I.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n1
\nIN THE INCOME TAX APPELLATE TRIBUNAL
\nLUCKNOW BENCH \u2018A\u2019, LUCKNOW
\nBEFORE SHRI A. D. JAIN, VICE PRESIDENT AND
\nSHRI T. S. KAPOOR, ACCOUNTANT MEMBER
\nI.T.A. No.501\/Lkw\/2019
\nAssessment Year:2015-16
\nS.A.No.25\/Lkw\/2020
\n(in I.T.A. No.501\/Lkw\/2019
\nAssessment Year:2015-16
\nShri Achal Gupta,
\nK-168, Gopal Nagar,
\nKidwai nagar, Kanpur.
\nPAN:AHHPG2124P
\nVs. Income Tax Officer-3(1),
\nKanpur.
\n(Appellant) (Respondent)
\nI.T.A. No.502\/Lkw\/2019
\nAssessment Year:2015-16
\nS.A.No.26\/Lkw\/2020
\n(in I.T.A. No.502\/Lkw\/2019)
\nAssessment Year:2015-16
\nShri Udit Gupta,
\nK-168, Gopal Nagar,
\nKidwai nagar, Kanpur.
\nPAN:AMGPG0960P
\nVs. Income Tax Officer-3(1),
\nKanpur.
\n(Appellant) (Respondent)
\nI.T.A. No.504\/Lkw\/2019
\nAssessment Year:2015-16
\nS.A.No.27\/Lkw\/2020
\n(in I.T.A. No.504\/Lkw\/2019)
\nAssessment Year:2015-16
\nRakesh Narain Gupta HUF
\nK-168, Gopal Nagar,
\nKidwai nagar, Kanpur.
\nPAN:AAIHR2355H
\nVs. Income Tax Officer-3(1),
\nKanpur.
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n2
\n(Appellant) (Respondent)
\nI.T.A. No.505\/Lkw\/2019
\nAssessment Year:2015-16
\nS.A.No.28\/Lkw\/2020
\n(in I.T.A. No.505\/Lkw\/2019)
\nAssessment Year:2015-16
\nShri Rakesh Narain Gupta,
\nK-168, Gopal Nagar,
\nKidwai nagar, Kanpur.
\nPAN:AASPG6237B
\nVs. Income Tax Officer-3(1),
\nKanpur.
\n(Appellant) (Respondent)
\nO R D E R
\nPER BENCH:
\nThis is a group of four appeals filed by different assessees against
\nseparate orders of learned CIT(A) all dated 26\/06\/2019. In all these
\nappeals similar grounds have been taken and therefore, these were heard
\ntogether and for the sake of convenience, a common and consolidated
\norder is being passed.
\n2. At the outset, Learned counsel for the assessee submitted that in
\nthese appeals there is a delay of four days in filing the appeals and which
\nhad occurred as the assessee counted the prescribed period from the date
\nof physical delivery of order instead of counting it from the day when it
\nwas delivered electronically. Learned counsel for the assessee submitted
\nAppellant by Shri Rakesh Garg, Advocate
\nRespondent by Shri S. K. Madhuk, CIT (D.R.)
\nDate of hearing 11\/11\/2020
\nDate of pronouncement 16\/12\/2020
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n3
\nthat if the date of service is considered as having received through e-mail
\nthen there is delay of four days and if the physical receipt of order of
\nlearned CIT(A) is to be considered then there is no delay. Therefore, it was
\nsubmitted that little delay if any had occurred due to confusion and it was
\nprayed that the delay in filing the appeal be condoned. Learned D. R. did
\nnot have objection for condoning the delay in filing the appeals. Finding
\nthe reason for delay in filing the appeals reasonable, the delay was
\ncondoned and the Learned counsel for the assessee was asked to proceed
\nwith his arguments.
