Prakash Javia HUF, Indore v. ITO 5(1), Indore

ITA 464/Ind/2019 | 2014-2015
Pronouncement Date: 25-05-2021 | Result: Allowed

Appeal Details

RSA Number 46422714 RSA 2019
Assessee PAN AAHHP3362H
Bench Indore
Appeal Number ITA 464/Ind/2019
Duration Of Justice 2 year(s) 1 month(s) 12 day(s)
Appellant Prakash Javia HUF, Indore
Respondent ITO 5(1), Indore
Appeal Type Income Tax Appeal
Pronouncement Date 25-05-2021
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted SMC
Tribunal Order Date 25-05-2021
Last Hearing Date 14-12-2020
First Hearing Date 20-01-2021
Assessment Year 2014-2015
Appeal Filed On 12-04-2019
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.464/IND/2019 ASSESSM ENT YEAR:2014-15 SHRI PRAKASH JAVIA HUF 40 ASHOK NAGAR BEHIND ICICI BANK INDORE / VS. ITO - 5(1) INDORE (APPELLANT) (R ESPONDENT ) P.A. NO. AAHHP3362H ITA NO.465/IND/2019 ASSESSMENT YEAR:2014-15 SHRI JAYESH KUMAR JAVIA HUF 40 ASHOK NAGAR BEHIND ICICI BANK INDORE / VS. ITO - 1 ( 2 ) INDORE (APPELLANT) (R ESPONDENT ) P.A. NO. AA DHJ5797C ITA NO.466/IND/2019 ASSESSMENT YEAR:2014-15 SHRI PRAKASH JAVIA 40 ASHOK NAGAR BEHIND ICICI BANK INDORE / VS. AC IT - 4 (1) INDORE (APPELL ANT) (R ESPONDENT ) P.A. NO. ABPPP 2848H PRAKASH JAVIA & OTHERS 2 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 BENCH THE ABOVE CAPTIONED APPEALS FILED AT THE INSTANCE O F DIFFERENT ASSESSEES PERTAINING TO ASSESSMENT YEAR 2014-15 ARE DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (AP PEALS)-II (IN SHORT LD.CIT] INDORE DATED 14.01.2019 24.01.201 9 & 14.01.2019 WHICH ARE ARISING OUT OF THE ORDER U/S 143(3) OF TH E INCOME TAX ACT 1961(IN SHORT THE ACT) DATED 25.11.2016 FRAMED B Y ITO-5(1) INDORE. 2. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APP EAL IN ITANO.464/IND/2019 1. THAT THE ORDER PASSED BY LD. CIT(A) IS BAD IN L AW AND ON FACTS. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.21 50 700/- 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 CONSIDERING THE SCRIPT FROM WHICH THE ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN AS PENN Y STOCK A TERM NOWHERE DEFINE UNDER THE INCOME TAX ACT AS ANY OTHE R LAW FOR THE TIME BEING IN FORCE WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 4. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF CLAIM OF ASSESSEE OF EXEMPTED LTCG BASED ON INFORMATION/STAT EMENT GATHERED BY INVESTIGATION WING OF THE DEPARTMENT WITHOUT ANY O PPORTUNITY TO CROSS EXAMINE SUCH PERSONS AND WITHOUT PROVIDING SUCH DOC UMENTS FOR ASSESSEES COMMENTS WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. PRAKASH JAVIA & OTHERS 3 5. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWING OF CLAIM OF EXEMPTED INCOME BASED ON WRONG ANALYSIS OF THE FINA NCIAL AND PRICES OF THE SHARES WHICH IS QUITE UNJUST ILLEGAL AND AGA INST THE FACTS OF THE CASE. 6. THAT THE LD. CIT(A) HAS ERRED IN MENTIONING THE FACT THAT LEARNED AO HAS TRIED TO CONDUCT INQUIRES DURING ASSESSMENT PRO CEEDINGS IN CONFIRMING DISALLOWANCE WHEREAS NO SUCH INQUIRIES HAVE BEEN C ARRIED OUT WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 7. THAT THE LD. CIT(A) HAS ERRED IN TREATING THE GE NUINE TRANSACTIONS OF SHARES AS SHAM TRANSACTION WITHOUT ANY EVIDENCE OR LOGICAL REASONS IN SUPPORT OF THE SAME WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 8. THAT THE LD. CIT(A) HAS ERRED IGNORING THE VARIO US JUDGMENTS QUOTED BY THE ASSESSEE WHICH IS QUITE UNJUST ILLEGAL AND AG AINST THE FACTS OF THE CASE. 9. APPELLANT CRAVES TO LEAVE ADD AMEND ALTER OR MODIFY OF ANY GROUND BEFORE FINAL DATE OF HEARING. 3. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITANO.465/IND/2019 1. THAT THE ORDER PASSED BY LD. CIT(A) IS BAD IN L AW AND ON FACTS. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.14 09 940/- 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 CONSIDERING THE SCRIPT FROM WHICH THE ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN AS PENN Y STOCK A TERM NOWHERE DEFINE UNDER THE INCOME TAX ACT AS ANY OTHE R LAW FOR THE TIME BEING IN FORCE WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 4. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF CLAIM OF ASSESSEE OF EXEMPTED LTCG BASED ON INFORMATION/STAT EMENT GATHERED BY INVESTIGATION WING OF THE DEPARTMENT WITHOUT ANY O PPORTUNITY TO CROSS EXAMINE SUCH PERSONS AND WITHOUT PROVIDING SUCH DOC UMENTS FOR ASSESSEES COMMENTS WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 5. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWING OF CLAIM OF EXEMPTED INCOME BASED ON WRONG ANALYSIS OF THE FINA NCIAL AND PRICES OF THE SHARES WHICH IS QUITE UNJUST ILLEGAL AND AGA INST THE FACTS OF THE CASE. 6. THAT THE LD. CIT(A) HAS ERRED IN MENTIONING THE FACT THAT LEARNED AO HAS TRIED TO CONDUCT INQUIRES DURING ASSESSMENT PRO CEEDINGS IN CONFIRMING DISALLOWANCE WHEREAS NO SUCH INQUIRIES HAVE BEEN C ARRIED OUT WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. PRAKASH JAVIA & OTHERS 4 7. THAT THE LD. CIT(A) HAS ERRED IN TREATING THE GE NUINE TRANSACTIONS OF SHARES AS SHAM TRANSACTION WITHOUT ANY EVIDENCE OR LOGICAL REASONS IN SUPPORT OF THE SAME WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 8. THAT THE LD. CIT(A) HAS ERRED IGNORING THE VARIO US JUDGMENTS QUOTED BY THE ASSESSEE WHICH IS QUITE UNJUST ILLEGAL AND AG AINST THE FACTS OF THE CASE. 9. APPELLANT CRAVES TO LEAVE ADD AMEND ALTER OR MODIFY OF ANY GROUND BEFORE FINAL DATE OF HEARING. 4. ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL IN ITANO.466/IND/2019 1. THAT THE ORDER PASSED BY LD. CIT(A) IS BAD IN L AW AND ON FACTS. 2. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS.20 46 018/- 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 CONSIDERING THE SCRIPT FROM WHICH THE ASSESSEE HAS EARNED LONG TERM CAPITAL GAIN AS PENN Y STOCK A TERM NOWHERE DEFINE UNDER THE INCOME TAX ACT AS ANY OTHE R LAW FOR THE TIME BEING IN FORCE WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 4. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWANCE OF CLAIM OF ASSESSEE OF EXEMPTED LTCG BASED ON INFORMATION/STAT EMENT GATHERED BY INVESTIGATION WING OF THE DEPARTMENT WITHOUT ANY O PPORTUNITY TO CROSS EXAMINE SUCH PERSONS AND WITHOUT PROVIDING SUCH DOC UMENTS FOR ASSESSEES COMMENTS WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 5. THAT THE LD. CIT(A) HAS ERRED IN CONFIRMING THE DISALLOWING OF CLAIM OF EXEMPTED INCOME BASED ON WRONG ANALYSIS OF THE FINA NCIAL AND PRICES OF THE SHARES WHICH IS QUITE UNJUST ILLEGAL AND AGA INST THE FACTS OF THE CASE. 6. THAT THE LD. CIT(A) HAS ERRED IN MENTIONING THE FACT THAT LEARNED AO HAS TRIED TO CONDUCT INQUIRES DURING ASSESSMENT PRO CEEDINGS IN CONFIRMING DISALLOWANCE WHEREAS NO SUCH INQUIRIES HAVE BEEN C ARRIED OUT WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 7. THAT THE LD. CIT(A) HAS ERRED IN TREATING THE GE NUINE TRANSACTIONS OF SHARES AS SHAM TRANSACTION WITHOUT ANY EVIDENCE OR LOGICAL REASONS IN SUPPORT OF THE SAME WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 8. THAT THE LD. CIT(A) HAS ERRED IGNORING THE VARIO US JUDGMENTS QUOTED BY THE ASSESSEE WHICH IS QUITE UNJUST ILLEGAL AND AG AINST THE FACTS OF THE CASE. PRAKASH JAVIA & OTHERS 5 9. THE LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDIT ION OF RS.61 380/- WITHOUT ANY EVIDENCE AGAINST THE ASSESSEE WHICH IS QUITE UNJUST ILLEGAL AND AGAINST THE FACTS OF THE CASE. 10. APPELLANT CRAVES TO LEAVE ADD AMEND ALTER OR MODIFY OF ANY GROUND BEFORE FINAL DATE OF HEARING. 5. FROM PERUSAL OF ALL THE ABOVE GROUNDS WE OBSERV E THAT COMMON ISSUE RELATES TO GENUINENESS OF CLAIM OF LONG TERM CAPITAL GAIN (IN SHORT LTCG) U/S 10(38) OF THE ACT FROM SALE OF EQUI TY SHARES OF KAPPAC PHARMA LIMITED(IN SHORT KPL). FOLLOWING DETA ILS OF LTCG CLAIM AND ADDITION MADE BY THE LD. AO WILL BE HELPF UL TO ADDRESS THE COMMON ISSUE: A) IN CASE OF PRAKASH JAVIA HUF 3000 EQUITY SHARES OF KAPPAC PHARMA LIMITED WERE PURCHASED ON 25.06.2012 AT RS. 36 000/- AND SOLD ON 06.03.2014 AT RS.2 14 962/- GIVING RISE TO LTCG AT RS.21 11 075/-. LD. AO MADE THE ADDITION FOR GROSS RECEIPTS FROM SALE (WITHOUT DEDUCTING BROKERAGE) AT RS.21 50 700/ -. B) IN CASE OF JAYESH JAVIA HUF 2 000 EQUITY SHARES OF KAPPAC PHARMA LIMITED WERE PURCHASED ON 18.10.2012 AT RS. 24 000/- AND SOLD ON 07.03.2014 AT RS.14 33 937/- GIVING RISE TO LTCG AT RS.14 09 939/- AND THIS CLAIM DENIED BY THE LD. AO. C) IN CASE OF PRAKASH JAVIA 3 000 EQUITY SHARES OF KAPPAC PHARMA LIMITED WERE PURCHASED ON 25.06.2012 AT RS.36 000/- WHICH WERE SOLD ON 18.02.2014 AT RS.20 46 018/- GIVING RISE TO LTCG AT RS.20 10 018/-. LD. AO MADE ADDITION FOR NET SALE A T RS.20 46 018/- AND CLAIM OF LTCG. PRAKASH JAVIA & OTHERS 6 6. FROM PERUSAL OF THE ABOVE WE FIND THAT COMMON F ACTS RELATES TO GENUINENESS OF TRANSACTIONS OF SALE OF EQUITY SHARE S OF KAPPAC PHARMA LIMITED. 7. AS THE ISSUE RAISED IS COMMON AND ALMOST IDENTIC AL FACTS ALL THE ABOVE CAPTIONED APPEALS WERE HEARD TOGETHER AT THE REQUEST OF ALL THE PARTIES AND ARE THUS BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE AND BREVITY. AS AGREED BY A LL THE PARTIES WE WILL TAKE UP FACTS OF THE ASSESSEE NAMELY PRAKASH J AVIA HUF FOR ADJUDICATING THIS COMMON ISSUE. 8. BRIEF FACTS OF THE CASE AS CULLED OUT FROM THE R ECORDS ARE THAT THE ASSESSEE IS A HINDU UNDIVIDED FAMILY(HUF). RETURN O F INCOME FILED ON 12.09.2014 DECLARING TOTAL INCOME OF RS.5 15 270 /- AND ALSO CLAIMING EXEMPT INCOME U/S 10(38) OF THE ACT FROM LONG TERM CAPITAL GAIN FROM SALE OF LISTED SECURITIES AT RS.2 1 11 075/-. CASE SELECTED FOR SCRUTINY THROUGH CASS FOLLOWED BY SERV ING OF NOTICES U/S 143(2) & 142(1) OF THE ACT TO THE ASSESSEE. WRI TTEN SUBMISSIONS WERE FILED. BOOKS OF ACCOUNTS AND OTHER DOCUMENTS P RODUCED WERE EXAMINED ON TEST CHECK BASIS. AS REGARDS TRANSACTIO NS OF PURCHASE AND SALE OF EQUITY SHARES OF KAPPAC PHARMA LIMITED THOUGH NECESSARY EVIDENCES WERE FILED BUT THE LD. AO FURTH ER ISSUED A NOTICE U/S 133(6) OF THE ACT TO THE PURCHASER OF TH E EQUITY SHARES SOLD BY THE ASSESSEE. BUT SINCE THERE WAS NO REPLY LD. AO IN THE ABSENCE OF EVIDENCES ADDED THE WHOLE AMOUNT OF RS.2 1 50 700/-. THIS AMOUNT WAS TAKEN FROM THE CONTRACT NOTE ISSUED BY KOTAK PRAKASH JAVIA & OTHERS 7 SECURITIES LIMITED PLACED AT PAGES 12 OF THE PAPER BOOK. LD. AO DENIED THE CLAIM OF BROKERAGE. INCOME ASSESSED AT R S.26 65 970/-. 9. AGGRIEVED ASSESSEE PREFERRED AN APPEAL BEFORE TH E LD. CIT(A) AND AGAIN PLACED NECESSARY DETAILS ALONG WITH PLACING R ELIANCE ON VARIOUS JUDGMENTS APPEARING AT PAGES 3 TO 10 OF THE IMPUGNED ORDER. HOWEVER LD. CIT(A) DID NOT FIND ANY MERIT I N THE SUBMISSIONS MADE BY THE ASSESSEE AND SINCE THE SCRI P NAMELY KAPPAC PHARMA LIMITED WAS SPECIFIED AS PENNY STO CK ON THE PORTAL OF INCOME TAX DEPARTMENT HE HELD THAT THE A LLEGED TRANSACTIONS OF PURCHASE AND SALE OF EQUITY SHARES OF KAPPAC PHARMA LIMITED IS A SHAM TRANSACTION WHICH CANNOT S TAND TEST OF HUMAN PROBABILITY AND IN HOLDING SO LD. CIT(A) RELI ED ON VARIOUS JUDGMENTS WHICH ARE PART OF HIS FINDING APPEARING I N PARA 4 OF THE IMPUGNED ORDER AT PAGES 11 TO 15. 10. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUN AL. LD. COUNSEL FOR THE ASSESSEE REFERRED TO THE DETAILED SUBMISSIO N RUNNING FROM PAGES 1 TO 27 PLACED ON RECORD. REFERENCE MADE TO T HE PAPER BOOK RUNNING FROM PAGES 1 TO 26 CONTAINING VARIOUS DETA ILS AND EVIDENCES WHICH WERE PLACED BEFORE THE LOWER AUTHOR ITIES. 11. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITS THAT THE ALLEGED TRANSACTIONS OF SALE OF EQUITY SHARES OF KAPPAC PHA RMA LIMITED WAS CARRIED OUT THROUGH RECOGNIZED STOCK EXCHANGE AND T HE TRANSACTIONS FULFILLED ALL THE PARAMETERS PROVIDED IN SECTION 10 (38) OF THE ACT AS EQUITY SHARES ARE LONG TERM CAPITAL ASSET HELD FOR MORE THAN 12 PRAKASH JAVIA & OTHERS 8 MONTHS AND SOLD ON A RECOGNIZED STOCK EXCHANGE THRO UGH REGISTERED BROKER NAMELY KOTAK SECURITIES LIMITED AFTER PAYING SECURITIES TRANSACTION TAX. 12. IT IS ALSO SUBMITTED THAT THE ALLEGED INFORMATI ON RECEIVED BY THE LD. AO FROM INVESTIGATION WING ABOUT THE COMPANY KA PPAC PHARMA LIMITED WAS NEVER MADE AVAILABLE TO THE ASSESSEE WH ICH VIOLATES PRINCIPLES OF NATURAL JUSTICE AND THUS RENDERS ENTI RE PROCEEDINGS AS VOID. RELIANCE PLACED ON THE JUDGMENT OF HON'BLE SU PREME COURT IN THE CASE OF SONA BUILDERS [2001] 119 TAXMAN 430. 13. FURTHER IT IS SUBMITTED THAT NO MATERIAL WAS FOUND BY THE LD. AO WHICH COULD ESTABLISH THAT THE ASSESSEE HAD CONV ERTED UNACCOUNTED MONEY INTO ACCOUNTED MONEY BY MANAGING BOGUS LTCG. RELIANCE PLACED ON JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF KRISHNA DEVI ITANO.125 OF 2020 DATED 15.01.2021 & JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CASE O F UTTAMCHAND JAIN [2009] 182 TAXMAN 243 DATED 02.07.2009. 14. FURTHER RELIANCE PLACED ON THE FOLLOWING DECISI ONS WHEREIN THE LTCG FROM SALE OF SHARES OF KAPPAC PHARMA LIMITED ARE HELD TO BE GENUINE: I. ADITYA MUNDRA ITANO.632/IND/2019 DATED 13.01.2021 (I.T .A.T. INDORE) II. SUNIL AGRAWAL HUF ITANO. 434/KOL/2020 DATED 03.12 .2020 (I.T.A.T. KOLKATA) III. YOGENDRA DALMIA ITANO.774/KOL/2018 DATED 09.08.2 019 (I.T.A.T. KOLKATA) PRAKASH JAVIA & OTHERS 9 15. IT IS ALSO SUBMITTED THAT THE KAPPAC PHARMA LIM ITED IS NEITHER INCLUDED IN THE LIST OF SHELL COMPANIES NOR HAS BEE N STRUCK OFF FROM THE REGISTRAR OF COMPANIES. RELIANCE PLACED ON DECI SION OF I.T.A.T. MUMBAI IN THE CASE OF SHAKTI HARDWARE COLLECTIONS P RIVATE LTD. IN ITANO. 6301/MUM/2014 DATED 31.01.2018. 16. REFERRING TO THE RATIO THAT NO ADDITION CAN BE MADE WHEN ALL DOCUMENTS TO SUBSTANTIATE THE TRANSACTIONS ARE SUBM ITTED AND THE ONUS IS DISCHARGED BY THE ASSESSEE RELIANCE PLACED ON THE FOLLOWING DECISIONS: I . ACHAL GUPTA ITANO.501/LKW/2019 DATED 16.12.2020 ( I.T.A.T. LUCKNOW) II. ADITYA MUNDRA ITANO.632/IND/2019 DATED 13.01.20 21 (I.T.A.T. INDORE) III. SUNIL AGRAWAL HUF ITANO. 434/KOL/2020 DATED 03 .12.2020 (I.T.A.T. KOLKATA) IV. SHWETA AGRAWAL ITA NO. 280/IND/2019 DATED 21. 12.2020 (I.T.A.T. INDORE) V. GTC INDUSTRIES LIMITED [2017] 80 TAXMANN.COM 2 84 DATED 07.03.2017 (I.T.A.T. MUMBAI (SB) VI. RIAZ MUNSHI ITA NO. 8314/DEL/2018 DATED 11.03 .2020 (I.T.A.T. DELHI) VII. DIPESH RAMESH VARDHAN ITA NO. 7648/IND/2019 DATED 11.08.2020 (I.T.A.T. MUMBAI) VIII. ANOOP JAIN [2020] 114 TAXMANN.COM 550 DAT ED 10.01.2020(I.T.A.T. DELHI) IX. VIJAY RATAN MITTAL ITA NO. 3429 OF 2019 DATED 01.10.2019 (I.T.A.T. MUMBAI) X. KARUNA GARG [2019] 109 TAXMANN.COM 403 DATED 06.08.2019 (I.T.A.T. DELHI) XI. VIDHI MALHOTRA [2019] 101 TAXMANN.COM 361 DA TED 20.12.2018(I.T.A.T. DELHI) XII. SAURABH MITTAL ITA NO. 16 OF 2018 DATED 2 9.08.2018 (I.T.A.T. JAIPUR) XIII. PRAMOD KUMAR LODHA [2018] 100 TAXMANN.COM 8 DATED 16.07.2018 (I.T.A.T. JAIPUR) XIV. RUNGTA PROPERTIES ITA NO. 105 OF 2016 DATED 08.05.2017 (CALCUTTA HC) XV. M/S. ALPINE INVESTMENTS ITA NO. 620 OF 2018 DATED 26.08.2008 (CULCUTTA HC) 17. WITH REGARD TO THE CLAIM THAT THE ASSESSEE HAD FULFILLED ALL THE CONDITIONS OF SECTION 10(38) OF THE ACT AND THE CLA IM OF LTCG IS PRAKASH JAVIA & OTHERS 10 BONAFIDE LAWFUL AND COMPLIES WITH THE PROVISIONS OF SECTIO N 10(38) OF THE ACT AND SALE CONSIDERATION RECEIVED ON THE S ALE OF THESE SHARES CANNOT BE TREATED AS INCOME OF THE ASSESSEE RELIANCE PLACED ON JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF DILIP KUMAR AND COMPANY & ORS CIVIL APPEAL NO.3327 OF 2007 DATED 30.07.2018 AND THE JUDGMENT OF HON'BLE BOMBAY HIGH COURT IN THE CA SE OF BALMUKUND ACHARYA 310 ITR 310 (BOM). 18. LD. COUNSEL FOR THE ASSESSEE ALSO SUBMITTED THA T THE PROVISIONS OF SECTION 68 OF THE ACT ARE NOT APPLICABLE ON THE ALLEGED TRANSACTION OF SALE OF SHARES OF A LISTED COMPANY ON THE RECOGN IZED STOCK EXCHANGE. IDENTITY IS PROVED WHICH IN THIS CASE IS KOTAK SECURITIES LIMITED THROUGH WHICH EQUITY SHARES OF KAPPAC PHARM A LIMITED ARE TRANSFERRED FROM DMAT ACCOUNT OF THE ASSESSEE. GENU INENESS IS PROVED AS THE SHARES WERE PURCHASED DURING F.Y. 201 2-13 THROUGH A PRIVATE LIMITED CO. ON OFFLINE BASIS AND CREDITWO RTHINESS IS PROVED WITH A FACT THAT SHARES ARE SOLD ON THE RECOGNIZED STOCK EXCHANGE THROUGH A REGISTERED STOCK BROKER AND THE IDENTITY OF THE PURCHASER OF THE SHARES IS NOT REVEALED ON THE PORTAL. 19. THUS CONSIDERING ABOVE FACTS AND CIRCUMSTANCE S OF THE CASE SUBMISSIONS MADE DOCUMENTS ON RECORD AND JUDICIAL PRECEDENTS LD. COUNSEL FOR THE ASSESSEE PRAYED THAT ADDITION M ADE BY THE LD. AO FOR THE AMOUNT OF GROSS SALE CONSIDERATION/NET S ALE CONSIDERATION/LTCG AS INCOME OF THE ASSESSEE DESERV ES TO BE DELETED AND BENEFIT U/S 10(38) OF THE ACT FOR LTCG TO BE ALLOWED. PRAKASH JAVIA & OTHERS 11 20. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR ) VEHEMENTLY ARGUED SUPPORTING THE FINDING OF BOTH THE LOWER AUT HORITIES AND DECISIONS/ JUDGMENTS REFERRED AND RELIED BY THE LD. CIT(A) AND FURTHER SUBMITS THAT THERE WAS AN ABNORMAL INCREASE IN SHARE PRICES WITHIN A SHORT SPAN OF TWO YEAR WHICH WAS NO T COMMENSURATE WITH THE FINANCIAL GROWTH OF THE COMPANY AND THERE FORE LD. CIT(A) HAS RIGHTLY HELD THAT THE ALLEGED TRANSACTIONS ARE SHAM AND BOGUS. 21. WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE RECORDS PLACED BEFORE US AND CAREFULLY GONE THROUGH THE SUBMISSION S PAPER BOOK AND PLETHORA OF JUDGMENTS REFERRED AND RELIED BY BO TH SIDES. COMMON ISSUE RAISED IN ALL THREE APPEAL IS GENUINEN ESS OF CLAIM OF LONG TERM CAPITAL GAIN AS EXEMPT INCOME U/S 10(38) OF THE ACT ARISING OUT OF THE TRANSACTIONS OF SALE OF EQUITY S HARES OF KAPPAC PHARMA LIMITED. 22. THE ASSESSEES NAMELY PRAKASH JAVIA HUF JAYESH KUMAR JAVIA HUF AND PRAJASH JAVIA PURCHASED EQUITY SHARES OF KA PPAC PHARMA LIMITED TOTALING TO 3000 2000 & 3000 RESPECTIVELY IN CASH THROUGH OFFLINE MODE FROM EXISTING SHAREHOLDER OF KAPPAC PH ARMA LTD. AT RS.36000/- RS.24 000/- & RS.36 000/-. SUBSEQUENTLY DURING THE F.Y. 2013-14 ALL THESE EQUITY SHARES WERE CONVERTED IN DMAT FORM MAINTAINED BY RESPECTIVE ASSESSEES WITH KOTAK SECUR ITIES LTD. DURING F.Y. 2013-14 AFTER HOLDING THE SHARES FOR MO RE THAN 12 MONTHS RESPECTIVE ASSESSEE(S) SOLD THEIR HOLDING O F KAPPAC PHARMA LTD. THROUGH A REGISTERED BROKER NAMELY KOTAL SECUR ITIES LTD ON THE RECOGNIZED STOCK EXCHANGE NAMELY BOMBAY STOCK EXCHA NGE LTD AND PRAKASH JAVIA & OTHERS 12 LONG TERM CAPITAL GAIN CALCULATED IN EACH CASE HAVE BEEN SHOWN IN THE INCOME TAX RETURNS AS EXEMPT INCOME U/S 10(38) OF THE ACT. 23. DURING THE ASSESSMENT PROCEEDINGS THE ASSESSING OFFICER ON THE BASIS OF REPORT OF THE INVESTIGATION CARRIED OUT BY THE INVESTIGATION WING OF INCOME TAX DEPARTMENT AT VARIOUS BROKERS IN OTHER PARTS OF THE COUNTRY LACK OF INFORMATION FROM THE PURCHASER OF EQUITY SHARES SOLD BY ONE OF THE ASSESSEE NAMELY PRAKASH JAVIA HU F AND RAISING DOUBT ON THE ABNORMAL INCREASE OF THE SHARE PRICE O F KAPPAC PHARMA LTD. WHICH IN NO WAY COULD TERMED AS A FAIR MARKET VALUE LOOKING TO THE FINANCIAL POSITION GROSS SALES AND INCOME SHOWN BY THE LISTED COMPANY KPL AND BASED ON ALL THESE OBSER VATIONS CONCLUDED THAT THE ALLEGED TRANSACTIONS OF SALE OF EQUITY SHARES OF KPL ARE BOGUS KAPPAC PHARMA LTD. IS A PENNY STOCK COMPANY AND THE ASSESSEE HAS ADOPTED A COLORABLE DEVISE TO CONVERT UNACCOUNTED MONEY INTO ACCOUNTED MONEY BY ARRANGING BOGUS LTCG. 24. AS FAR AS THE CONTENTION THAT SHARE PRICES OF KAPPAC PHARMA LTD. SAW ABNORMAL RISE WHICH IS NOT COMMENSURATE TO THE FINANCIAL RESULTS/POSITION OF THE COMPANY WE FIND THAT THIS TRIBUNAL HAS DEALT WITH THIS ISSUE RECENTLY IN THE CASE OF ADITYA MUNDRA (SUPRA ) OBSERVING AS FOLLOWS: PARA 37 ON THE OTHER HAND ALL THE RELEVANT DOCUMENTS TO PROVE THE PURCHASE AND SALE WERE BEFORE THE LD. A.O . PURCHASES WERE AT THE FAIR MARKET VALUE AT RS.12/-. SALES HAV E BEEN EFFECTED THROUGH REGISTERED BROKER AFTER PAYMENT OF SECURITY TRANSACTION TAX AND SOLD AT THE PRICES APPEARING AT THE RECOGNIZED STOCK EXCHANGE. MERELY OBSERVING THAT THE PRICES OF THE EQUITY SHAR ES HAVE BEEN INCREASED DRASTICALLY CANNOT BE A EVIDENCE IN ITSEL F TO TREAT THE PRAKASH JAVIA & OTHERS 13 TRANSACTIONS AS BOGUS. THERE ARE NUMBER OF INCIDENC ES WHERE THE SHARE PRICES OF CERTAIN LISTED COMPANIES INCREASED DRASTICALLY BUT THAT ALL DEPENDS ON DEMAND AND SUPPLY OF THE EQUITY SHARE PERCEPTION OF ITS GROWTH AND THE MARKET SENTIMENTS. UNLESS AND UNTIL THE COMPANY OF WHICH THE EQUITY SHARES ARE BEING TR ADED IS FOUND TO BE INVOLVED IN MALPRACTICES THE FINANCIAL RESULTS A RE NOT COMMENSURATE WITH THE PRICES AT THE NSE/BSE PORTAL AND SUFFICIENT PROOFS ARE AVAILABLE SHOWING THE ALLEGED COMPANY TO BE A BOGUS/PENNY STOCK OR PAPER COMPANY ONE CANNOT QUES TION THE GENUINENESS OF TRANSACTIONS CARRIED OUT ON THE PORT AL OF NSE/BSE WHICH ARE UNDER THE CONTROL OF SECURITIES AND EXCHA NGE BOARD OF INDIA.' [EMPHASIS SUPPLIED] 25. THE ABOVE FINDING OF THIS TRIBUNAL INDICATES TH AT THERE ARE VARIOUS OTHER FACTORS FOR THE SUDDEN RISE AND FALL IN THE SHARE PRICES OF A LISTED COMPANY WHICH ARE MAJORLY LINKED TO TH E MARKET SENTIMENTS PERFORMANCE OF THE SECTOR AVAILABILITY OF SHARES I.E DEMAND AND SUPPLY HOLDING OF THE PROMOTERS FUTURE PROSPECTS ETC. IN THE INSTANT CASE NOTHING ON RECORD IS AVAILABLE TO SHOW THAT ANY ENQUIRY WAS CONDUCTED BY DEPARTMENT AT THE BUSINESS PREMISES OF KAPPAC PHARMA LTD. AND ITS INVOLVEMENT IN THIS ALLE GED RACKET OF MANAGING BOGUS LTCG. KAPPAC PHARMA LTD. IS REGISTER ED WITH REGISTRAR OF COMPANIES AND IS STILL LIVE AT THE POR TAL OF REGISTRAR OF COMPANIES. ALL TRANSFERS OF SHARES OF PARTICULAR LI STED COMPANY IS WELL RECORDED IN THE REGISTRAR OF SHAREHOLDERS. EVE N THE PURCHASE OF SHARES BY ASSESSEE IS DIRECTLY FROM A SHAREHOLDER C OMPANY BEING ORIGINAL ALLOTTEE OF EQUITY SHARES OF KAPPAC PHARMA LTD. WHI CH WERE SUBSEQUENTLY TRANSFERRED IN THE NAME OF RESPECTIVE ASSESSEE(S). 26. WE FURTHER NOTE THAT AS FAR AS CONDITIONS PROV IDED IN SECTION 10(38) OF THE ACT ARE CONCERNED THE SAME ARE DULY F ULFILLED IN THE INSTANT CASE SECTION 10(38) OF THE ACT READS AS FOL LOWS: PRAKASH JAVIA & OTHERS 14 ANY INCOME ARISING FROM THE TRANSFER OF A LONG-TER M CAPITAL ASSET BEING AN EQUITY SHARE IN A COMPANY OR A UNIT OF AN EQUITY ORIENTED FUND OR A UNIT OF A BUSINESS TRUST WHERE A)THE TRANSACTION OF SALE OF SUCH EQUITY SHARE OR U NIT IS ENTERED INTO ON OR AFTER THE DATE ON WHICH CHAPTER VII OF THE FINAN CE (NO. 2) ACT 2004 COMES INTO FORCE; AND B) SUCH A TRANSACTION IS CHARGEABLE TO SECURITIES T RANSACTION TAX UNDER THAT CHAPTER. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX 27. FROM PERUSAL OF ABOVE SECTION WE OBSERVE THAT F OLLOWING CONDITIONS ARE TO BE SATISFIED TO CLAIM INCOME EXEM PT U/S 10(38) A. ASSET TRANSFERRED SHOULD BE A LONG TERM CAPITAL ASS ET B. ASSET TRANSFERRED SHOULD BE EITHER EQUITY SHARE OR UNITS OF EQUITY ORIENTED FUND OR UNITS OF A BUSINESS TRUS T C. TRANSACTION OF SALE OF SUCH EQUITY SHARE OR UNITS O F EQUITY ORIENTED FUND OR UNITS OF A BUSINESS TRUST IS ENTER ED INTO ON OR AFTER 01 ST OCTOBER 2014 D. SECURITIES TRANSACTION TAX (STT) IS PAID ( WHICH IS POSSIBLE ONLY WHEN THE TRANSACTION IS CARRIED OUT ON A REGIS TERED STOCK EXCHANGE ) 28. ONGOING THROUGH THE FACTS OF THE CASE WE FIND THAT THE ASSETS ARE IN THE NATURE OF EQUITY SHARES WHICH ARE NOT PA RT OF A BUSINESS STOCK AND HAVE BEEN HELD FOR MORE THAN 12 MONTHS SO WILL COMES