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Income Tax Appellate Tribunal, “A” BENCH, AHMEDABAD
Before: SHRI RAJPAL YADAV & SHRI WASEEM AHMED
आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण, अहमदाबाद �यायपीठ आयकर अपीलीय अिधकरण आयकर अपीलीय अिधकरण अहमदाबाद �यायपीठ अहमदाबाद �यायपीठ ‘,’ अहमदाबाद। अहमदाबाद �यायपीठ अहमदाबाद। अहमदाबाद। अहमदाबाद। IN THE INCOME TAX APPELLATE TRIBUNAL “A” BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER आयकर अपील सं./ ITA No. 726/Ahd/2017 �नधा�रण वष�/Assessment Year: 2010-11 Shantaben Parasmal Jain, Vs. DCIT, 27, Vijay Society, Cir – 3(1), New Khanderao Road., Vadodara. Baroda. PAN No. ABWPJ 8597 J अपीलाथ�/ (Appellant) �� यथ�/ (Respondent) Assessee by : Shri Prakash D. Shah, A.R. Revenue by : Shri S. N. Dev, Sr. D.R. सुनवाई क� तार�ख/Date of Hearing : 08.08.2018 घोषणा क� तार�ख /Date of Pronouncement : 15.10.2018 आदेश/O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: The captioned appeal has been filed at the instance of the Assessee against the appellate order of the learned Commissioner of Income-Tax (Appeals)-I, Vadodara [“CIT(A)” in short] relevant to Assessment Year 2010- 11. 2. Assessee has raised the following grounds of appeal:- “1. That the learned Commissioner of Income Tax (Appeals) has erred in law and facts by upholding the reassessment proceedings and therefore the order passed by the learned AO is required to be quashed. 2. That the learned Commissioner of Income Tax (Appeals) has erred in law and facts by confirming the disallowance of Long Term Capital Gain of Rs. 87,57,789/- as exempt income and adding back to the total income of the appellant and therefore the learned AO should be directed to allow the claim of exempt income. 3. That the appellant craves liberty to add, amend, alter and delete any grounds of appeal before the final hearing.”
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The assessee in ground no.1 has challenged the assessment framed u/s 147 of the Act.
Briefly stated facts are that the assessee in the present case is an individual and deriving her income from other sources. The assessee in the F.Y. 2007-08 has purchased certain shares of ZEN Shavings Ltd. through M/s Alliance Intermediaries & Network Pvt. Ltd. (for short AINPL). The necessary details of the purchases stand as under: Sr. Date of Value of Payment of date of No. purchase purchase purchase dematerialized 1. 13.08.2007 & 5,02,774.00 02.04.2008 March, 2009 28.08.2007
4.1 The assessee sold these shares in the year under consideration for Rs. 92,56,189/- only. Thus, the assessee has earned long term capital gain income of Rs. 87,57,789/- which was claimed as exempted u/s 10(38) of the Act.
However, the AO during the assessment proceedings observed certain facts as detailed under: i. The company through which the assessee purchased the shares namely M/s Alliance Intermediateries & Network Pvt. Ltd. (AINPL) belongs to Mukesh Chokshi Group – Chartered Accountant based in Mumbai. ii. There was a search operation in the case of Mukesh Chokshi group dated 25.11.2009. iii. Shri Mukesh Chokshi in his statement admitted that he was engaged in providing accommodation entries to various parties. iv. Shri Mukesh Chokshi also identified the name of the assessee to whom the bogus entry for long term capital gain was provided. v. M/s. AINPL was the sub broker in NSE through ISE Securities and Services Ltd w.e.f 26.02.2001. However, the member ship of AINPL
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was cancelled w.e.f 21.06.2004 whereas, the assessee has shown purchased and sales transaction through M/s. AINPL subsequent to the date of cancellation as discussed above. 4.2 As the assessee has made transactions through M/s. AINPL which was not a registered broker. Therefore the long term capital gain claimed by the assessee was referred as bogus capital gain.
4.3 On question by the AO for the observations as discussed above the assessee replied that she cannot be panelized for the non registration of AINPL with recognized stock exchange. The assessee in support of her long term capital gain income filed necessary details of purchase and sales. However, the ld AO was of the view that the income of the assessee has escaped assessment and accordingly issued a notice u/s 148 of the Act. The AO recorded the reasons to believe for escapement of income before issuing the notice u/s 147 of the Act which reads as under: “Information has been received from DITfl & CI) Ahmadabad that a search and seizure action was earned out on 25.11.2009 in the case of Mukesh Choksi Group. Shri Mukesh Choksi in his statement recorded under oath stated that he was into providing accommodation entry in the garb of bogus capital gain through various entities controlled and operated by him, One such entity which was involved in providing accommodation entry is M/s Alliance Intermediataries & Network Pvt. Ltd. It was unearthed during the course of search proceedings that the assessee is one of the beneficiary of the accommodation entry provided by Shri Mukesh Choksi through the entity M/s Alliance Intermediateries & Network Pvt, Ltd.
