UTTARA R. SHOREWALA, MUMBAI V. ACIT (OSD)-1, CR-7, MUMBAI

CO 107/MUM/2010

• Counselvise Citation: [2011] 122 COUNSELVISE.COM (IT) 6006 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 18 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 25-05-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 13-10-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 07-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A P SINGH
• Keywords: Bogus purchase; Unexplained expenditure; Income from undisclosed sources; Search and seizure; Salary income; Accommodation entries; Reassessment proceedings
• Section: 69C; 143(3); 153A; 133(6); 147; 148; 6; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, F, MUMBAI BEFORE SHRI R V EASWAR, PRESIDENT AND SHRI R K PANDA, ACCOUNTANT MEMBER I T A NOS: 5506/MUM/2009 AND 5507/MUM/2009 (ASSESSMENT YEARS: 2001-02 AND 2002-03) ASSISTANT COMMISSIONER OF INCOME TAX APPELLANT (OSD) 1, CENTRAL RANGE 7, MUMBAI VS MRS UTTARA S SHOREWALA, MUMBAI RESPONDENT (PAN: AAGPS9751C) CROSS OBJECTION NOS: 107/MUM/2010 AND 108/MUM/2010 (ARISING OUT OF I T A NOS: 5506/MUM/2009 AND 5507/M UM/2009) (ASSESSMENT YEARS: 2001-02 AND 2002-03) MRS UTTARA S SHOREWALA, MUMBAI CROSS OBJECTOR VS ASSISTANT COMMISSIONER OF INCOME TAX RESPONDENT (OSD) 1, CENTRAL RANGE 7, MUMBAI ASSESSEE BY: MR SHASHI TULSIYAN REVENUE BY: MR A P SINGH O R D E R R V EASWAR, PRESIDENT: THE APPEALS ARE BY THE REVENUE AND THE CROSS OBJEC TIONS ARE BY THE ASSESSEE. THEY ALL PERTAIN TO THE ASSESSMEN T YEARS 2001-02 AND 2002-03. SINCE THEY WERE ALL HEARD TOGETHER, T HEY ARE DISPOSED OF BY A COMMON ORDER. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 2 2. WE SHALL FIRST STATE THE FACTS IN BRIEF. THE AS SESSEE IS AN INDIVIDUAL DERIVING INCOME BY WAY OF SALARY AND FRO M OTHER SOURCES. IN RESPECT OF THE ASSESSMENT YEAR 2001-02, THE ORIG INAL ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) READ WITH SECTIO N 147 OF THE INCOME TAX ACT, 1961, ON 29.03.2006, DETERMINING TH E TOTAL INCOME AT ` 14,75,980/- AS AGAINST THE RETURNED INCOME OF ` 5,79,060/-. IN THIS REASSESSMENT, THE ASSESSING OFFICER TOOK THE V IEW THAT THE ASSESSEE HAD CREATED AND CLAIMED A BOGUS LOSS OF ` 12,88,237/- ON ACCOUNT OF PURCHASE AND SALE OF MUTUAL FUNDS AND HA S PURCHASED BOGUS SHORT TERM CAPITAL GAIN OF ` 6,63,093/- ON ACCOUNT OF PURCHASE AND SALE OF SHARES FROM M/S RICHMOND SECUR ITIES PVT. LTD. AND M/S ALEMBIC SECURITIES PVT. LTD. AFTER RE CORDING REASONS UNDER SECTION 148, HE REOPENED THE ASSESSMENT AND I N THE REASSESSMENT ORDER DATED 29.03.2006 DISALLOWED THE LOSS OF ` 12,88,237/- CLAIMED ON ACCOUNT OF SALE OF MUTUAL FU NDS AND TREATED THE SHORT TERM CAPITAL GAIN OF ` 6,63,093/- AS UNEXPLAINED EXPENDITURE WITHIN THE MEANING OF SECTION 69C OF TH E ACT. HE ALSO REJECTED THE ASSESSEES CLAIM FOR SET OFF OF THE LO SS OF ` 5,58,230/-. 3. AGGRIEVED BY THE REASSESSMENT ORDER PASSED AS AB OVE, THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A), WHO DIS POSED OF THE APPEAL BY ORDER DATED 26.06.2007. IN THIS ORDER HE DELETED THE ADDITION OF ` 6,63,093/- MADE UNDER SECTION 69C OF THE ACT, IGNOR ING THE CLAIM THAT IT REPRESENTED SHORT TERM CAPITAL GA INS. THE DEPARTMENT DID NOT FILE ANY APPEAL TO THE TRIBUNAL AGAINST THE ORDER OF THE CIT(A). THE CIT(A) ALSO DELETED THE DISALLO WANCE OF ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 3 ` 12,88,237/- AND EVEN AGAINST THIS DECISION THE DEPA RTMENT DID NOT FILE ANY APPEAL TO THE TRIBUNAL. THE CIT(A) ALSO A LLOWED THE SHORT TERM CAPITAL LOSS OF ` 5,58,230/- TO BE SET OFF AGAINST THE CAPITAL GAINS AS A CONSEQUENCE OF HIS DECISION THAT THE AMO UNT OF ` 6,63,093/- ACTUALLY REPRESENTED SHORT TERM CAPITAL GAINS ON THE SALE OF SHARES. A COPY OF THE ORDER OF THE CIT(A) HAS B EEN FILED AT PAGES 261 TO 272 OF THE PAPER BOOK. IT MAY BE ADDED THAT IN COMING TO THE ABOVE DECISIONS THE CIT(A) FOLLOWED SEVERAL AUTHORI TIES. IN PARTICULAR, IN DECIDING THAT THE AMOUNT OF ` 6,63,093/- REALLY REPRESENTED SHORT TERM CAPITAL GAINS ON SALE OF SHA RES AND WAS AVAILABLE FOR ADJUSTMENT OF THE SHORT TERM CAPITAL LOSS OF ` 5,58,230/-, HE FOLLOWED THE RATIO OF THE ORDER OF THE MUMBAI BE NCH OF THE TRIBUNAL IN THE CASE OF MUKESH R MAROLIA VS. ADDITI ONAL CIT IN ITA NO: 1201,MUM/2005 (ASSESSMENT YEAR 2001-02) DATED 1 5.12.2005. 