Shri Parasmal Vaghmal Jain, Ahmedabad V. The Deputy Commissioner of Income Tax, Circle-3(1), Vadodara

ITA 1353/AHD/2017

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 1923 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-06-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: L P JAIN
• Assessee Lawyers: P D SHAH
• Keywords: Reopening of assessment; Gift; Principle of natural justice; Tangible material; Accommodation entries; Assessment record; Reason to believe; Borrowed satisfaction; Set aside
• Section: 143(3); 148; 10

Judgement Text

, C IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, AHMEDABAD BEFORE SHRI PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER & SHRI MAHAVIR PRASAD, JUDICIAL MEMBER ./ I.T.A. NO. 1352/AHD/2017 ( ASSESSMENT YEAR : 2010-11) BHAVESH PARASMAL JAIN MEHTA LODHA & CO. CHARTERED ACCOUNTANTS, 105, SAKAR-I, ASHRAM ROAD, AHMEDABAD - 380009 / VS. THE INCOME TAX OFFICER, WARD 3(1)(3), VADODARA ./ ./ PAN/GIR NO. : ADUPJ6627M ( APPELLANT ) .. ( / RESPONDENT ) & ./ I.T.A. NO. 1353/AHD/2017 ( ASSESSMENT YEAR : 2010-11) PARASMAL VAGHMAL JAIN MEHTA LODHA & CO. CHARTERED ACCOUNTANTS, 105, SAKAR-I, ASHRAM ROAD, AHMEDABAD - 380009 / VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 3(1), VADODARA ./ ./ PAN/GIR NO. : ABBPJ8381B ( APPELLANT ) .. ( / RESPONDENT ) / APPELLANT BY : SHRI P. D. SHAH, A.R. / RESPONDENT BY : SHRI L. P. JAIN, SR. DR DATE OF HEARING 01/05/2019 !'# / DATE OF PRONOUNCEMENT 28/06/2019 / O R D E R ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 2 PER PRADIP KUMAR KEDIA - AM: THE APPEALS HAVE BEEN DIRECTED AT THE INSTANCE OF T WO CAPTIONED ASSESSEES AGAINST THE RESPECTIVE ORDERS OF THE COMM ISSIONER OF INCOME TAX (APPEALS)-3, VADODARA (CIT(A) IN SHORT), BOTH DATED 17.03.2017 ARISING IN THE RESPECTIVE ASSESSMENT ORDERS DATED 2 0.03.2015 & 11.03.2016 PASSED BY THE ASSESSING OFFICER (AO) UND ER S. 143(3) R.W.S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT) CO NCERNING AY 2010- 11 IN BOTH CASES. 2. THE GRIEVANCES RAISED BEING COMMON, BOTH THE CAS ES WERE HEARD TOGETHER AND DISPOSED OF BY THE COMMON ORDER. 3. WE SHALL FIRST TAKE UP ASSESSEES APPEAL IN ITA NO. 1352/AHD/2017 CONCERNING AY 2010-11. ITA NO. 1352/AHD/2017-AY-2010-11 (BHAVESH P. JAIN) 4. BRIEFLY STATED, THE RETURN OF INCOME FOR AY 2010 -11 WAS FILED BY THE ASSESSEE DECLARING TOTAL INCOME AT RS.11,55,810 /-. THE RETURN WAS PROCESSED UNDER S.143(1) OF THE ACT WITHOUT ANY FUR THER SCRUTINY. THEREAFTER, NOTICE UNDER S.148 OF THE ACT WAS ISSUE D ON 25.03.2014 TO THE ASSESSEE SEEKING TO REOPEN THE TIME BARRED ASSE SSMENT. THE RE- ASSESSMENT ORDER WAS CONSEQUENTLY FINALIZED AFTER M AKING ADDITION OF RS.1,65,68,896/- TOWARDS INCOME FROM UNDISCLOSED SO URCES ON ACCOUNT OF INGENUINE CLAIM OF EXEMPTION UNDER S.10(38) OF T HE ACT OF LONG TERM CAPITAL GAINS ON SALE OF CERTAIN SHARES. THE RE-ASSESSMENT ORDER WAS THUS FRAMED AT RS.1,77,24,706/-. 5. THE ASSESSEE CHALLENGED THE RE-ASSESSMENT ORDER BEFORE THE CIT(A) ON BOTH COUNTS; NAMELY, VALIDITY OF JURISDIC TION ASSUMED UNDER ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 3 S.148 OF THE ACT AS WELL AS MERITS OF DISALLOWANCES . THE CIT(A) HOWEVER DID NOT FIND MERIT IN THE JURISDICTIONAL DE FECT ALLEGED BY THE ASSESSEE. THE PLEA ON MERIT WAS ALSO REJECTED BY T HE CIT(A). THE CIT(A) CONSEQUENTLY DISMISSED THE APPEAL OF THE ASS ESSEE ON ALL COUNTS. 6. AGGRIEVED BY THE AFORESAID ORDER OF THE CIT(A), THE ASSESSEE HAS FILED APPEAL BEFORE THE TRIBUNAL. 7. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE REA D AS UNDER: 1. THAT THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) HAS ERRED IN LAW BY CONFIRMING THE ACTION OF ISSUE OF NOTICE U/S 148 OF THE INCOME TAX ACT, 1961 WHICH IS BEYOND THE POWERS VES TED WITH THE AO AND THEREFORE THE ORDER PASSED BY THE LD.AO SHOU LD BE QUASHED. 2. THAT THE LEARNED COMMISSIONER OF INCOME TAX (APP EALS) HAS ERRED IN LAW AND FACTS BY CONFIRMING THE ADDITION OF LONG TERM CAPITAL GAIN AS UNDISCLOSED INCOME OF RS.1,65,68,896/- AND THEREFORE THE LEARNED AO SHOULD BE DIRECTED TO DELETE THE SAID AD DITION WHILE COMPUTING THE TOTAL INCOME. 8. SINCE THE ASSESSEE HAS RAISED LEGAL QUESTION OF USURPATION OF JURISDICTION BY THE ASSESSING OFFICER (AO) TO REOPE N THE TIME BARRED ASSESSMENT IN THE INSTANT CASE, IT WOULD BE PERTINE NT TO DEAL WITH THE AFORESAID QUESTION AT THE OUTSET. 9. THE LEARNED AR FOR THE ASSESSEE AT THE OUTSET SU BMITTED THAT THE AO HAS WRONGLY ASSUMED THE JURISDICTION FOR MAKING RE-ASSESSMENT AND ISSUED NOTICE UNDER S.148 OF THE ACT WITHOUT AU THORITY OF LAW. THE LEARNED AR SUBMITTED THAT THE INGREDIENTS OF SECTIO N 147/148 OF THE ACT ARE NOT FULFILLED IN THE INSTANT CASE TO ENABLE THE AO TO EXERCISE JURISDICTION AND TO PROCEED WITH RE-ASSESSMENT PROC EEDINGS. IN ELABORATION, THE LEARNED AR SUBMITTED THAT THE ASSE SSMENT HAS BEEN REOPENED WITHOUT MEETING THE BASIC REQUIREMENT NAME LY HOLDING REASON TO BELIEVE AS CONTEMPLATED UNDER S.147 OF THE ACT. ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 4 9.1 THE LEARNED AR FOR THE ASSESSEE ADVERTED TO THE REASONS RECORDED BY THE AO FOR INVOKING JURISDICTION UNDER S.147 OF THE ACT WHICH IS EXTRACTED HEREUNDER: REASONS FOR RE-OPENING THE ASSESSMENT U/S.147 OF T HE I.T.ACT. 1961 REG: SHRI BHAVESH PARASMAL JAIN VIJAY SOCIETY NO. 1. NEWKHANDERAO ROAD, BARODA. PAN: ADUPJ6627M STATUS INDIVIDUAL ASSTT. YEAR 2010-11 IN THIS CASE, ASSESSEE HAS FILED HIS RETURN OF INCO ME ON 13.07.2010 DECLARING THEREIN TOTAL INCOME AT RS.11, 55.810/-. ON PERUSAL OF THE STATEMENT OF TOTAL INCOME FILED ALON G WITH THE RETURN OF INCOME, IT IS SEEN THAT THE ASSESSEE HAS CLAIMED LO NG TERM CAPITAL GAIN ON SECURITIES LIABLE TO STT AND EXEMPTED U/S.10(38) OF THE I. T. ACT TO THE EXTENT OF RS. 1,57,18,187/- IN RESPECT OF THE S ALE OF SHARES OF ZEN SHAVING LTD AND PRIME CAPITAL LTD. 2. IN THIS CASE, INFORMATION HAS BEEN RECEIVED FROM THE CCIT(CENTRAL)-I, MUMBAI, VIDE LETTER NO.CCIT(CENTRA L)- I/MAHASAGAR/2012-13 DATED 6.2.2013 THAT SHRI BHAVES H PARASMAL JAIN, VIJAY SOCIETY NO.1, NEW KHANDERAO ROAD, BARODA, HAS ENTERED INTO TRANSACTION WITH GOLDSTAR FINVEST PRIVATE LIMITED, FOR PURCHASE AND SALE OF SHARES OF ZEN SHAVING LTD.. WORTH RS. 1,31, 00,383/- DURING THE FINANCIAL YEAR 2009-10 RELEVANT TO ASSTT. YEAR 2010 -11. IN THE STATEMENT OF TOTAL INCOME, THE ASSESSEE HAS SHOWN T HE ENTIRE PROFIT ON SALE OF SUCH SHARES AMOUNTING TO RS.L25,93,425/- AS EXEMPT U/S.L0(38) OF THE I.T.ACT. 1961. THE AFORESAID TRANSACTIONS WE RE UNDERTAKEN BY THE ASSESSEE THROUGH SHRI MUKESH CHOKSHI OF M/S. MAHASA GAR GROUP. A SEARCH ACTION WAS CONDUCTED IN THE CASE OF MAHASAGA R GROUP ON 25.1 1.2009. SHRI MUKESH CHOKSHI IN HIS STATEMENT STATED THAT HE WAS ONLY INVOLVED IN GIVING ACCOMMODATION ENTRIES. IN THE ST ATEMENT RECORDED, SHRI MUKESH K. CHOKSHI, HAS CLEARLY ADMITTED THAT M /S.GOLDSTAR FINVEST PVT. LTD. WAS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES IN THE NATURE OF BOGUS CAPITAL GAINS. THE E VIDENCE WITH RESPECT TO BOGUS NATURE OF TRANSACTION AND IDENTIFICATION O F ASSESSEE'S NAME AS ONE OF THE BENEFICIARIES BY SHRI MUKESH CHOKSHI REV EALS THAT ASSESSEE HAS NOT DISCLOSED CORRECT FINANCIAL TRANSACTION FOR THE YEAR UNDER CONSIDERATION. THEREFORE, IT IS ESTABLISHED THAT TH E ASSESSEE HAS CLAIMED THE LONG TERM CAPITAL GAIN OF RS. 1,25,93,425/- AS EXEMPT THOUGH THE SAME IS REQUIRED TO BE TAXED AS INCOME FROM OTHER S OURCES. THE ASSESSEE HAS ALSO SHOWN LONG TERM CAPITAL GAIN ON S ALE OF SHARES OF PRIME CAPITAL LTD. OF RS. 31,24,762/- WHICH ALSO RE QUIRES FURTHER VERIFICATION. 3. IN VIEW OF THE ABOVE FACTS, I HAVE REASON TO BEL IEVE THAT THE INCOME TO THE EXTENT OF RS. 1,57,18,187/- HAS ESCAP ED ASSESSMENT WITHIN ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 5 THE MEANING OF THE PROVISIONS OF SECTION 147 OF THE I.T.ACT. 1961, FOR WHICH THE ASSESSMENT NEEDS TO BE RE-OPENED. ISSUED NOTICE U/S.148 OF THE I. T. ACT. PLACE: BARODA (P. KRISHNA DHAS) DATE: 25.03.2014 INCOME-TAX OFFICER WARD-5(3), BARODA 9.2 THE LEARNED AR SUBMITTED THAT WHOLE BASIS OF RE OPENING IS SOME NONDESCRIPT INFORMATION RECEIVED BY THE AO FROM THE CCIT(CENTRAL)-I, MUMBAI ABOUT CERTAIN TRANSACTIONS ENTERED INTO BY T HE ASSESSEE WITH BROKER GOLDSTAR FINVEST PVT. LTD. (GFPL) FOR PURCHA SE AND SALE OF SHARES OF ZEN SHAVING LTD. (ZSL), THE PROFITS WHERE FROM HAS BEEN CLAIMED AS EXEMPT UNDER S.10(38) OF THE ACT. AS PER REASONS RECORDED, THE AFORESAID TRANSACTIONS WERE STATED TO BE UNDERT AKEN BY THE ASSESSEE THROUGH SHRI MUKESH CHOKSHI OF M/S. MAHASAGAR GROUP . IT WAS FURTHER ALLEGED IN REASONS RECORDED THAT SHRI MUKES H CHOKSHI HAD CLEARLY STATED THAT THE AFORESAID BROKER FIRM GFPL WAS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES IN THE NATURE OF BOGUS CAPITAL GAINS. THE LEARNED AR THUS SUBMITTED THAT THE BARE READING OF THE REASONS RECORDED WOULD SHOW THAT IT IS THE STAT EMENT OF SHRI MUKESH CHOKSHI GIVEN IN A SEARCH PROCEEDING ON HIM WHICH IS PRIMARILY THE EDIFICE OF INITIATING THE ACTION AGAI NST THE ASSESSEE. THE LEARNED AR STRONGLY HARPED THAT THE AO HAS MERELY R ELIED UPON SOME NONSPECIFIC INFORMATION RECEIVED FROM SUPERIOR AUTH ORITY (CCIT, MUMBAI) WITHOUT FORMING BELIEVE THEREON TOWARDS E SCAPEMENT OF CHARGEABLE INCOME. TO ADDRESS THE POINT, THE LEARN ED AR SUBMITTED THAT THE AO HIMSELF DOES NOT APPEAR TO BE PRIVY TO ANY UNDERLYING MATERIAL AND STATEMENT OF SHRI MUKESH CHOKSHI AND O THER PERSONS EXCEPT SOME GENERIC AND COSMETIC INFORMATION PURPOR TEDLY OBTAINED FROM SUPERIOR AUTHORITY OF CCIT AND CONSEQUENTLY SU CH ACT CANNOT BE REGARDED AS SATISFACTION TOWARDS ESCAPEMENT IN THE EYES OF LAW. THE BELIEF OF THE AO WITHOUT SUPPORTABLE DOCUMENTS EITH ER BEFORE THE ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 6 RECORDING OF REASONS OR TILL THE TIME OF RE-ASSESSM ENT THUS CANNOT REGARDED AS DEMONSTRABLE AND IS MERELY A PRETENSE. THE LEARNED AR THUS SUBMITTED THAT THE WHOLE PROCESS OF RECORDING THE REASONS AGAINST THE ASSESSEE IN EXERCISE OF DRASTIC POWER VESTED UN DER S.147/148 OF THE ACT IS TOTALLY WITHOUT JURISDICTION. IT WAS CONTEN DED THAT THE SATISFACTION FORMED BY THE AO IS MERELY SATISFACTIO N BORROWED FROM THE SUPERIOR AUTHORITY ON THE BASIS OF CERTAIN INTI MATION. THE LEARNED AR ALSO SUBMITTED THAT THE WHOLE PROCESS IN ANY CAS E IS EXTREMELY SKEWED IN THE ABSENCE OF UNDERLYING INFORMATION/MAT ERIAL/DOCUMENTS AND IN THE ABSENCE OF ALLEGED TANGIBLE MATERIAL IN THE FORM OF STATEMENT OF SHRI MUKESH CHOKSHI AND OTHER PERSONS, IF ANY. IT WAS NEXT SUBMITTED THAT THE STATEMENT OF SHRI MUKESH CH OKSHI RELIED UPON TO PUT SECTION 147 OF THE ACT INTO MOTION WAS NEITH ER PROVIDED TO THE ASSESSEE NOR CROSS EXAMINATION THEREOF WAS GRANTED. IT IS NOT KNOWN WHETHER THE STATEMENT SO GIVEN WAS GENERIC OR SPECI FIC IMPLICATING THE ASSESSEE. THE BASIS OF GIVING SUCH STATEMENT TO TH E DETRIMENT OF ASSESSEE IS ALSO NOT KNOWN. IT IS ALSO NOT KNOWN W HETHER SUCH STATEMENT WAS EVEN RESILED AT LATER STAGE OR OTHERW ISE. IT WAS THUS CONTENTED THAT THE ASSESSEE IS NOT IN A POSITION TO DEFEND THE IMPUTATIONS MADE AGAINST THE ASSESSEE WHILE CHALLEN GING JURISDICTION IN THE ABSENCE OF AVAILABILITY OF MATERIAL/DOCUMENT S ECT. 9.3 THE LEARNED AR THEREAFTER REFERRED TO THE PROFI TS ARISING FROM ANOTHER SCRIP NAMELY PRIME CAPITAL LTD. OF RS.31, 24,762/- WHERE THE ALLEGATION OF ESCAPEMENT IS CLEARLY WITHOUT ANY TAN GIBLE BASIS AND HAS BEEN INCLUDED ONLY FOR FURTHER INQUIRY AND VERIFIC ATION. SUCH ACT IS CLEARLY WITHOUT JURISDICTION IN THE ABSENCE OF ANY DEFINITE BASIS FOR HOLDING THE BELIEF TOWARDS ESCAPEMENT OF INCOME. T HE LEARNED AR THEREAFTER SUBMITTED THAT THE SCRIP ZEN SHAVING LTD . WERE PURCHASED IN THE EARLIER YEARS THROUGH M/S. ALLIANCE INTERMEDIAR IES & NETWORK PVT. LTD. AND SOLD THROUGH GFPL IN THE CURRENT YEAR AND THUS THE ASSERTIONS ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 7 MADE BY THE AO THAT BOTH PURCHASE AND SALES WERE MA DE THROUGH GFPL IN THE REASONS RECORDED IS FACTUALLY INCORRECT AND REVEALS NON APPLICATION OF MIND. THE WHOLE PROCESS OF HOLDING THE BELIEF WAS THUS CLAIMED TO BE ONLY A PRETENSE AND DEVOID OF SOUND B ASIS. 9.4 THE LEARNED AR THEREAFTER SUBMITTED THAT APART FROM BORROWED SATISFACTION DRAWN BY THE AO, THE ACTION OF THE AO TO REOPEN THE TIME BARRED ASSESSMENT IS ALSO NOT SUSTAINABLE ON THE GR OUND THAT THE ADDITIONS MADE IN THE ASSESSMENT ORDER IS ENTIRELY ON A DIFFERENT BASIS QUA THE REASONS RECORDED. NO REFERENCE HAS BEEN MADE TO SUCH MATERIAL IN THE COURSE OF ASSESSMENT AS MENTIONED I N THE REASONS RECORDED. IT IS ALSO NOT SHOWN BY THE AO THAT THE DEPONENT SHRI MUKESH CHOKSHI HAS ACTUALLY IDENTIFIED THE ASSESSEE FOR ALLEGED WRONGFUL TRANSACTIONS. THE INFORMATION MADE AVAILA BLE BY THE DEPONENT TO THE DEPARTMENT WAS GENERIC INFORMATION EXPLAINING THE ALLEGED MODUS OPERANDI AS PER ASSESSMENT ORDER. IT WAS CONTENDED THAT THE ONUS IS ALWAYS ON THE REVENUE TO SUPPORT T HE THRESHOLD ACTION OF REOPENING A TIME BARRED / COMPLETE ASSESSMENT WH ICH ONUS WAS NOT DISCHARGED AT ALL. 9.5 THE LEARNED AR THEREAFTER REFERRED TO THE DECIS ION OF THE CO- ORDINATE BENCH OF TRIBUNAL IN IDENTICALLY PLACED SI TUATION IN GROUP CASES NAMELY SHANTABEN PARASMAL JAIN VS. DCIT ITA NO. 726/AHD/2017 ORDER DATED 15.10.2018 WHEREIN ALSO THE TIME BARRED ASSESSMENT COMPLETED UNDER S.143(1) OF THE ACT WAS REOPENED WITHIN FOUR YEARS FROM THE END OF THE ASSESSMENT ORDER ALL EGING ESCAPEMENT OF INCOME CITING QUITE SIMILAR REASONS. THE CO-ORD INATE BENCH HOWEVER SET ASIDE AND QUASHED THE RE-ASSESSMENT PRO CEEDINGS INITIATED UNDER S.147 OF THE ACT HOLDING THE SAME TO BE UNSUS TAINABLE IN LAW HAVING REGARD TO THE JUDICIAL PRECEDENTS. ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 8 9.6 THE LEARNED AR THEREAFTER REFERRED THE DECISION OF THE CO- ORDINATE BENCH IN BHARTI SOMCHAND SAH & ORS. IN ITA NO. 925 & 926/AHD/2015 AND ORS. DATED 21.10.2016 WHEREIN THE ADDITIONS MADE ON THE BASIS OF UNVERIFIED AND UNEXAMINED STATEMENT OF SHRI MUKESH CHOKSHI WAS DELETED BY THE CO-ORDINATE BENCH. THE AR SUBMITTED THAT THE REVENUE COULD NOT SUCCEED AGAINST THE AFORESAID ORDER OF THE CO- ORDINATE BENCH BEFORE THE HONBLE GUJARAT HIGH COUR T EITHER, AS CAN BE SEEN FROM THE DECISION RENDERED BY THE HONBLE G UJARAT HIGH COURT IN PR.CIT VS. BHARTI SOMCHAND SHAH TAX APPEAL NO.10 23 OF 2017 JUDGMENT DATED 22.01.2018. THE LEARNED AR THEREAFT ER REFERRED TO THE DECISION OF THE CO-ORDINATE BENCH IN ACIT VS. VINEET SURESHCHANDRA AGARWAL ITA NO. 1442/AHD/2013 DATED 06.01.2017 TO CONTEND THAT EVEN ON MERITS THE ADDITIONS MADE BY THE AO ARE NOT SUSTAINABLE AT ALL. 9.7 THE LEARNED AR ALSO CONTENDED ON MERITS THAT TH E PURCHASES OF THE ALLEGED SCRIPS NAMELY ZEN SHAVING & PRIME CAPIT AL LTD. WERE MADE IN THE EARLIER FINANCIAL YEARS WHICH PURCHASES WERE ALSO ACCEPTED. 9.8 KEEPING IN MIND THE NATURE OF ALLEGATION RAISED BY THE ASSESSEE TOWARDS LACK OF REQUISITE INFORMATION IN POSSESSION OF THE AO TOWARDS FORMATION OF BELIEF FOR ASSUMING JURISDICTION, THE REVENUE WAS CALLED UPON TO PRODUCE THE ASSESSMENT RECORDS AND NATURE O F UNDERLYING MATERIAL AS AVAILABLE IN POSSESSION OF THE AO AT TH E TIME OF REOPENING THE TIME BARRED ASSESSMENT. AS A SEQUEL THERETO, T HE ASSESSMENT RECORDS WERE PRODUCED FOR THE PERUSAL OF THE BENCH. IT WAS SPECIFICALLY INQUIRED FROM THE LEARNED REPRESENTATI VE OF THE REVENUE TO POINT OUT THE EXACT NATURE OF MATERIAL AVAILABLE ON RECORD TO SUPPORT INITIATION OF ACTION UNDER S.147 OF THE ACT. THE R EPRESENTATIVE OF THE REVENUE HOWEVER COULD NOT POINT OUT FROM THE RECORD AS TO WHAT WAS EXACTLY AVAILABLE TO SUPPORT THE ACTION OF THE REVE NUE. ON PERUSAL OF ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 9 THE CASE RECORDS, WE NOTICE THAT SOME NOTE WAS PREP ARED FOR ITS MODULE REGARDING MAHASAGAR GROUP OF CASES LED BY SH RI MUKESH CHOKSHI ALLEGEDLY INVOLVED IN GIVING ACCOMMODATION ENTRIES AND CONSEQUENTLY SUGGESTING THE AO TO PURSUE REMEDY AND REOPEN THE ASSESSMENTS OF THE BENEFICIARIES. THE STATEMENT OF SHRI MUKESH CHOKSHI WHICH IS THE BASIS OF TAKING COGNIZANCE OF THE ALLEGED EVASION WAS HOWEVER NOT FOUND IN THE CASE RECORDS PLACED BE FORE US. 9.9 IN THE BACKDROP OF THE AFORESAID OBSERVATION, T HE LEARNED DR WAS FURTHER INQUIRED ON THE ISSUE. THE LEARNED DR POIN TED OUT THAT THE RELEVANT RE-ASSESSMENT RECORDS AS MADE AVAILABLE BY THE AO IS BEING PRODUCED FOR PERUSAL WITHOUT ANY FURTHER COMMENTS. THE LEARNED DR SUBMITTED THAT IT IS QUITE PLAUSIBLE THAT THE AO MA Y BE IN POSSESSION OF THE STATEMENT OF SHRI MUKESH CHOKSHI IMPLICATING TH E ASSESSEE IN YET ANOTHER SEPARATE FOLDER FOR WHICH HE CANNOT MAKE AN Y COMMENT ASSERTIVELY. THE LEARNED DR HOWEVER RELIED UPON T HE ORDERS OF THE AO AND CIT(A) AND CONTENDED THAT THE PLEA RAISED ON BEHALF OF THE ASSESSEE HAS NO SUBSTANCE IN VIEW OF THE INFORMATIO N SUPPLIED BY CCIT-MUMBAI AND THE ORDERS OF THE REVENUE AUTHORITI ES REQUIRES TO BE UPHELD. 10. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS. THE ASSESSEE IN THE INSTANT APPEAL HAS RAISED LEGAL ISS UE ON VALIDITY OF ASSUMPTION OF JURISDICTION UNDER S.147 OF THE ACT A S WELL AS HAS CONTROVERTED THE ACTION OF THE REVENUE ON MERITS. IT IS THE CASE OF THE ASSESSEE THAT THE EXPRESSION REASON TO BELIEVE QUA ESCAPEMENT OF INCOME IS THE FULCRUM FOR ASSUMING JURISDICTION UND ER S.147 OF THE ACT REGARDLESS OF THE FACT THAT ASSESSMENT HAS BEEN COM PLETED UNDER S.143(1) OF THE ACT WITHOUT SCRUTINY. IT IS THUS C ONTENDED THAT THE NOTICE UNDER S.148 OF THE ACT IS VITIATED IN THE AB SENCE OF FULFILLMENT OF INGREDIENTS FOR HOLDING REASON TO BELIEVE IN T HE FACTS OF THE CASE. ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 10 10.1 SECTION 147 OF THE ACT CONFERS JURISDICTION T O AO TO REOPEN THE COMPLETED/TIME BARRED ASSESSMENT IS A SUBSTANTIVE P ROVISION. THE POWER OF RE-ASSESSMENT, HOWEVER, WIDE IT MAY BE, IS NOT PLENARY OR UNBRIDLED BUT IS CONTROLLED BY EXPRESSION REASONS TO BELIEVE. THE EXPRESSION REASON TO BELIEVE IS THE AXIS OF THE A CTION WHICH CREATES, DEFINES AND REGULATES THE RIGHT OF THE REVENUE TO R EOPEN SUCH ASSESSMENT. THE REQUIREMENT OF REASON TO BELIEVE IS THUS INFLEXIBLE. THE REASONS ARE RECORDED IN WRITING UNDER S.148(2) OF THE ACT TO UNFOLD THE PROCESS TOWARDS APPLICATION OF MIND BY T HE AO. THE REASONS SO RECORDED ARE JUSTICIABLE AND THUS HAVE P ROBATIVE VALUE. THE REASON TO BELIEVE IS A SIGNIFICANT INBUILT SAFEGU ARD TO PROHIBIT THE AO FROM EXERCISING THE POWER ARBITRARILY AND IN A SWEE PING MANNER. THE TANGIBLE MATERIAL IS A SIN QUA NON TO FORM A CONCLUSION OF ESCAPEMENT AND A REFERENCE TO SUCH MATERIAL IS NECESSARY IN TH E RECORDED REASONS. THE MATERIAL REFERRED SHOULD BE AUTHENTIC AND CAPAB LE OF GIVING RISE TO INFERENCE. THE AO IS EXPECTED TO HIMSELF PERCEIVE A ND APPLY ITS MIND INDEPENDENTLY ON SUCH TANGIBLE MATERIAL TO ASSUME T HE JURISDICTION. THE INFORMATION PER SE IS NOT REALIZATION OR BELIEF BUT THE INFORMATION CAN, AT TIMES, GIVE BIRTH TO THE BELIEF TOWARDS ESC APEMENT IN CERTAIN CIRCUMSTANCES VIZ; WHERE SUCH INFORMATION IS BASED ON RELEVANT MATERIAL AND NOT ON ASSUMPTIONS. THE AO IS REQUIRE D TO HOLD BELIEF INDUCED BY EXISTENCE OF REASONS AND NOT MERE BELIEF IN EXISTENCE OF REASONS. WHILE REASON IS THE CAUSE OF JUSTIFICAT ION WHICH SHOULD HAVE SOME PROXIMITY TO TANGIBLE MATERIAL, THE BELI EF IS ASSENT OF THE MIND ON SUCH MATERIAL. THE FORMATION OF BELIEF IS A STATUTORY FUNCTION ENTRUSTED TO AO ALONE WHICH CANNOT BE RELEGATED BY THE AO. THE SATISFACTION DERIVED BY THE OTHER AUTHORITIES PER S E IS NOT SUFFICIENT FOR THE FORMATION OF BELIEF CONTEMPLATED UNDER S.147 OF THE ACT. THUS, A SCHEMATIC INTERPRETATION IS REQUIRED TO BE GIVEN TO EXPRESSION REASON TO BELIEVE FAILING WHICH SECTION 147 OF THE ACT WO ULD BE RENDERED ARBITRARILY. WHILE THE SUFFICIENCY OF BELIEF IS NO T JUSTICIABLE, THE ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 11 EXISTENCE OF BELIEF ON OBJECTIVE REASONS IS A PARAM OUNT. THUS, THE EXISTENCE OF CIRCUMSTANCES IS NOT LEFT TO SUBJECTIV E PROCESS WHILE FORMATION OF OPINION THEREON IS LEFT TO THE MIND OF AO SO LONG AS IT DOES NOT SUFFER FROM NON-APPLICATION OF MIND OR PER VERSITY. THESE ARE BROADLY THE SALUTARY PRINCIPLES THAT EMERGE FROM JU DICIAL PRECEDENTS DELIVERED OVER TIME. 10.2 IN THIS BRIEF BACKGROUND, WE NOW PROCEED TO LO OK AT THE REASONS RECORDED BY THE AO AND THE UNDERLYING MATERIAL RELI ED UPON WHILE EXERCISING POWERS OF RE-ASSESSMENT. THE AO HAS MAD E REFERENCE TO A LETTER DATED 06.02.2013 RECEIVED FROM CCIT(CENTRAL) -I, MUMBAI [REFERENCE NO. CCIT(CENTRAL)-I/ MAHASAGAR/2012-2013 ] PROVIDING INFORMATION THAT THE ASSESSEE HEREIN HAS ENTERED IN TO TRANSACTIONS WITH SHARE BROKER; GFPL FOR PURCHASE AND SALE OF SHARES OF ZEN SHAVING LTD. WHICH ARE ESSENTIALLY ACCOMMODATION ENTRIES I N THE NATURE OF BOGUS CAPITAL GAINS. AS PER REASONS RECORDED, THIS LETTER HAS GALVANIZED THE AO TO INITIATE ACTION AGAINST THE AS SESSEE BY INVOKING SECTION 147/148 OF THE ACT. THE AO HAS ALSO REFERR ED TO A STATEMENT RECORDED OF SHRI MUKESH CHOKSHI FOR ADMISSION OF TH E WRONG DOINGS. IN ANOTHER REFERENCE, THE AO HAS ALSO ASSERTED THAT GAINS ARISING IN RESPECT OF OTHER SHARES NAMELY PRIME CAPITAL LTD. A LSO REQUIRES VERIFICATION. 10.3 THE AO HAS THUS MADE REFERENCE TO THE LETTER R ECEIVED FROM CCIT, MUMBAI ELICITING INFORMATION AS WELL AS THE S TATEMENT OF SHRI MUKESH CHOKSHI. THE COPY OF THE LETTER FROM CCIT A ND STATEMENT OF SHRI MUKESH CHOKSHI FORMING BASIS FOR REOPENING THE ASSESSMENT WAS NEVER PROVIDED TO THE ASSESSEE AT THE TIME OF RE-AS SESSMENT PROCEEDINGS. ACCORDINGLY, THE RE-ASSESSMENT RECORD S WERE CALLED IN THE APPELLATE PROCEEDINGS BEFORE US. THE CASE RECO RDS CONTAINED THE AFORESAID LETTER FROM CCIT(CENTRAL) REFERRED TO BY AO. IT WOULD BE ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 12 PERTINENT TO TAKE A LOOK AT THE AFORESAID LETTER PL ACED IN THE FILE OF THE AO. OFFICE OF THE CHIEF COMMISSIONER OF INCOME-TAX CENTRAL-I, 4TH FLOOR, R.NOS.423/424, AAYAKAR BHAVAII, M. K. RO AD.MUMBAI - 400 020. TEL NO.:22011578, 22007622 - FAX NO.:22075474 NO. CCIT(CENTRAL)I/MAHASAGAR/2012-13 DATE: 06.02.2013 THE MEMBER (INVESTIGATION), CENTRAL BOARD OF DIRECT TAXES, NORTH BLOCK, NEW DELHI. SIR, SUB: M/S MAHASAGAR SECURITIES LTD. - DECIPHERING DATA - REG. --------------------- PLEASE REFER TO THE DISCUSSION MADE WITH YOUR GOOD SELF A MONTH BACK. 2. A.D.I.T. SYSTEMS FROM NADT, NAGPUR, WAS CALLED T O MUMBAI FOR PROVIDING HELP TO DECIPHER THE DATA. THIS DIDN'T YI ELD RESULT. THROUGH ANOTHER PROFESSIONAL AGENCY WHICH WAS ENGAGED DURIN G B.P.GAUR'S TIME, THE DATA WAS DECIPHERED. 3. INFORMATION IS GIVEN IN THREE DIFFERENT CDS WITH RESPECT TO THE ACCOUNTS OF THE BENEFICIARIES ALONG WITH THE DETAIL S OF THE BILLS AND AMOUNTS INDICATING THE PERIOD ALSO. WITH RESPECT TO THE 829 ASSESSEES, THE DATA CAN IMMEDIATELY BE PUT ON THE ITS MODULE A LONG WITH NOTE' SUCH THAT THE ASSESSING OFFICERS CAN TAKE REMEDIAL ACTION. THE SECOND CD GIVES DETAILS OF TRANSACTIONS OF PROFIT / LOSS B ELOW RS.5 LAKHS AND SHRI CHOKSI IS BEING CONFRONTED ONCE AGAIN TO CONFI RM THAT THESE ARE ALSO ACCOMMODATION ENTRIES. ALREADY WHILE GIVING TH E STATEMENT, HE SAW THROUGH THE ENTIRE DATA AND CONFIRMED THAT THE ENTI RE DATA RELATES TO ONLY ACCOMMODATION ENTRIES. HOWEVER, RECONFIRMATION WITH RESPECT TO THE 1240 ASSESSEES WILL BE OBTAINED SHORTLY. THUS, IN 2069 CASES WITH PAN, FOLLOW-UP ACTION IS SOUGHT TO BE TAKEN. 4. WITH RESPECT TO THE REST OF THE INFORMATION, THIRD CD, THERE IS NO PAN AND HENCE TAKING FURTHER REMEDIAL ACTION WOULD BE DIFFICULT. 5. IT MAY BE CONSIDERED TO PUT DATA RELATING TO 829 ASSESSES ON THE ITS MODULE ALONG WITH 'NOTE' THROUGH O/O D.G. (SYSTEMS) SUCH THAT THE ASSESSING OFFICERS ARE ABLE TO REOPEN THE ASSESSMEN TS BEFORE MARCH'2013. YOURS FAITHFULLY, (T. JAYSANKAR) CHIEF COMMISSIONER OF INCOME TAX (CENTRAL-I), MUMBAI. ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 13 END: 1. THREE CDS. CONTAINING DATA FOR A.YRS.2006-07 TO 2010-11 (TWO SETS) & NOTE 2. CHART GIVING THE SUMMARY OF DATA IN C.D. 10.4 THE AFORESAID LETTER IS ALSO ACCOMPANIED BY A NOTE FOR ITS MODULE WHICH IS ALSO EXTRACTED AS UNDER: NOTE FOR I.T.S. MODULE NOTE IN THE CASE OF M/S MAHASAGAR GROUP OF CASES - KEY PERSON - SHRI MUKESH CHOKSI - CONCERNS INVOLVED IN GIVING AC COMMODATION ENTRIES - REOPENING OF ASSESSMENTS IN THE CASE OF B ENEFICIARIES - A.YRS.2006-07 ONWARDS - ACTION TO BE TAKEN BEFORE 3 1.03.2013 - REG. ------------------------- 1. A SEARCH ACTION WAS CONDUCTED IN THE ABOVE MENTI ONED GROUP ON 25.11.2009. EARLIER ALSO SEARCH / SURVEY ACTIONS WERE CONDUCTED IN THIS GROUP ON 18.06.1998, 2002 AND 2.06.2006. 2. IN THE SWORN-IN STATEMENT RECORDED, SHRI MUKESH CHOKSI ADMITTED THAT HE AND HIS GROUP WERE ENGAGED IN FRAU DULENT BILLING ACTIVITIES AND IN GIVING ACCOMMODATION ENTRIES IN O RDER TO ENABLE THE CLIENTS TO DECLARE SPECULATION PROFIT/LOSS, SHORT T ERM CAPITAL GAIN, LONG TERM CAPITAL GAIN, PROFITS/LOSS ON ACCOUNT OF COMMODITY TRADING, INTRODUCE SHARE APPLICATION MONEY, OR INTR ODUCE MONEY IN THE FORM OF GIFTS. 3. STATEMENTS HAVE ALSO BEEN RECORDED FROM TWO OF H IS EMPLOYEES AND AN AGENT I.E. MISS ANUPAMA PATEL, (EMPLOYEE) ON 25.11.2009, SHRI KAPIL CHATURVEDI, (EMPLOYEE) ON 13.01.2010 AND SHRI KAMAL KISHORE RATI (AGENT) ON 25.11.2009. 4. THERE IS NECESSITY TO REOPEN THE ASSESSMENTS OF THE BENEFICIARIES AS INCOME HAS ESCAPED ASSESSMENT IN T HEIR CASES. THE PAST EXPERIENCE SHOWS THAT CERTAIN ASSESSMENT ORDER S WERE NOT UPHELD IN APPEAL, HENCE THERE IS THE NECESSITY TO T AKE CERTAIN PRECAUTIONARY MEASURES AS INDICTED BELOW: 4.1 THIS GROUP DELIBERATELY CONDUCTED TRANSACTIONS IN SUCH A MANNER THAT A PART OF THE TRANSACTION IS EVIDENCED THROUGH BANK OR THROUGH STOCK EXCHANGE SUCH THAT A MISLEADING PICTU RE IS GIVEN AND A COLOUR OF GENUINENESS IS GIVEN TO THE ENTIRE TRAN SACTION. FOR EXAMPLE, SHARES ARE PURCHASED FROM A BROKER/AGENT A ND TRANSFERRED TO DEMAT ACCOUNT AND WITHIN A FEW DAYS THE SHARES A RE SHOWN AS SOLD THROUGH STOCK EXCHANGE. THIS GIVES A PICTURE THAT T HE SALE IS GENUINE. HOWEVER, THE PURCHASE AND THE HOLDING PERI OD IS NOT A YEAR OR MORE. ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 14 5. THE MODUS OPERAND! IS EXPLAINED IN HIS SWORN STA TEMENT RECENTLY RECORDED. IT IS ALSO GIVEN IN THE APPRAISA L REPORT. THESE DETAILS CAN BE OBTAINED BY CONTACTING THE ASSESSING OFFICER WHOSE DETAILS ARE AS FOLLOWS: ASSESSING OFFICER : DCIT, CENTRAL CIRCLE-46. MUMBAI PH. NUMBER : 022 22075462 ADDRESS : ROOM NO.659, 6 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020. E MAIL ID : [e-mail] 6. MR.CHOKSI STATED THAT HE WAS ONLY INVOLVED IN GI VING ACCOMMODATION ENTRIES. HE ALSO PERUSED ALL THE DATA BEFORE GIVING SUCH STATEMENT. IN THE LATEST SWORN STATEMENT DATED 16.01.2013, SHRI MUKESH CHOKSI IDENTIFIED 829 NAMES OF THE BENEFICIA RIES AND CERTIFIED THAT THEY ARE ACCOMMODATION ENTRIES. THIS LIST IS AVAILABLE WITH THE ASSESSING OFFICER. IT IS ALSO MOST IMPORTA NT THAT PROPER REASONS BE RECORDED INCORPORATING WORDS, SUCH AS RE ASONS TO BELIEVE, SUPPRESSION OF PRIMARY FACTS, EVIDENCE GATHERED ON THE BOGUS NATURE OF TRANSACTION, IDENTIFICATION OF BENEFICIARIES HAV ING BEEN MADE BY MR.CHOKSI ETC. SUCH THAT NO TECHNICAL OBJECTIONS AR E RAISED AGAINST REOPENING. THE CASE LAW REFERRED TO IN SAMPATH IYEN GERS, VOL.6 PAGES 9987, 10053 & 10054 MAY KINDLY BE TAKEN NOTE OF BY THE A.OS. AND SUITABLE PRECAUTIONS TAKEN WHILE RECORDING REAS ONS. 10.5 TO REITERATE, THE STATEMENT OF SHRI MUKESH CHO KSHI HOWEVER COULD NOT BE TRACED FROM THE CASE RECORDS NOR COULD REVENUE ADVERT TO SUCH STATEMENT WHEN ENQUIRED IN THE APPELLATE PROCE EDINGS. 10.6 FROM A READING OF THE LETTER/INFORMATION REPRO DUCED HEREINABOVE, WE ARE UNABLE TO DECIPHER THE DETAILS OF TRANSACTIO NS PERTAINING TO THE ASSESSEE. THE INFORMATION/NOTE APPEARS TO BE GENERI C IN NATURE AT PRESENT AND IN TURN, SEEKS TO RELY HEAVILY ON STATE MENT OF SHRI MUKESH CHOKSHI AND HIS EMPLOYEES. SUCH STATEMENTS OF SHRI MUKESH CHOKSHI AND OTHERS WOULD THUS BE RELEVANT WHICH IS ALSO THE BASIS FOR COMING TO THE BELIEF TOWARDS ESCAPEMENT OF INCOME. WE, THU S, ARE NOT IN A POSITION TO ADJUDICATE THE ISSUE ONE WAY OR THE OTH ER AT THIS STAGE. IT WILL BE A UNDUE HASTE TO CONCLUDE THE ISSUE EITHER WAY BASED ON WHAT WAS PLACED BEFORE US IN THE APPELLATE PROCEEDINGS I N THE ABSENCE OF RESPONDENT AO. IN THE TOTALITY OF THINGS, IT WILL BE ONLY FAIR AND ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 15 BEFITTING THAT A FRESH OPPORTUNITY IS GIVEN TO THE ASSESSEE BY THE AO AND CONFRONT ALL DOCUMENTS AS WAS AVAILABLE AT THE TIME OF RECORDING OF REASONS AND THEN DISPOSE OF THE OBJECTION OF THE ASSESSEE AFRESH BASED ON SUCH TRANSMISSION OF INFORMATION. 10.7 WE NOTICE THAT THE ASSESSEE HAS ALSO CITED SEV ERAL DECISIONS AS NOTED IN THE PRECEDING PARAGRAPHS AND HAS CLAIMED T HEIR APPLICABILITY SQUARELY IN THE FACTS OF THE CASE. THE AO MAY TAKE SUITABLE COGNIZANCE OF THE DECISIONS CITED. 10.8 WE ALSO TAKE NOTE OF THE FIRM OBJECTION OF THE ASSESSEE ON MERITS THAT CROSS EXAMINATION OF SHRI MUKESH CHOKSHI IS NE EDED AS REPEATEDLY DEMANDED EARLIER TO PREVENT MISCARRIAGE OF JUSTICE. IT IS THE CASE OF THE ASSESSEE THAT AS REFERRED TO IN VI NEET S. AGRAWAL CASE, THE STATEMENT WAS LATER RETRACTED BY THE DEPONENT A ND THUS HAS PALED ITS SIGNIFICANCE. THE ASSESSEE HAS ALSO CONTENDED THAT THE OFF-MARKET TRANSACTIONS ARE NOT NECESSARILY UNLAWFUL AS NOTED BY CO-ORDINATE BENCH IN AFORESAID DECISION. JUDICIAL PROPRIETY DE MANDS THAT EVIDENCE COLLECTED AND SOUGHT TO BE USED AGAINST THE ASSESSE E IS CONFRONTED TO ASSESSEE TO UPHOLD PRINCIPLES OF NATURAL JUSTICE. WE HOWEVER DO NOT INTEND TO DELINEATE INTO THESE ASPECTS AT THIS STAG E WHILE REMITTING THE WHOLE OF MATTER BACK TO AO. THE ASSESSEE SHALL BE AT LIBERTY TO RAISE ALL ASPECTS OF MATTER AFRESH INCLUDING THE JURISDIC TIONAL ASPECTS. WE THUS CONSIDER IT APPROPRIATE TO SET ASIDE THE MATTE R BACK TO THE FILE OF THE AO TO DISPOSE OF THE OBJECTION OF THE ASSESSEE ON THE JURISDICTIONAL DEFECT AFRESH IN THE LIGHT OF THE MATERIAL REFERRED TO AND RELIED UPON BY THE AO IN THE REASONS RECORDED TO BE PROVIDED TO TH E ASSESSEE AS WELL AS IN THE LIGHT OF VARIOUS DECISIONS OF THE CO-ORDI NATE BENCH DEALING WITH SIMILAR ISSUES. 10.9 THE ORDER OF THE CIT(A) IS ACCORDINGLY SET ASI DE AND THE AO IS DIRECTED TO ADJUDICATE THE WHOLE GAMUT OF ISSUES AF TER GIVING PROPER ITA NOS. 1352 & 1353/AHD/17 [BHAVESH P. JAIN & ANR.] A.Y. 2010-11 - 16 OPPORTUNITY TO THE ASSESSEE BOTH ON JURISDICTIONAL ASPECT AS WELL AS ON MERITS. THE AO SHALL PASS SPEAKING ORDER IN ACCORD ANCE WITH LAW AFTER TAKING NOTE OF THE RELEVANT FACTS AND JUDICIAL PRON OUNCEMENTS APPLICABLE IN THE FACTS OF THE CASE. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. 12. FOR THE SIMILARITY OF REASON, APPEAL IN ITA NO. 1353/AHD/2017 IS ALSO SET ASIDE TO THE FILE OF THE AO FOR DE NOVO ADJUDICATION. 13. IN THE RESULT, BOTH THE APPEALS OF ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. SD/- SD/- (MAHAVIR PRASAD) (PRADIP KUMA R KEDIA) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD: DATED 28/06/2019 TRUE COPY S. K. SINHA !'#' / COPY OF ORDER FORWARDED TO:- &. / REVENUE 2. / ASSESSEE (. )*+ , / CONCERNED CIT 4. ,- / CIT (A) /. 012 33*+4 *+#4 56) / DR, ITAT, AHMEDABAD 7. 289 : / GUARD FILE. BY ORDER / 4 /5 *+#4 56) THIS ORDER PRONOUNCED IN OPEN COURT ON 28/06/201 9