Shri Sudhir Balraj Jumani,HUF, Ahmedabad V. The Income tax Officer,Ward-7(3), Ahmedabad

ITA 1570/AHD/2012

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0950 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-08-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 23-06-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 16-07-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: DINESH SINGH
• Keywords: Bogus purchase; Income from undisclosed sources; Share purchase agreement; Accommodation entries
• Section: 131; 148; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, AHMEDABAD BEFORE SHRI RAJPAL YADAV, JUDICIAL MEMBER ./ ITA.NO.1570/AHD/2012 / ASSTT. YEAR: 2003-2004 SUDHIR BALRAJ JUMANI - HUF LANE 12/234, SATYAGRAH CHHAVNI SATELLITE, AHMEDABAD 380 015. PAN : AABHJ 5877 K. VS ITO, WARD - 7(3) AHMEDABAD. ! / (APPELLANT) '# ! / (RESPONDENT) ASSESSEE BY : SHRI TUSHAR HEMANI REVENUE BY : SHRI DINESH SINGH, SR.DR / DATE OF HEARING : 23/06/2016 / DATE OF PRONOUNCEMENT: 04/08/2016 $%/ O R D E R ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL AGAINST T HE ORDER OF THE LD.CIT(A)-XIV DATED 15.5.2012 FOR THE ASSTT.YEAR 20 03-04. 2. IN THE FIRST GROUND OF APPEAL, THE ASSESSEE HAS CHALLENGED REOPENING OF THE ASSESSMENT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA S FILED HIS RETURN OF INCOME ON 29.09.2003 DECLARING TOTAL INCOME AT RS.2 ,54,280/-. THIS RETURN WAS PROCESSED UNDER SECTION 143(1) OF THE INCOME TA X ACT. IT CAME TO THE NOTICE OF THE AO THAT THE DEPARTMENT HAS CARRIED OU T SEARCH OPERATION UNDER SECTION 132 OF THE INCOME TAX ACT IN THE GROUP CASE S OF MAHASAGAR SECURITIES PVT. LTD., AND MUKESH CHOKSHI AT MUMBAI. IT CAME T O THE NOTICE OF THE DEPARTMENT THAT INDIVIDUALS AND ENTITIES WERE INDUL GING IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS B ILLS IN RESPECT OF PURCHASE/SALES OF SHARES WITHOUT ANY ACTUAL TRANSAC TION. ON DETAILED ITA NO.1570/AHD/2012 2 INVESTIGATION OF THEIR CASES, IT CAME TO THE NOTICE OF THE DEPARTMENT THAT THE ASSESSEE WAS ALSO ONE OF THE BENEFICIARIES OF PURCH ASING OF LONG TERM CAPITAL GAIN BY OBTAINING BOGUS PAYMENT OF PURCHASE/SALES O F SHARES OF BUNIYAD CHEMICALS. THIS TRANSACTION WAS CARRIED OUT BY THE ASSESSEE FROM THE ADDRESS OF 703, SAROVAR COMPLEX, B/H. HOTEL CLASSIC GOLD, N R. JAIN TEMPLE, NAVRANGPURA, AHMEDABAD, THEREFORE, ITO, WARD-10(4) HAVING TERRITORIAL JURISDICTIONAL OVER THE AREA RECORDED REASONS FOR R E-OPENING OF THE ASSESSMENT AND ISSUED NOTICE UNDER SECTION 148 OF THE INCOME T AX ACT. IN RESPONSE TO THE NOTICE, THE ASSESSEE WROTE A LETTER DATED 26.4.2010 AND POINTED OUT THAT HE HAS BEEN FILING RETURN WITH ITO, WARD-7(3), AHMEDABAD T ILL A.Y.2009-10. IT WAS ALSO PLEADED THAT THE ITO, WARD-10(4) HAS NO TERRIT ORIAL JURISDICTION AND NOTICE IS BAD IN LAW. THE LD.AO HAS CONSIDERED OBJECTION OF THE ASSESSEE AND REJECTED THEM. RECORD OF THE ASSESSEE WAS TRANSMIT TED TO THE AO WHO HAS TERRITORIAL JURISDICTION OVER THE ASSESSEE, I.E. WH ERE THE ASSESSEE HAS BEEN FILING RETURN, AND ULTIMATELY, ASSESSMENT ORDER WAS PASSED BY ITO, WARD-7(3), AHMEDABAD ON 27.12.2010 AND ADDITION OF RS.3,99,070 /- WAS MADE TO THE TOTAL INCOME OF THE ASSESSEE. APPEAL TO THE CIT(A) DID NOT BRING ANY RELIEF TO THE ASSESSEE ON THIS ISSUE. 