OVEZ ARIFBHAI LAKHANI,BHAVNAGAR vs. THE PR. CIT, AHMEDABAD-1, AHMEDABAD

Date of hearing : 08-08-2024 Date of pronouncement : 30-08-2024 आदेश/ORDER PER : RAMIT KOCHAR, ACCOUNTANT MEMBER:-

2014-15, filed by the assessee before Income Tax Appellate Tribunal, Ahmedabad Benches, has arisen from the revisionary order dated 12.03.2024 passed by Ld. Principal Commissioner of Income Tax, Ahmedabad-1 u/s. 263 of the Income-tax Act,1961 vide DIN & Order No. ITBA/REV/F/ REV5/2023-24/1062495418(1), wherein ld. PCIT in exercise of its revisionary powers u/s 263 set aside the reassessment order dated 30.03.2022 passed by learned Assessing Officer u/s 147 read with Section 144B of the Income-tax Act, 1961 for assessment year 2014-15(DIN ITBA/AST/S/147/2021- 22/1042146208(1) with the directions to the AO to pass a fresh assessment order in accordance with law and after duly examining the facts of the case to the extent of the issues discussed in the revisionary order after giving the assessee an reasonable opportunity of being heard.

2. The grounds of appeal raised by the assessee in Memo of Appeal filed with the Income Tax Appellate Tribunal, Ahmedabad Bench, Ahmedabad, reads as under:-

“1. The ld. PCIT, Ahmedabad-1 erred in law and on fact in passing the order under section 263 of the Act.”

“M/s/Ms/Ms Subject: Notice for Hearing in respect of Revision proceedings u/s 263 of the THE INCOME TAX ACT-1961-Assessment Year 2014-15. In this regard, a hearing in the matter is fixed on 22/02/2024 at 03:00 PM. You are requested to attend in person or through an authorized representative to submit your representation, if any alongwith supporting documents/information in support of the issues involved (as mentioned below). If you wish that the Revision proceeding be concluded on the basis of your written submissions/representations filed in this office, on or before the said due date, then your personal attendance is not required. You also have the option to file your submission from the e-filing portal the link: incometaxindiaefiling.gov.in

Please refer to the assessment order passed u/s 147 r.w.s 144B of the Income-tax Act, 1961 ("Act") for AY 2014-15, in the case of Oven Arifbhai Lakhani by the Assessing Officer, NeAC, New Delhi on 30.03.2022.

"The case was re-opened on the basis of information reflected on Insight Portal along with Report of Investigation Wing of Income Tax Department in a search and seizure action u/s. 132 of the Income Tax Act, 1961 conducted in the case of Jatia Group and other related group on 17.04.2018. The premises of KDJ Holidayscape & Resort Ltd. was also covered U/s. 133(A) of the I.T. Act, 1961. (M/s KDJ Holidayscape & Resort Ltd. is a recognized penny Stock company with scrip id 530701 engaged in providing bogus long term capital gain loss to various entities. The assessee is one of the beneficiary who traded in the scrip of KDJ Holidayscape & Resort Ltd. of Rs.79,43,000.

3. On verification of record it was observed that the assessee was one of the beneficiaries who traded in the scrip of KDJ Holidayscape & Resort Ltd. of Rs.79,43,000/-, M/s KDJ Holidayscape & Resort Ltd. is a recognized penny stock company with scrip id 530701 engaged in providing bogus long term capital gain/loss to various entities. The assessee has uploaded invoices/contract notes issued by Prabhudas Liladhar Private Limited in respect of online purchase of 19400 shares of Gomati Finlease (India) Ltd during the financial year 2011-12 for an aggregate sum of Rs. 12,61,190/- after suffering security transaction tax. The assessee in his submission dated 16.03.2022 has claimed that out of 19,400 shares so purchased, 1000 shares were transferred in that year in his demat account. The assessee sold 18,400 shares of the above referred company on the platform of BSE for an aggregate sum of Rs.79,43,000/-. However the assessee has not furnished details of demat account in which shares were credited. The AO merely relied on the ledger account and contract notes furnished by the assessee.