4. WE MAY BRIEFLY NOTICE AT THIS JUNCTURE THE FACTS RELATING TO THE ASSESSMENT YEAR 2002-03. IN RESPECT OF THIS YEAR, THE ORIGINAL ASSESSMENT WAS COMPLETED ON 29.03.2006 UNDER SECTIO N 143(3) READ WITH SECTION 147 OF THE ACT, DETERMINING THE T OTAL INCOME AT ` 15,14,830/- AS AGAINST THE RETURNED INCOME OF ` 3,03,530/-. THE REASSESSMENT PROCEEDINGS WERE INITIATED AFTER RECOR DING REASONS UNDER SECTION 148 OF THE ACT, TO THE EFFECT THAT TH E ASSESSEE HAD PURCHASED BOGUS BILLS FOR SHARE TRANSACTIONS IN THE AMOUNT OF ` 12,51,937/- FROM M/S GOLDSTAR FINVEST PVT. LTD. AND M/S RICHMOND SECURITIES PVT. LTD. AGAINST THE REASSESSMENT ORDE R MADE AS ABOVE, THE ASSESSEE FILED AN APPEAL TO THE CIT(A), WHO BY ORDER ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 4 DATED 26.06.2007, DELETED THE ADDITION OF ` 12,51,937/- AND DIRECTED THE ASSESSING OFFICER TO ACCEPT THE AFORESAID AMOUN T AS SHORT TERM CAPITAL GAIN ON SALE OF SHARES AND NOT AS UNEXPLAIN ED EXPENDITURE. AGAINST THE DECISION OF THE CIT(A), NO APPEAL WAS F ILED BY THE REVENUE TO THE TRIBUNAL. A COPY OF THE ORDER OF TH E CIT(A) FOR THE ASSESSMENT YEAR 2002-03 IS PLACED AT PAGES 273 TO 2 79 OF THE PAPER BOOK. A PERUSAL THEREOF SHOWS THAT THE CIT(A ) HAS FOLLOWED THE RATIO OF THE DECISION OF THE TRIBUNAL IN THE CA SE OF MUKESH R MAROLIA (SUPRA) IN COMING TO THE CONCLUSION THAT TH E AMOUNT REPRESENTED SHORT TERM CAPITAL GAINS ON SALE OF SHA RES AND CANNOT BE ADDED AS UNEXPLAINED EXPENDITURE OF THE ASSESSEE . 5. IN THE MEANTIME SEARCH AND SEIZURE PROCEEDINGS U NDER SECTION 132 OF THE ACT WERE TAKEN AGAINST THE ASSES SEE AS PART OF THE GROUP OF SIX CASES ON 28.06.2006. THE BASIS OF THE SEARCH WAS THAT THERE WAS INFORMATION IN THE POSSESSION OF THE DEPARTMENT THAT THESE SIX PARTIES WERE BOOKING PROFITS BY MAKING BO GUS CLAIMS OF CAPITAL GAINS ON PURCHASE AND SALE OF SHARES OF PEN NY STOCK COMPANIES, OF WHICH A COMPANY BY NAME BOLTON PROPER TIES LTD. WAS ONE. CONSEQUENT TO THE SEARCH, ASSESSMENTS WER E MADE ON THE ASSESSEE ON 11.12.2008 UNDER SECTION 143(3) REA D WITH SECTION 153A FOR BOTH THE ASSESSMENT YEARS. THE PRESENT AP PEALS ARISE OUT OF THESE ASSESSMENT ORDERS. IN RESPECT OF THE ASSE SSMENT YEAR 2001-02, THE ASSESSING OFFICER COMPUTED THE TOTAL I NCOME AT ` 14,07,356/- IN THE FOLLOWING MANNER: - ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 5 AMOUNT (RS.) AMOUNT (RS.) INCOME DETERMINED AS PER ORIGINAL ORDER U/S. 143(3) R.W.S. 147 DATED 29.03.2006 1475980 LESS: RELIEF GIVEN BY CIT(A) VIDE HIS ORDER DATED 26.06.2007: - 1. ADDITION U/S. 69C IN RESPECT OF STCG SHOWN ON SALE OF SHARES. 2. LOSS ON BYAJ BADLA TRANSACTIONS 3. EXPENSES RELATED TO SERVICE CHARGES & LEGAL FEES 4. EXPENSES DEBITED TO P & L A/C. 663093 50320 14588 3707 731717 744263 ADD: AS DISCUSSED ABOVE: - 1. ADDITION U/S. 69C IN RESPECT OF STCG SHOWN ON SALE OF SHARES [PARA 11] 663093 TOTAL INCOME: - 1407356 ROUNDED OFF: - 1407360 SIMILARLY, THE TOTAL INCOME FOR THE ASSESSMENT YEAR 2002-03 WAS COMPUTED AT ` 15,14,827/- AS FOLLOWS: - AMOUNT (RS.) AMOUNT (RS.) INCOME FROM SALARY (AS PER STATEMENT OF TOTAL INCOME) 24500 INCOME FROM OTHER SOURCES (AS PER STATEMENT OF TOTAL INCOME) 247390 ADD: AS DISCUSSED ABOVE STCG TREATED AS UNEXPLAINED EXPENDITURE U/S. 69C (AS DISCUSSED IN THE ORDER 1251937 GROSS TOTAL INCOME: - 1523927 LESS: DEDUCTION UNDER CHAPTER VI - A : UNDER SECTION 80L 9000 TOTAL INCOME: - 1514827 ROUNDED OFF: - 1514830 ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 6 6. SO FAR AS THE ASSESSMENT YEAR 2001-02 IS CONCERN ED, THE ADDITION OF ` 6,63,093/- MADE AS UNEXPLAINED EXPENDITURE WITHIN T HE MEANING OF SECTION 69C FOR THE SAME REASONS GIVEN B Y THE ASSESSING OFFICER IN THE REASSESSMENT ORDER DATED 2 9.03.2006. IN ADDITION THERETO THE ASSESSING OFFICER RECORDED A S TATEMENT FROM SHRI MUKESH CHOKSI, THE DIRECTOR OF M/S GOLDSTAR FI NVEST PVT. LTD. AND M/S RICHMOND SECURITIES PVT. LTD. ON OATH. THI S STATEMENT IS REFERRED TO IN PARAGRAPH 9 OF THE ASSESSMENT ORDER, WHICH HAS GIVEN RISE TO THE PRESENT PROCEEDINGS. IN THIS STATEMENT , THE SUBSTANCE IS THAT SHRI MUKESH CHOKSI HAS MENTIONED THE NAMES OF FOUR SHARE