSON IN WHOSE BASIS ANY ADVERSE INFERENCE IS DRAW N THEN IT CANNOT BE PRIMARY EVIDENCE OR MATERIAL TO NAIL THE ASSESSEE A ND SIMPLY BASED ON THE STATEMENT NO ADDITION CAN BE MADE. THIS HAS BEEN HE LD SO BY VARIOUS COURTS AND ALSO BY HON'BLE APEX COURT IN THE CASE OF M/S ANDAMAN TIIMBER INDUSTRIES VS. CCE (SC ) REPORTED IN 127 DTR 241 HAS HELD AS FOLLOWS: 'ACCORDING TO US NOT ALLOWING THE ASSESSEE TO CROS S-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 BECAU SE OF WHICH THE ASSESSEE WAS ADVERSELY AFFECTED. IT IS TO BE BORNE IN MIND THAT THE ORDER OF THE COMMISSIONER WAS BASED UPON THE STATEM ENTS GIVEN BY THE AFORESAID TWO WITNESSES. EVEN WHEN THE ASSESSEE DISPUTED THE CORRECTNESS OF THE STATEMENTS AND WANTED TO CROSS-E XAMINE THE ADJUDICATING AUTHORITY DID NOT GRANT THIS OPPORTUNI TY TO THE ASSESSEE. IT WOULD BE PERTINENT TO NOTE THAT IN THE IMPUGNED ORDER PASSED BY THE ADJUDICATING AUTHORITY HE HAS SPECIFI CALLY 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 MANOJ YADAV 11 CONCERNED WE FIND THAT REJECTION OF THIS PLEA IS T OTALLY UNTENABLE. THE TRIBUNAL HAS SIMPLY STATED THAT CROSS-EXAMINATI ON OF THE SAID DEALERS COULD NOT HAVE BROUGHT OUT ANY MATERIAL WHI CH WOULD NOT BE IN POSSESSION OF THE APPELLANT THEMSELVES TO EXPLAI N 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 WA NTED TO CROSS- EXAMINE THOSE DEALERS AND WHAT AS MENTIONED ABOVE THE APPELLANT HAD CONTESTED THE TRUTHFULNESS OF THE STATEMENTS OF THESE TWO WITNESSES AND WANTED TO DISCREDIT THEIR TESTIMONY F OR WHICH PURPOSE IT WANTED TO AVAIL THE OPPORTUNITY OF CROSS-EXAMINA TION. THAT APART THE ADJUDICATING AUTHORITY SIMPLY RELIED UPON THE P RICE LIST AS MAINTAINED AT THE DEPOT TO DETERMINE THE PRICE FOR THE PURPOSE OF LEVY OF EXCISE DUTY. WHETHER THE GOODS WERE IN FAC T SOLD TO THE SAID DEALERS/WITNESSES AT THE PRICE WHICH IS MENTIONED I N THE PRICE LIST ITSELF COULD BE THE SUBJECT MATTER OF CROSS-EXAMINA TION. THEREFORE IT WAS NOT FOR THE ADJUDICATING AUTHORITY TO PRESUPPOS E AS TO WHAT COULD BE THE SUBJECT MATTER OF THE CROSS-EXAMINATIO N AND MAKE THE REMARKS AS MENTIONED ABOVE. WE MAY ALSO POINT OUT T HAT ON AN EARLIER OCCASION WHEN THE MATTER CAME BEFORE THIS C OURT IN CIVIL APPEAL NO. 2216 OF 2000 ORDER DATED 17.03.2005 WAS PASSED REMITTING THE CASE BACK TO THE TRIBUNAL WITH THE DI RECTIONS TO DECIDE THE APPEAL ON MERITS GIVING ITS REASONS FOR ACCEPTI NG OR REJECTING THE SUBMISSIONS. IN VIEW THE ABOVE WE ARE OF THE OPINI ON THAT IF THE TESTIMONY OF THESE TWO WITNESSES IS DISCREDITED TH ERE WAS NO MATERIAL WITH THE DEPARTMENT ON THE BASIS OF WHICH IT COULD JUSTIFY ITS ACTION AS THE STATEMENT OF THE AFORESAID TWO W ITNESSES WAS THE ONLY BASIS OF ISSUING THE SHOW CAUSE NOTICE WE THU S SET ASIDE THE IMPUGNED ORDER AS PASSED BY THE TRIBUNAL AND ALLOW THIS APPEAL.' 