Shri Mukcsh Choksi in his statement recorded under oath gave a list of beneficiaries to whom accommodation entries have been provided. The assessee's name appeal- in the list of the beneficiaries During the year under consideration the assessee has claimed to have sold through the entity M/s Alliance Intermediateries & Network Pvt. Ltd 178000 shares of Zen Shaving on 31.08.2009 for a sum of Rs. 92, 56.1 89; - which alleged to have been purchased m the period relevant 10 AY 2008-09. It is pertinent to draw attention to a vital fact that the stock exchange had expelled the entity Alliance Intermediateris & Netwurk Pvt. Ltd from the exchange system.
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On the analysis of the tangible information received in this regard, and the admission of Shri Mukesh Choksi to having provided accommodation entries, I have reason to behave that income chargeable to tax in the garb of capital gaim amounting to Rs.92,56,189/- has escaped assessment within the meaning of the Sec. 147 of the I T Act, 1961 for AY 2010-11. A notice u/sec. 148 r.w.s. 147 is, therefore, being issued to re-assess such income and also any other income, chargeable to Lax which has escaped assessment, which comes to my notice subsequently in. the course of the re-assessment proceedings for AY 2010-2011.”
Aggrieved, assessee preferred an appeal to ld CIT(A). The assessee before the ld CIT(A) submitted that she has not concealed any information on account of long term capital gain income rather she has disclosed all the transactions of long term capital gain earned by her during the year.
5.1 The assessee also submitted that no opportunity of cross examination of Shri Mukesh chokshi was provided to her during the assessment proceedings. Accordingly, the assessee claimed that the reopening on the basis of third party statement is not valid. However, the ld. CIT(A) disregarded the contention of the assessee and upheld the validity of the reopening of the assessment u/s 147 of the Act as valid by observing as under: “4.3. I have considered the facts of the case, the submission of the appellant and the AO's observations. In the ground of appeal taken by the appellant in the current appellate proceedings/ the issue of notice u/s 147 has not been challenged specifically. But, the appellant has made specific arguments in this behalf in the written submission filed. Hence/ the issue of reopening of the assessment is dealt with first.
4.3.1. As can be seen from the assessment order as well as from the written submissions filed by the appellant's AR, the AO had received specific information from CCIT (Central-I) Mumbai that the appellant had shown Long Term Capital Gain on account of sale and purchase of shares through M/s. Alliance Intermediaries & Network Pvt. Ltd. belonging to Mukesh Choksi Group. During the course of search action in this group, Shri Mukesh Choksi had stated in his sworn statement that he was only involved in giving accommodation entries. He had aiso identified the appellant's name along with
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other 828 names of beneficiaries after perusing all the data with respect to appellant at the time of giving such statement. Accordingly, the AO has recorded his reason to believe and reopened the assessment on account of accommodation entries taken by the appellant in respect of purchase and sale of shares of Zen Shaving Ltd. It is also pertinent to note here that the appellant had filed the original return of income on 14.07.2010 which had not been subjected to scrutiny assessment and only the order u/s 143(1) had been passed. Besides, the assessment was reopened on 18.07.2014 which is within the period of 4 years from the end of the AY 2010-11. Thus, the issues of change of opinion while reopening the assessment is not involved in_ the present case.
4.3.2. The assessment has been reopened on account of specific information received by the AO regarding the bogus long Term Capital Gain shown by the appellant. Such information is on the basis of statement given by Mr. Mukesh Choksi and other incriminating documents found during the course of search in his group companies, which were found to be in the business of providing accommodation entries. Reopening of assessment under similar circumstances has been upheld by the Hon'ble High Court of Gujarat and other Courts in several decisions.
