Shri shankar Kumar Lila(HUF), Bhopal v. ACIT-1(2), Bhopal

ITSSA 224/Ind/2019 | 2006-2007
Pronouncement Date: 25-05-2021 | Result: Allowed

Appeal Details

RSA Number 22422716 RSA 2019
Assessee PAN AALPL2708D
Bench Indore
Appeal Number ITSSA 224/Ind/2019
Duration Of Justice 1 year(s) 7 month(s) 9 day(s)
Appellant Shri shankar Kumar Lila(HUF), Bhopal
Respondent ACIT-1(2), Bhopal
Appeal Type Income Tax (Search & Seizure) 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 06-04-2021
Next Hearing Date 06-04-2021
Last Hearing Date 10-02-2021
First Hearing Date 15-04-2020
Assessment Year 2006-2007
Appeal Filed On 16-10-2019
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL INDORE BENCH INDORE BEFORE SHRI MANISH BORAD ACCOUNTANT MEMBER AND MIS MADHUMITA ROY JUDICIAL MEMBER IT(SS)A NO.222/IND/2019 ASSESSMENT YEAR:2005-06 SMT. BABITA LILA 83-A LILA NIWAS MALVIYA NAGAR BHOPAL / VS. ACIT - 1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AALPL2708D IT(SS)A NO.223/IND/2019 ASSESSMENT YEAR:2007-08 SMT. SONA LILA 83-A LILA NIWAS MALVIYA NAGAR BHOPAL / VS. ACIT - 1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. A ALP L2699D IT(SS)A NO.224/IND/2019 ASSESSMENT YEAR:2006-07 SHRI SHANKAR KUMAR LILA (HUF) 83-A LILA NIWAS MALVIYA NAGAR BHOPAL / VS. ACIT - 1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AAFHS9681C SMT. BABITA LILA & OTHERS 2 IT(SS)A NOS.225 & 227/IND/2019 ASSESSMENT YEARS:2006-07 & 2007-08 SHRI ANIL KUMAR LILA HUF 83-A LILA NIWAS MALVIYA NAGAR BHOPAL / VS. ACIT - 1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AACHA9047H IT(SS)A NO.226/IND/2019 ASSESSMENT YEAR:2007-08 SHRI ANIL KUMAR LILA 83 - A LILA NIWAS MALVIYA NAGAR BHOPAL / VS. ACIT - 1(2) BHOPAL (APPELLANT) (REVENUE ) P.A. NO. AALPL2700M APPELLANT BY S/SHRI ASHISH GOYAL & N.D. PAT W A ARS REVENUE BY SHRI S.B. PRASAD CIT - DR DATE OF HEARING: 13.04.2021 DATE OF PRONOUNCEMENT: 25.05.2021 / O R D E R PER BENCH: THE ABOVE CAPTIONED APPEALS AT THE INSTANCE OF DIF FERENT ASSESSEES ARE DIRECTED AGAINST THE RESPECTIVE ORDER S OF LD. COMMISSIONER OF INCOME TAX(APPEALS)-3 (IN SHORT C IT(A)) INDORE DATED 30.07.2019. GROUNDS OF APPEAL IN IT(SS)ANO.222/IND/2019 SMT. BABITA LILA 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN TREATING THE INCOME FROM SHORT TERM CAPITAL GAIN OF RS.4 2 4 313/- AS INCOME FROM OTHER SOURCES. SMT. BABITA LILA & OTHERS 3 2. THAT THE LD. AO HAS TREATING THE INCOME OF SHORT T ERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING ANY MATERI AL OR EVIDENCE ON RECORD TO DO SO. 3. THAT THE APPELLANT RESERVES THE RIGHT TO ADD ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. GROUND OF APPEAL IN IT(SS)A NO.223/IND/2019 SMT. S ONA LILA 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.3 59 495/-. 2. THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.3 59 495/- IGNORING THE EVIDENCE FILED BY THE APPELLANT IN SUP PORT OF INCOME FROM CAPITAL GAIN. 3. THAT THE LD. AO HAS ERRED IN TREATING THE INCOME OF LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING AN Y MATERIAL OR EVIDENCE ON RECORD TO DO SO. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. GROUND OF APPEAL IN IT(SS)A NO.224/IND/2019 SHRI S HANKAR KUMAR LILA 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.81 322/-. 2. THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.81 322/- IGNORING THE EVIDENCE FILED BY THE APPELLANT IN SUP PORT OF INCOME FROM CAPITAL GAIN. 3. THAT THE LD. AO HAS ERRED IN TREATING THE INCOME OF LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING AN Y MATERIAL OR EVIDENCE ON RECORD TO DO SO. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. GROUND OF APPEAL IN IT(SS)A NO.225/IND/2019 SHRI A NIL KUMAR LILA HUF 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.18 978/-. 2. THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.18 978/- IGNORING THE EVIDENCE FILED BY THE APPELLANT IN SUP PORT OF INCOME FROM CAPITAL GAIN. 3. THAT THE LD. AO HAS ERRED IN TREATING THE INCOME OF LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING AN Y MATERIAL OR SMT. BABITA LILA & OTHERS 4 EVIDENCE ON RECORD TO DO SO. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. GROUNDS OF APPEAL IN IT(SS)ANO.226/IND/2019 SHRI AN IL KUMAR LILA 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.3 47 061/-. 2. THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.3 47 061/- IGNORING THE EVIDENCE FILED BY THE APPELLANT IN SUP PORT OF INCOME FROM CAPITAL GAIN. 3. THAT THE LD. AO HAS ERRED IN TREATING THE INCOME OF LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING AN Y MATERIAL OR EVIDENCE ON RECORD TO DO SO. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD AL TER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. GROUNDS OF APPEAL IN IT(SS)ANO.227/IND/2019 SHRI AN IL KUMAR LILA HUF 1. THE LEARNED ASSESSING OFFICER HAS ERRED IN LAW AND ON FACTS IN MAKING ADDITION OF RS.3 39 656/-. 2. THE LEARNED AO HAS ERRED IN MAKING THE ADDITION OF RS.3 39 656/- IGNORING THE EVIDENCE FILED BY THE APPELLANT IN SUP PORT OF INCOME FROM CAPITAL GAIN. 3. THAT THE LD. AO HAS ERRED IN TREATING THE INCOME OF LONG TERM CAPITAL GAIN AS INCOME FROM OTHER SOURCES WITHOUT HAVING AN Y MATERIAL OR EVIDENCE ON RECORD TO DO SO. 4. THAT THE APPELLANT RESERVES THE RIGHT TO ADD ALTER OR AMEND THE GROUNDS OF APPEAL BEFORE THE APPEAL IS DECIDED. 