BROKING CONCERNS WHO WERE STATED TO BE ENGAGED IN I SSUING SHARE ADJUSTMENT ENTRIES AND TO FULFILL THE SAID OBJECT, AMOUNTS WERE RECEIVED EITHER IN CASH OR THROUGH CHEQUE FROM ENTR Y SEEKERS IN FAVOUR OF THE FOLLOWING COMPANIES: - (1) M/S ALPHA CHEMIE TRADE AGENCY (P) LTD.; (2) M/S MIHIR AGENCIES (P) LTD.; (3) M/S TALENT INFOWAY (P) LTD.; AND (4) MUKESH CHOKSI, INDIVIDUAL. SHRI MUKESH CHOKSI FURTHER STATED THAT THE AMOUNTS RECEIVED FROM THE ENTRY SEEKING PARTIES WERE DEPOSITED IN THE BAN K ACCOUNT OF THE ABOVE FOUR ENTITIES. HE ALSO EXPLAINED THE MODUS O PERANDI ADOPTED BY WHICH ENTRIES WERE GIVEN FOR COMMISSION OF 0.15% . HE ADMITTED THAT THE PURCHASE AND SALE OF SHARES SHOWN THROUGH THE SHARE BROKING COMPANIES WERE ONLY ACCOMMODATING ENTRIES. TO A QUESTION AS TO WHETHER THE CONTRACT NOTES FOR PURCH ASE AND SALES OF SHARES ISSUED IN FAVOUR OF THE ASSESSEE DURING THE PERIOD RELEVANT ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 7 TO THE ASSESSMENT YEAR 2001-02 WERE GENUINE, SHRI M UKESH CHOKSI ANSWERED THAT THE CONTRACT NOTES WERE ISSUED ONLY A S ACCOMMODATION ENTRIES AND NO SHARES WERE GIVEN DELI VERY OR TAKEN DELIVERY. HE ALSO STATED THAT THE CHEQUES ISSUED W ERE SIMPLY DIFFERENTIAL CHEQUES AND WERE ISSUED ON THE RECEIPT OF EQUIVALENT FUNDS FROM THE ENTRY SEEKERS. 7. IN THE COURSE OF THE ASSESSMENT PROCEEDINGS, IN ADDITION TO THE AFORESAID STATEMENT, SHRI MUKESH CHOKSI ALSO FI LED AN AFFIDAVIT DATED 04/05.12.2008. IT SHOULD BE MENTIONED HERE T HAT IN THE COURSE OF THE EARLIER REASSESSMENT PROCEEDINGS HE H AD FILED AN AFFIDAVIT ON 27.02.2006 CONFIRMING THE GENUINENESS OF THE TRANSACTIONS WITH THE ASSESSEE HEREIN. BY THE AFFI DAVIT DATED 04/05.12.2008 FILED THE PRESENT PROCEEDINGS, THE EA RLIER AFFIDAVIT FILED ON 27.02.2006 WAS WITHDRAWN BY SHRI MUKESH CH OKSI. THE AFFIDAVIT FILED IN THE PRESENT PROCEEDINGS IS REFER RED TO AT PARAGRAPH 10 OF THE ASSESSMENT ORDER. IN THIS AFFIDAVIT HE R EITERATED WHAT HE STATED IN THE STATEMENT RECORDED ON OATH FROM HIM. THUS THE STATEMENT RECORDED BY THE ASSESSING OFFICER AND THE AFFIDAVIT FORMED THE BASIS OF THE ADDITION OF ` 6,63,093/-. 8. FOR THE ASSESSMENT YEAR 2002-03 ALSO THE ASSESSI NG OFFICER RELIED ON THE REASONS GIVEN BY THE ASSESSING OFFICE R IN THE EARLIER REASSESSMENT PROCEEDINGS AND IN ADDITION ALSO RELIE D ON THE STATEMENT RECORDED FROM SHRI MUKESH CHOKSI AS WELL AS THE AFFIDAVIT CONFIRMING THE STATEMENT FILED IN THE COU RSE OF THE PRESENT PROCEEDINGS. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 8 9. THE ASSESSEE FILED APPEALS FOR BOTH THE YEARS BE FORE THE CIT(A) AND THEY WERE DISPOSED OF BY A COMMON ORDER PASSED BY HIM ON 16.07.2009. BEFORE THE CIT(A) THE ASSESSEE ALSO CHALLENGED THE VALIDITY OF THE ASSESSMENTS COMPLETE D UNDER SECTION 143(3) READ WITH SECTION 153A OF THE ACT. THE CHAL LENGE TO THE VALIDITY OF THESE ASSESSMENTS WAS BASED ON TWO POIN TS: - (A) THERE WAS NO NEW EVIDENCE FOUND IN THE COURSE OF THE SEARCH ON THE ASSESSEE AND THEREFORE THE ASSESSMENT IS NOT VALID; AND (B) THE ADDITIONS / DISALLOWANCES MADE IN THE PRESENT PROCEEDINGS HAVE ALREADY BEEN ADJUDICATED UPON BY THE CIT(A) BY HIS ORDER DATED 26.06.2007, BY WHICH HE HAS DELETED THE ADDITIONS / DISALLOWANCES AND SINCE THE ORDER OF THE CIT(A) HAS BEEN ACCEPTED BY THE REVENUE, THE SAME ADDITIONS OR DISALLOWANCES CANNOT BE MADE THE SUBJECT MATTER OF THE PRESENT PROCEEDINGS. THESE CONTENTIONS WERE REJECTED BY THE CIT(A). ACC ORDING TO HIM, DISCOVERY OR DETECTION OF EVIDENCE DURING THE SEARC H IS NOT A MANDATORY REQUIREMENT FOR INITIATING ACTION UNDER S ECTION 153A OF THE ACT. FURTHER, SECTION 153A STARTS WITH A NON O BSTANTE CLAUSE WHICH STIPULATES THAT PROCEEDINGS CAN BE INITIATED UNDER THE SECTION NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 147 A ND IN THIS VIEW OF THE MATTER THE ASSESSEES CONTENTION THAT THE AS SESSMENT HAVING ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 9 ALREADY BEEN MADE UNDER SECTION 147 THE PRESENT PRO CEEDINGS ARE INVALID IS TOTALLY MISPLACED. FOR THESE REASONS TH E ASSESSEES OBJECTION TO THE VALIDITY OF THE ASSESSMENTS FOR BO TH THE YEARS WAS REJECTED. 