4.3.2.1. The issue of reopening of an assessment completed u/s.143(3), after four years from the end of relevant assessment year, on the basis of information given by the Investigation Wing, Mumbai on the basis of search & survey conducted in the case of Shri Praveen Kumar Jain and his Group concerns, has been decided by the Hon'ble High Court of Mumbai, in its decision in the case of [2016] 71 taxmann.com 64 (Bombay), Bright Star Syntex (P.) Ltd. In this decision, the Court has held as follows:
"6. It is settled position in law that while considering a challenge to a reopening notice on the ground that it is without jurisdiction, the Court has to keep in mind that a settled position in law is not being disturbed as evident from the orders passed earlier, without any justification. However, the Court will certainly interfere where the reason to believe that income has escaped assessment, is a clear case of change of opinion i.e. the same material was subject to consideration in regular assessment proceedings or where the reopening is being done only on suspicion and/or to carry out investigation or where the assessment is sought to be reopened after a period of more than four years from the end of the relevant assessment year and there has been no failure on the part of the assessee to truly and fully disclose all material facts necessary for assessment. However, in all other cases of reopening of assessment, the Court will examine whether there is material available with the Assessing Officer to form a reasonable belief that income chargeable to tax has escaped assessment and for that purpose ensure that the material is not vague and/or irrelevant. However at this stage i.e. on issue of reopening notice, the Assessing Officer is
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not required to have conclusive evidence that income chargeable to tax has escaped assessment but is only required to have reasonable belief of the same. The reasons recorded must on the basis of the material available establish a link between the material available and the conclusion. This should lead to prima facie view that income chargeable to tax has escaped assessment. At this stage, we are not required to consider the merits of the case nor the sufficiency or correctness of the material but only whether the Assessing Officer had reason to believe on the material available that income chargeable to tax has escaped assessment.
We find that the reasons in support of the impugned notice indicates that the Assessing Officer has received definite information that one Mr. Praveen Kumar Jain and the companies controlled by him was in the business of providing accommodation entries. On receipt of the aforesaid information, the Assessing Officer called for the necessary information in regard to the accommodation entries made in respect of the assessees in his jurisdiction. Consequent thereto, the Assessing Officer found that the information received indicated that the eight companies mentioned in the reasons belonged to Mr. Praveen Kumar Jain group and formed the basis of his reasonable belief. At this stage the Assessing Officer has merely to establish that there is justification for him to form a reasonable belief that income chargeable to tax had escaped assessment and not conclusively prove the same. The reliance by the petitioner on the decision of the Apex Court in S.P. Chaliha case (supra) rendered in a completely different fact situation can have no Court in Rushab Enterprises (supra). We find the decision of this Court was rendered in the context of the assessment being reopened beyono a period of 4 years from the end of the relevant assessment year In the facts of that case and on the basis of reasons recorded therein, the Court held that there was no basis for having reasonable belief that income chargeable to tax has escaped assessment. Albeit, the Court aoes record that an Assessing Officer does nave power to reopen an assessment, provided there was tangible material to form a reasonable belief that income chargeable to tax has escaped assessment. In the present case we are of the view that the statement of Mr. Praveen Kumar Jain is relevant tangible material with the Assessing Officer to form a reasonable belief that income chargeable to tax has escaped assessment."
4.3.2.2. Thus, the decision of Hon'ble High Court of Mumbai is squarely applicable to the facts of the present appeal. Besides, Hon'ble High Court of Gujarat has also upheld the reopening of such assessments on the basis of information received regarding accommodation entries. The High Court has held that where subsequent to completion of assessment, Assessing Officer, on basis of search carried out in case of another person, came to know that loan transactions of assessee with a finance company were bogus as said company was engaged in providing accommodation entries, it being a fresh information, he was justified in initiating reassessment proceeding in case of assessee. This decision has been
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reported as [2014] 46 Taxman.com 56 , (Guj), Yogendrakumar Gupta. This decision relates to AY.2006-07. A scrutiny assessment u/s.143(3) had been completed in respect of the original assessment proceedings and during such proceedings, the assessee had provided the addresses, PAN and details of amounts invested as also confirmation letters. On basis of this, order u/s.143(3) was completed on 22/12/2008. Subsequently, the notice u/s,148 was issued on 28/03/2013 which was beyond period of four years from the end of relevant assessment year. The Hon'ble Court has examined all the relevant judicial pronouncement in this regard and after discussing the same held as follows:-
"21. This Court has examined the belief of the Assessing Officer to a limited extent to inquiry as to whether there was sufficient material available on record for the Assessing Officer to form a requisite belief whether there was a live link existing of the material and the income chargeable to tax that escaped assessment. This does not appear to be the case where the Assessing Officer on vague or unspecific information initiated the proceedings of reassessment, without bothering to form his own belief in respect of such material. We need to notice that the joint Director, CBJ, Mumbai, intimated to the DIT (Investigation), Mumbai. A case is registered against Mr. Arun Daimia, Harsh Dalmia and during the search at their residence and office premises, the substantial material indicated that 20 dummy companies of Mr.Arun Dalmia were engaged in money laundering and the income-tax evasion. The said entities included Basant Marketing Pvt. Ltd. also. From the analysis of details furnished and the beneficiaries reflected, which are spread across the country, the CIT, Kolkata, suspected the accommodation entry related to the assessment year 2006-07 as well, this information has been provided to Director General of Income-tax, Kolkata, who in turn, communicated to the Chief Commissioner of Income-tax, Ahmedabad. Further revelation of investigation as could be noticed from the record examined (file) deserves no reflection in this petition. Insistence on the part of the petitioner to provide any further material forming the part of investigation carried out against Dalmias also needs to meet with negation, as the law requires supply of information on which Assessing Officer recorded her satisfaction, without necessitating supply of any specific documents. The proceedings initiated under section 147 of the Act would not be rendered void on non-supply of such document for which confidentiality is claimed at this stage, following the decision of the Delhi High Court in case of Acorus Unitech Wireless (P.) Ltd. (supra). Assumption of jurisdiction on the part of the Assessing Officer is since based on fresh information, specific and reliable and otherwise sustainable under the law, challenge to reassessment proceedings warrant no interference".