2. AS THE ISSUE RAISED IN ALL THESE APPEALS ARE SIM ILAR THESE WERE HEARD TOGETHER AT THE REQUEST OF ALL THE PARTIES AN D ARE BEING DISPOSED OFF BY THIS COMMON ORDER FOR THE SAKE OF C ONVENIENCE AND BREVITY. AS AGREED FACTS OF THE CASE OF SMT. BABITA LILA ARE CONSIDERED TO ADJUDICATE THE COMMON ISSUES RAISED B EFORE US. SMT. BABITA LILA & OTHERS 5 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND IS A MEMBER OF LILASONS GROUP OF BHOPAL. SEARCH U/S 132 OF THE ACT WAS CONDUCTED ON 28.10.2010 AT VARIOUS BUSINESS PRE MISES OF LILASONS GROUP AND INDIVIDUALS CONNECTED TO THIS GR OUP. THE ASSESSEE WAS ALSO SUBJECT TO SEARCH. SUBSEQUENTLY NOTICE U/S 153A OF THE ACT WAS ISSUED FOLLOWED BY SERVING OF NOTICE S U/S 143(2) & 142(1) OF THE ACT. THE ASSESSEE HAS BEEN CONSISTENT LY FILING THE RETURNS AND ORIGINAL RETURN OF INCOME FOR A.Y. 2005 -06 WAS FILED ON 31.07.2005 DECLARING INCOME OF RS. 10 54 407/-. SIM ILAR INCOME WAS AGAIN DISCLOSED IN THE RETURN FILED IN COMPLIAN CE TO NOTICE U/S 153A OF THE ACT SUBMITTED ON 21.02.2012. THOUGH A C OMMON ASSESSMENT ORDER HAS BEEN FRAMED FOR A.YS. 2005-06 TO 2010-11 BUT OUR ADJUDICATION IS CONFINED TO A.Y. 2005-06 ON LY. 4. DURING THE ASSESSMENT PROCEEDINGS WHILE EXAMININ G THE COMPUTATION OF INCOME LD. AO OBSERVED THAT THE ASSE SSEE HAS SHOWN LONG TERM CAPITAL GAIN AT RS.4 24 313/-. DETA ILS WERE CALLED AND THE SAME WERE DULY FILED INCLUDING THE C ONTRACT NOTE FOR PURCHASE AND SALE DEMAT ACCOUNT FOR TRANSFER OF SH ARES AND BANK STATEMENT IN SUPPORT OF THE REMITTANCE RECEIVED. BU T LD. AO WAS NOT CONVINCED AS HE OBSERVED THAT THE TRANSACTION O F PURCHASE AND SALE HAVE TAKEN PLACE IN PHYSICAL FORM. LD. AO TREA TED THE CAPITAL GAIN AS BOGUS LIABLE TO BE TAXED UNDER THE HEAD IN COME FROM OTHER SOURCES. THOUGH THE ASSESSED INCOME OF THE ASSESSE E REMAINED THE SAME AS WAS DISCLOSED IN THE RETURN OF INCOME EXCE PT THE CHANGE OF SMT. BABITA LILA & OTHERS 6 HEAD OF TAXING THE CAPITAL GAIN INCOME AS INCOME FROM OTHER SOURCES. 5. APPEAL BY THE ASSESSEE BEFORE THE LD. CIT(A) DID NOT BRING ANY RELIEF. AS THE LD. CIT(A) ALSO CONCLUDED THAT THE T RANSACTIONS WERE SHAM AND UNACCOUNTED INCOME WAS CONVERTED INTO BOGU S CAPITAL GAIN AND RELYING ON VARIOUS JUDICIAL PRONOUNCEMENT S CONFIRMED THE ACTION OF THE LD. AO. 6. NOW THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNA L. LD. COUNSEL FOR THE ASSESSEE VEHEMENTLY ARGUED REFERRING TO THE FOL LOWING WRITTEN SUBMISSIONS WHICH ARE AS FOLLOWS: 1. THE ONLY ADDITION WHICH IS IMPUGNED IS THE ADDITION U/S. 68 IN RESPECT OF THE SHORT TERM CAPITAL GAINS OF RS. 4 24 313 OFFERED IN THE RETURN U/S. 139 AS LIABLE T O TAX @ 10%. 