The assessee in response submitted that the reassessment order of the Assessing Officer is neither erroneous nor prejudicial to the interest of revenue. The assessee submitted that assessee had made investment of Rs. 12,61,190/- through registered broker through proper banking channel which resulted in long term capital gain of Rs. 67,46,810/-. The assessee submitted before ld. PCIT that the perusal of the statement recorded by department of Mr. Vinod Deora, Director of the aforesaid company did not reveal that the said company is a penny stock company, and there is no mention of the involvement of the assessee in generating bogus long term capital gains in purchase and sale thereof. The assessee also contended that the unspecified document signed by ld. DDIT (Inv.) Unit-4(3), Mumbai , did not prove that the assessee’s income has escaped assessment. The assessee submitted that the assessee has legitimately invested in the shares of the aforesaid company, and held it for more than 18 months before selling, thus making it a long term capital gains. The investment was made through recognized stock exchange, through registered broker. The payments were made through banking channel , which also included STT. The assessee submitted before ld. PCIT that investments were recorded in the books of accounts regularly maintained by the assessee. The shares were held in Demat Account held by the assessee with the depository. The shares were purchased on delivery basis. The documents which were filed before the Assessing Officer justifies that transactions are not bogus. Thus, the assessee contended that the reassessment order is neither erroneous nor prejudicial to the interest of revenue, and request was made before ld. PCIT that the revisionary proceedings u/s. 263 of the Act may be dropped. The ld. PCIT after considering the submission of the assessee observed that the assessee has not submitted demat account during the course of assessment proceedings to prove the transactions. It was observed by ld. PCIT that KDJHRL is a recognized penny stock(scrip ID 530701) engaged in providing bogus long term capital gain/loss to various entities. The assessee has filed invoices / contract notes issued by Prabhudas Liladhar Pvt. Ltd. in respect of purchase of 19400 shares of Gomti Finlease (India) Ltd.(later name changed to KDJHRL) in financial year 2011-12 for an aggregate sum of Rs. 12,61,190/-. The ld. PCIT observed that the assessee has transferred 1000 shares in his demat account , and purchased shares were 19400 on the BSE platform for an aggregate amount of Rs. 79,43,000. The assessee has not submitted demat account in which the shares were credited. The AO merely relied on the ledger account and contract notes furnished by the assessee , and re-assessment was completed u/s. 147 r.w.s. 144B vide order dated 30th March, 2022 without proper verification of facts/details stated in the information and reasons for reopening the case. It was observed by ld. PCIT that the reassessment order passed by the Assessing Officer under Section 147 r.w.s. 144B on 30th March, 2022 is erroneous and prejudicial to the interest of revenue , and the said reassessment order was set aside by the ld. PCIT vide revisionary order dated 12.03.2024 passed by ld. PCIT u/s 263, and the Assessing Officer was directed to verify the demat account and pass fresh assessment after considering the judgment of Hon’ble Supreme Court in the case of Suman Poddar v. ITO (2019) 112 taxmann.com 330 (SC). Thereafter, the ld. PCIT refers to the provisions of Section 263 read with Explanation 2 to section 263, and the various case laws , and thereafter, he came to the conclusion that Assessing Officer has erred in not verifying the issue of long term capital gain of Rs. 79,43,000/- from the penny stock KDJHRL as the AO did not go into the issue with respect to the whole amount and also that the AO erred in not verifying the issue of bogus long term capital gain of Rs. 79,43,000/- from the penny stock scrip KDJHRL as the AO has not made proper examination of the issue and the AO failed to make additions in accordance with the provisions of the 1961 Act, and the erroneous order of the AO resulted in underassessment thereby short levy of taxes leading to loss to Revenue, and, therefore, the re-assessment order of the AO is erroneous and prejudicial to the interest of the revenue. Therefore, provisions of section 263 are applicable in this case. The ld. PCIT set aside the reassessment order passed by the AO, dated 30.03.2022 with the directions to the Assessing Officer to pass fresh order in accordance with law after duly examining the facts of the case as discussed by ld. PCIT in its revisionary order, and after giving reasonable opportunity of being heard to the assesssee.