Thus in this decision/ the court has also held that the specific documents on the basis of which an assessment has been reopened are not required to be handed over to the assessee.
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4.3.3.3. Similar reopening, though within four years from the end of the assessment year, has also been approved by Hon'ble High Court of Gujarat in the case of Peass Industrial Engineers Pvt. Ltd. 2016 (72 Taxman.com 302 (Guj). The Hon'ble Court has considered several other decisions in this regard before arriving at the conclusion that reopening was valid in law. Hence, on the basis of discussion/ it is held that the AO has rightly reopened the assessment.”
Being aggrieved by the order of ld CIT(A) assessee is in appeal before us.
The ld AR before us filed a paper book which is running from pages 1-13 and submitted as under: “WRITTEN SUBMISSION With reference of the appeal of the assessee, the appellant most respectfully take liberty to submit the written for yow land perusal:
Ground No.1- Validity of issue of notice u/s 148 of the Act
The basis of addition in the assessment order and the reasons for the reassessment are different. In the reasons for the reassessment, allegation is for the Bogus Sale of Rs.92,56,189/- whereas the claim under section 10(38) of Rs. 87,57,789/-has been rejected and in view of the following judgments, the reassessment proceeding is bad in law:-
(a) CIT Vs. Mohd Juned Dadani, [2013) 355 ITR 172 (Guj). (b) CIT Vs. Jet Airways (1) Ltd. (2011) 331 ITR 236 (Bom) (c) Shri Bhadresh K. Shah Vs (ITA No.89/Ahd/2012) -Copy of the said order is submitted herewith as Annexure CL-1 & 2
For Ready reference the copy of the reasons for the reassessment along with its covering letter of the Id.A1 is submitted herewith as Annexure PB-1 & 2.
In pursuance to the request for providing the reasons for the reassessment through assessee's letter dated 1/7/2015, the ld. AO has provided the reasons for the reassessment on 27/1/2016 i.e. at the fag end of the passing of the assessment order on 11/3/2016. As per the direction Hon'ble Gujarat High Court in the case of Sahakari Khand Udhyog Mandal Ltd. vs. ACIT (370 ITR 107) (2015), the Id. AO is required to provide the reasons for the reassessment within 30 days; allowing the assessee to file objections against the reason, for reassessment within 60 days.
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The ld.AO has not followed said course of action and therefore in view of the Judgment of the Hon’ble Jurisdictional Gujarat-High court in the case of Bharatmaiya Memorial Foundation vs. DCIT (SCA No 20513 of 2017) dated 22/11/2017, the reassessment proceedings is required to be quashed. Copy o judgment in the case of Bharatmaiya Memorial Foundation is submitted herewith as Annexure CL-3 & 4. Please Refer para 11 & 12 of the said judgement.
That from the perusal of the reasons for the reassessment it is evident that the learned AO has reopened the assessment under section 147 of the Act;
(a) Only on account of information received from the DIT(I &C), Ahmedabad and (b) he has not applied his mind for the reassessment proceedings as; (i) in the reasons for the reassessment there is no reference of return of income filed and/or its assessment position. (ii) at one place he says about sale value of Rs.92,56,189/- and another place he says about capital gain amounting of Rs.92,56,189/-.
In this regard reliance is placed on the order of the Hon'ble ITAT- Ahmedabad, in the case of Smt Sunita Jain Vs ITO (ITA No.501/Ahd/2016), pronounced on 9-3-2017. (Copy of the order is submitted in the submission of Case law-Page Number (PN) 18-22)
In view of the above legal positions and facts, there is no proper reason to believe for the reassessment proceeding and same is bad in law and therefore the order passed by the learned AO is required to be quashed.