\n3. Learned counsel for the assessee submitted that he will be arguing
\nthe appeal in I.T.A. No. 501\/Lkw\/2019 in the case of Shri Achal Gupta and
\narguments in respect of all other appeals will be same as the same issue is
\nthere in all other appeals. Learned counsel for the assessee submitted
\nthat the assessee had purchased shares of CCL International Ltd. and had
\nmade the payment for purchase of such shares through cheques and these
\nwere purchased from Suktara Trade Links Pvt. Ltd. Learned counsel for
\nthe assessee submitted that the shares were held in demat account and
\nafter holding for a period of about 1\u00bd years, the same were sold through
\nregistered broker M\/s Edelweiss Broking Limited through screen based
\ntrading and the proceeds were credited to the bank account of the
\nassessee. It was submitted that the Assessing Officer, on the basis of
\nsome report of Investigation Wing, Kolkata, which did not relate to the
\nassessee, held that the shares of CCL International Ltd. was a penny stock
\nand assessee had managed Long Term Capital Gain through managed
\ntransactions and therefore, he held the capital gain to be bogus and made
\nthe addition u\/s 68 of the Act. Learned counsel for the assessee submitted
\nthat Hon’ble Delhi Tribunal in the case of Reeshu Goel vs. Income Tax
\nOfficer in I.T.A. No.1691\/Del\/2019, vide order dated 07\/10\/2019, has
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n4
\nexamined the same share of CCL International Ltd. and after recording
\ndetailed findings has held the same to be a genuine company and has
\nfurther held that the company was not a mere paper entity. In this
\nrespect, Learned counsel for the assessee invited our attention to para 16
\nof the order wherein the detailed findings have been recorded. Learned
\ncounsel for the assessee further submitted that while recording the
\nfindings the Hon’ble Tribunal has considered various other cases decided
\nby various other Benches wherein the same script has been held to be
\ngenuine. Therefore, it was prayed that the appeals of the assessee may
\nbe allowed by following the above Tribunal order. It was submitted that
\nother than the objection of the company being a penny stock, there was
\nno other objection by the authorities below and therefore, the appeals of
\nthe assessees may be allowed. As regards the facts of the present appeal,
\nLearned counsel for the assessee invited our attention to pages 1 to 46
\nwhere all the details relating to purchase, sale and fact of having made
\npayments and receiving payment through bank account were placed.
\nLearned counsel for the assessee further submitted that the broker of the
\nassessee was not investigated and neither the broker examined by the
\nInvestigation Wing made available to the assessee for cross examination
\nand therefore, also the addition sustained by learned CIT(A) is not
\nsustainable.
\n4. Learned D. R., on the other hand, vehemently argued that there
\nwas a racket of bogus capital gain which was unearthed by the
\nInvestigation Wing of the Revenue and after recording statement of
\nvarious brokers, some scripts including the script traded by the assessee
\nwas held to be a penny stock and paper entity and therefore, the
\nAssessing Officer has rightly disallowed the claim of the assessee. It was
\nsubmitted Hon’ble Delhi High Court in the case of Udit Kalra vs. Income
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n5
\nTax Officer, I.T.A. No.220\/2019, vide order dated 08\/03\/2019 has
\ndismissed the appeal of the assessee under similar facts and
\ncircumstances. Learned D. R. further submitted that facts regarding this
\nscript being a penny stock and paper entity was already there in the
\npossession of the Revenue and therefore, the authorities below have
\nrightly made and sustained the addition. Learned DR further stated that
\nbefore learned. CIT(A) no body appeared and therefore the case may be
\nset aside to him and assessee can make his submissions regarding non
\nconfrontation of statements of brokers.
\n5. Learned counsel for the assessee, in his rejoinder, submitted that
\nHon’ble Tribunal in the case of Reeshu Goel has considered the case law of
\nUdit Kalra and moreover it was submitted that the decision of Hon’ble High
\nCourt do not have precedential value as the Hon’ble High Court has
\ndismissed the appeal of the assessee by holding that no substantial
\nquestion of law arises. It was further submitted that I.T.A.T. Delhi in the
\ncase of Smt. Karuna Garg in I.T.A No. 1069 and in the case of Swati
\nLuthra has distinguished the judgment in the case of Udit Kalra. As regards
\nthe non appearance of assessee before learned. CIT(A), the Learned A. R.