4.2 It was submitted by ld. CIT- DR that during the course of re-assessment proceedings , the AO did not asked for details of demat account and genuineness of the transactions. There is no independent inquiry conducted by the Assessing Officer, and reassessment order passed by the AO was erroneous and prejudicial to the interest of revenue , as the share dealt with by the assessee was a penny stock and the Assessing Officer was to make inquiry which he failed to do so. It was submitted that the demat account is the primary account and the ld. PCIT directed to verify and make inquiry. It was submitted that if the AO failed to make inquiry as he was required to make keeping in view facts and circumstances, then the ld. PCIT can invoke revisionary powers u/s 263. Our attention was drawn to Explanation 2 to Section 263.

4.3 The ld. counsel for the assessee submitted in rejoinder that the assessee is not aware of the business transactions carried on by KDJHRL , and the assessee is now aware of state of affairs of KDJHRL as the assessee is only an small investor in the said company. It was submitted the assessee is a partner in the firm dealing with the Hero Honda motor cycles.

5.We have heard rival contentions and perused the materials available on record. We have observed that the assessee filed its return of income for the impugned assessment year on 30.09.2014, declaring income of Rs. 13,31,280/-. The information was made available through ITBA Portal along with report of investigation wing of income tax department which revealed that a search and seizure action u/s 132 was conducted in the case of Jatia Group and other related entities on 17.04.2018 . The premises of the KDJHRL was also covered u/s 133A . The said company KDJHRL is a recognized penny stock with scrip code 530701 engaged in providing bogus long term capital gain/loss to various entities. The assessee is one of the beneficiary who traded in the scrip of KDJHRL of Rs. 79,43,000/-. The assessee bought 19400 shares of KDJHRL. Based on the above information , the AO invoked reassessment proceedings against the assessee u/s 147 of the 1961 Act after obtaining necessary approvals.Notice u/s 148 was issued. The asssessee filed return of income pursuant to notice u/s 148. The AO issued notice u/s 143(2). The assessee filed objections to reopening of the concluded assessment by invoking provisions of section 147. The same were rejected by the AO. The notices u/s 142(1) were issued by the AO to the assessee during assessment proceedings. The assessee filed its reply along with supporting documents before the AO during the reassessment proceedings. The AO observed that the assessee has uploaded invoices/contract notes issued by Prabhudas Liladhar Private Limited in respect of online purchase of 19,400 shares of Gomati Finlease (India) Limited(later name changed to KDJHRL) during the financial year 2011-12 for an aggregate sum of Rs. 12,61,190/- inclusive of STT. The assessee stated that he has transferred 1000 shares in financial year 2011-12 itself, and the remaining shares were held in demat account . The remaining 18400 shares of KDJHRL were sold in the financial year 2013-14 i.e. impugned assessment year The assessee submitted before the AO during reassessment proceedings bank statements, cross ledger of M/s Prabhudas Liladhar Private Limited and ledger accounts for all the relevant years of the share investment of the above referred broking entity in the books of the assessee. The assessee also submitted Balance Sheet for the year ending 31.03.2012 and 31.03.2013. Supporting documents were also submitted by the assessee to substantiate the sale of 18,400 shares of KDJHRL on the platform of BSE for an aggregate sum of Rs. 79,43,000/- which also included STT paid on the sale of said shares. The 18400 shares were sold in financial year 2013- 14, after being held for 18 months. Admittedly shares were traded on recognized Stock Exchange-BSE, STT was paid on sale of shares and these shares were held for more than 12 months , and thus, the assessee earned long term capital gains to the tune of Rs. 67,46,810/- which was disclosed in the return of income filed for the impugned assessment year and claimed as an exempt income u/s 10(38). The AO accepted the contentions of the assessee, and vide reassessment framed by the AO , the returned income was accepted. The ld. PCIT invoked revisionary proceedings u/s 263 as the AO has not made requisite inquiries/examination as were required to be made under the facts and circumstances and also keeping in view the decision of Hon’ble Supreme Court in the case of Suman Poddar(supra) and other decisions , and also keeping in view Explanation 2 to Section 263 , the AO has not called for the demat account and the reassessment order was held to be erroneous and prejudicial to the interest of revenue, and the same was set aside by ld. PCIT with the directions to the AO to pass a fresh assessment order in accordance with law and after examining the facts of the case to the extent of the issues discussed by ld. PCIT in its revisionary order . Proceeding further, the reassessment proceedings were initiated by the Revenue based on the information in ITBA Portal as well report of the investigation wing of the Income tax department which reveals that the there was a ssearch and seizure operations conducted by Revenue u/s 132 in the case of Jatia Group and other related group on 17.04.2018 . The premises of KDJHRL was covered u/s 133A of the 1961 Act. It reveals in the investigation that the KDJHRL is a recognized penny stock which is engaged in providing bogus long term capital gain/loss to various entities.