Ground No.2- Rejection of claim of exempt income u/s 10(38) of Rs.87,57,789/-
That the appellant has requested to grant an opportunity of cross examination of the party whose statement he relied upon, but no opportunities was given to the appellant and made the disallowance (Refer Last Para of Page No.8 of the order of the ld. CIT(A)). The said course of action of the Id.AO is against the principal of the natural justice and therefore claim of the appellant is required to be allowed and in this regard reliance is placed on the following judgments/order of :-
A. Hon’ble Apex Court's order of SLP dismissal in the case of CIT Vs Sunita Dhadda (403 ITR 309)(St) SLP dismissal.
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B. Judgement of the Hon'ble Apex Court in the case of Andaman Timber Industries Vs. CCE (Civil App No. 4228 of 2006)(281 CTR 241)(SC). C. Judgment of the Hon'ble Apex Court's in the case of Kishanchand Chelaram Vs CIT [(1980) 125 ITTR 713 (SC)] that the income tax authorities could not rely upon any statement which has not been confronted to the assessee and in respect of which the assessee has not been given opportunity to cross examine. D. Hon'ble Jurisdictional Gujarat High Court's order in the case PCIT Vs Bharti Somchand Shah (Tax Appeal No.1023 of 2017) dated 22/1/2018 (Copy submitted in the submission of Case law-Page Number (PN) 1-2); wherein the order of the Hon'ble Ahmedabad ITAT, in the case of Bharti Somchand Shah (Sr No.10-11) & Others Vs ITO (1TA No.925- 926/Ahd/2015-Order dated 21 October, 2016), has been confirmed. In the said order the Hon'ble ITAT has held as under:-
In the light of the decisions of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker's contract notes, confirmation of receipt of sale proceeds through regular bonking channels and the demat account.
As mentioned elsewhere and as agreed by the Representatives of both the sides; since the facts are common in all the impugned appeals, all the appeals by the assessees are allowed. The Assessing Officer is directed to treat the surplus as Long Term Capital Gain and allow the exemption as claimed by the assessees. 20. In the result, all the appeals filed by the assessee are allowed.
The copy of the order of the Hon'ble Ahmedabad ITAT in the case of Bharti Somchand Shah (Sr. No.10-11) & Others Vs ITO (ITA No.925- 926/Ahd/2015-Order dated 21 October, 2016) is submitted in the submission of Case law-Page PN 3-11).
E. Laxman S Patel Vs CIT (327 ITR 290) (Guj)- "The legal effect of the statement recorded behind the back of the assessee and without furnishing the copy thereof to the assessee or without giving an opportunity of cross-examination, if the addition is made, the same is required to be deleted on the ground of violation of the principles of natural justice".
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F. The order of the Hon'ble ITAT-Ahmedabad in the case of Rajpal P Mehta Vs ITO (ITA 796/Ahd/2016) dated 16/11/2017. (Copy submitted in the submission of Case law-Page Number (PN) 12-17)
G. Ms. Malti Ghanshaymbhai vs Income Tax Officer,Ward-10(2) on 6 February, 2017 ITA No.3400/Ahd/2015 Asst. Year: 2006-07. Its relevant para 13 is as under:
We are of the view that claim of assesses u/s 10(38) of the Act relating to long term capitals gain cannot be just denied on the basis of presumption that they are in respect of fictitious and not genuine without allowing the assesses to go through the statement of Mukesh M. Chokshi used against her and also not allowing to cross examine him. Therefore, respectfully following the judgment of Hon. Supreme Court, in the case of Andaman Timber Industries (supra) the judgment of Hon. Jurisdictional High Court in the case of Chartered Speed Pvt. ltd. (supra) and decisions of the Co-ordinate Bench in the case of Dhwani Mahendra Shah (supra) and Chartered Motors Pvt. Ltd. (supra) we allow this ground of assessee and quash the re-assessment proceedings u/s 143(3) r.w.s. 147 of the Act dated 18.3.2014.
Copy of the letter dated 11/3/2016 addressed to the Id.AO, in relation to cross examination is submitted here1 as Annexure PB 3 -4
That the investigation on broker is concerned, the assessee is in no way concerned with the activity of broker and there is no fault of the assessee; as the assessee has made the investment in shares and; a. Against the purchase of shares of Zen Shavings in August 2007, its payment has been made through cheque in the AY 2008-09 and which has been accepted by the department in the said earlier year. In support of the payment through cheque, the copy of the relevant page of Bank pass book is submitted herewith as Annexure PB 5-6. b. Delivery of shares has been received and it has been dematerialized in March 2009 c. These shares have been sold/transferred from appellant's Demat Account & payment has been received by cheques. The copy of Demat statement of HDFC Bank is submitted herewith as Annexure PB-7. d. The copy of the Purchase and sales Bills were submitted before the ld.AO and the sample copy of sale bills of the said shares are submitted herewith as Annexure PB-8-13.