10. SO FAR AS THE MERITS ARE CONCERNED, FOR THE ASS ESSMENT YEAR 2001-02, THE CIT(A) HELD THAT THE ADDITION OF ` 6,63,093/- WAS DELETED BY THE CIT(A) VIDE ORDER DATED 26.06.2007 B Y FOLLOWING THE ORDER OF THE TRIBUNAL IN THE CASE OF MUKESH R MAROL IA (SUPRA) AND THAT AGAINST THE DECISION OF THE CIT(A) NO APPEAL W AS FILED BY THE INCOME TAX DEPARTMENT BEFORE THE TRIBUNAL. THE CIT (A) FURTHER NOTED THAT THE EARLIER CIT(A) HAS RIGHTLY PLACED RE LIANCE ON THE ORDER OF THE TRIBUNAL CITED ABOVE. HE FURTHER NOTED THAT THE ONLY CHANGE FROM THE FACTS BEFORE THE EARLIER CIT(A) IS THE SUB SEQUENT STATEMENT GIVEN BY SHRI MUKESH CHOKSI BEFORE THE ASSESSING OF FICER IN THE PRESENT PROCEEDINGS AND CONFIRMED BY HIS AFFIDAVIT DATED 04/05.12.2008. AFTER NOTICING THE FRESH FACT, THE CIT(A) OBSERVED THAT THE PARTIES MENTIONED IN THE STATEMENT OF SHRI MUKESH CHOKSI IN ANSWER TO QUESTION NO:3 ARE NOT THE PARTIES WITH WHOM THE ASSESSEE HAD ANY DEALINGS. THE CIT(A) NOTED THAT E VEN ACCORDING TO SHRI MUKESH CHOKSI THERE WERE THREE COMPANIES AN D MUKESH CHOKSI HIMSELF AS INDIVIDUAL WHO WERE RECEIVING CAS H / CHEQUES FROM THE ENTRY SEEKERS. HOWEVER, NO CASH OR CHEQUE WAS FOUND TO HAVE BEEN PAID BY THE ASSESSEE TO ANY OF THE THREE COMPANIES OR TO SHRI MUKESH CHOKSI AS INDIVIDUAL. ACCORDING TO THE CIT(A), IF THIS IS THE FACTUAL POSITION, IT WOULD INDICATE THAT THE AS SESSEE WAS NOT ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 10 ONE OF THE ENTRY SEEKERS AND THIS IN TURN ALSO BRIN GS TO LIGHT THE INCONSISTENCY IN THE STATEMENT OF SHRI MUKESH CHOKS I. HE HELD THAT THE ASSESSING OFFICER CANNOT MAKE ANY ADDITION IN T HE ASSESSEES HANDS DESPITE THE ASSESSEE NOT HAVING MADE ANY PAYM ENT TO THE ENTITIES MENTIONED BY SHRI MUKESH CHOKSI, WHOSE STA TEMENT IS BEING RELIED UPON BY HIM. THE CIT(A) ALSO NOTED TH AT SHRI MUKESH CHOKSI HAS BEEN VACILLATING RIGHT THROUGH AND HAS G IVEN DIFFERENT VERSIONS AT DIFFERENT STAGES OF THE PROCEEDINGS AND THEREFORE HIS EVIDENCE WAS UNRELIABLE. IN THIS CONNECTION THE CI T(A) NOTED THAT SHRI MUKESH CHOKSI HAD EARLIER SUPPORTED THE REVENU ES CASE BUT HAD GONE BACK ON THE SAME AND CONFIRMED THE TRANSAC TIONS WITH THE ASSESSEE, BUT AGAIN IN THE COURSE OF THE PRESENT PR OCEEDINGS HAS GIVEN A STATEMENT AND AN AFFIDAVIT IN SUPPORT OF TH E DEPARTMENTS STAND. ACCORDING TO THE CIT(A) HE IS AN UNRELIABLE WITNESS AND IN SUPPORT OF THIS CONCLUSION HE RELIED ON THE JUDGMEN T OF THE CALCUTTA HIGH COURT IN CIT VS. EASTERN COMMERCIAL ENTERPRISE S (1994) 210 ITR 103 (CAL), IN WHICH THE HIGH COURT OBSERVED THA T A MAN INDULGING IN DOUBLE SPEAKING CANNOT BE SAID BY ANY MEANS A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH O CCASION HE WAS TRUTHFUL . 11. IN THE AFORESAID VIEW OF THE MATTER THE CIT(A) DELETED THE ADDITION OF ` 6,63,093/-. CONSEQUENTLY, THE SHORT TERM CAPITAL L OSS OF ` 5,58,230/- WAS ALSO DIRECTED TO BE SET OFF AGAINST THE SHORT TERM CAPITAL GAINS OF ` 6,63,093/-. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 11 12. WITH REGARD TO THE ASSESSMENT YEAR 2002-03, THE CIT(A), FOR THE SAME REASONS, DELETED THE ADDITION OF ` 12,51,937/- ADDED UNDER SECTION 69C OF THE ACT AND CONFIRMED THE ASSE SSEES CLAIM THAT THE SAID AMOUNT ACTUALLY REPRESENTED SHORT TER M CAPITAL GAINS. 13. THE ASSESSEE HAS COME IN CROSS OBJECTION FOR BO TH THE YEARS CHALLENGING THE DECISION OF THE CIT(A) THAT THE ASS ESSMENTS MADE UNDER SECTION 153A READ WITH SECTION 143(3) ARE VAL ID. THE CROSS OBJECTIONS ARE DELAYED BY 19 DAYS. AN AFFIDAVIT HA S BEEN FILED ALONG WITH AN APPLICATION FOR CONDONATION OF THE DE LAY. IT IS STATED THEREIN THAT SINCE THE CIT(A) HAD DECIDED THE APPEA LS IN FAVOUR OF THE ASSESSEE BY DELETING THE ADDITIONS, THE ASSESSE E BONA FIDE BELIEVED THAT SHE NEED NOT FILE ANY APPEAL TO THE T RIBUNAL. HOWEVER, WHEN DISCUSSIONS REGARDING REGULAR TAX MAT TERS TOOK PLACE WITH THE ASSESSEES AUTHORIZED REPRESENTATIVE , THE ASSESSEE BROUGHT THE ORDERS OF THE CIT(A) TO HIS NOTICE. TH EREUPON, THE AUTHORIZED REPRESENTATIVE ADVISED THE ASSESSEE TO F ILE CROSS OBJECTIONS AGAINST THE DECISION OF THE CIT(A) UPHOL DING THE VALIDITY OF THE ASSESSMENTS. THE ASSESSEE IMMEDIATELY HASTE NED TO FILE THE CROSS OBJECTIONS BEFORE THE TRIBUNAL AND IN THE PRO CESS THERE OCCURRED A DELAY OF 19 DAYS. IT IS STATED THAT THE DELAY IS NOT WILLFUL AND SHOULD BE CONDONED. 