14. THAT THE LD DR DURING THE COURSE OF HEARING PLA CED HEAVY RELIANCE ON JUDGMENT OF HON'BLE HIGH COURT OF DELHI IN THE CASE OF UDIT KALRA VS ITO IN ITA NO. 220/2019. RELEVANT EXTRACTS OF SAID JUDGMEN T ARE EXTRACTED AS BELOW: 'THE ASSESSEE IS AGGRIEVED BY THE CONCURRENT FINDIN GS OF THE TAX AUTHORITIES - INCLUDING THE LOWER APPELLATE AUTHORI TIES REJECTING ITS CLAIM FOR A LONG TERM CAPITAL GAIN REPORTED BY IT TO THE TUNE OF RS.13 33 956/- AND RS.14 34 501/- IN RESPECT OF 4 0 00 SHARES OF M/S KAPPAC PHARMA LTD. THE ASSESSEE HELD THOSE SHAR ES FOR APPROXIMATELY 19 MONTHS; THE ACQUISITION PRICE WAS RS.12/- PER SHARE WHEREAS THE MARKET PRICE OF THE SHARES AT THE TIME OF THEIR SALE WAS RS.720/-. IT IS CONTENDED THAT THE ASSESS EE WAS NOT GRANTED FAIR OPPORTUNITY. MANOJ YADAV 12 MR. RAJESH MAHNA LEARNED COUNSEL APPEARING FOR THE ASSESSEE RELIED UPON THE ORDERS OF THE CO-ORDINATE BENCH OF THE TRIBUNAL IN RESPECT OF THE SAME COMPANY I.E. M/S KAPPAC PHARMA LTD. ANDPOINTED OUT THAT THE TAX AUTHORITY'S APPROACH IN THIS CASE WAS ENTIRELY ERRONEOUS AND INCONSISTENT. THE MAIN THRUST OF THE ASSESSEE'S ARGUMENT IS THAT HE WAS DENIED THE RIGHT TO CROSS-EXAMINATION OF THE TWO INDIVIDUA LS WHOSE STATEMENTS LED TO THE INQUIRY AND ULTIMATE DISALLOW ANCE OF THE LONG TERM CAPITAL GAIN CLAIM IN THE RETURNS WHICH ARE TH E SUBJECT MATTER OF THE PRESENT APPEAL. THIS COURT HAS CONSIDERED THE S UBMISSIONS OF THE PARTIES. ASIDE FROM THE FACT THAT THE FINDINGS IN T HIS CASE ARE ENTIRELY CONCURRENT - A.O. CIT(A) AND THE ITAT HAVE ALL CON SISTENTLY RENDERED ADVERSE FINDINGS - WHAT IS INTRIGUING IS THAT THE C OMPANY (M/S KAPPAC PHARMA LTD.) HAD MEAGRE RESOURCES AND IN FAC T REPORTED CONSISTENT LOSSES. IN THESE CIRCUMSTANCES THE ASTR ONOMICAL GROWTH OF THE VALUE OF COMPANY'S SHARES NATURALLY EXCITED THE SUSPICIONS OF THE REVENUE. THE COMPANY WAS EVEN DIRECTED TO BE DE LISTED FROM THE STOCK EXCHANGE. HAVING REGARD TO THESE CIRCUMSTANCE S AND PRINCIPALLY ON THE GROUND THAT THE FINDINGS ARE ENT IRELY OF FACT THIS COURT IS OF THE OPINION THAT NO SUBSTANTIAL QUESTIO N OF LAW ARISES IN THE PRESENT APPEAL. THIS APPEAL IS ACCORDINGLY DISMISSED.' 