The assessee is one of the beneficiary who traded in the scrip of KDJHRL of Rs. 79,43,000/- and earned long term capital gain during the impugned assessment year to the tune of Rs. 67,46,810/- which was claimed as an exempt income u/s 10(38). The statements under oath was recorded by Revenue of the Director Vinod Deora of KDJHRL on 17.04.2018 till 19.04.2018 in two rounds, which statements were provided by the AO to the assessee. The said statement reveals that there is manipulation in the stock of KDJHRL by 14 Kolkatta based companies which were bogus companies having no credentials (see question no. 34 in the statement dated 19.04.2018 (page 39/PB) who were trading and manipulated the shares of KDJHRL. The said company KDJHRL has miniscule gross block of fixed assets at Rs. 26,30,536/- out of which Computers valued at Rs. 14,85,826/-(question no. 35 of statement /page 40/PB). The statements of the exit providers were also recorded who dealt in the shares of KDJHRL , and they confirmed that the company does not have any business , it was a paper company which provided accommodation entry. The name of the assessee also appeared in the investigation report conducted by Revenue, wherein the assessee is listed as one of the beneficiaries of bogus long term capital gains earned on sale of KDJHRL. The share price of KDJHRL rose from below Rs. 1 in June 2010 to above Rs. 10 in January 2012 and then to Rs. 99.2 in December, 2013(PB/Page 34). The Director of KDJHRL Mr. Vinod Deora stated in the two statements on oath recorded during Survey on 17.04.2018 to 19.04.2018 that he is not aware why there was an astronomical rise in share price . He stated that there are meager profits/losses in the company through out. He also admitted that rise in price is not in accordance with the financial condition of the company. With these evidences in possession of the Revenue which were also duly made available to the assessee during the course of reassessment proceedings, the Revenue has discharged its onus, and now the onus shifts to the assessee to rebut the contention of the Revenue that the said share KDJHRL is penny stock and manipulations in the share price has taken place to generate bogus long term capital gains/loss, and now the onus is on the assessee to demonstrate/prove that the transactions in the shares of KDJHRL carried on by the assessee were genuine transactions and the assessee had not dealt with the penny stock and was not beneficiary of bogus long term capital gain. It is also pertinent to mention that the assessee only dealt with the shares of KDJHRL, and wrt other shares etc. only dealt with 500 shares of Suzlon and that too were sold within short interval, in this entire period of 01.01.2012 to 13.01.2014 . Thus, this clearly reveals that the assessee is not regularly dealing in the shares, and hence burden becomes more heavy on the assessee as to how and why he only dealt with the 19400 shares of KDJHRL although he was not regularly dealing in the shares, and this company has miniscule assets, losses and is a shell company. The assessee having made gains of Rs. 67 lacs+ on the meager investment of Rs. 12lacs+ , within a short span of 18 months , while dealing in shares of KDJHRL, itself required detailed inquiry by the AO more so the said company is merely an alleged shell company with miniscule fixed assets and operations(losses). Even the business of time share claimed by KDJHRL to be carried on by the said company, was shut down in 2015(paged 16/PB paged 32). The AO merely conducted superficial inquiry and did not see whether apparent is real or not, during the course of reassessment proceedings. The AO simply obtained contract notes, bank statements, ledger accounts etc, and accepted the contentions of the assessee, wherein the AO accepted the returned income. The ld. PCIT set aside the reassessment order passed by the AO, dated 30.03.2022 with the directions to the Assessing Officer to pass fresh order in accordance