\nsubmitted that assessee had nothing to say before learned. CIT(A) as all
\ndetails have already been filed with Assessing Officer. It was submitted
\nthat learned CIT(A) has passed the order on merits and now after the
\npassing of order by Delhi Tribunal in the case of Reeshu Goel, the case of
\nassessee has become fully covered in his favour and therefore it was
\nprayed that on merits the case of the assessee may be allowed.
\n6. We have heard the rival parties and have gone through the material
\nplaced on record. We find that Ground Nos. 1 to 4 were not passed by
\nLearned A. R. as he requested to pass the order on merits and therefore,
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n6
\nsame are dismissed as not pressed. Ground Nos. 5 to 8 relates to the
\naddition under dispute regarding denial of exemption of long term capital
\ngain. Ground No. 9 and 10 are regarding addition u\/s 69 of the Act which
\nthe Assessing Officer had made on the basis that assessee must have paid
\nsome commission for arrangement of bogus capital gain. The facts in brief
\nare that assessee sold shares of CCL International Ltd. and earned long
\nterm capital gain. In support of long term capital gain the assessee filed
\nbefore Assessing Officer the following documents (which is part of the
\npaper book):
\nS.No. Nature of documents Paper Book Page
\nNo
\n1. Copy of Bank Account of
\nFederal Bank. 15-16
\n2. Copy of Bill Suktara Trade
\nLink Filed 17
\n3. Copy of Contract note issued by
\nBroker Edlwise Financial Adnsons Ltd. 18-24
\n4. Copy of Bank Account of Achal Gupta 25-31
\n5. Copy of Transaction statement issued
\nFrom National Securities Depositary Ltd. 32-46
\n6.1 The above documents clearly demonstrates that assessee had
\npurchased shares through Brokers for which the payment was made
\nthrough banking channels. The assessee had sold shares through
\nauthorized stock broker and payment was received through baking
\nchannels after deduction of STT. On Page 16 which is a copy of Bank
\naccount of assessee there is evidence of payments to Suktara Trade link
\namounting to Rs.8,25,000\/- for purchase of 25000 equity shares of CCL
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n7
\nLtd. The bill of broker of Suktara Trade Link is at Page 17. The evidence of
\nsale of such shares through Edelwise financial Advisors Ltd showing
\ndeduction of service tax and securities transaction tax is placed at P.B. 18
\nto 23. Paper book pages 32 shows that shares of CCL International Ltd.
\nwere in the demat account of assessee and the fact of these shares having
\nbeen transferred to the account of brokers M\/s Edelwise Financial Advisors
\non account of sale is also apparent from this paper. The transaction
\nstatement placed in paper book also proves that assessee was holding a
\nnumber of scrips. All the documents clearly demonstrate that assessee did
\nearn long term capital gain and moreover the Assessing Officer has not
\ndoubted any of the above documents. The only objection raised by the
\nauthorities below is that the script from which the assessee had earned
\nLong Term Capital Gain has been held by the Investigation Wing of the
\nRevenue to be a paper entity and which has further held that this scrip
\nwas being used for creating artificial capital gain. We find that Hon’ble
\nTribunal in the case of Reeshu Goel has examined this aspect and after
\nrecording detailed findings has held this script to be a genuine script and
\nhas held that the scrip is not a paper entity. The detailed findings of the
\nTribunal, as contained from para 16 are reproduced below:
\n\u201c16. We have heard the rival submissions and also perused
\nthe relevant finding given in the impugned orders as well as
\nmaterial referred to before us. As stated above, the assessee
\nhas applied for 50,000 shares of M\/s. AAR Infrastructure Ltd.
\nfor face value of Rs.10 and paid consideration of Rs.5 lacs
\nvide cheque no.169799 dated 13.01.2011. The said purchase
\nhas been recorded in the accounts of the earlier year and is
\nalso reflected from the copy of bank statement place at paper
\nbook at pages 25. The purchases made in the earlier years
\nhave been accepted as only net LTCG has been taxed by the
\nAssessing Officer. The assessee was allotted shares of M\/s.