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Accordingly, the complete details of purchases and sales i.e. evidence of share purchase in the shape of copy purchase bill/ Contract note, copy of bill, statement of Demat A/c and corresponding effects in bank statements reflecting transfer of shares, copy of sales bill have been submitted. The genuineness of transaction is to be accepted on account of supporting document/ evidences furnished by the assessee before the authorities below and in this regard reliance is placed on following judgments/order:-
A. ACIT vs. Vineet Suresh Chandra Agrawal vide ITA No. 1442/Ahd/2013 dated 6th Jan, 2017, its relevant para is as under:-
"In view of these glaring facts, the assessment of Smt. Jaya Agrawal and the fact that the relevant purchases for AY 2004-05 have been held to be genuine, we see no infirmity in the order of ld. CIT(A) in deleting these additions. On the issues of Shri Chokshi, Mahasagar Securities Pvt. Ltd. and Gooldstar Finvest Pvt. Ltd., a catena of judgments from ITAT, Mumbai and Ahmedabad is available in favour of the assessee which view also stands confirmed by Hon'ble Bombay High court in the case of Shri Mukesh Moralia. Respectfully following these judicial precedents and facts and circumstances as mentioned above, we uphold the order of ld. C!T(A). Revenue's ground stands dismissed."
[Copy of the order is submitted in the submission of Case law-Page Number (PN) 29-41] B. Hon'ble Income Tax Appellate Tribunal-Hyderabad, in the case of ITO Vs Smt. Sumanlata Agarwal (984/Hyd/2017) dated 15/6/2018. Its relevant para are 14-16.Copy of the said order is submitted herewith as Annexure CL-5-12.
C. Hon'ble ITAT Hyderabad in the case of M. Aditya Sreeramji Magapu Vs. ITO on 5th July 2018 by TANo.866/HYD/2017
“Assessee has furnished the information with reference to purchase of shares [though in cash] which was accepted by the AO in the re-opening proceedings in the AY. 2006-07, and evidence of subsequent sale during the year, receipt of sale consideration through bank accounts and further there is no dispute with reference to the sale of shares through the stock exchange as confirmed by the NSDL (in the communication to the AO extracted above) we are of the opinion that Revenue has failed to establish that the transaction are Since assessee's claim for exemption in Long Term Capital Gain is supported by the including the transaction in DMAT account and sales through the stock exchange, the claim u/s.10(38) of the Act cannot be denied, based on the assumptions and presumptions which are not supported by any evidence. In view of that the grounds raised by assesses on merits are allowed. AO is directed to treat the gains as such and allow the benefit u/s. 10(38).
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Copy of the said order is submitted herewith as Annexure CL-13-21.
D. Nisha jain vs Ito, Jaipur on 31 January, 2018 ITA No. 368 /JP/2017 "In view of the above facts and circumstances of the case, we are of the considered opinion that the addition made by the AO is based on mere suspicion and surmises without any cogent material to show that the assessee has brought back his unaccounted income in the shape of long term capital gain. On the other hand, the assessee has brought all the relevant material to substantiate its claim that transactions of the purchase and sale of shares are genuine. Even otherwise the holding of the shares by the assessee at the time of allotment Copy of the said order is submitted herewith as Annexure CL-5-12. subsequent to the amalgamation/merger is not in doubt, therefore, the transaction cannot be held as bogus. Accordingly we delete the addition made by the AO on this account."
Without prejudice to the above facts, the shares purchased through off market trade the same cannot be considered non- genuine ignoring the facts that the purchases are accepted by Department in preceding assessments and purchases and sales are affected by cheques. In this regard Hon'ble ITAT Mumbai in the case of Mukesh Moralia [[2006] 6 SOT 247] and wherein it has been held as under:
10.3 Purchase and sale of shares outside the floor of Stock Exchange is not an unlawful activity. Off-market transactions are not illegal, ft is always possible for the parties to enter into transactions even without the help of brokers. Therefore, it is not possible to hold that the transactions reported by the assessee were quite sham on the legal proposition arrived at by the CIT(A) that off- market transactions are not permissible. The assessee has stated that the transactions were made with the help of professional mediators who are experts in off-market transactions.
The Hon'ble Mumbai Tribunal order in the case of Shri Mukesh Moralia has been upheld and confirmed by the Bombay High Court in Tax Appeal No. 456 of 2007. Against the said order of the Hon'ble Bombay High Court SLP of the Department has been dismissed by the Apex Court.
In view of above facts and legal position, the addition made by the Id.AO is bad in law and the Id.AO should be directed to delete the addition while computing the total income and further the Id. AO should be directed to allow the exemption under section 10[38) of the Act as on the sales of the shares.
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It is certified that Page Marked CL 1-21 are the copy of the judgments and page marked PB 1-13 are relevant pages submitted before the lower authorities and certified as true copy.
Your honors are requested to consider the above submission while deciding the appeal and oblige.”
Ld DR before us submitted that the payment for the purchase of shares was made after a long time. Similarly, the shares were dematerialized after 18 months from the date of purchase. Ld DR in support of his claim relied on the order of Sudhir Balraj Jumani-HUF IN ITA No. 1570/Ahd/2012 & Smt. Sushila D. Shah Vs. ITO, ward-7 (3) in appeal No. 1151/Ahd/2015. The ld. DR vehemently supported the order of authorities below.
The ld. AR in his rejoinder submitted that the Tribunal after passing the orders as quoted by the ld DR has changed its stands and allowed the appeal of the assessee in the cases as discussed above. Accordingly, the relief was given to the assessee.
We have heard the rival contentions and perused the materials available on record. In the instant case, the assessee has declared long term capital gain of Rs. 87,57,789/- which was treated by the AO as bogus long term capital gain. The view taken by the AO was subsequently confirmed by the ld CIT(A).
9.1 At the outset, we find in the identical facts and circumstances in the case of Shri Pratik Suryakant Shah vs ITO and others in ITA Nos. 810/Ahd/2015 and others has decided the issue in favor of assessee. The relevant extract of the order is reproduced as under: “13. Having heard the rival contentions, we have carefully perused the orders of the authorities below. As mentioned elsewhere, we have considered the facts in YTA No.810/Ahd/2015. We find that the assessee had purchased 3000 shares of
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Telant Info Ltd from M/s. Mahasagar Securities Pvt Ltd on April 2004. The consideration was paid and the payment of consideration is not in dispute. The shares of Telant Info Ltd were listed in the Bombay Stock Exchange at that point of lime. The shares so purchased were sold through M/s. Alliance Intermediateries & Network Pvt Ltd and the consideration was received by cheque. It would be pertinent to mention here that though the shares were purchased in physical form, the same were sent to the company with share application form and the shares were transferred by the company in the name of the purchaser. Thereafter, the shares were transferred in the demat account, from where they were sold. It is not the case of the Revenue that the consideration paid by the assessee at the time of purchase of shares was received back in cash, nor it is the case of the Revenue that the sale consideration received by the assessee was returned back in cash. It is also not the case of the Revenue that the shares in question are still lying with the assessee, nor it is the case of the Revenue that the amounts received by the assessee on sale of the shares is more than what is declared by the assessee.
The entire assessment is based upon the statement of Shri Mukesh Choksi. It is an undisputed fact that neither a copy of the statement was supplied to the assessee. nor any opportunity of cross-examination was given by the Assessing Officer/CIT(A). The Hon'ble Supreme Court in the case of Andaman Timber Industries in Civil Appeal No. 4228 of 2006 was seized with the following action of the Tribunal:-
"6. The plea of no cross examination granted to the various dealers would not help the appellant case since the examination of the dealers would not bring out any material which would not be in the possession of the appellant themselves to explain as to why their ex factory prices remain static. Since we are not upholding and applying the ex factory prices, as we find them contravened and not normal price as envisaged under section 4(1), we find no reason to disturb the Commissioners orders."
The Hon'ble Apex Court held as under:- "According to us, not allowing the assessee to cross-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 because of which the assessee was adversely affected. It is to be borne in mind that the order of tire Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted
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to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically 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 concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that cross-examination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain 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 wanted to cross-examine those dealers and what extraction the appellant wanted from them.
As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross- examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject mailer of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions.
In view the above, we are of the opinion that if the testimony of these two witnesses is discredited, there was no material with the Department on ihc basis of which it could justify its action, as the statement of the aforesaid two witnesses was the only basis of issuing the Show Cause
We, thus, set aside the impugned order as passed In/ the Tribunal and allow this appeal."
On the strength of the aforementioned decision of the Hon'ble Supreme Court, the assessment order has to be quashed.
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For the sake of the completeness of the adjudication, even on facts of the case, the orders of the authorities below cannot be accepted. There is no denying that consideration was paid when the shares were purchased. The shares were thereafter sent to the company for the transfer of name. The company transferred the shares in the name of the assessee. There is nothing on record which could suggest that the shares were never transferred in the name of the assessee. There is also nothing on record to suggest that the shares were never with the assessee. On the contrary, the shares were thereafter transferred to demat account. The demat account was in the name of the assessee, from where the shares were sold. In our understanding of the facts, if the shares were of some fictitious company which was not listed in the Bombay Stock Exchange/National Stock Exchange, the shares could never have been transferred to demat account. Shri Mukesh Choksi may have been providing accommodation entries to various persons but so far as the facts of the case in hand suggest that the transactions were genuine and therefore, no adverse inference should be drawn.
In the light of the decisions of the Hon'ble Supreme Court in the case of Andaman Timber Industries (supra) and considering the facts in totality, the claim of the assessee cannot be denied on the basis of presumption and surmises in respect of penny stock by disregarding the direct evidences on record relating to the sale/purchase transactions in shares supported by broker's contract notes, confirmation of receipt of sale proceeds through regular banking channels and the demat account.
As mentioned elsewhere and as agreed by the Representatives of both the sides; since the facts are common in all the impugned appeals, all the appeals by the assessees are allowed. The Assessing Officer is directed to treat the surplus as Long Term Capital Gains and allow the exemption as claimed by the assessees.”
9.2 We also note that the view taken by the Hon’ble ITAT in the case as discussed above was also upheld by the Hon’ble Gujarat High Court in the case of PCIT vs. Bharti Somchad Shah in Tax Appeal No.1023 of 2017, wherein it was held as under: “1. The appellant-revenue in this appeal under section 260A of the Income Tax Act, 1961 (hereinafter referred to as the Act) has challenged the order dated 21.10,2016 made by the Income Tax Appellate Tribunal, Ahmedabad Bench B in ITA No.926/And/2015 for assessment year 2008-09, by proposing the following questions stated to be substantial questions of law:
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[A] Whether the Appellate Tribunal Is correct in law and on facts in not considering the statement of Shri Mukesh M. Chokshi taken on oath u/s. 132(4) of the Act and is binding as evidence or not? [B] Whether the Appellate Tribunal is correct in law and on facts in deleting the additions without appreciating the fact that the assessee had not carried out share transactions through stock exchange and those transactions were carried out off market, thus should be treated as illegal and fraudulent or not?
Heard Mrs. Mauna Bhatt, learned senior standing counsel for the appellant and Mr. O.K. Puj, learned advocate for the respondent in the appeal.
The learned advocate for the respondent has drawn the attention of the court to the order dated 12.09.2017 passed by this court in the case of Principal Commissioner of Income Tax-5 v. Dhwani Mahendra Shah, rendered in Tax Appeal No.674 of 2017, to submit that in an appeal arising out of the common order of the Tribunal, raising identical questions, this court has dismissed the appeal and upheld the order passed by the Tribunal. It was submitted that therefore, for the same reasons, this appeal also deserves to be dismissed.
Mrs. Mauna Bhatt, learned senior standing counsel for the revenue, is not in a position to dispute the aforesaid position of law.
Having regard to the fact that the controversy involved in the present case stands concluded by the above referred decision of this court, it is not necessary to set out the facts and contentions in detail. For the reasons recorded in the order dated 12.9.2017 passed by this court in Tax Appeal No.674 of 2017, it cannot be said that the impugned order passed by the Tribunal suffers from any legal infirmity so as to give rise any question of law, much less, a substantial question of law as proposed or otherwise. The appeal, therefore, fails and is, accordingly, summarily dismissed.”
9.3 The facts of the case on hand are exactly identical to the facts as discussed above. Therefore, the principles laid down by the Tribunal which were subsequently confirmed by the Hon’ble Gujarat High Court are squarely applicable to the facts in the case on hand. Therefore respectfully following the
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same we hold that the re-assessment proceedings initiated u/s 147 of the Act is not sustainable. Accordingly, we quash the order framed u/s 147 of the Act.
As we have decided the issue in favour of the assessee by holding that the assessment proceedings are invalid, we are not inclined to adjudicate the issue on merit. Hence, the ground of appeal of the assessee is allowed.
In the result, appeal of the assessee is allowed.
Order pronounced in the Court on _15th _ October, 2018 at Ahmedabad.
Sd/- Sd/-
(RAJPAL YADAV) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER Ahmedabad; Dated 15/10/2018 Priti Yadav, Sr.PS आदेश क� ��त�ल�प अ�े�षत/Copy of the Order forwarded to : 1. अपीलाथ� / The Appellant 2. ��यथ� / The Respondent. 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त(अपील) / The CIT(A) – I, Vadodara. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, अहमदाबाद / DR, ITAT, Ahmedabad. 5. 6. गाड� फाईल / Guard file. आदेशानुसार/ BY ORDER, स�या�पत ��त //True Copy// उप/सहायक पंजीकार (Dy./Asstt.Registrar) आयकर अपील�य अ�धकरण, अहमदाबाद / ITAT, Ahmedabad 1. Date of dictation …03/10/2018 (PAGE-5) 2. Date on which the typed draft is placed before the Dictating Member : .. 12/10/2018 3. Other Member……….. 4. Date on which the approved draft comes to the Sr.P.S./P.S…15/10/2018 5. Date on which the fair order is placed before the Dictating Member for pronouncement………….. 6. Date on which the fair order comes back to the Sr.P.S./P.S…… 7. Date on which the file goes to the Bench Clerk……… 8. Date on which the file goes to the Head Clerk… 9. The date on which the file goes to the Assistant Registrar for signature on the order………… 10. Date of Despatch of the Order………………