SMT. HARSHA NILESH SHETH, V. THE ITO WD-28(2)(1),

ITA 1567/MUM/2005

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59720 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 16-01-2012
• Assessment Year: 2000-2001
• Appeal Filed On: 25-02-2005
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Opportunity of being heard; Cost of acquisition
• Section: 234B; 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIB UNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI R.S.PADVEKAR, JM ITA NOS.1566, 1567 & 1568/MUM/2005 : ASST. YEARS 1 999-2000, 2000-2001 & 2001-2002 SMT.HARSHA NILESH SHETH B/16 GARIDAS C.H.S. 3 RD FLOOR 5 TH NORTH SOUGH ROAD, JVPD SCHEME MUMBAI 400 049. PAN : AOSPS7882J. THE INCOME TAX OFFICER WARD 28(2)(1) MUMBAI. (APPELLANT) VS. (RESPONDENT) ITA NO.1569/MUM/2005 : ASST. YEAR 1999-2000 SMT.TRUPTI AMIT SHETH 12/224 JUHU SHEETAL C.H.S. SAMARTH RAMDAS MARG, JVPD SCHEME MUMBAI 400 049. PAN : APNPSOO84E. THE INCOME TAX OFFICER WARD 28(2)(1) MUMBAI. (APPELLANT) VS. (RESPONDENT) ITA NOS.1570, 1571 & 1572/MUM/2005 : ASST. YEARS 1 999-2000, 2000-2001 & 2001-2002 SMT.JAGRUTI KETAN SHETH 193 LALIT KUTIR, 9 TH GULMOHAR CROSS ROAD JVPD SCHEME MUMBAI 400 049. PAN :APNPS0141N. THE INCOME TAX OFFICER WARD 28(2)(1) MUMBAI. (APPELLANT) VS. (RESPONDENT) APPELLANTS BY : SMT.AARTI VISSANJI & SHRI SHALIN S. DIVATIA RESPONDENT BY : DR.P.DANIEL DATE OF HEARING : 16.01.2012 DATE OF PRONOUNCEMENT : 18.01.2012 O R D E R PER R.S.SYAL, AM : THESE SEVEN APPEALS RELATING TO THREE SEPARATE BUT CONNECTED ASSESSEES INVOLVE SOME COMMON ISSUES. THESE ARE, THEREFORE, C LUBBED FOR DISPOSAL BY A CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 2 ITA NO.1566/MUM/2005 : ASST.YEAR 1999-2000 : SMT. H ARSHA NILESH SHETH 2. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADDI TION OF ` 76,63,084 MADE BY THE ASSESSING OFFICER U/S 68. BRIEFLY STATED THE FACTS OF THIS GROUND ARE THAT THE ASSESSEE IS AN EMPLOYEE OF M/S.GILTEDGE FINANCE & MANAGEMENT SERVICES LIMITED. SHE FILED HER RETURN IN RESPONSE TO NOTICE U/S 148 DECLARING TOTAL INCOME AT ` 70,560. FROM THE BALANCE SHEET OF THE ASSESSEE IT W AS OBSERVED BY THE A.O. THAT SHE HAD SHOWN TO HAVE RECEIVED FOLLOW ING TWO LOANS:- (I) SENSEX FINANCIAL CONSULTANCY ` 76,38,084 (II) GILTEDGE MANAGEMENT SERVICES LTD. ` 25,000 -------------- TOTAL ` 76,63,084 ========= 3. THE ASSESSEE WAS CALLED UPON TO FURNISH LOAN CO NFIRMATION OF THE ABOVE CREDITORS. ONLY XEROX COPIES OF THE CONFIRMATIONS W ERE FILED ON 16.12.2002. THE A.O. ISSUED SUMMONS U/S 131 FOR THE CROSS-EXAMI NATION AND IDENTIFICATION. NONE OF THEM ATTENDED. THE ASSESSEE WAS FINALLY ASK ED TO PRODUCE THE CREDITORS ALONG WITH THEIR BALANCE SHEET ETC. THIS REQUIREMEN T REMAINED UNCOMPLIED WITH. SHE FILED COPIES OF LOAN CONFIRMATION AND XEROX COP Y OF BANK ACCOUNT WITHOUT FILING ANY ORIGINAL PAPERS. IN THE ABSENCE OF ANY E VIDENCE FORTHCOMING AS DEMANDED BY THE ASSESSING OFFICER, HE MADE ADDITION OF ` 76.63 LAKH U/S 68 OF THE ACT. DURING THE COURSE OF FIRST APPELLATE PROCE EDINGS, REMAND REPORT WAS CALLED FOR TWICE BY THE LEARNED CIT(A) IN WHICH THE A.O. REITERATED HIS STAND FOR SUSTENANCE OF THE ADDITION. THE LEARNED CIT(A) UPHE LD THE ADDITION. 4. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE RELEVANT MATERIAL ON RECORD IT IS RELEVANT TO NOTE THAT THE FACTS OF THE PRESENT CASE ARE ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 3 PECULIAR IN ITS NATURE. THE ASSESSEE BELONGS TO KET AN SHETH GROUP OF ASSESSEES WHICH WAS INVOLVED IN THE SECURITIES SCAM IN THE NA ME OF HOME TRADE ALLEGEDLY IN CONNIVANCE WITH ONE SHRI SANJAY AGARWA L. THERE WAS ALLEGATION OF INVOLVEMENT OF JANATA SAHAKARI BANK LIMITED, PUNE F OR ROTATION OF VARIOUS FUNDS PERTAINING TO THE ABOVE GROUP. THE SHETH GROU P OF ASSESSEES HAD PURCHASED A BULK OF SHARES OF HOME TRADE WHICH WERE SOLD TO VARIOUS CONCERNS OF CALCUTTA AND THE FUNDS FOR THE PURCHASE AND SALE OF SHARES HAD BEEN ALLEGEDLY ROUTED THROUGH THE SAID CO-OPERATIVE BANK. SHRI KET AN SHETH WHO IS RELATED TO THE ASSESSEE WAS PROMOTER OF GILTEDGE MANAGEMENT SE RVICES LIMITED WHICH HAS BEEN CHARGED WITH SWINDLING OF HUGE FUNDS BELONGING TO PROVIDENT FUND OF SOME ORGANIZATIONS AND HE WAS IN C.B.I. CUSTODY. 5. FROM THE FACTUAL POSITION AS NOTED ABOVE IT IS S EEN THAT THE ASSESSEE SHOWED TO HAVE RECEIVED LOAN OF ` 76.38 LAKH FROM SENSEX FINANCIAL CONSULTANCY AND ` 25,000 FROM GILTEDGE MANAGEMENT SERVICES LIMITED. B OTH THESE CONCERNS ARE GROUP CONCERNS OF SHRI KETAN SHE TH WHO WAS INVOLVED IN THE SECURITIES SCAM AND ASSESSEE IS ALSO APART OF THE S AME GROUP. THE SAID SHRI KETAN SHETH WAS DIRECTED TO BE PRODUCED BEFORE THE LOWER AUTHORITIES BUT COULD NOT BE PRODUCED BECAUSE OF HIS JUDICIAL CUSTODY WIT H C.B.I. THE LEARNED A.R. STATED THAT NOW HE IS OUT ON BAIL. ON A SPECIFIC QU ESTION ABOUT THE PRESENT STATUS OF SECURITIES SCAM INVOLVING SHRI KETAN SHETH, THE LEARNED AR COULD NOT THROW ANY LIGHT ON THE SAME. THE ORIGIN OF THE ENTIRE AMO UNT AS ADDED BY THE A.O. U/S 68 IN THE CASE OF THIS ASSESSEE IN THIS YEAR AND OT HER YEARS AS WELL AS OTHER ASSESSEES INVOLVED IN THIS BATCH OF APPEALS APPEARS TO BE LOAN FROM JANATA SAHAKARI BANK LIMITED OF ` 20 CRORE. THIS BANK IS ALSO INVOLVED IN THE ABOVE SCAM FOR ROTATION OF VARIOUS FUNDS PERTAINING TO KE TAN SHETH GROUP OF ASSESSEES. AS IT IS A CASE UNDER INVESTIGATION BY C.B.I. INVOL VING KETAN SHETH GROUP OF ASSESSEES ALLEGING ROTATION OF VARIOUS FUNDS PERTAI NING TO THE SAID GROUP, IT IS BUT NATURAL THAT THE PAPER TRANSACTIONS WOULD DEFINITEL Y BE ROUTED FROM ONE ACCOUNT ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 4 TO ANOTHER. BUT THE MERE FACT THAT THE TRANSACTIONS HAVE BEEN RECORDED IN THE BOOKS OF ACCOUNT DOES NOT PER SE PROVE THE GENUINENESS