15. ON GOING THROUGH THE AFORESAID JUDGMENT WE FIN D THAT NO QUESTION OF LAW WAS FORMULATED BY HON'BLE HIGH COURT OF DELHI I N THE SAID CASE AND THERE IS ONLY DISMISSAL OF APPEAL IN LIMINE AND THE HON'BLE HIGH COURT FOUND THAT THE ISSUE INVOLVED IS A QUESTION OF FACT AS HELD BY HON'BLE APEX COURT IN KUNHAYYAMMED VS STATE OF KERALA REPORTED I N 245 ITR 360 AND ALSO IN CIT VS. RASHTRADOOT (HUF ) REPORTED IN 412 ITR 17. EVEN ON MERITS AND FACTS THE SAID JUDGMENT IN THE CASE OF UDIT KALRA VS ITO (SUPRA) IS DISTINGUISHABLE AS IN THAT CASE THE SCRIPS OF THE C OMPANY WERE DELISTED ON STOCK EXCHANGE WHEREAS IN THE INSTANT CASE THE I NTERIM ORDER OF SEBI IN THE CASES OF M/S ESTEEM BIO AND M/S TURBOTECH HAVE BEEN COOLED DOWN BY SUBSEQUENT ORDER OF SEBI PLACED BY ASSESSEES IN ITS PAPER BOOK. THUS THE CASE OF UDIT KALRA VS ITO RELIED BY LD. DR IS CLEARLY DISTINGUISHABLE ON FACTS AND IS NOT APPLICABLE TO THE FACTS OF ASSESSE E. THUS WE HOLD THAT THE CASE OF ASSESSEE IS FACTUALLY AND MATERIALLY DISTIN GUISHABLE FROM THE FACTS OF THE CASE OF UDIT KALRA VS ITO SO RELIED BY LD DR . 16. WE FURTHER FIND THAT LD. AO HAS ALSO MENTIONED ABOUT SOME ORDER OF SEBI. THIS ORDER ALSO WAS NEVER CONFRONTED TO THE A PPELLANT DURING ASSESSMENT PROCEEDINGS. MOREOVER THE SAID ORDER SE EMS TO BE PASSED IN YEAR 2015 WHEREAS THE APPELLANT HAD PURCHASED THE SHARES IN YEAR 2011 MANOJ YADAV 13 AND 2013 AND SOLD THEM IN YEAR 2014. IT WAS EVIDENT FROM THIS DOCUMENT ONLY THAT NO ACTION HAS BEEN TAKEN BY THE SEBI AGAI NST THE COMPANY DURING THE PERIOD WHEN THE APPELLANT HOLDS THE SHAR ES. THUS EVEN OTHERWISE WE FIND THAT THE ORDER OF SEBI SO RELIED BY LD. AO AND CIT (A) IS NOT APPLICABLE FOR THE TRANSACTIONS UNDER CONSIDERA TION. IN ANY CASE AS STATED ABOVE THE SEBI IN ITS SUBSEQ UENT DECISION HAS ABSOLVED MOST OF THE COMPANIES INCLUDING THE COMPAN IES WHOSE SCRIPS ARE UNDER SUSPICION AS THEY WERE NOR FOUND TO BE RIGGI NG THE PRICE. THIS FACT ALONE VITIATES THE CASE OF REVENUE. 17. WE ALSO FIND THAT THE LD. AO HAS RAISED OBJECTI ON REGARDING THE CASH PURCHASE OF SHARES AND THAT SHARES WERE DEMATERIALI ZED FEW DAYS BACK ONLY FROM THE DATE OF SALE. THERE IS NO LAW WHICH P ROHIBITS THE PURCHASE OF SHARES IN CASH HOWEVER IN THE PRESENT CASE ASSESS EE HAD FILED COPIES OF BILLS OF PURCHASE COPY OF SHARE CERTIFICATES AND T RANSFER FORMS ETC. BEFORE LD. AO AND NO ADVERSE INFERENCE COULD BE DRAWN ONLY BECAUSE THE SHARES WERE PURCHASED IN CASH. REGARDING DEMAT OF SHARES WE HOLD THAT IT IS THE OPTION OF THE BUYER OF SHARES TO KEEP THE SHARES EI THER IN DEMAT FORM OR IN PAPER FORM. MERELY BECAUSE THE SHARES WERE DEMATTED AT A LATER STAGE NO ADVERSE INFERENCE COULD BE DRAWN. THE LEARNED COUNS EL FOR THE ASSESSEE HAS TAKEN US THROUGH VARIOUS DOCUMENTS FILED IN THE PAPER BOOK AS REFERRED TO ABOVE WHICH SPECIFICALLY PROVE THE PURC HASE OF SHARES MADE BY ASSESSEE GENUINELY WHICH WERE ALSO SOLD GENUINELY. THE TRANSACTIONS WERE CARRIED THROUGH DEMAT ACCOUNT AND BANKING CHANNEL O N WHICH STT HAS BEEN PAID BY ASSESSEE. THE REPORT OF THE SEBI WAS N OT ADVERSE IN NATURE AGAINST THE ASSESSEE BECAUSE NAME OF THE ASSESSEE D ID NOT APPEAR THEREIN FOR CONDUCTING DUBIOUS TRANSACTION. THE REPORT OF T HE INVESTIGATION WING AND OTHER MATERIAL WAS NEITHER CONFRONTED TO ASSESS EE NOR THERE WAS ANY INQUIRY FROM WHERE IT TRANSPIRED THAT ASSESSEE WAS BENEFICIARY OF ANY BOGUS LONG-TERM CAPITAL GAIN; THEREFORE THE SAME C ANNOT BE READ IN EVIDENCE AGAINST THE ASSESSEE. A SPECIFIC MATERIAL AGAINST THE ASSESSEE SHOULD HAVE BEEN BROUGHT ON RECORD TO PUT ASSESSEE UNDER LIABILITY. HOWEVER IN THE PRESENT CASE THE ENTIRE DOCUMENTAR Y EVIDENCE ON RECORD HAS NOT BEEN DISPUTED BY THE AUTHORITIES BELOW AND THERE IS NO REBUTTAL TO THE EXPLANATION OF ASSESSEE. NO OTHER ADVERSE MATER IALS HAVE BEEN BROUGHT ON RECORD AGAINST THE ASSESSEE. FURTHER NO PROPER ENQUIRY HAS BEEN CONDUCTED BY THE A.O. ON THE DOCUMENTARY EVIDENCES FILED BY ASSESSEE. WHATEVER STATEMENTS HAVE BEEN REFERRED TO IN THE OR DER WAS GENERAL IN NATURE WITH WHOM ASSESSEE DID NOT HAVE ANY TRANSACT ION. CONSIDERING THE TOTALITY OF THE FACTS AND CIRCUMSTANCES OF THE CASE WE HOLD THAT ASSESSEE HAS ENTERED INTO GENUINE TRANSACTION OF SALE AND PU RCHASE OF SHARES AND THEREFORE SATISFIED THE CONDITIONS OF SECTION 10(38) OF THE I.T. ACT. THE ASSESSEE IS ENTITLED FOR EXEMPTION UNDER THE SAME P ROVISION. WE MANOJ YADAV 14 ACCORDINGLY SET ASIDE THE ORDERS OF THE AUTHORITIE S BELOW AND DELETE THE ADDITION OF RS. 41 85 762/-. APPEAL OF ASSESSEE IS ALLOWED. 18. THE FACTS OF THE CASES OF OTHER ASSESSEE'S ARE SIMILAR TO THE FACTS INVOLVED IN THE CASE OF THE PRESENT ASSESSEE I.E. S MT. SWATI LUTHRA THEREFORE OUR FINDINGS GIVEN IN RESPECT OF THE APP EAL IN ITA NO. 6480/DEL/2017 SHALL APPLY TO THE OTHER APPEALS OF D IFFERENT ASSESSEES WITH THE SAME FORCE IN ITA NOS. 6481 TO 6483/DEL/20 17. 19. IN THE RESULT THE APPEAL OF ALL THE ABOVE FOUR ASSESSEES NAMELY SMT. SWATI LUTHRA SMT. SHRUTI LUTHRA SMT. NAMATA SEHGA L LUTHRA AND SMT. ASHA LUTHRA BEARING ITA NO. 6480 TO 6483/DEL/2017 A RE ALLOWED. 17. WE FURTHER FIND THAT RATIO LAID DOWN BY HON'BLE HIGH COURT OF DELHI IN THE CASE OF PR. CIT VS. SMT. KRISHNA DEVI (SUPRA) IS ALSO FAVOURABLE TO THE ASSESSEE. AS IN THE CASE OF ASSES SEE ALSO THERE WAS NO EVIDENCE PRODUCED BY THE LD. AO TO SHOW THAT THE RE WAS AN AGREEMENT BETWEEN ASSESSEE AND ANY OTHER PARTY WHIC H ARE ALLEGED TO BE INVOLVED IN PROVIDING ACCOMMODATION ENTRY. TH E RELEVANT FINDING OF HON'BLE COURT DISMISSING THE REVENUES A PPEAL IS REPRODUCED BELOW: 11. ON A PERUSAL OF THE RECORD IT IS EASILY DISCER NIBLE THAT IN THE INSTANT CASE THE AO HAD PROCEEDED PREDOMINANTLY ON THE BAS IS OF THE ANALYSIS OF THE FINANCIALS OF M/S GOLD LINE INTERNATIONAL FINVE ST LIMITED. HIS CONCLUSION AND FINDINGS AGAINST THE RESPONDENT ARE CHIEFLY ON THE STRENGTH OF THE ASTOUNDING 4849.2% JUMP IN SHARE PRICES OF T HE AFORESAID COMPANY WITHIN A SPAN OF TWO YEARS WHICH IS NOT SUPPORTED BY THE FINANCIALS. ON AN ANALYSIS OF THE DATA OBTAINED FROM THE WEBSITES THE AO OBSERVES THAT THE QUANTUM LEAP IN THE SHARE PRICE IS NOT JUSTIFIE D; THE TRADE PATTERN OF THE AFORESAID COMPANY DID NOT MOVE ALONG WITH THE SENSE X; AND THE FINANCIALS OF THE COMPANY DID NOT SHOW ANY REASON FOR THE EXTR AORDINARY PERFORMANCE OF ITS STOCK. WE HAVE NOTHING ADVERSE T O COMMENT ON THE ABOVE ANALYSIS BUT ARE CONCERNED WITH THE AXIOMATI C CONCLUSION DRAWN BY THE AO THAT THE RESPONDENT HAD ENTERED INTO AN AGRE EMENT TO CONVERT UNACCOUNTED MONEY BY CLAIMING FICTITIOUS LTCG WHIC H IS EXEMPT UNDER SECTION 10(38) IN A PRE-PLANNED MANNER TO EVADE TA XES. THE AO EXTENSIVELY RELIED UPON THE SEARCH AND SURVEY OPERA TIONS CONDUCTED BY THE INVESTIGATION WING OF THE INCOME TAX DEPARTMENT IN KOLKATA DELHI MANOJ YADAV 15 MUMBAI AND AHMEDABAD ON PENNY STOCKS WHICH SETS OU T THE MODUS OPERANDI ADOPTED IN THE BUSINESS OF PROVIDING ENTRI ES OF BOGUS LTCG. HOWEVER THE RELIANCE PLACED ON THE REPORT WITHOUT FURTHER CORROBORATION ON THE BASIS OF COGENT MATERIAL DOES NOT JUSTIFY H IS CONCLUSION THAT THE TRANSACTION IS BOGUS SHAM AND NOTHING OTHER THAN A RACKET OF ACCOMMODATION ENTRIES. WE DO NOTICE THAT THE AO MAD E AN ATTEMPT TO DELVE INTO THE QUESTION OF INFUSION OF RESPONDENTS UNACC OUNTED MONEY BUT HE DID NOT DIG DEEPER. NOTICES ISSUED UNDER SECTIONS 1 33(6)/131 OF THE ACT WERE ISSUED TO M/S GOLD LINE INTERNATIONAL FINVEST LIMITED BUT NOTHING EMERGED FROM THIS EFFORT. THE PAYMENT FOR THE SHARE S IN QUESTION WAS MADE BY SH. SALASAR TRADING COMPANY. NOTICE WAS ISS UED TO THIS ENTITY AS WELL BUT WHEN THE NOTICES WERE RETURNED UNSERVED THE AO DID NOT TAKE THE MATTER ANY FURTHER. HE THEREAFTER SIMPLY PROCEE DED ON THE BASIS OF THE FINANCIALS OF THE COMPANY TO COME TO THE CONCLUSION THAT THE TRANSACTIONS WERE ACCOMMODATION ENTRIES AND THUS FICTITIOUS. T HE CONCLUSION DRAWN BY THE AO THAT THERE WAS AN AGREEMENT TO CONVERT UNAC COUNTED MONEY BY