14. ON A CAREFUL CONSIDERATION OF THE PRAYER, WE AR E SATISFIED THAT THE DELAY WAS NOT WILLFUL AND THE ASSESSEE WAS PREV ENTED BY SUFFICIENT CAUSE IN FILING THE CROSS OBJECTIONS IN TIME. WE ACCORDINGLY CONDONE THE DELAY AND ADMIT THE CROSS O BJECTIONS. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 12 15. THE ARGUMENT OF THE LEARNED COUNSEL FOR THE AS SESSEE IS THAT : - (A) THERE IS NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH ON THE ASSESSEE ON THE BASIS OF WHICH THE ADDITIONS UNDER SECTION 69C OF THE ACT COULD HAVE BEEN MADE AND THEREFORE THE ASSESSMENTS WERE INVALID; AND (B) IN ANY CASE THE ASSESSMENTS ARE INVALID BECAUSE THERE WAS NO UNDISCLOSED INCOME WHICH COULD BE BROUGHT TO ASSESSMENT, AND THE ADDITIONS MADE UNDER SECTION 69C CANNOT BE CONSIDERED AS UNDISCLOSED INCOME BECAUSE THOSE VERY ADDITIONS HAD BEEN MADE IN THE REASSESSMENT ORDERS DATED 29.03.2006, WHICH ADDITIONS WERE DELETED BY THE CIT(A), WHOSE DECISION WAS ACCEPTED BY THE REVENUE AND IN THESE CIRCUMSTANCES IT CANNOT BE SAID THAT THE ADDITIONS REPRESENTED UNDISCLOSED INCOME OF THE ASSESSEE. 16. WE ARE IN AGREEMENT WITH THE CONTENTION (B). I T CAN POSSIBLY BE ARGUED, AS WAS HELD BY THE CIT(A), THAT EVEN WHE RE THERE IS A SEARCH IT IS NOT NECESSARY THAT SOME INCRIMINATING MATERIAL SHOULD ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 13 HAVE BEEN FOUND IN THE COURSE OF THE SEARCH JUSTIFY ING THE ADDITIONS OF UNDISCLOSED INCOME BECAUSE SECTION 153A IS SO BR OADLY WORDED THAT THE ASSESSMENTS MADE THERE-UNDER ARE NOT CONFI NED TO UNDISCLOSED INCOME OR INCOME TO BE ADDED ON THE BAS IS OF ANY INCRIMINATING EVIDENCE GATHERED DURING THE SEARCH. EVEN IF SUCH AN EXTREME CONTENTION IS ACCEPTABLE, WE DO NOT SEE HOW FINALITY OF ISSUES CAN BE IGNORED AND ADDITIONS MADE IN THE EAR LIER PROCEEDINGS FOR THE SAME ASSESSMENT YEARS WHICH WER E DELETED IN APPEAL CAN BE REVIVED AND ADDED OVER AGAIN IN THE A SSESSMENT MADE UNDER SECTION 153A OF THE ACT. WE DO NOT THIN K THAT THE SCHEME OF THE ACT PERMITS MATTERS THAT HAVE BECOME FINAL BETWEEN THE ASSESSEE AND THE INCOME TAX AUTHORITIES TO BE R EOPENED AND RE- AGITATED EXCEPT BY A PROCESS KNOWN TO LAW. IT IS A WELL SETTLED PROPOSITION UNDER THE INCOME TAX LAW THAT AN ASSESS MENT ONCE MADE IS FINAL UNLESS IT IS DISTURBED UNDER THE AUTH ORITY OF LAW. IN THE CASES BEFORE US THE VERY SAME ADDITIONS THAT ARE TH E SUBJECT MATTER OF APPEAL BEFORE US WERE MADE IN THE EARLIER REASSE SSMENTS. THOSE ADDITIONS WERE DELETED BY THE CIT(A) BY ORDER S DATED 26.06.2007. THE ORDERS OF THE CIT(A) WERE NOT CHAL LENGED BY THE REVENUE BY FILING APPEALS BEFORE THE TRIBUNAL. THU S THE ORDERS OF THE CIT(A) BECAME FINAL BETWEEN THE PARTIES. EVEN ASSUMING THAT SECTION 153A IS VAST AND SWEEPING AND THE ONLY COND ITION THEREIN IS THAT THERE SHOULD BE A SEARCH ON THE ASSESSEE, IT W OULD BE AGAINST ALL CANNONS OF JUSTICE AND PUBLIC POLICY TO CONSTRU E THE SECTION AS GIVING AUTHORITY TO THE ASSESSING OFFICER TO DISTUR B THE FINALITY OF ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 14 MATTERS AND MAKE ADDITIONS WHICH HAVE BEEN HELD TO BE NOT JUSTIFIED. THE REVENUE OUGHT TO HAVE KEPT THE MATT ER ALIVE BY FILING APPEALS TO THE TRIBUNAL. AS BETWEEN THE PARTIES TH E ORDERS OF THE CIT(A) DELETING THE ADDITIONS HAVE BECOME FINAL AND HAVE TO BE RESPECTED. IT IS A MATTER OF NO CONSEQUENCE THAT S HRI MUKESH CHOKSI GAVE A FURTHER STATEMENT AND AFFIDAVIT DURIN G THE PRESENT PROCEEDINGS. IT IS A QUESTION OF JURISDICTION OF T HE ASSESSING OFFICER TO EVEN ATTEMPT TO EXAMINE MATTERS WHICH HAVE ALREA DY ATTAINED FINALITY. IN ANY CASE, THE EVIDENCE OF SHRI MUKESH CHOKSI IN THE COURSE OF THE PRESENT PROCEEDINGS IS NOTHING BUT A REITERATION OF WHAT HE STATED IN THE COURSE OF THE EARLIER REASSES SMENT PROCEEDINGS. HIS EVIDENCE DOES NOT CARRY MATTERS F URTHER IN FAVOUR OF THE DEPARTMENT. 