OF THE TRANSACTIONS MORE SPECIFICALLY WHEN SHRI KETAN SHETH HIMSELF IS INVOL VED IN THE SCAM AND FURTHER THE BANK WHICH INITIALLY ALLEGEDLY ADVANCED LOAN TO SHRI KETAN SHETH IS ALSO PART OF THE SCAM. UNDER SUCH CIRCUMSTANCES UNLESS THE OR IGIN OF THE AMOUNT IS CONCLUSIVELY PROVED, THERE IS NO POINT IN ACCEPTING THE ROTATION OF FUNDS FROM ONE CONCERN TO ANOTHER AND FROM ONE HAND TO ANOTHER . NOT ONLY THE ORIGIN OF THE MONEY BUT ALSO ITS ROTATION NEEDS TO BE PROPERLY EX PLAINED BY THE ASSESSEE. AS THE PERSONS ADVANCING LOANS TO THE ASSESSEE AND THE ASSESSEE HERSELF ARE PART OF THE KETAN SHETH GROUP OF ASSESSEES, WHO ARE INVOLVE D IN THE SECURITIES SCAM AND THE FINAL VIEW TAKEN IN THAT SCAM HAS NOT BEEN BROU GHT TO OUR NOTICE, WE ARE HANDICAPPED IN DECIDING THIS ISSUE AT OUR END. IN O UR CONSIDERED OPINION, THE ENDS OF JUSTICE WILL MEET ADEQUATELY IF THE IMPUGNE D ORDER IS SET ASIDE THE MATTER IS RESTORED TO THE FILE OF A.O. WE ORDER ACC ORDINGLY AND DIRECT HIM TO DECIDE THIS ISSUE AS PER LAW AFTER ALLOWING A REASO NABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 6. SECOND GROUND AGAINST THE CHARGING OF INTEREST U /S 234B IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 7. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIST ICAL PURPOSES. ITA NO.1567/MUM/2005 : ASST.YEAR 2000-2001 : SMT. H ARSHA NILESH SHETH 8. FIRST GROUND IS AGAINST SUSTENANCE OF ADDITION O F ` 1,33,75,920 MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THE FACTS AND CIRCUMSTANCES OF THIS GROUND ARE MUTATIS MUTANDIS SIMILAR TO THOSE OF ASSESSMENT YEAR 1999-2000 EXCEPT FOR THE FACT THAT IN THIS YEAR THE ASSESSEE SHOWED TO HAVE TAKEN LOAN FROM THE FOLLOWING THREE CONCERNS:- ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 5 (I) KETAN SHETH & COMPANY ` 1,21,48,850 (II) NILESH K.SHETH ` 8,65,000 (III) GILTEDGE MANAGEMENT SERVICES LTD. ` 3,62,070 ---------------- TOTAL ` 1,33,75,920 ========== 9. THESE THREE CONCERNS ARE AGAIN PART OF KETAN SHE TH GROUP OF ASSESSEES. IN VIEW OF OUR DECISION TAKEN IN ASSESSMENT YEAR 1999- 2000, WHICH HAS BEEN ADMITTED TO BE APPLICABLE TO THE CURRENT YEAR AS WE LL, WE SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND REMIT THE MATTER TO THE FIL E OF A.O. FOR TAKING A FRESH DECISION ACCORDINGLY. 10. THE OTHER GROUND ABOUT CHARGING OF INTEREST U/S 234B IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 11. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ITA NO.1568/MUM/2005 : ASST.YEAR 2001-2002 : SMT.HA RSHA NILESH SHETH 12. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADD ITION OF ` 24,04,028 MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. BOTH TH E SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND ARE SIMI LAR TO THE OTHER TWO YEARS. IN THIS YEAR ALSO THE LOANS WERE STATED TO HAVE BEEN R ECEIVED BY THE ASSESSEE FROM KETAN SHETH GROUP OF ASSESSEES. IN VIEW OF OUR DECI SION TAKEN HEREINABOVE WE SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND REST ORE THE MATTER TO THE FILE OF A.O. FOR A FRESH DECISION AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 13. GROUND NO.2 IS AGAINST NOT ALLOWING SHORT TERM LOSS OF ` 2,00,63,516 DERIVED BY THE ASSESSEE ON SALE OF MUTUAL FUNDS. TH E FACTS OF THIS GROUND ARE THAT THE ASSESSEE SHOWED LONG TERM CAPITAL GAIN OF ` 1.96 CRORE AND SHORT TERM ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 6 CAPITAL LOSS OF ` 2.00 CRORE ALONG WITH DIVIDEND INCOME OF ` 1.81 CRORE EXEMPT U/S 10(33) OF THE ACT. ON BEING CALLED UPON TO FURN ISH THE DETAILS IN RESPECT OF SHORT TERM LOSS, THE ASSESSEE FILED SUCH DETAILS AS UNDER:- DATE PARTICULARS AMOUNT AMOUNT 19.12.00 18.12.00 23.02.01 22.02.01 11.02.01 09.02.01 SHORT TERM CAPITAL GAINS SALE OF MUTUAL FUND UNITS SUN F & C MUTUAL FUND SALE OF 1011663.286 UNITS @ 10.6573 LESS COST OF ACQUISITION PURCHASE COST 1011663.286@ 13.8386 INTEREST ON LOAN TAKEN FOR PURCHASE OF UNIT. SUN F & C MUTUAL FUND SALE OF 3003000.443 UNITS @ 10.54 LESS COST OF ACQUISITION PURCHASE COST 3003000.443 @ 13.1583 INT. ON LOAN TAKEN FOR PURCHASE OF UNITS. JM MUTUAL FUND SALE OF 1806451.613 UNITS @ 10.58 LESS COST OF ACQUISITION PURCHASE COST 1806451.613 @ 15.5 INTEREST ON LOAN TAKEN FOR PURCHASE OF UNIT. 14000000 116600 A 39514388 45678 B 28000000 37282 D A+B+D 10781609 14011660 ------------- -3230051 ------------- 31651625 39560066 ------------- -7908441 ------------- 19112258 28037282 ------------- -8925024 ------------- -20063516 ======== ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 7 14. ON THE PERUSAL OF THESE DETAILS IT WAS NOTICED BY THE A.O. THAT THE UNITS WERE PURCHASED INCLUSIVE OF DIVIDEND ALREADY DECLAR ED AND SOLD / REDEEMED ON THE VERY NEXT DAY OR A DAY AFTER AT A LOWER RATE AS THE VALUE OF UNIT DRASTICALLY REDUCED AS A RESULT OF THE DIVIDEND OUTFLOW. IN THE OPINION OF THE A.O. THE DIVIDEND INCOME OF ` 1.81 CRORE WAS CLAIMED AS EXEMPT WHICH AROSE OUT OF SUCH TRANSACTIONS. HE, THEREFORE, HELD THAT THE SAID SHO RT TERM LOSS CLAIMED BY THE ASSESSEE WAS NOT ALLOWABLE. THE LEARNED CIT(A) UPHE LD THE ASSESSMENT ORDER ON THIS POINT. 15. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. THE ASSESSMENT YEAR UNDER CONSIDERATION IS 2001-2002. SUB-SECTION (7) HAS BEEN INSERTED TO SECTION 94 WITH EFFECT FROM 01 .04.2002 PROVIDING THAT WHERE ANY PERSON BUYS OR ACQUIRES ANY SECURITIES OR UNITS WITHIN A PERIOD OF THREE MONTHS PRIOR TO THE RECORD DATE AND SUCH PERS ON SELLS OR TRANSFERS SUCH SECURITIES OR UNITS WITHIN A PERIOD OF THREE MONTHS AFTER SUCH DATE AND THE DIVIDEND OR INCOME ON SUCH SECURITIES OR UNITS RECE IVED OR RECEIVABLE BY SUCH PERSON IS EXEMPT FROM TAX, THEN THE LOSS, IF ANY, A RISING ON ACCOUNT OF SUCH PURCHASE AND SALE OF SECURITIES OR UNITS, TO THE EX TENT SUCH LOSS DOES NOT EXCEED THE AMOUNT OF DIVIDEND OR INCOME RECEIVED, SHALL BE IGNORED FOR THE PURPOSES OF COMPUTING HIS INCOME CHARGEABLE TO TAX. THIS PROVIS ION HAS BEEN INSERTED BY THE FINANCE ACT, 2001 AND IS APPLICABLE FROM ASSESSMENT YEAR 2002-2003. PRIOR TO THAT, NAMELY, UP TO ASSESSMENT YEAR 2001-2002, THE RE WAS NO PROVISION FOR NOT ALLOWING THE LOSS INCURRED BY THE ASSESSEE ON SALE AND PURCHASE OF UNITS OR SECURITIES DESPITE THE FACT THAT THE DIVIDEND INCOM E IS EXEMPT. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. WALFORT SHARE AND STOCK BROKERS PVT. LTD. [(2010) 326 ITR 1 (SC)] HAS HELD THAT THE DIVIDEND STRIPPING TRANSACTIONS C ANNOT BE SAID TO BE ABUSE OF LAW EVEN IF IT WAS PREPLAN NED BEFORE THE INSERTION OF SECTION 94(7) WITH EFFECT FROM 01.04.2002. IN THIS CASE THE HONBLE SUPREME ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 8 COURT UPHELD THE GENUINENESS OF TRANSACTION AND ALL OWED THE LOSS. AS THE FACTS AND CIRCUMSTANCES UNDER CONSIDERATION ARE SIMILAR T O THOSE CONSIDERED AND DECIDED BY THE HONBLE SUPREME COURT IN THE AFORE-N OTED CASE, WE ARE OF THE CONSIDERED OPINION THAT THE VIEW TAKEN BY THE LEARN ED CIT(A) CANNOT BE SUSTAINED. WE, THEREFORE, OVERTURN THE SAME. THIS G ROUND IS ALLOWED. 16. GROUND NO.3 ABOUT THE CHARGING OF INTEREST U/S. 234 IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 17. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ITA NO.1569/MUM/2005 : ASST.YEAR 1999-2000 : SMT.TR UPTI A.SHETH : 18. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADD ITION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THIS ASSESSEE, AGAIN A PART OF KETAN SHETH GROUP OF ASSESSES, SHOWED TO HAVE RECEIVED AN AMOU NT OF ` 76,98,084 FROM THE FOLLOWING THREE PARTIES:- (I) SENSEX FINANCIAL CONSULTANCY ` 76,38,084 (II) SHRI KANTILAL K.SHETH ` 35,000 (III) GILTEDGE MANAGEMENT SERVICES LTD. ` 35,000 -------------- TOTAL ` 76,98,084 ========= 19. THESE CONCERNS FROM WHOM THE ASSESSEE SHOWED TO HAVE RECEIVED UNSECURED LOAN ARE ADMITTEDLY PART OF KETAN SHETH G ROUP OF ASSESSEES. THE AO MADE THE ADDITION U/S 68, WHICH CAME TO BE UPHELD I N THE FIRST APPEAL. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTA NCES OF THIS GROUND ARE SIMILAR TO THOSE ARGUED BY THEM RESPECTIVELY IN THE CASE OF SMT.HARSHA NILESH SHETH FOR ASSESSMENT YEAR 1999-2000. WE HAVE DISPOS ED OFF THE GROUND TAKEN IN THE CASE OF SMT.HARSHA NILESH SHETH FOR THE ASSESSM ENT YEAR 1999-2000 ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 9 RESTORING THE MATTER TO THE FILE OF A.O. WITH CERTA IN OBSERVATIONS. IN VIEW OF THE SIMILARITY OF FACTS OF THE PRESENT ASSESSEE WITH TH OSE OF SMT.HARSHA NILESH SHETH, FOLLOWING THE VIEW TAKEN HEREINABOVE, WE SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND REMIT THE MATTER TO THE FILE OF A .O. FOR A DECISION AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEIN G HEARD TO THE ASSESSEE. 20. THE OTHER GROUND ABOUT CHARGING OF INTEREST U/S .234 IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 21. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ITA NO.1570/MUM/2005 : ASST.YEAR 1999-2000 : SMT.JA GRUTI KETAN SHETH 22. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADD ITION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THIS ASSESSEE, AGAIN A PART OF KETAN SHETH GROUP OF ASSESSES, SHOWED TO HAVE RECEIVED AN AMOUN T OF ` 8,76,63,084 FROM THE FOLLOWING THREE PARTIES:- (I) MANIRAM CONSULTANCY AND INVESTMENT ` 8,00,00,000 (II) SENSEX FINANCIAL CONSULTANCY ` 76,38,084 (III) GILTEDGE MANAGEMENT SERVICES LTD. ` 25,000 ---------------- TOTAL ` 8,76,63,084 ========== 23. THESE CONCERNS FROM WHOM THE ASSESSEE SHOWED TO HAVE RECEIVED UNSECURED LOAN ARE ADMITTEDLY PART OF KETAN SHETH G ROUP OF ASSESSEES. THE AO MADE ADDITION OF THE ABOVE AMOUNT U/S 68, WHICH HAS BEEN CONFIRMED IN THE FIRST APPEAL. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND ARE SIMILAR TO THOSE ARGUED BY THEM RES PECTIVELY IN THE CASE OF SMT.HARSHA NILESH SHETH FOR ASSESSMENT YEAR 1999-20 00. WE HAVE DISPOSED OFF THE GROUND TAKEN IN THE CASE OF SMT.HARSHA NILESH S HETH FOR THE ASSESSMENT ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 10 YEAR 1999-2000 RESTORING THE MATTER TO THE FILE OF A.O. WITH CERTAIN OBSERVATIONS. IN VIEW OF THE SIMILARITY OF FACTS OF THE PRESENT ASSESSEE WITH THOSE OF SMT.HARSHA NILESH SHETH, FOLLOWING THE VIEW TAKE N HEREINABOVE, WE SET ASIDE THE IMPUGNED ORDER ON THIS ISSUE AND REMIT THE MATT ER TO THE FILE OF A.O. FOR A DECISION AFRESH AS PER LAW AFTER ALLOWING A REASONA BLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 24. THE OTHER GROUND ABOUT CHARGING OF INTEREST U/S .234 IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 25. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ITA NO.1571/MUM/2005 : ASST.YEAR 2000-2001: SMT.JAG RUTI KETAN SHETH 26. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADD ITION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THIS ASSESSEE SHOWED TO HAVE RECEIVED AN AMOUNT OF ` 2,03,24,000 FROM THE FOLLOWING TWO PARTIES IN THE C URRENT YEAR:- (I) KETAN SHETH & COMPANY ` 1,08,50,000 (II) GILTEDGE FINANCIAL & MANAGEMENT SERVICES LTD. ` 94,74,000 ---------------- TOTAL ` 2,03,24,000 ========== 27. THESE CONCERNS FROM WHOM THE ASSESSEE SHOWED TO HAVE RECEIVED UNSECURED LOAN ARE ADMITTEDLY PART OF KETAN SHETH G ROUP OF ASSESSEES. THE AO MADE ADDITION FOR THE SAID AMOUNT U/S 68,WHICH HAS BEEN UPHELD IN THE FIRST APPEAL. THE ASSESSEE IS AGGRIEVED AGAINST SUCH CONF IRMATION. BOTH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF TH IS GROUND ARE SIMILAR TO THOSE ARGUED BY THEM RESPECTIVELY IN THE CASE OF SMT.HARS HA NILESH SHETH FOR ASSESSMENT YEAR 1999-2000. WE HAVE DISPOSED OFF THE GROUND TAKEN IN THE CASE OF SMT.HARSHA NILESH SHETH FOR THE ASSESSMENT YEAR 1999-2000 RESTORING THE ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 11 MATTER TO THE FILE OF A.O. WITH CERTAIN OBSERVATION S. IN VIEW OF THE SIMILARITY OF FACTS OF THE PRESENT ASSESSEE WITH THOSE OF SMT.HAR SHA NILESH SHETH, FOLLOWING THE VIEW TAKEN HEREINABOVE, WE SET ASIDE THE IMPUGN ED ORDER ON THIS ISSUE AND REMIT THE MATTER TO THE FILE OF A.O. FOR A DECISION AFRESH AS PER LAW AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 28. THE OTHER GROUND ABOUT CHARGING OF INTEREST U/S .234 IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 29. IN THE RESULT, THE APPEAL IS ALLOWED FOR STATIS TICAL PURPOSES. ITA NO.1572/MUM/2005 : ASST.YEAR 2001-2002 : SMT.JA GRUTI KETAN SHETH 30. FIRST GROUND IS AGAINST THE CONFIRMATION OF ADD ITION MADE BY THE ASSESSING OFFICER U/S 68 OF THE ACT. THIS ASSESSEE SHOWED TO HAVE RECEIVED AN AMOUNT OF ` 16,33,000 FROM M/S.DALHOUSIE SECURITIES LIMITED. TH IS CONCERN FROM WHOM THE ASSESSEE SHOWED TO HAVE RECEIVED UNSE CURED LOAN IS ADMITTEDLY PART OF KETAN SHETH GROUP OF ASSESSEES. THE AO MADE THE ADDITION FOR THE SAID AMOUNT U/S 68, WHICH HAS BEEN APPROVED IN THE FIRST APPEAL. THE ASSESSEE DESIRES THE DELETION OF THIS ADDITION. BOTH THE SID ES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND ARE SIMILAR TO THOSE ARGUED BY THEM RESPECTIVELY IN THE CASE OF SMT.HARSHA NILESH SHETH FOR ASSESSMENT YEAR 1999- 2000. WE HAVE DISPOSED OFF THE GROUND TAKEN IN THE CASE OF SMT.HARSHA NILESH SHETH FOR THE ASSESSMENT YEAR 1999-2000 RESTORING T HE MATTER TO THE FILE OF A.O. WITH CERTAIN OBSERVATIONS. IN VIEW OF THE SIMILARIT Y OF FACTS OF THE PRESENT ASSESSEE WITH THOSE OF SMT.HARSHA NILESH SHETH, FOL LOWING THE VIEW TAKEN HEREINABOVE, WE SET ASIDE THE IMPUGNED ORDER ON THI S ISSUE AND REMIT THE MATTER TO THE FILE OF A.O. FOR A DECISION AFRESH AS PER LA W AFTER ALLOWING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NOS.1566/MUM/2005 & ORS. SMT.HARSHA NILESH SHETH & ORS. 12 31. GROUND NO.2 IS AGAINST NOT ALLOWING SHORT TERM LOSS OF ` 2,79,46,943 DERIVED BY THE ASSESSEE ON SALE OF MUTUAL FUNDS. BO TH THE SIDES ARE IN AGREEMENT THAT THE FACTS AND CIRCUMSTANCES OF THIS GROUND ARE SIMILAR TO THOSE OF CONSIDERED AND DECIDED BY US IN THE CASE OF SMT.HARSHA NILESH SHETH IN ITA NO.1568/MUM/2005 IN ASSESSMENT YEAR 2001-2002. RESP ECTFULLY FOLLOWING THE VIEW TAKEN BY US HEREINABOVE, WE ALLOW THIS GROUND . 32. THE OTHER GROUND ABOUT CHARGING OF INTEREST U/S .234 IS CONSEQUENTIAL AND DISPOSED OFF ACCORDINGLY. 33. IN THE RESULT, THE APPEAL IS PARTLY ALLOWED. ORDER PRONOUNCED ON THIS 18 TH DAY OF JANUARY, 2012. SD/- SD/- (R.S.PADVEKAR) (R.S.SYAL) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI : 18 TH JANUARY, 2012. DEVDAS* COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A)-XXVIII, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.