with law after duly examining the facts of the case as discussed by ld. PCIT in its revisionary order, and after giving reasonable opportunity of being heard to the assesssee. Under the facts and circumstances, it was incumbent on the AO to have made proper inquiries to unearth the truth behind the smoke screen and the uncover the truth whether, the apparent is real or not, which he failed to do so. The AO failed to consider and examine that the statements under oath were recorded by Revenue of the Director Vinod Deora of KDJHRL on 17.04.2018 till 19.04.2018 in two rounds, which statements were provided by the AO to the assessee. The said statement reveals that there is manipulation in the stock of KDJHRL by 14 Kolkatta based companies which were bogus companies having no credentials (see question no. 34 in the statement dated 19.04.2018 (page 39/PB) who were trading and manipulated the shares of KDJHRL. The said company KDJHRL has miniscule gross block of fixed assets at Rs. 26,30,536/- out of which Computers valued at Rs. 14,85,826/-(question no. 35 of statement /page 40/PB). The statements of the exit providers were also recorded who dealt in the shares of KDJHRL , and they confirmed that the company does not have any business , it was a paper company which provided accommodation entry. The name of the assessee also appeared in the investigation report conducted by Revenue, wherein the assessee is listed as one of the beneficiaries of bogus long term capital gains earned on sale of KDJHRL. The share price of KDJHRL rose from below Rs. 1 in June 2010 to above Rs. 10 in January 2012 and then to Rs. 99.2 in December, 2013(PB/Page 34).Thus, the AO ought to have made proper enquiries keeping in view facts and circumstance. Reference is drawn to the judgment and order of Hon’ble Supreme Court in the case of Suman Poddar(supra) ; judgment and order of Hon’ble Calcutta High Court in the case of PCIT v. Swati Bajaj, of 2022, dated 14.06.2022.; judgment and order of Hon’ble Supreme Court in the case of Sumati Dyal v. CIT 214 ITR 801. The ld. PCIT rightly invoked provisions of section 263 on the ground that the Assessing Officer while accepting the returned income during the course of re-assessment proceedings has not asked for demat account, and had not made proper inquiries as were required to be made , also keeping in view the decision of Hon’ble Supreme Court in the case of Suman Poddar(supra) and other decisions as are listed in the revisionary order passed by ld. PCIT u/s. 263 and directions were rightly issued by ld. PCIT to the Assessing Officer to make proper inquiry . Explanation 2 to Section 263 is clearly applicable. The ld. PCIT rightly set aside the reassessment order passed by the AO , and rightly directed the AO to pass a fresh reassessment order after examining the facts of the case. Once the assessment was reopened u/s. 147 on the ground that the assessee has dealt with penny stock and the inquiries have revealed that the said shares of said company were manipulated to generate bogus long term capital gains/loss, It was all the more incumbent on the Assessing Officer to have made detailed inquiry into the matter to unravel the truth and see what is behind the smoke screen, but the Assessing Officer has merely accepted the contentions of the assessee based upon contract notes and the bank statement submitted by the assessee. Thus, the Assessing Officer has made a superficial inquiry and has not made proper inquiry as required in the facts and circumstances of the case. The ld. PCIT rightly set aside the reassessment order passed by the AO, dated 30.03.2022 with the directions to the Assessing Officer to pass fresh order in accordance with law after duly examining the facts of the case as discussed by ld. PCIT in its revisionary order, and after giving reasonable opportunity of being heard to the assesssee. The appeal of the assessee stand dismissed. We order accordingly.

Order pronounced in the open court on 30-08-2024