17. FINALITY OF ASSESSMENTS OR JUDICIAL ORDERS PASS ED IN APPEAL IS SACROSANCT AND HAS BEEN SO RECOGNIZED BY THE COURTS . THE JUDICIAL COMMITTEE OF THE PRIVY COUNCIL IN CIT VS. KHEMCHAND RAMDAS (1938) 6 ITR 414 (PC) HELD THAT AFTER A FINAL ASSES SMENT IS MADE, THE INCOME TAX OFFICER CANNOT GO ON MAKING FRESH CO MPUTATIONS AND ISSUING FRESH NOTICES OF DEMAND TO THE END OF A LL TIME AND IT CAN BE REOPENED ONLY IN THE CIRCUMSTANCES DETAILED IN S ECTIONS 34 AND 35 OF THE 1922 ACT AND WITHIN THE TIME LIMITED BY T HOSE SECTIONS. THE PRIVY COUNCIL AGAIN IN CIT VS. TRIBUNE TRUST, L AHORE (1948) 16 ITR 214 (PC) REAFFIRMED THE POSITION AND HELD THAT ASSESSMENTS ONCE MADE WOULD BE VALID AND EFFECTIVE UNTIL THEY W ERE SET ASIDE IN THE MANNER PRESCRIBED BY THE ACT AND IF THEY ARE NO T SO SET ASIDE, ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 15 THEY ARE FINAL. THESE DECISIONS WERE APPROVINGLY C ITED BY THE SUPREME COURT IN CIT VS. RAO THAKUR NARAYAN SINGH ( 1965) 56 ITR 234 (SC). IN THIS CASE A DECISION OF THE TRIBU NAL WAS SOUGHT TO BE CIRCUMVENTED BY THE INCOME TAX OFFICER BY INITIA TING PROCEEDINGS FOR REOPENING THE ASSESSMENT DESPITE THE FINDING OF THE TRIBUNAL. COMMENTING ON THE ACTION OF THE ASSESSING OFFICER T HE SUPREME COURT HELD THAT SINCE THE FINDING OF THE TRIBUNAL I S BINDING ON THE INCOME TAX OFFICER, HE CANNOT REOPEN THE ASSESSMENT AND INITIATE PROCEEDINGS ALL OVER AGAIN AND THAT IT COULD NOT HA VE BEEN THE INTENTION OF THE LEGISLATURE TO ENABLE THE INCOME T AX OFFICER TO REOPEN FINAL DECISIONS MADE AGAINST THE REVENUE IN RESPECT OF QUESTIONS THAT DIRECTLY AROSE FOR DECISION IN EARLI ER PROCEEDINGS. IT WAS OBSERVED THAT IF THAT WAS NOT THE LEGAL POSITION, WE WOULD BE PLACING AN UNRESTRICTED POWER OF REVIEW IN THE HAND S OF AN INCOME TAX OFFICER TO GO BEHIND THE FINDINGS GIVEN BY A HI ERARCHY OF TRIBUNALS AND EVEN THOSE OF THE HIGH COURT AND THE SUPREME COURT WITH HIS CHANGING MOODS . 18. APPLYING THE ABOVE PRINCIPLES, WE DO NOT IN THE PRESENT CASE THINK THAT THE INTENTION OF SECTION 153A IS TO DIST URB MATTERS THAT HAVE REACHED FINALITY BETWEEN THE PARTIES. IT IS T RUE THAT THE PROVISIONS OF THE SECTION APPLY NOTWITHSTANDING ANY THING CONTAINED IN SECTION 147 AND SECTION 148. BUT THAT ONLY CONV EYS THE LIMITED IDEA THAT ONCE A SEARCH TAKES PLACE, IT IS OPEN TO THE ASSESSING OFFICER TO ASSESS OR REASSESS THE TOTAL INCOME OF S IX ASSESSMENT YEARS IMMEDIATELY PRECEDING THE ASSESSMENT YEAR REL EVANT TO THE ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 16 PREVIOUS YEAR IN WHICH THE SEARCH WAS CONDUCTED AND IN EXERCISING SUCH POWER, THE ASSESSING OFFICER IS NOT BOUND TO T AKE RECOURSE TO SECTION 147 OR SECTION 148 OF THE ACT. BUT THAT IS ONLY FOR THE PURPOSE OF INITIATING PROCEEDINGS FOR ASSESSMENT UN DER SECTION 153A OF THE ACT. IT DOES NOT MEAN, IN OUR HUMBLE O PINION, THAT MATTERS THAT HAVE ALREADY BEEN DECIDED BETWEEN THE PARTIES AND HAD REACHED FINALITY CAN BE DISTURBED AND BROUGHT B ACK TO ASSESSMENT. IF SUCH A POWER IS GIVEN TO THE ASSESS ING OFFICER, HE COULD EVEN NULLIFY DECISIONS OF THE HIGH COURTS AND THE SUPREME COURT, A POWER WHICH WOULD BE WHOLLY INCONSISTENT W ITH THE LAW OF THE LAND. SECTION 153A CANNOT BE CONSTRUED IN SUCH A MANNER. 19. FOR THE ABOVE REASONS WE ARE OF THE VIEW THAT CONTENTION (B) OF THE ASSESSEE IS WELL FOUNDED AND THE ASSESSING O FFICER HAS NO JURISDICTION TO INCLUDE THE SAME ADDITIONS, WHICH W ERE DELETED BY THE CIT(A) EARLIER AND WHOSE ORDERS HAVE BECOME FINAL, IN THE ASSESSMENTS MADE UNDER SECTION 153A OF THE ACT. 20. THE CROSS OBJECTIONS ARE THUS ALLOWED. 21. IN THE VIEW WE HAVE TAKEN, IT IS NOT NECESSARY TO DISCUSS THE MERITS OF THE ADDITIONS CANVASSED IN THE APPEALS BY THE DEPARTMENT. HOWEVER, SINCE THE MATTER WAS ARGUED BEFORE US EVEN ON MERITS, WE CONSIDER IT PROPER TO DECIDE THE DEPARTMENTS AP PEALS ON MERITS. THE ONLY EVIDENCE RELIED UPON BY THE ASSESSING OFFI CER IN THE ASSESSMENT ORDERS IS THE STATEMENT AND AFFIDAVIT OF SHRI MUKESH CHOKSI TAKEN IN THE COURSE OF THE PRESENT PROCEEDIN GS. THIS EVIDENCE ONLY REITERATES WHAT SHRI MUKESH CHOKSI ST ATED IN THE ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 17 COURSE OF THE ORIGINAL ASSESSMENT PROCEEDINGS, AS C AN BE SEEN FROM PARAGRAPH 5.1 OF THE REASSESSMENT ORDERS PASSE D ON 29.03.2006, WHICH HAS BEEN REPRODUCED IN PARAGRAPH 7.1 OF THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2001-02. IN PARAGRAPH 5.1 OF THE REASSESSMENT ORDERS PASSED EARLIER, THE ASSESSING OFFICER HAS REFERRED TO THE SEARCH AND SEIZURE OPER ATION ON SHRI MUKESH CHOKSI, WHO