2. THE CAPITAL GAINS AROSE AS UNDER: SECURITY DATE OF PURCHASE PURCHASE COST DATE OF SALE SALE PROCEEDS STCG SHAW WALLACE 19.01.2005 3 77 547 11.02.2005 4 82 286 1 04 739 INTERLINK FN 04.01.2005 2 17 051 20.01.2005 2 71 625 54 574 ROBINSONS IMP. 29.01.2005 6 21 303 24.02.2005 8 86 303 2 65 000 TOTAL 4 24 313 3. THIS CAPITAL GAINS WAS ALREADY OFFERED IN THE REGUL AR RETURN FILED PRIOR TO THE DATE OF SEARCH. THE RETUR N WAS FILED ON 31.07.2005 NO REGULAR ASSESSMENT FOR SAME WAS UNDE RTAKEN; BUT THE TIME LIMIT FOR REGULAR ASSESSMENT HAD EXPIR ED ON THE DATE OF INITIATION OF SEARCH ON 28.10.2010. THE ASS ESSMENT U/S. 153A WAS THEREFORE A NON-ABATED ASSESSMENT. IT IS SUBMITTED THAT THE SCOPE OF THE PROCEEDINGS U/S. 15 3A SHALL BE LIMITED TO THE INCRIMINATING MATERIAL FOUND DURI NG THE COURSE OF SEARCH. 4. IN THE PRESENT CASE DURING THE COURSE OF SEARCH N O INCRIMINATING MATERIAL WAS FOUND TO SHOW THAT THE C APITAL GAINS OFFERED WAS FALSE. NO SUCH MATERIAL WAS REFER RED IN THE ASSESSMENT ORDER. AS HELD IN VARIOUS CASES ADDITIO N IN SMT. BABITA LILA & OTHERS 7 SEARCH CASES CAN BE MADE ONLY ON BASIS OF MATERIAL FOUND DURING THE COURSE OF SEARCH MORESO IN THE CASE OF NON-ABATED ASSESSMENTS. THUS THE PRESENT ADDITION ITSELF IS W ITHOUT ANY BASIS AND LIABLE TO BE DELETED. CIT VS KABUL CHAWLA 380 ITR 573 (DEL.) CIT VS CONTINENTAL WAREHOUSING CORPORATION 58 TAXMA NN.COM 78 (BOM.) OM SHAKTHY AGENCIES (MADRAS) P LTD. 157 ITD 1062 (T RIB. CHENNAI) PARAG M. SANGHVI 63 TAXMANN.COM 118 (TRIB. MUMBAI) 5. WITHOUT PREJUDICE IT IS SUBMITTED THAT THE IN RESP ECT OF THE TRANSACTION OF CAPITAL GAINS THE FOLLOWING DET AILS ARE FURNISHED: - I. THE DEMAT STATEMENT FOR PURCHASE AND SALE OF SHARES IS AT PB 4-5. THE TRANSACTION IS DULY REFLECTED IN THE DEMAT STATEMENT OF THE ASSESSEE. II. THROUGH THIS DEMAT ONLY THE SALE PROCEEDS OF VARIO US OTHER LISTED COMPANIES LIKE AXIS BANK BANK OF INDI A COLGATE ETC WERE REFLECTED WHICH HAS NOT BEEN DOUBTED BY T HE DEPARTMENT. III. THE SHARE BROKER WAS DPS SHARES AND SECURITIES WHO WAS DULY REGISTERED WITH SEBI. HE GAVE CONTRACT NOT ES AND BROKER STATEMENT WHICH ARE PLACED AT PB 6-19. IV. THE SHARES WERE SOLD THROUGH BANKING CHANNELS AND THE AMOUNT WAS RECEIVED IN THE BANK OF THE ASSESSEE . PB 20. V. IT IS PERTINENT TO NOTE THAT THE PURCHASE AND SALE BOTH WERE STT PAID. IN THE CONTRACT NOTE AT PB 7 DETAIL S FOR PURCHASE OF SHARES OF INTERLINK FN IS MENTIONED. ST T HAS BEEN CHARGED IN THE CONTRACT NOTE. 6. NO EVIDENCE WAS BROUGHT ON RECORD TO SHOW THAT THE CAPITAL GAINS WAS BOGUS. 7. LD. AO REFERRED TO CERTAIN INQUIRIES CONDUCTED BY T HE INVESTIGATION WING AT MUMBAI. WHAT INQUIRIES WERE C ONDUCTED; WHOSE STATEMENT WAS RECORDED; WHAT EVIDENCE WAS FOU ND; WHAT WERE THE FINDINGS OF SUCH INQURIES IS TOTALLY UNKNOWN. THE SAME WERE NOT BROUGHT ON RECORD. THE SAME WERE NOT CONFRONTED TO THE ASSESSEE FOR CROSS-EXAMINATION AN D REBUTTAL. IT IS UNKNOWN WHETHER SUCH EVIDENCE WAS EVEN IN THE POSSESSION OF THE LD. AO . IT IS UNKNOWN AS TO WHY HE DID NOT PROVIDE THE SAME TO THE ASSESSEE FOR REBUTTAL. SMT. BABITA LILA & OTHERS 8 IT IS A SETTLED PROPOSITION OF LAW THAT ANY EVIDENC E CANNOT BE USED AGAINST THE ASSESSEE UNLESS THE EVIDENCE IS PROVIDED TO THE ASSESSEE AND AN OPPORTUNITY OF REBUTTAL HAS BEE N PROVIDED TO HIM. KISHINCHAND CHELLARAM 125 ITR 713 (SC) P.S. ABDUL MAJEED V. AGRL. ITANDSTO [1994] 209 ITR 821 (KER.) CIT V. BIJU PATNAIK [1991] 190 ITR 396 (ORI.). 8. FURTHER THE STATEMENT OF THIRD-PERSON WOULD BE REL EVANT IN HIS OWN CASE. IT WOULD NOT HAVE RELEVANCE IN THE CASE OF ASSESSEE. IN CHIRANJI LAL STEEL ROLLING MILLS VS. CIT (1972) 84 ITR 222 (P&H) CONSIDERING SECTION 27 OF THE EVIDENCE ACT IT WAS HELD THAT STATEMENT OF CO-ACCUSED CANNOT BE READ IN EVID ENCE AGAINST ANOTHER CO-ACCUSED UNLESS AND UNTIL IT IS C ORROBORATED WITH INDEPENDENT MATERIAL. FURTHER RELIANCE IS PLACED ON M.K. BROTHERS 163 ITR 249 (RAJ.) WHERE IT WAS HELD THAT STATEMENT RECORDED U/S. 132( 4) OR 131 OF THE THIRD PARTIES ARE BINDING UPON THEM IN THEIR OWN CASE ONLY AND SAME CANNOT BE FOISTED UPON THE OTHER PART IES IN THE ABSENCE OF SUFFICIENT CORROBORATORY MATERIAL. 9. NO SEPARATE AND INDEPENDENT INQUIRY WAS CONDUCTED B Y THE LD AO. HE MERELY RELIED ON SOME INQUIRIES BY IN VESTIGATION DEPARTMENT THAT TOO IN MUMBAI. SUCH REPORTS PROBA BLY WERE NOT WITH THE LD. AO. 10. FINDINGS OF THE LD. AO ARE CONTRADICTORY. AT THE ON E END HE STATED THAT THE DEMAT ACCOUNT WAS NOT PROVIDED B Y THE ASSESSEE BUT REFERRED TO THE SAID DEMAT ACCOUNT IN THE EARLIER PART OF HIS FINDINGS. 11. THE CONTENTION REGARDING BOGUS CAPITAL GAINS U/S. 10(38) HAS BEEN DISPELLED WITH BY VARIOUS JUDGMENTS UNLESS THERE ARE EVIDENCES TO PROVE THAT THE TRANSACTION W AS CAMOUFLAGED; AND UNLESS THE MATERIAL WAS PROVIDED T O THE ASSESSEE. MERELY USE OF THE WORDS PENNY STOCK CAN NOT ACT AS A MAGICAL WORDS TO DEEM ANY TRANSACTION AS BOGUS . THE RESPONDENTS HAVE TO BRING EVIDENCE TO ESTABLISH THE TRANSACTION AS BOGUS. IN THE PRESENT CASE THE ASSE SSEE HAS GIVEN EVIDENCES TO ESTABLISH THAT THE TRANSACTION I S GENUINE. RELIANCE IS PLACED ON FOLLOWING CASES: I. PR. CIT VS SMT. KRISHNA DEVI (DEL. HC) - PB 21-30 II. ARZOO ANAND (TRIB. INDORE) - PB 31-43 III. SMT. SMITA P PATIL (TRIB. PUNE) - PB 44-60 SMT. BABITA LILA & OTHERS 9 IV. ITO VS SMT. ARTI MITTAL (HYD. TRIB) - PB 61-78 V. CONSISTENT VYAPAAR PVT LTD. (TRIB. KOL.) - PB 79-99 VI. SMT. KALPANA MUKESH RUIA (TRIB. MUM.)- PB 100-161 VII. SAROJ DAMANI (TRIB. MUM.) - PB 162-179 VIII. SMT. KARUNA GARG (TRIB. DEL.) - PB 180-186 IT IS THEREFORE PRAYED THAT THE ADDITION MADE MAY K INDLY BE SET-ASIDE BOTH ON LEGAL GROUND AS WELL AS ON THE ME RITS. 7. PER CONTRA LD. DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE FINDING OF BOTH THE LOWER AUTHORITIES AND ALSO SUBM ITTED THAT THERE IS MISMATCH OF NAMES IN THE NAME OF COMPANY APPEARI NG IN CONTRACT NOTE WITH THOSE APPEARING IN THE DEMAT ACC OUNT. HOWEVER LD. CIT-DR FAILED TO CONTROVERT THE FACT T HAT THE ALLEGED ADDITIONS ARE MADE ONLY ON THE BASIS OF INFORMATION COLLECTED DURING THE ASSESSMENT PROCEEDING AND THE GENUINENESS OF TH E BROKERS THROUGH WHICH PURCHASE AND SALE WERE EFFECTED AND T HE AGENCY MANAGING DEMAT ACCOUNT IS NOT IN DOUBT. 8. 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 VARIOUS DECISIONS REFERRED AND RELIED BY BOTH THE PARTIES. IN INSTANT APPEAL RELATES TO FIVE (5) ASSESSEES WHICH ARE PART OF A GROUP NAMELY LILASONS WHICH WAS SUBJECTED TO SEARCH U/S 132 OF THE ACT ON 28.10.2010. VARIOUS INDIVIDUALS (INCLUDING THE ASSESSEE) CONNEC TED THIS GROUP WERE ALSO SUBJECT TO SEARCH AND THE CASES WERE REOP ENED FROM A.Y.2005-06 ONWARDS. SMT. BABITA LILA & OTHERS 10 9. ON PERUSAL OF THE GROUNDS RAISED BY VARIOUS ASSE SSEE(S) WE FIND THAT THE RESPECTIVE ORDERS OF LD. CIT(A) ARE CHALLE NGED ON ACCOUNT OF FOLLOWING TWO ISSUES. A) TREATING THE CAPITAL INCOME AS INCOME FROM OTHER SO URCES. B) TREATING THE CAPITAL GAIN AS INCOME FROM OTHER SOUR CES WITHOUT HAVING ANY MATERIAL OR EVIDENCE ON RECORD. 10. AS FAR AS THE FACTS ARE CONCERNED THEY ARE COMM ON IN NATURE. IN ALL THESE CASES INCOMES FROM CAPITAL GAIN FROM PURC HASE AND SALE OF SHARES HAVE BEEN CONSISTENTLY SHOWN IN VARIOUS YEAR S AS AND WHEN SUCH TRANSACTIONS TOOK PLACE. DEMAT ACCOUNT ARE MAI NTAINED HAVING HOLDING OF VARIOUS LISTED COMPANIES. ALL THE PURCHASE AND SALES ARE SUPPORTED BY CONTRACT NOTE ISSUED BY REGI STERED BROKERS. CONSIDERATIONS FOR PURCHASE/SALE HAVE FLOWN IN AND OUT THROUGH BANKING CHANNELS. GENUINENESS OF THE EXISTENCE OF T HE BROKERS FIRMS INDULGED IN THE BUSINESS OF PURCHASE AND SALE OF EQUITY SHARES ON BEHALF OF THE OTHER PERSON HAS NOT BEEN D OUBTED AT ANY STAGE. COMPLETE DETAILS OF PURCHASE AND SALE OF SHA RES HAVE BEEN DISCLOSED BY THE ASSESSEE(S) IN THEIR RESPECTIVE RE TURN OF INCOME FILED MUCH BEFORE THE DATE OF SEARCH. THE CAPITAL GAINS A RE BOTH SHORT TERM AND LONG TERM AS PER THE PERIOD OF HOLDING OF THE SHARES. SECURITY TRANSACTIONS TAX HAS BEEN PAID BOTH AT THE TIME OF PURCHASE AND SALE. SALES ARE MADE ON THE PORTAL OF RECOGNIZED STOCK EXCHANGE. THE IMPUGNED AMOUNTS OF ADDITION BEFORE U S ARE AS FOLLOWS: NAME OF ASSESSEE ASSESSMENT YEAR CAPITAL GAIN REMARK SMT. BABITA LILA & OTHERS 11 BABITA LILA 2005-06 4 24 313/- STCG SONA LILA 2007-08 3 59 495/- LTCG SHANKAR KUMAR LILA 2006-07 81 322/- LTCG ANIL KUMAR LILA HUF 2006-07 18 978/- LTCG ANIL KUMAR LILA 2007-08 3 47 061/- LTCG ANIL KUMAR LILA HUF 2007-08 3 39 656/- LTCG 11. LD. COUNSEL FOR THE ASSESSE HAS FILED SEPARATE PAPER BOOKS FOR EACH OF THE ASSESSEE(S) IN APPEAL BEFORE US PROVID ING THE DETAILS OF COMPUTATION OF INCOME ORIGINALLY FILED DEMAT STATE MENT STATEMENT FROM BROKERS LEDGER ACCOUNT IN THE BOOKS OF BROKERS CONTRACT NOTE FORM NO.10DB REGARDING PAYMENTS OF S ECURITY TRANSACTION TAX AND THE BANK STATEMENT. THOUGH THE LD. DR IN SOME OF CASES HAS REFERRED TO SOME MISMATCH IN THE NAMES BUT THE SAME WERE CLARIFIED BY THE LD. COUNSEL FOR THE ASSE SSEE TO OUR SATISFACTION. 12. WE THEREFORE AFTER CAREFULLY EXAMINING THE DO CUMENTS PLACED BEFORE US ARE SATISFIED THAT THE ASSESSEE HAD MADE GENUINE CLAIM OF CAPITAL GAIN (LONG TERM CAPITAL GAIN/SHORT TERM CAP ITAL GAIN) IN THEIR RESPECTIVE RETURNS OF INCOME AND BOTH THE PUR CHASE AND SALES OF SHARES ARE PROVED TO BE CORRECT AND THE CREDIT O F THE CONSIDERATION IN THE BANK ACCOUNT FOR THE YEARS UND ER APPEAL ARE HAVING DIRECT NEXUS WITH THE SALE OF EQUITY SHARES MADE DURING THE YEAR ARE OF THE CONSIDERED VIEW THAT BOTH LOWER AU THORITIES WERE NOT JUSTIFIED IN TREATING THE ALLEGED INCOME AS INCOME FROM OTHER SOURCES WITHOUT DISPUTING THE GENUINENESS OF THE EV IDENCES PLACED ON RECORD FINDING ANYTHING CONTRARY TO THE CLAIM OF THE ASSESSEE AND MERELY DENYING THE CLAIM OF THE ASSESSEE BY GIV ING GENERAL SMT. BABITA LILA & OTHERS 12 REMARKS. THUS THIS COMMON ISSUE IS DECIDED IN FAVO UR OF THE ASSESSEE(S) AND THE FINDING OF THE LD. CIT(A) OF CO NFIRMING THE ACTION OF THE LD. AO OF TREATING STCG/LTCG AS INCOME FROM OTHER SOURCES IS SET ASIDE. 13. AS REGARDS SECOND COMMON ISSUE THAT ACTION OF T HE LD. AO OF TREATING THE CAPITAL GAIN FROM SALE OF EQUITY SHARE S AS INCOME FROM OTHER SOURCES IS WITHOUT HAVING ANY MATERIAL OR EVI DENCE ON RECORD. WE NEED TO EXAMINE THIS ISSUE ON THE BASIS OF THE F ACTS OF THE CASE. WE NOTE THAT ALL THE ASSESSEES ARE FILING THE RETUR NS OF INCOME REGULARLY AND SHOWING INCOME FROM CAPITAL GAIN (LTC G/STCG) IN THEIR REGULAR RETURNS OF INCOME. THE DETAILS OF ORI GINAL RETURN FILED BY THE ASSESSEE ARE AS FOLLOWS: NAME OF ASSESSEE ASSESSMENT YEAR FILING ON ORIGINAL RETURN OF INCOME BABITA LILA 2005-06 31.07.2005 SONA LILA 2007-08 31.07.2007 SHANKAR KUMAR LILA 2006-07 29.07.2006 ANIL KUMAR LILA HUF 2006-07 29.07.2006 ANIL KUMAR LILA 2007-08 25.10.2007 ANIL KUMAR LILA HUF 2007-08 28.09.2007 14. THE ABOVE DETAILS OF DATE OF FILING THE ORIGINA L RETURN OF INCOME SHOWS THAT THE CLAIM OF CAPITAL GAIN WAS PUT FORTH BEFORE THE REVENUE AUTHORITIES YEARS BEFORE THE DATE OF SEARCH . RESPECTIVE DETAILS OF SCRIP WISE PURCHASE AND SALE WERE ALREAD Y FILED BEFORE REVENUE AUTHORITIES. THE TIME LIMIT FOR SELECTING T HE CASE FOR SCRUTINY BY SERVING OF NOTICE U/S 143(2) OF THE ACT EXPIRED MUCH BEFORE THE DATE OF SEARCH I.E. 28.10.2010. THUS AL L THE ASSESSMENT YEARS IN DISPUTE BEFORE US ARE NON-ABATED ASSESSMEN TS. INCOME SMT. BABITA LILA & OTHERS 13 WITH SAME DETAILS WERE AGAIN FILED IN COMPLIANCE TO NOTICE U/S 153A OF THE ACT. DURING COURSE OF SEARCH COPIES OF DEMA T ACCOUNTS WERE SEIZED BY THE SEARCH TEAM WHICH WERE HAVING SAME DE TAILS AS WERE FILED BY THE ASSESSEES IN THEIR RESPECTIVE INCOME T AX RETURNS BEFORE THE SEARCH TOOK PLACE. NO OTHER INCRIMINATING MATER IAL HAS BEEN REFERRED BY THE LD. AO WHICH HAS BEEN FOUND DURING THE COURSE OF SEARCH INDICATING THAT THE ASSESSEE(S) HAVE ENTERED INTO SHAM TRANSACTION AND THE ALLEGED TRANSACTION OF PURCHASE AND SALE OF SHARES ARE IN THE NATURE OF ACCOMMODATION ENTRIES O R THERE IS ANY DIRECT NEXUS OF THE ASSESSEE TO HAVE INVOLVED IN MA NAGING/ ARRANGING THE ACCOMMODATION ENTRIES. THE FACTS REMA INS UNDISPUTED THAT THE ALLEGED ADDITIONS ARE NEITHER B ASED ON AN INCRIMINATING MATERIAL FOUND DURING THE COURSE OF S EARCH NOR ANY MATERIAL GATHERED DURING THE ASSESSMENT PROCEEDINGS AND THE FINDING OF BOTH THE LOWER AUTHORITIES ARE JUST BASE D ON THE THEORY DEVELOPED BY THE REVENUE AUTHORITIES ON THE BASIS OF THE RESULT OF SOME INVESTIGATION CARRIED OUT BY TEAMS OF REVENUE DEPARTMENT IN SOME OTHER CASES AND THE REPORTS OF SUCH SO CALLED THEORY HAVE NOT BEEN CONTROVERTED TO THE ASSESSEE THUS DENYING TH EM THE PRINCIPLES OF NATURAL JUSTICE OF CROSS EXAMINATION THE INFORMATION OF THE 3 RD PARTY ON THE BASIS OF WHICH ADDITIONS WERE GOING T O BE MADE. 15. WE THEREFORE ARE OF THE CONSIDERED VIEW THE S ECOND COMMON ISSUE ALSO DESERVES TO BE DECIDED IN FAVOUR OF THE ASSESSEE AS WE FIND THAT THE LD. AO HAD NO MATERIAL EVIDENCE ON RE CORD TO TREAT THE SMT. BABITA LILA & OTHERS 14 INCOME SHOWN AS LTCG/STCG FROM SALE OF EQUITY SHARE S AS INCOME FROM OTHER SOURCES 16. IN THE RESULT ALL GROUNDS RAISED BY THE ASSESS EE(S) ARE ALLOWED AND APPEALS FILED BY THE ASSESSEES IN IT(SS)ANOS. 222 TO 227/IND/2019 ARE ALLOWED. ORDER WAS PRONOUNCED AS PER RULE 34 OF I.T.A.T. RU LES 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