\nAAR Infrastructure Ltd. and immediately thereafter, the
\nassessee had dematerialised the shares on 26.02.2011 which
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n8
\nis evident from the copy of Demat account enclosed at pages
\n27 to 28 of the paper book. Later, M\/s. AAR Infrastructure got
\namalgamated with M\/s. CCL International Ltd. and according
\nto amalgamation scheme, the assessee received 1,25,000
\nshares of M\/s. CCL International Ltd. in the proportion of 250
\nequity shares Rs.2 per share and Rs.100 equity share of Rs.10
\nper share. The shares which were allotted on 17.02.2011 have
\nbeen sold after period of more than 18 to 20 months, i.e., on
\n29.08.2012 to 10.10.2012. The said shares have been sold
\nthrough stock broker M\/s. Indianivesh Securities Pvt. Ltd.
\n17. Before us the ld. counsel has in his brief note has stated
\nthat following documents and statements were filed before
\nthe authorities below:
\n(a) All the transactions were supported by proper Contracts
\nNotes and delivery of shares was made through De-mat
\nAccount with stock broker, M\/s Indianivesh Securities Pvt. Ltd.
\n(who is the member of BSE and registered with SEBI). The
\nshares were sold in the open market. The appellant has
\nfulfilled all the condition u\/s 10(38) of the Income Tax Act,
\n1961. The appellant has already filed National Security
\nDepository Limited generated Demat Account and the broker
\nstatement relating to the sale of share in our paper book, also
\nrelevant demat statement highlighting the shares purchased
\nhas already been submitted before the Ld. AO.
\n(b) The appellant has earned long term capital gain through
\ngenuine purchase and sale of shares of the listed companies
\nin normal course. There was no default on the part of the
\nappellant. Moreover, the appellant has earned the income
\nstrictly following the norms and guidelines of SEBI. If M\/s CCL
\nInternational has been identified as BSE Listed penny stock,
\nthe appellant is not even remotely connected with these
\ncompanies. She was not at all in a position to influence the
\npurchase and sale prices of their shares. Hardship cannot be
\nbrought on the appellant, if default is made by company
\nwhich is listed in the BSE.
\nc) In support of the genuineness of the transaction the
\nappellant produced the following at the time of assessment
\nproceeding:
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n9
\na) Copy of allotment letter issued by M\/s AAR
\nInfrastructures Limited. (Page 25)
\nb) Copy of bank statement reflecting the payment made
\nfor the purchase of 50000 equity shares. (Page 26)
\nc) Copy of Demat Account of the appellant. (Page 27)
\nd) Copy of statement of broker reflecting the credit of
\n50000 equity share through preferential allotment.
\n(Page 28)
\ne) Copy of order of Delhi High Court, dated 08.10.2011
\nin the matter of amalgamation of M\/s AAR
\nInfrastructure Limited into M\/s CCL International
\nLimited. (Page 29-44) f) Copy of Contacts notes
\nreflecting the sale proceeds. (Page 45-50)
\ng) Copy of Transaction statement reflecting the increase
\nin the number of shares. (Page 51)
\nh) Copy of Bank Statement of the appellant reflecting
\nthe amount received on sale of shares. (Page 54).
\n18. The entire premise of the Assessing Officer for treating
\nthe entire transaction to be a bogus Long Term Capital Gain
\nand making addition u\/s. 68 is that, firstly, M\/s. CCL
\nInternational Ltd. did not have much financial worth to justify
\nsuch a price rise; secondly, the SEBI had suspended the trade
\nof the share for a brief period; thirdly, he has pointed out the
\nhistory of price rise between 06.02.2010 to 25.11.2014 and
\nthen has drawn adverse inference that price of these shares
\nwere manipulated and rigged in the stock exchange which
\nwas solely to provide accommodation entries to the various
\nparties; and lastly, he has also referred to certain inquiry
\nreport of Investigation Wing Kolkata during the course of
\nwhich certain brokers have admitted that they had provided
\naccommodation entries in the scrip of M\/s. CCL International.
\nBut nowhere in the entire assessment order, there is any
\nreference to any material or evidence that assessee or
\nassessee’s broker have been found to be indulged in any kind
\nof accommodation entry in this scrip. No inquiry whatsoever
\nhas been made from the broker of the assessee. Further,
\nduring the period in which assessee had purchased the shares
\nand had sold them whether the SEBI had suspended the
\ntrading has not been mentioned, in fact, Assessing Officer
\nhimself mentions that there was brief suspension in the year
\n2010, whereas the assessee has purchased shares in the year
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n10
\n2011 and sold them in the year 2012. Coming to the
\nfinancials, as culled out from the records, the revenue from
\nthe operation of M\/s. CCL International Ltd. from March, 2010
\nto March, 2012 was between Rs. 55.25 crore to Rs. 79 crore.
\nThus, it cannot be held that it was mere a paper entity. From
\na bare perusal of the history of listing and trading of shares
\nand the quote of Bombay Stock Exchange as quoted in the
\nassessment order, it clearly reflects that as on 06.02.2010, the
\nclosing price was Rs. 50 and there was a steady increase and
\nwithin the period of 4 years the price had reached up to
\nRs.609 on 25.11.2014. Nowhere, it has been pointed out that
\nthe rise was beyond the cap laid down by the SEBI, because
\nthe price of the scrip cannot rise beyond the cap prescribed by
\nthe SEBI. If the shares have been purchased and sold from
\nthe stock exchange on a quoted price with proper contract
\nnumber, trade time and after paying STT, then it is very
\ndifficult to assume that the sale proceeds received from sale
\nof such shares is bogus, especially when purchase of shares
\nare not in dispute. This inter alia means assessee was in
\npossession of shares which were also dematerialised. To
\nprove that such a transaction was in the nature of bogus or
\ncolourable transaction, there has to be some inquiry or
\nmaterial to nail the assessee that she was some kind of a
\nbeneficiary in some accommodation entry operation. No
\ndefect has been pointed out in the documents submitted by
\nthe assessee nor has the broker of the assessee been inquired
\nupon. Simply relying upon the general modus operandi and
\nstatement of some brokers recorded by the Kolkata
\nInvestigation Wing does not mean that all the transactions
\nundertaken of the scrip M\/s. CCL International Ltd. through
\nthe country by millions of subscribers are bogus. Thus, in
\nabsence of any material or evidence against the assessee, we
\ndo not find any reason as to why the claim of Long Term
\nCapital Gain from sale of such share should be denied.
\nConsequently, the addition on account of commission is also
\ndeleted. Accordingly, we delete the addition made by the
\nAssessing Officer.\u201d
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n11
\n6.2 The above findings of the Tribunal clearly demonstrate that the
\nTribunal has held the script of CCL International Ltd. to be a genuine script
\nand has therefore, allowed the appeal of the assessee.
\n6.3 As regards the reliance placed by Learned D. R. on the order of Udit
\nKalra (supra), we find that the above case law has been held to be
\ndistinguishable by Hon’ble Delhi Tribunal in the case of Karuna Garg in
\nI.T.A. No.1069\/Lkw\/2019 and further in the case of Swati Luthra vs.
\nIncome Tax Officer in I.T.A. No.6480\/Lkw\/2019, dated 28\/06\/2019. In
\nthese two cases the Hon’ble Tribunal has again allowed relief to the
\nassessee though from a different script but in the decisions they have held
\nthat the judgment of Hon’ble Delhi High Court in Udit Kalra was
\ndistinguishable as in that case the Hon’ble High Court has only dismissed
\nthe appeal as the Hon’ble High Court found that the issue involved was
\nonly a question of fact. In this respect, para 28 of the Tribunal order in
\nthe case of Karuna Garg is relevant which is reproduced below:
\n\u201c28. The DR heavily relied upon the judgment of Hon’ble
\nHigh Court of Delhi in the case of Udit Kalra Vs. ITO in ITA
\nNo.220\/2019. We have carefully perused the order of the
\nHon’ble High Court and on going through the said judgment
\nwe find that no question of law was formulated by the Hon’ble
\nHigh Court of Delhi in the said case and there is only dismissal
\nof appeal in limine as the Hon’ble High Court found that the
\nissue involved is a question of fact.\u201d
\n6.4 Similarly in the case of Swati Luthra (supra), the Hon’ble Tribunal
\nwhile dealing with the case law of Udit Kalra vide para 14 has held as
\nunder:
\n\u201c14. That the ld DR during the course of hearing placed
\nheavy reliance on judgment of Hon’ble High Court of Delhi in
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n12
\nthe case of Udit Kalra vs ITO in ITA No. 220\/2019. Relevant
\nextracts of said judgment are extracted as below:
\n“The assessee is aggrieved by the concurrent findings
\nof the tax authorities – including the lower appellate
\nauthorities rejecting its claim for a long term capital
\ngain reported by it, to the tune of Rs.13,33,956\/- and
\nRs.14,34,501\/- in respect of 4,000 shares of M\/s Kappac
\nPharma Ltd. The assessee held those shares for
\napproximately 19 months; the acquisition price was
\nRs.12\/- per share whereas the market price of the
\nshares at the time of their sale, was Rs.720\/-. It is
\ncontended that the assessee was not granted fair
\nopportunity.
\nMr. Rajesh Mahna, learned counsel appearing for the
\nassessee relied upon the orders of the co-ordinate
\nBench of the tribunal, in respect of the same company
\ni.e. M\/s Kappac Pharma Ltd., and pointed out that the
\ntax authority’s approach in this case was entirely
\nerroneous and inconsistent.
\nThe main thrust of the assessee’s argument is that he
\nwas denied the right to cross-examination of the two
\nindividuals whose statements led to the inquiry and
\nultimate disallowance of the long term capital gain claim
\nin the returns which are the subject matter of the
\npresent appeal.
\nThis court has considered the submissions of the
\nparties. Aside from the fact that the findings in this case
\nare entirely concurrent – A.O., CIT(A) and the ITAT
\nhave all consistently rendered adverse findings – what is
\nintriguing is that the company (M\/s Kappac Pharma
\nLtd.) had meagre resources and in fact reported
\nconsistent losses. In these circumstances, the
\nastronomical growth of the value of company’s shares
\nnaturally excited the suspicions of the Revenue. The
\ncompany was even directed to be delisted from the
\nstock exchange. Having regard to these circumstances
\nand principally on the ground that the findings are
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n13
\nentirely of fact, this court is of the opinion that no
\nsubstantial question of law arises in the present appeal.
\nThis appeal is accordingly dismissed.”
\n15. On going through the aforesaid judgment, we find that no
\nquestion of law was formulated by Hon’ble High Court of Delhi
\nin the said case and there is only dismissal of appeal in limine
\nand the Hon’ble High Court found that the issue involved is a
\nquestion of fact as held by Hon’ble Apex Court in
\nKunhayyammed vs State of Kerala reported in 245 ITR 360
\nand also in CIT vs. Rashtradoot (HUF) reported in 412 ITR 17.
\nEven on merits and facts, the said judgment in the case of
\nUdit Kalra vs ITO (supra) is distinguishable as in that case the
\nscrips of the company were delisted on stock exchange,
\nwhereas, in the instant case, the interim order of SEBI in the
\ncases of M\/s Esteem Bio and M\/s Turbotech have been cooled
\ndown by subsequent order of SEBI placed by assessees in its
\npaper book. Thus, the case of Udit Kalra vs ITO relied by ld.
\nDR is clearly distinguishable on facts and is not applicable to
\nthe facts of assessee. Thus, we hold that the case of assessee
\nis factually and materially distinguishable from the facts of the
\ncase of Udit Kalra vs ITO so relied by ld DR.\u201d
\nTherefore, the case law relied upon by Learned D. R. is not applicable to
\nthe facts and circumstances of the present case as that case was decided
\nby Hon’ble High Court on the basis of facts and circumstances of that case.
\nTherefore, the present case is fully covered by the decision of Hon’ble
\nDelhi Tribunal in Reeshu Goel (supra) wherein the same script from which
\nthe assessee had obtained Long Term Capital Gain has been held to be
\ngenuine. Therefore, following the same, we hold that the scrip of CCL
\nInternational Ltd. is genuine and not a penny stock and paper entity.
\n7. In view of the above judicial precedents and keeping in view the
\nfacts and circumstances of the case, Ground No. 5 to 8, the appeal of the
\nassessee in I.T.A. No. 501 is allowed. Ground Nos. 9 and 10, are also
\nallowed in view of our findings that the transaction was not bogus.
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n14
\n8. In nutshell, the appeal of the assessee in ITA No. 501 is partly
\nallowed.
\n9. Now coming to appeals in ITA Nos. 502, 504 and 505. The facts and
\ncircumstances in all these appeals are similar and there is also the same
\nscrip of CCL International Ltd. and in these cases also the only objections
\nof the Assessing Officer is that the scrip was a penny stock. In these cases
\nalso the assessee had filed complete details before the Assessing Officer
\nwhich is apparent from the paper books. For the sake of completeness, we
\nreproduce the relevant documents in these appeals filed before Assessing
\nOfficer:
\nITA No.502
\nS.No. Particulars P.B. Page
\n1. Copy of Bank statement of 4 to 5
\nFederal Bank from where
\nthe payment of Rs.8,25,000\/-
\nshares was made.
\n2. Copy of bill of Suktara Trade 6
\nLink (P) Ltd. from whom shares
\nwere purchased.
\n3. Copy of transaction statement 7 to 14
\nissued from NSDL.
\n4. Copy of contract notes issued by 15 to 21
\nEdelwise Financial Advisors
\n5. Copy of Transaction statement 30 to 47
\nfrom NSDL
\nITA No. 504
\n1. Copy of Account with State 31 & 32
\nBank of India from where
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n15
\nPayment of Rs.82,500\/- for
\nPurchase of 25000 equity
\nShares was made.
\n2. Copy of Bill of Suktara Trade 15
\nLink (P) Ltd. for purchase of
\nShares.
\n3. Copy of transaction statement 33 to 45
\nissued from NSDL
\n4. Copy of contract note issued 16 to 21
\nBy Edelwise Financial Advisors
\nLtd.
\nITA No. 505
\n1. Copy of account with IDBI 17 to 18
\nBank from where payment of
\nRs.825000\/- for purchase of
\n25000 equity shares was made
\n2. Copy of Bills of Suktara Trade 11
\nLink (P) Ltd. for purchase of
\nShares.
\n3. Copy of Transaction statement 29 to 44
\nissued from NSDL
\n4. Copy of contract note issued by 19 to 23
\nEdelwise Financial Advisors Ltd.
\n10. Since under similar facts and circumstances, we have partly allowed
\nappeal in ITA No. 501, therefore, following the above the appeal in ITA
\nNo. 502, are also partly allowed wherein grounds no. 1 to 4 are dismissed
\nas not pressed and Ground No. 5 to 9 are allowed.
\n11. In ITA No. 504 and 505, Ground Nos. 1 to 4 are dismissed as not
\npressed whereas Ground Nos. 5 to 10 are allowed.
\nI.T.A. No.501,502,504 & 505\/Lkw\/2019
\nS.A.No.25 to 28\/Lkw\/2020
\n16
\n12. Since we have allowed all the appeals of the assessee, on merits the
\nStay Applications filed by all the assessees have become infructuous and
\nneed no adjudication.
\n13. In the result, all the appeals are partly allowed and all the Stay
\nApplications are dismissed as infructuous.
\n(Order pronounced in the open court on 16\/12\/2020 in
\naccordance with Rule 34(4) of the I.T.A.T. Rules)
\nSd\/. Sd\/.
\n( A. D. JAIN ) ( T. S. KAPOOR )
\nVice President Accountant Member
\nDated:16\/12\/2020
\n*Singh
\nCopy of the order forwarded to :
\n1. The Appellant
\n2. The Respondent.
\n3. Concerned CIT
\n4. The CIT(A)
\n5. D.R., I.T.A.T., Lucknow
\nAssistant Registrar<\/p>\n","protected":false},"excerpt":{"rendered":"
On going through the aforesaid judgment, we find that no question of law was formulated by Hon’ble High Court of Delhi in 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 in 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 company were delisted on stock exchange, whereas, in the instant case, the interim 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 assessee. Thus, we hold that the case of assessee is factually and materially distinguishable from the facts of the case of Udit Kalra vs ITO so relied by ld DR<\/p>\n