WAS THE DIRECTOR OF THE BROKER C OMPANIES. IN THE COURSE OF THE EARLIER REASSESSMENT PROCEEDINGS THE ASSESSEE WAS CONFRONTED WITH THE STATEMENT OF SHRI MUKESH CH OKSI. THE ASSESSEE ASKED FOR CROSS EXAMINATION OF SHRI MUKESH CHOKSI. BEFORE THE REQUEST COULD BE CONSIDERED, THE ASSESSE E FILED AN AFFIDAVIT FROM SHRI MUKESH CHOKSI IN HIS CAPACITY A S MANAGING DIRECTOR OF M/S RICHMOND SECURITIES PVT. LTD., STAT ING THAT DURING THE YEAR UNDER CONSIDERATION THE COMPANY HAD DONE DEALI NGS ON BEHALF OF THE ASSESSEE AND THE TRANSACTIONS WERE DULY RECO RDED IN THE BOOKS OF THE COMPANY. THE ASSESSING OFFICER REJECT ED THE AFFIDAVIT ON THE GROUND THAT IT DID NOT CERTIFY THAT THE TRAN SACTIONS IN QUESTION WERE EFFECTED THROUGH RECOGNIZED STOCK EXCHANGES. HE THEREFORE SENT NOTICES TO THE NATIONAL STOCK EXCHANGE OF INDI A LIMITED CALLING FOR THE DETAILS OF THE TRANSACTIONS ENTERED INTO BY THE ASSESSEE THROUGH M/S RICHMOND SECURITIES PVT. LTD. AND M/S A LEMBIC SECURITIES PVT. LTD. NSE REPLIED THAT M/S ALEMBIC SECURITIES PVT. LTD. WAS A DECLARED DEFAULTER WITH EFFECT FROM 16.0 6.1999. WHEN THIS WAS BROUGHT TO THE NOTICE OF THE ASSESSEE, THE ASSESSEE SUBMITTED THAT SHE SHOULD BE ALLOWED TO CROSS EXAMI NE THE BROKER ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 18 AND ALSO STATED THAT THE BROKER HAD ALSO FILED AN A FFIDAVIT CONFIRMING THE TRANSACTIONS WITH THE ASSESSEE. THE ASSESSEES STAND WAS REJECTED BY THE ASSESSING OFFICER IN THE COURSE OF THE EARLIER REASSESSMENT PROCEEDINGS ON THE GROUND THAT SINCE T HE AFFIDAVIT FROM THE BROKER WAS OBTAINED BY THE ASSESSEE HERSEL F; THERE WAS NO NEED TO ALLOW CROSS EXAMINATION. AS REGARDS M/S RI CHMOND SECURITIES PVT. LTD., NSE WAS GIVEN THE RELEVANT DE TAILS OF THE CONTRACT NOTE / BROKER BILLS, ETC. WITH A REQUEST T O VERIFY THE SAME WITH THEIR RECORDS AND IN RESPONSE THERETO NSE STAT ED THAT THE TRADE NUMBERS MENTIONED IN THE CONTRACT NOTES WERE INCOMP LETE AND NOT IN CONFORMITY WITH NSES SYSTEM OF MAINTAINING THE TRADE NUMBERS. FROM THIS THE ASSESSING OFFICER INFERRED THAT THE C ONTRACT NOTES CONTAINED BOGUS NUMBERS. ON THESE FACTS THE ASSESS ING OFFICER IN THE COURSE OF THE EARLIER REASSESSMENT PROCEEDINGS HELD THAT THE ASSESSEE HAD DECLARED BOGUS PURCHASE AND SALE OF SH ARES AND SHOWN BOGUS CAPITAL GAINS IN ORDER TO INTRODUCE HER OWN UNACCOUNTED INCOME INTO THE BOOKS. 22. ALL THE ABOVE FACTS ARE SEEN MENTIONED IN PARAG RAPH 7.1 OF THE IMPUGNED ASSESSMENT ORDER AND STRONG RELIANCE H AS BEEN PLACED THEREON IN ADDITION TO THE STATEMENT RECORDE D FROM SHRI MUKESH CHOKSI IN THE COURSE OF THE PRESENT PROCEEDI NGS AND THE AFFIDAVIT FILED BY HIM ON 04/05.12.2008. 23. THE ASSESSEE HAS PLACED STRONG RELIANCE ON THE ORDER OF THE ITAT IN THE CASE OF SMT VARUNADEVI SHOREWALA VS. IT O, IN ITA NO:1611/MUM/2007 (ASSESSMENT YEAR 2001-02), DATED 0 7.05.2009; ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 19 ITO VS. MR SANDEEP R SHOREWALA, HUF, IN ITA NOS:572 2 & 5723/MUM/2007 (ASSESSMENT YEARS 2001-02 & 2002-03), DATED 26.02.2009; AND MUKESH R MAROLIA (SUPRA). THESE TH REE ORDERS HAVE BEEN FILED AT PAGES 183 TO 210 OF THE ASSESSEE S PAPER BOOK. WE HAVE ALREADY SEEN THAT IN THE CASE MR SANDEEP R SHOREWALA, HUF AND SMT VARUNADEVI SHOREWALA THE TRIBUNAL HAS P LACED RELIANCE ON THE ORDER IN THE CASE OF MUKESH R MAROL IA (SUPRA) AND DELETED THE ADDITION. A PERUSAL OF PARAGRAPH 9 OF THE TRIBUNALS ORDER DATED 26.02.2009 IN THE CASE OF MR SANDEEP R SHOREWALA, HUF (SUPRA) SHOWS THAT EVEN IN THAT CASE HEAVY RELI ANCE HAD BEEN PLACED BY THE ASSESSING OFFICER ON THE STATEMENTS G IVEN BY SHRI MUKESH CHOKSI DURING THE SEARCH AND SEIZURE OPERATI ONS IN HIS CASE. THE TRIBUNAL ALSO NOTED THAT THE ASSESSING O FFICER HAD MADE ENQUIRIES WITH THE NSE BY NOTICES ISSUED UNDER SECT ION 133(6) FOR VERIFYING THE TRANSACTIONS SHOWN BY THE ASSESSEE AN D BASED ON THE REPLIES SUBMITTED BY NSE, HAD COME TO A CONCLUSION THAT THE TRANSACTIONS WERE NOT VERIFIABLE. IN PARAGRAPH 9 T HE TRIBUNAL HAS ALSO NOTED THE ASSESSEES CONTENTION THAT THE SHARE TRANSACTIONS COULD NEVER BE TRACED THROUGH NSE SINCE THEY WERE A LL OFF MARKET DEALS AND SUCH OFF MARKET DEALS WERE NOT UNLAWFUL. THE TRIBUNAL HAS FURTHER NOTED THE AFFIDAVIT OF SHRI MUKESH CHOK SI, IN WHICH HE CONFIRMED THE TRANSACTIONS CARRIED OUT FOR THE ASSE SSEE IN THAT CASE. THE TRIBUNAL FURTHER NOTED THAT THE CIT(A) HAD RELI ED ON THE FINDINGS OF THE TRIBUNAL IN THE CASE OF MUKESH R MAROLIA (SU PRA) IN WHICH CASE ONE OF THE BROKERS INVOLVED WAS M/S RICHMOND S ECURITIES PVT. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 20 LTD. AFTER REPRODUCING THE RELEVANT PARAGRAPHS IN WHICH THE TRIBUNAL HAD HELD IN MUKESH R MAROLIAS CASE THAT O FF MARKET TRANSACTIONS WERE NOT ILLEGAL AND SUCH TRANSACTIONS COULD NOT BE TRACED THROUGH NSE AND AFTER NOTING THE RIVAL CONTE NTIONS THE TRIBUNAL HELD IN THE CASE OF MR SANDEEP R SHOREWALA , HUF (SUPRA) THAT THE CASE OF MUKESH R MAROLIA WAS FACTUALLY OF THE SAME MATRIX EXCEPT FOR THE ASPECT RELATING TO THE AFFIDAVIT GIV EN BY SHRI MUKESH CHOKSI AND IN THIS VIEW OF THE MATTER IT WAS HELD B Y THE TRIBUNAL THAT THERE WAS NO BASIS FOR THE ADDITION. 24. IN THE PRESENT PROCEEDINGS THE ONLY ADDITIONAL FEATURE IS THAT SHRI MUKESH CHOKSI HAD GIVEN A STATEMENT ON 27.11.2 008 BEFORE THE ASSESSING OFFICER AND ALSO CONFIRMED IT BY AN A FFIDAVIT DATED 04/05.12.2008. THIS ASPECT HAS BEEN TAKEN CARE OF BY THE CIT(A) BY RELYING ON THE JUDGMENT OF THE CALCUTTA HIGH COU RT IN THE CASE OF CIT VS. EASTERN COMMERCIAL ENTERPRISES (SUPRA) IN W HICH THE HIGH COURT OBSERVED THAT A MAN INDULGING IN DOUBLE SPEAK ING CANNOT BE SAID TO BE A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH OCCASION HE WAS TRUTHFUL. APART FROM THIS, W HAT WE FIND IS THAT THE STATEMENT AND THE AFFIDAVIT RELIED UPON BY THE ASSESSING OFFICER IN THE PRESENT PROCEEDINGS MERELY REITERATE SHRI MU KESH CHOKSIS EARLIER STATEMENT GIVEN IN THE COURSE OF THE SEARCH OPERATIONS IN HIS CASE. THEY DO NOT CARRY THE CASE OF THE DEPARTMENT MUCH AHEAD. THE EARLIER STATEMENT OF SHRI MUKESH CHOKSI HAS BEE N THE SUBJECT MATTER OF SCRUTINY BY THE TRIBUNAL IN THE CASE OF MR SANDEEP R SHOREWALA, HUF (SUPRA), WHICH WE HAVE NOTED IN THE PRECEDING ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 21 PARAGRAPH. THE DECISION OF THE TRIBUNAL IN THE CAS E OF MR SANDEEP R SHOREWALA, HUF (SUPRA) HAS BEEN FOLLOWED BY THE T RIBUNAL IN THE CASE OF SMT VARUNADEVI SHOREWALA (SUPRA). BOTH THE SE CASES ARE CONNECTED TO THE ASSESSEES CASE AND THE FACTS ARE ALSO SIMILAR EXCEPT THAT IN THE PRESENT CASE THE FURTHER DEVELOP MENT IS THAT THERE WAS A SEARCH ON 28.06.2006 RESULTING IN ASSESSMENTS MADE UNDER SECTION 153A READ WITH SECTION 143(3), IN THE COURS E OF WHICH SHRI MUKESH CHOKSI MADE A STATEMENT ON 26.11.2008 AND AL SO SUBMITTED AN AFFIDAVIT ON 04/05.12.2008 REITERATING WHAT HE STATED IN THE EARLIER SEARCH PROCEEDINGS ON HIM, WHICH STATEM ENT HAD BEEN RELIED UPON BY THE ASSESSING OFFICER IN THE COURSE OF THE EARLIER REASSESSMENT PROCEEDINGS. WE HAVE ALREADY NOTED TH AT THE EARLIER REASSESSMENT PROCEEDINGS WERE TAKEN IN APPEAL BY TH E ASSESSEE TO THE CIT(A), WHO BY ORDER DATED 26.06.2007 DELETED T HE ADDITIONS AND THE DEPARTMENT DID NOT FILE ANY FURTHER APPEAL TO THE TRIBUNAL. HAVING ACCEPTED THE ORDER OF THE CIT(A) DATED 26.06 .2007, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN REPEATING TH E SAME ADDITION IN THE PRESENT PROCEEDINGS BY MERELY SEEKING TO RELY O N THE STATEMENT OF SHRI MUKESH CHOKSI AND HIS AFFIDAVIT WHICH ARE N OTHING BUT REITERATION OF THE STAND WHICH HE TOOK IN THE EARLI ER PROCEEDINGS ALSO. 25. FOR THE ABOVE REASONS WE ARE OF THE VIEW THAT E VEN ON MERITS THE ADDITIONS ARE NOT JUSTIFIED. WE THEREFO RE CONFIRM THE ORDERS OF THE CIT(A) FOR BOTH THE YEARS EVEN ON MER ITS. ITA NO: 5506/MUM/2009 ITA NO: 5507/MUM/2009 CO NO: 107/MUM/2010 CO NO: 108/MUM/2010 22 26. IN THE RESULT, THE CROSS OBJECTIONS FILED BY TH E ASSESSEE ARE ALLOWED AND THE APPEALS FILED BY THE DEPARTMENT ARE DISMISSED. NO COSTS. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH MAY 2011. SD/- SD/- (R K PANDA) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI, DATED 25 TH MAY 2011 SALDANHA COPY TO: 1. MRS UTTARA S SHOREWALA 59 / 67, MIRZA STREET GROUND FLOOR ZAVERI BAZAR MUMBAI 400 003 2. ACIT (OSD) 1, CENTRAL RANGE 7, MUMBAI 3. CIT-CENTRAL II, MUMBAI 4. CIT(A)-CENTRAL V, MUMBAI 5. DR F BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI