JAYNIK MAHENDRAKUMAR SHAH,MUMBAI vs. ITO WARD 24 (2) (1), MUMBAI

On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the learned CIT (A) erred in learned CIT (A) erred in confirming long term capital gain on sale of confirming long term capital gain on sale of shares as bogus long term capital gain and confirm the addition us 68 shares as bogus long term capital gain and confirm the addition us 68 shares as bogus long term capital gain and confirm the addition us 68 of the entire sale proceeds from the sale of shares amounting to Rs. of the entire sale proceeds from the sale of shares amounting to Rs. of the entire sale proceeds from the sale of shares amounting to Rs. 1,25,55,092/ 1,25,55,092/-. The learned CIT (A) has ignored the facts written in . The learned CIT (A) has ignored the facts written in statement of facts that shares were traded on a recognized stock ement of facts that shares were traded on a recognized stock ement of facts that shares were traded on a recognized stock exchange i.e. BSE and there can not be a manipulation in the share exchange i.e. BSE and there can not be a manipulation in the share exchange i.e. BSE and there can not be a manipulation in the share price.

On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the learned CIT (A) erred in confirming the addition u/s 69C on adhoc learned CIT (A) erred in confirming the addition u/s 69C learned CIT (A) erred in confirming the addition u/s 69C basis amounting to Rs. 3,76,652/ basis amounting to Rs. 3,76,652/- being 3% of sale proceeds of Rs. being 3% of sale proceeds of Rs. 1,25,55,092/ 1,25,55,092/- as commission to the broker for the purpose of trading. as commission to the broker for the purpose of trading. The appellant has not paid any commission to the broker. He had paid The appellant has not paid any commission to the broker. He had paid The appellant has not paid any commission to the broker. He had paid the brokerage to the broker on sale tran the brokerage to the broker on sale transactions which is duly reflected sactions which is duly reflected in the contract notes. in the contract notes. 3. On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the On the facts and in the circumstances of the case and in law the learned CIT (A) erred in confirming the issuing notice u/s 148 merely learned CIT (A) erred in confirming the issuing notice u/s 148 merely learned CIT (A) erred in confirming the issuing notice u/s 148 merely on the basis of the information allegedly received from Kolkata on the basis of the information allegedly received from Kolkata on the basis of the information allegedly received from Kolkata Investigation wing stating that the shares sold by the appellant are nvestigation wing stating that the shares sold by the appellant are nvestigation wing stating that the shares sold by the appellant are penny stocks though it was submitted in the statement of facts that penny stocks though it was submitted in the statement of facts that penny stocks though it was submitted in the statement of facts that shares were traded on a recognized stock exchange. However while shares were traded on a recognized stock exchange. However while shares were traded on a recognized stock exchange. However while issuing reasons for reopening the learned A.O. has never asked about issuing reasons for reopening the learned A.O. has neve issuing reasons for reopening the learned A.O. has neve the two companies namely Aricent Infra Ltd. and KGN Enterprises Ltd. the two companies namely Aricent Infra Ltd. and KGN Enterprises Ltd. the two companies namely Aricent Infra Ltd. and KGN Enterprises Ltd. He had asked only about one company i.e. Esaar (India) Ltd. The He had asked only about one company i.e. Esaar (India) Ltd. The He had asked only about one company i.e. Esaar (India) Ltd. The reopening is bad in law as the reasons which are not provided during reopening is bad in law as the reasons which are not provided during reopening is bad in law as the reasons which are not provided during the course of assessment. the course of assessment. 4. On the facts a On the facts and in the circumstances of the case and in law the nd in the circumstances of the case and in law the learned CIT (A) erred in passing the order without ensuring service of learned CIT (A) erred in passing the order without ensuring service of learned CIT (A) erred in passing the order without ensuring service of notice or intimation and/or offering opportunity to make submissions to notice or intimation and/or offering opportunity to make submissions to notice or intimation and/or offering opportunity to make submissions to your appellant. The appellant had sought adjournment on 29.05.2023 your appellant. The appellant had sought adjournment on 29.05. your appellant. The appellant had sought adjournment on 29.05. for 15 days as details and documents which were submitted during for 15 days as details and documents which were submitted during for 15 days as details and documents which were submitted during assessment were not with me and were with C.A. BAPS & Associates assessment were not with me and were with C.A. BAPS & Associates assessment were not with me and were with C.A. BAPS & Associates partner Bimal V Rathi. The appellant had to collect papers from him partner Bimal V Rathi. The appellant had to collect papers from him partner Bimal V Rathi. The appellant had to collect papers from him and give the same to M/s V. C. Shah & Co. They were subsequently and give the same to M/s V. C. Shah & Co. They were s and give the same to M/s V. C. Shah & Co. They were s collected and they had prepared reply. The appellant was waiting for collected and they had prepared reply. The appellant was waiting for collected and they had prepared reply. The appellant was waiting for notice of refixing the matter and no messages and no mails regarding notice of refixing the matter and no messages and no mails regarding notice of refixing the matter and no messages and no mails regarding notice for fixing of hearing is received by the appellant hence he had notice for fixing of hearing is received by the appellant hence he had notice for fixing of hearing is received by the appellant hence he had not filed any submission as new not not filed any submission as new notice has not been issued though ice has not been issued though awaited. The appellant is also enclosing affidavit containing facts of awaited. The appellant is also enclosing affidavit containing facts of awaited. The appellant is also enclosing affidavit containing facts of non filing of submission to CIT (A). non filing of submission to CIT (A). 2. At the outset, before us, the Ld. counsel for the assessee At the outset, before us, the Ld. counsel for the assessee At the outset, before us, the Ld. counsel for the assessee submitted that the impugned order has been passed ex-parte by the submitted that the impugned order has been passed submitted that the impugned order has been passed Ld. CIT(A) without considering submission Ld. CIT(A) without considering submissions of the assessee and of the assessee and therefore, matter may be restored back to the Ld. CIT(A) for deciding therefore, matter may be restored back to the Ld. CIT(A) for deciding therefore, matter may be restored back to the Ld. CIT(A) for deciding afresh after considering the submission of the assessee. The Ld. afresh after considering the submission of the assessee. The Ld. afresh after considering the submission of the assessee. The Ld.