TAKING FICTITIOUS LTCG IN A PRE-PLANNED MANNER IS THEREFORE ENTIRELY UNSUPPORTED BY ANY MATERIAL ON RECORD. THIS FINDING IS THUS PURELY AN ASSUMPTION BASED ON CONJECTURE MADE BY THE AO. THIS FLAWED APPROACH FORMS THE REASON FOR THE LEARNED ITAT TO INTERFERE WITH THE FINDINGS OF THE LOWER TAX AUTHORITIES. THE LEARNED ITAT AFTER CONSI DERING THE ENTIRE CONSPECTUS OF CASE AND THE EVIDENCE BROUGHT ON RECO RD HELD THAT THE RESPONDENT HAD SUCCESSFULLY DISCHARGED THE INITIAL ONUS CAST UPON IT UNDER THE PROVISIONS OF SECTION 68 OF THE ACT. IT I S RECORDED THAT THERE IS NO DISPUTE THAT THE SHARES OF THE TWO COMPANIES WER E PURCHASED ONLINE THE PAYMENTS HAVE BEEN MADE THROUGH BANKING CHANNEL AND THE SHARES WERE DEMATERIALIZED AND THE SALES HAVE BEEN ROUTED FROM DE-MAT ACCOUNT AND THE CONSIDERATION HAS BEEN RECEIVED THROUGH BAN KING CHANNELS. THE ABOVE NOTED FACTORS INCLUDING THE DEFICIENT ENQUIR Y CONDUCTED BY THE AO AND THE LACK OF ANY INDEPENDENT SOURCE OR EVIDENCE TO SHOW THAT THERE WAS AN AGREEMENT BETWEEN THE RESPONDENT AND ANY OTH ER PARTY PREVAILED UPON THE ITAT TO TAKE A DIFFERENT VIEW. B EFORE US MR. HOSSAIN HAS NOT BEEN ABLE TO POINT OUT ANY EVIDENCE WHATSOE VER TO ALLEGE THAT MONEY CHANGED HANDS BETWEEN THE RESPONDENT AND THE BROKER OR ANY OTHER PERSON OR FURTHER THAT SOME PERSON PROVIDED THE ENTRY TO CONVERT UNACCOUNTED MONEY FOR GETTING BENEFIT OF LTCG AS A LLEGED. IN THE ABSENCE OF ANY SUCH MATERIAL THAT COULD SUPPORT THE CASE PU T FORTH BY THE APPELLANT THE ADDITIONS CANNOT BE SUSTAINED. 12. MR. HOSSAINS SUBMISSIONS RELATING TO THE START LING SPIKE IN THE SHARE PRICE AND OTHER FACTORS MAY BE ENOUGH TO SHOW CIRCU MSTANCES THAT MIGHT CREATE SUSPICION; HOWEVER THE COURT HAS TO DECIDE A N ISSUE ON THE BASIS OF EVIDENCE AND PROOF AND NOT ON SUSPICION ALONE. THE THEORY OF HUMAN BEHAVIOR AND PREPONDERANCE OF PROBABILITIES CANNOT BE CITED AS A BASIS TO TURN A BLIND EYE TO THE EVIDENCE PRODUCED BY THE RE SPONDENT. WITH REGARD MANOJ YADAV 16 TO THE CLAIM THAT OBSERVATIONS MADE BY THE CIT(A) W ERE IN CONFLICT WITH THE IMPUGNED ORDER WE MAY ONLY NOTE THAT THE SAID OBSE RVATIONS ARE GENERAL IN NATURE AND LATER IN THE ORDER THE CIT(A) ITSELF NOTES THAT THE BROKER DID NOT RESPOND TO THE NOTICES. BE THAT AS IT MAY THE CIT(A) HAS ONLY APPROVED THE ORDER OF THE AO FOLLOWING THE SAME REASONING AND RELYING UPON THE REPORT OF THE INVESTIGATION WING. LASTLY RELIANCE PLACED BY THE REVENUE ON SUMAN PODDAR V. ITO (SUPRA) AND SUMATI DAYAL V. CIT (SUPRA) IS OF NO ASSISTANCE. UPON EXAMINING THE JUDGMENT OF SUMAN PO DDAR (SUPRA) AT LENGTH WE FIND THAT THE DECISION THEREIN WAS ARRIV ED AT IN LIGHT OF THE PECULIAR FACTS AND CIRCUMSTANCES DEMONSTRATED BEFOR E THE ITAT AND THE COURT SUCH AS INTER ALIA LACK OF EVIDENCE PRODUC ED BY THE ASSESSEE THEREIN TO SHOW ACTUAL SALE OF SHARES IN THAT CASE. ON SUCH BASIS THE ITAT HAD RETURNED THE FINDING OF FACT AGAINST THE ASSESS EE HOLDING THAT THE GENUINENESS OF SHARE TRANSACTION WAS NOT ESTABLISHE D BY HIM. HOWEVER THIS IS QUITE DIFFERENT FROM THE FACTUAL MATRIX AT HAND. SIMILARLY THE CASE OF SUMATI DAYAL V. CIT (SUPRA) TOO TURNS ON ITS OWN SP ECIFIC FACTS. THE ABOVE- STATED CASES THUS ARE OF NO ASSISTANCE TO THE CAS E SOUGHT TO BE CANVASSED BY THE REVENUE. 13. THE LEARNED ITAT BEING THE LAST FACT-FINDING A UTHORITY ON THE BASIS OF THE EVIDENCE BROUGHT ON RECORD HAS RIGHTLY COME TO THE CONCLUSION THAT THE LOWER TAX AUTHORITIES ARE NOT ABLE TO SUSTAIN THE A DDITION WITHOUT ANY COGENT MATERIAL ON RECORD. WE THUS FIND NO PERVERSI TY IN THE IMPUGNED ORDER. 14. IN THIS VIEW OF THE MATTER NO QUESTION OF LAW MUCH LESS A SUBSTANTIAL QUESTION OF LAW ARISES FOR OUR CONSIDERATION. 15. ACCORDINGLY THE PRESENT APPEALS ARE DISMISSED. 18. WE THEREFORE RESPECTFULLY FOLLOWING THE RATIO LAID DOWN BY HON'BLE HIGH COURT OF DELHI IN THE CASE OF KRISHNA DEVI (SUPRA) AND THE DECISION OF COORDINATE BENCH IN THE CASE OF SWATI LUTHRA (SUPRA) WHICH IS SQUARELY APPLICABLE ON THE FACTS AND ISSUE S RAISED BEFORE US ARE OF THE CONSIDERED VIEW THAT THE CLAIM OF LT CG U/S 10(38) OF THE ACT AT RS. 97 02 036/-FROM SALE OF EQUITY SHAR ES OF TERBOTECH ENGINEERING LIMITED IS GENUINE AND THE ASSESSEES IS ENTITLED TO CLAIM THE BENEFIT. THUS NO ADDITION AT RS.99 78 00 0/- WAS CALLED FOR U/S 68 OF THE ACT FOR UNEXPLAINED CASH CREDIT. WE FURTHER HOLD THAT THE ASSESSEE IS REGULARLY DEALING IN EQUITY SH ARES AS AN INVESTOR MANOJ YADAV 17 AND AS ITS MAIN SOURCE OF INCOME SALARY AND OTHER F ROM OTHER SOURCES AND THE FREQUENCY OF TRANSACTIONS IN PURCHA SE AND SALE OF SHARES IS LESS IT CANNOT BE HELD TO BE CARRYING ON BUSINESS OF PURCHASE/SALE OF SHARES AS AN ADVENTURE IN NATURE O F TRADE. 19. IN THE RESULT ALL THE GROUNDS RAISED BY THE AS SESSEE ARE ALLOWED AND APPEAL FILED BY THE ASSESSEE THROUGH IT ANO. 149/IND/2019 IS DECIDED IN FAVOUR OF THE ASSESSEE A ND AGAINST THE REVENUE. ORDER WAS PRONOUNCED AS PER RULE 34 OF THE I.T.A.T. RULES 1963 ON 25.05. 2021 SD/- (MADHUMITA ROY) SD/- (MANISH BORAD) JUDICIAL MEMBER A CCOUNTANT MEMBER INDORE; DATED : 25/05/2021 PATEL/PS COPY TO: ASSESSEE/AO/PR. CIT/ CIT (A)/ITAT (DR)/GUA RD FILE. BY ORDER ASSISTANT REGISTRAR INDORE