UNDER THE CATEGORY OF LONG TERM CAPITAL ASSET. THE EQUITY SHARES ARE SOLD THROUGH RECOGNIZED STOCK EXCHANGE (BOMBAY STOCK EXCHANGE) AND SECURITY TRANSACTIONS TAX HAVE BEEN P AID ON THIS TRANSACTION. PRAKASH JAVIA & OTHERS 15 29. NOW COMING TO THE PART OF PURCHASE AND SALE : PURCHASE IS OFF LINE AND MADE IN CASH. LD. AO HAS RAISED DOUBT ON T HE PURCHASES BEING MADE IN CASH BUT THERE IS NO BAR UNDER THE LA W TO MAKE PURCHASE IN CASH. IN ALL THESE CASES EQUITY SHARES WERE PURCHASE FROM SHAH & SONS PROPON PRIVATE LIMITED. PAN NO. OF THE SELLER WAS PROVIDED BEFORE BOTH THE LOWER AUTHORITIES. THE SEL LER NAMELY SHAH & SONS PROPON PRIVATE LIMITED PURCHASED EQUITY SHAR ES IN NOVEMBER 2010 AND WAS ORIGINALLY ALLOTTED THE SHARE S BY KAPPAC PHARMA LTD. WHICH IS A COMPANY REGISTERED AT MUMBAI . GENUINENESS OF THE DOCUMENTS NAMELY SHARE CERTIFICA TE PLACED PAGE 10 OF THE PAPER BOOK IS NOT DOUBTED. FOR SURE THE D ETAILS OF SHAREHOLDER WOULD BE AVAILABLE ON THE PORTAL OF THE REGISTRAR OF COMPANY WHERE ANNUAL RETURNS ARE FILED BY THE COMPA NIES. FURTHER HAS THIS CERTIFICATE BEING BOGUS THEN HOW COULD THE SHARES ARE DEMATERIALIZED. BECAUSE ONCE A SHARE ARE LODGED FOR DEMATERIALIZATION THE ORIGINAL SHARE CERTIFICATE IS TO BE DEPOSITED AND THE CORRECTNESS OF THE CERTIFICATE IS VERIFIED THROUGH THE COMPANY WHICH HAS ISSUED THE SHARE CERTIFICATE. ONC E THE DETAILS ARE FOUND TO BE CORRECT THE SHARES ARE DEMATERIALIZ ED. 30. NOW COMING TO THE SALE PART: THE ASSESSEE HAS O PENED DMAT ACCOUNT WITH KOTAK SECURITIES LTD. WHICH IS KNOWN T O BE A REPUTED COMPANY ENGAGED IN THE PROVIDING SERVICES AS SHARE BROKER. KOTAL SECURITY IS REGISTERED WITH BOMBAY STOCK EXCHANGE. SALE IS EFFECTED ON THE PORTAL OPERATED AND CONTROLLED BY BOMBAY STO CK EXCHANGE. THE SELLER HAS NO IDEA AS TO WHO IS THE BUYER ON TH E OTHER SIDE. ON PRAKASH JAVIA & OTHERS 16 THE PORTAL THE PAYMENT FOR THE SALE IS RECEIVED BY BROKER WHICH IN THIS CASE IS KOTAK SECURITY LIMITED WHO AFTER DEDU CTING THE BROKERAGE AND OTHER APPLICABLE TAX INCLUDING SECURI TY TRANSACTIONS TAX REMITS THE BALANCE AMOUNT IN THE BANK ACCOUNT O F THE ASSESSEE WHICH IS REGISTERED IN THE DMAT ACCOUNT. IN THE INS TANT CASE NO FLAW OR ANY INCONSISTENCY HAS BEEN FOUND BY THE REV ENUE AUTHORITIES WITH ALL THESE TRANSACTION OF PURCHASE AND SALE. 31.FURTHER THE ASPECT THAT WHETHER KAPPAC PHARMA LT D IS A PENNY STOCK COMPANY OR NOT HAS BEEN DEALT IN DETAIL BY I .T.A.T. KOLKATA BENCH IN THE CASE OF YOGENDRA DALMIA (SUPRA) WHEREIN THE TRIBUNAL AFTER CONSIDERING ANOTHER DECISION OF BANGALORE TRI BUNAL IN THE CASE CANARA BANK VS. JCIT HELD THE TRANSACTION FROM SALE OF EQUITY SHARES OF KAPPAC PHARMA LIMITED AS GENUINE AND ALSO ALLOWED THE CLAIM OF ASSESSEE OF LTCG FROM THE SALE OF EQUITY S HARES OF KAPPAC PHARMA LTD. AND ALSO DELETED THE ALLEGED COMMISSION EXPENDITURE ADDED BY LD. AO FOR ARRANGING THE BOGUS LTCG. THE R ELEVANT EXTRACT OF DECISION OF COORDINATE BENCH KOLKATA IN THE CASE OF YOUGENDRA DALMIA (SUPRA ) IS REPRODUCED BELOW: PARA 6 NEXT COMES ASSESSEES LATTER APPEAL ITA N O.775/KOL/2018 SEEKING TO REVERSE BOTH THE LOWER AUTHORITIES ACTIO N TREATING HIS SALE PROCEEDS AMOUNTING TO RS.1 81 009/- DERIVED FROM SA LE OF SHARES IN M/S GCM SECURITIES PVT. LTD AND KAPPAC PHARMA LTD. HAS TO BE IN THE NATURE OF UNEXPLAINED CASH CREDITS. BOTH THE LO WER AUTHORITIES HAVE FURTHER DISALLOWED THE ALLEGED COMMISSION EXPE NDITURE @ 5% THEREUPON WITH COMING TO 1 81 009/- U/S. 69C OF TH E ACT. THE CIT(A)S DETAILED DISCUSSION UNDER CHALLENGE TO THI S EFFECT READS AS UNDER:-........... PARA 7 WE HAVE GIVEN OUR THOUGHTFUL CONSIDERATIO N TO RIVAL CONTENTIONS. THERE CAN HARDLY BE ANY DISPUTE THAT A SSESSEE HAS PLACED ON RECORD HIS SUPPORTIVE DOCUMENTARY EVIDENC E COMPRISING OF PRAKASH JAVIA & OTHERS 17 RELEVANT PURCHASE BILLS OF SHARES ALLOTMENT CERTIF IED COPIES CONTRACT NOTES BROKERAGE DETAILS ETC. WE PUT UP A SPECIFIC QUERY AS TO WHETHER ANY OF ENTRY OPERATORS SEARCHED OR SURVEY H AS QUOTED THESE ASSESSEES NAMES OR NOT BEFORE THE DEPARTMENTAL AUTH ORITIES. THERE IS NO SUCH MATERIAL IN THE CASE FILE INDICATING SUC H AS STATEMENT. I FIND THAT THIS CO-ORDINATE BENCHS DECISION IN ITA NO. 1918/KOL/2018 IN SMT. SANGITA JHUNJHUNWALA VS. ITO DECIDED ON 04. 01.2019 HAS DELETED SIMILAR BOGUS LTCG VIDE FOLLOWING DETAILED DISCUSSION IN PARA 3 TO 5 AS UNDER............ PARA 8 THIS TRIBUNALS YET ANOTHER DECISION IN ( 2017) 60 ITR (TRIB) 1 (BANG) CANARA BANK VS. JCIT HOLDS THAT THE ESTOPP LE PRINCIPLE DOES NOT APPLY IN INCOME TAX PROCEEDINGS. WE THEREF ORE REJECT REVENUES ARGUMENTS IN SUPPORT OF IMPUGNED ADDITION . WE TAKE INTO ACCOUNT ALL THE RELEVANT FACTS AND CIRCUMSTANCES TO ADOPT THE LEARNED CO-ORDINATE BENCHS ABOVE EXTRACTED DETAILED REASON ING MUTATIS MUTANDIS TO DELETE THE IMPUGNED ADDITION FORMING SU BJECT-MATTER OF THE INSTANT APPEAL. COMMISSION EXPENDITURE DISALLOW ANCE; IF ANY SHALL AUTOMATICALLY FOLLOW SUIT AS A NECESSARY CORO LLARY. NO OTHER ARGUMENT HAS BEEN RAISED BEFORE US DURING THE COURS E OF HEARING. THIS ASSESSEES LATTER APPEAL ITA NO. 775/KOL/2018 IS ALLOWED. [EMPHASIS SUPPLIED] 32. RECORDS PLACED BEFORE US ALSO SHOWS THAT REPORT OF THE INVESTIGATION WING OR ANY ENQUIRY CONDUCTED FROM 3 RD PERSONS WERE NOT MADE AVAILABLE TO THE ASSESSEE WHICH THUS GROSS LY VIOLATES THE PRINCIPLES OF NATURAL JUSTICE. AS THE ASSESSEE NEVE R GOT OPPORTUNITY TO GO THROUGH THESE REPORTS THIS ACTION OF THE LOWE R AUTHORITIES WAS NOT JUSTIFIED IN VIEW OF RATIO LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE OF SONA BUILDERS (SUPRA) WHEREIN HON'BLE COURT HELD THAT: PARA 7 HAVING REGARD TO THE STATUTORY LIMIT WITHIN WHICH THE APPROPRIATE AUTHORITY HAS TO ACT AND HIS FAILURE TO ACT IN CONFORMITY WITH THE PRINCIPLES OF NATURAL JUSTICE WE DO NOT THINK WE CAN REMAND THE MATTER TO THE APPROPRIATE AUTHORITY. WE MUST SET HI S ORDER ASIDE. PRAKASH JAVIA & OTHERS 18 PARA 8 THE APPEAL IS ACCORDINGLY ALLOWED. THE JUDGME NT AND ORDER UNDER APPEAL IS SET ASIDE. THE ORDER OF THE APPROPR IATE AUTHORITY DATED 31-5-1993 IS QUASHED. [EMPHASIS SUPPLIED] 33. WE THEREFORE IN THE TOTALITY OF FACTS AND IN VIEW OF THE RATIOS LAID DOWN BY HON'BLE COURTS AND DECISION OF COORDIN ATE BENCHES SQUARELY APPLICABLE ON THE INSTANT ISSUE RAISED BEF ORE US ARE OF THE CONSIDERED VIEW THE ALLEGED TRANSACTION OF PURCHASE AND SALE OF EQUITY SHARES OF KAPPAC PHARMA LTD. ARE NOT BOGUS A S THE RESPECTIVE ASSESSEE(S) HAVE DULY CHARGED THERE ONUS TO PROVE THE GENUINENESS OF PURCHASE AND SALE OF EQUITY SHARES O F LISTED COMPANY KPL (LISTED IN BOMBAY STOCK EXCHANGE) BY PL ACING NECESSARY DOCUMENTS TO PROVE THAT THE PURCHASE ARE DIRECTLY FROM THE SHAREHOLDER AND SOLD THROUGH A REGISTERED BROKE R AND NOTHING ADVERSE HAS BEEN FOUND BY THE REVENUE AUTHORITIES A ND KPL IS NOT HELD TO BE A PENNY STOCK COMPANY. 34. FURTHER WITH REGARD TO THE ALLEGED ADDITION WE FIND THAT THE IT IS PURELY BASED ON THE REPORT OF THE INVESTIGATION WIN G CARRIED OUT IN THE CASE OF OTHER PERSONS FINDING NO MENTION OR THE INVOLVEMENTS OF ASSESSEE(S) IN ANY OF SUCH REPORT AND THUS THE CLA IM OF THE LTCG HAS BEEN RIGHTLY MADE AS EXEMPT INCOME U/S 10(38) O F THE ACT. WE THUS SET ASIDE THE FINDING OF THE LD. CIT(A) IN AL L THE INSTANT APPEALS AND DIRECT THE LD. ASSESSING OFFICER TO ALL OW THE CLAIM OF LTCG MADE U/S 10(38) OF THE ACT MADE BY THE RESPECT IVE ASSESSEE(S) AND ALSO DELETE THE DISALLOWANCE OF BROKERAGE EXPEN SES OF RS.61 380/- MADE IN THE CASE OF PRAKASH JAVIA. PRAKASH JAVIA & OTHERS 19 35. IN THE RESULT ALL GROUNDS RAISED BY THE ASSESS EE(S) ARE ALLOWED AND APPEALS FILED BY THE ASSESSEE IN ITANO. 464 465 & 466/IND/2019 ARE DECIDED IN FAVOUR OF THE ASSESSEE AND 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