4. BEFORE ME, THE LD.COUNSEL FOR THE ASSESSEE HAS R AISED TWO FOLD SUBMISSIONS. IN THE FIRST FOLD OF SUBMISSION, HE C ONTENDED THAT TERRITORIAL JURISDICTION OVER THE ASSESSEE WAS WITH ITO, WARD-7 (3), AHMEDABAD, AND THEREFORE, ITO, WARD-10(4) COULD HAVE NOT FORMED AN Y OPINION ABOUT THE ESCAPEMENT OF INCOME, AND SHOULD HAVE NOT ISSUED NO TICE UNDER SECTION 148 OF THE ACT. IN HIS SECOND FOLD SUBMISSION, HE POINTED THAT IN THE REASONS, THE AO HAS NO WHERE QUANTIFIED THE INCOME CHARGEABLE TO TA X HAS ESCAPED ASSESSMENT. HE TOOK ME THROUGH COPY OF REASONS FILED AT PAGE NO .14 OF THE PAPER BOOK. HE DREW MY ATTENTION TOWARDS SECTION 149(1) AND SUB MITTED THAT UNLESS THE AMOUNT IS MENTIONED, THE AO WILL NOT BE ABLE TO FUL FILL THE CONDITIONS ITA NO.1570/AHD/2012 3 MENTIONED IN SECTION 149(1). THE ASSESSMENT BEYOND FOUR YEARS SHOULD ONLY BE REOPENED WHEN ESCAPEMENT OF INCOME IS MORE THAN RS.1,00,000/-. ON STRENGTH OF THESE DETAILS, HE CONTENDED THAT THE RE OPENING OF THE ASSESSMENT IS NOT IN ACCORDANCE WITH LAW, AND THEREFORE, THE ASSE SSMENT ORDER IS NOT SUSTAINABLE. 5. THE LD.DR, ON THE OTHER HAND, DREW MY ATTENTION TOWARDS PAGE NO.13 OF THE PAPER BOOK. HE POINTED OUT THAT FORM FOR RECOR DING REASONS CONTAIN VARIOUS COLUMNS, AND IT IS RUNNING INTO TWO PAGES. AT COLUMN NO.6, THE AO HAS CLEARLY MENTIONED THE QUANTUM OF INCOME WHICH H AS ESCAPED ASSESSMENT AT RS.3,99,219/-. AS FAR AS FIRST FOLD OF SUBMISSI ON IS CONCERNED, HE POINTED OUT THAT SINCE THE ASSESSEE WAS INDULGING IN FRAUDU LENT ACTIVITIES, HE HAS NOT QUOTED HIS PAN. HE HAS CARRIED OUT THE TRANSACTION FROM A DIFFERENT ADDRESS AND ON THE BASIS OF THE ADDRESS AVAILABLE IN THE TR ANSACTION, THE AO HAVING TERRITORIAL JURISDICTION OVER THAT ADDRESS RECORDED REASONS. THERE IS NO INFIRMITY IN THE PROCEDURE FOLLOWED BY THE DEPARTME NT. 6. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GON E THROUGH THE RECORD CAREFULLY. I FIND THAT THESE VERY OBJECTIONS WERE RAISED BEFORE THE AO ALSO. THE LD.AO HAS TAKEN NOTE OF THESE OBJECTIONS IN PAR AGRAPH 7 AND 8 OF THE ASSESSMENT ORDER. THE LD.AO, THEREAFTER, DEALT WIT H OBJECTIONS AND REFERRED THE MATERIAL COLLECTED DURING THE COURSE OF SEARCH CARRIED OUT AT THE PREMISES OF MUKESH CHOKSHI. AS FAR AS ARGUMENTS OF THE LD.C OUNSEL FOR THE ASSESSEE THAT THERE IS NO QUANTIFICATION OF ESCAPED INCOME I N THE REASONS RECORDED BY THE AO IS CONCERNED, I DO NOT FIND ANY SUBSTANCE IN IT, BECAUSE, THE AO HAS DULY QUANTIFIED THE INCOME IN COLUMN NO.6 AND THIS COMPLETE FORM IS IN ACCORDANCE WITH LAW AND PART OF THE REASONS RECORDE D BY THE AO. IT CONTAINED VARIOUS DETAILS I.E. NAME AND ADDRESS OF THE ASSESS EE, PAN, STATUS, ASSESSMENT YEAR AND MANY OTHER THINGS. FROM THE REASONS, ONE HAS TO FIND OUT WHETHER ITA NO.1570/AHD/2012 4 THE AO WAS POSSESSING ANY INFORMATION WHICH COULD E NABLE HIM TO HARBOR A BELIEF THAT THE INCOME HAS ESCAPED ASSESSMENT. ON COMPLETE READING OF THE REASONS, IT IS ASCERTAINABLE THAT INCOME HAS ESCAPE D ASSESSMENT IN THE CASE OF THE ASSESSEE. AS FAR AS THE OBJECTION WITH REGARD TO TERRITORIAL JURISDICTION OF THE AO IS CONCERNED, I FIND THAT ITO, WARD-10(4) HA S RECORDED REASONS, BECAUSE, THE TRANSACTION WAS CARRIED OUT FROM ADDRE SS SITUATED WITHIN HIS TERRITORIAL JURISDICTION. MOMENT, THE ASSESSEE APP RAISED HIM ABOUT HIS NEW ADDRESS, JURISDICTION TO THE AO HAVING TERRITORIAL JURISDICTION OVER NEW ADDRESS HAS BEEN GIVEN. NO PREJUDICE IS BEING CAUSED TO TH E ASSESSEE ON THE BASIS OF THIS PROCEDURE. 7. IN THE NEXT GROUND OF THE APPEAL, THE GRIEVANCE OF THE ASSESSEE THAT THE LD.CIT(A) HAS ERRED IN CONFIRMING THE ADDITION WITH OUT GIVING OPPORTUNITY TO CROSS-EXAMINE. 8. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HA D PURCHASED 9000 SHARES OF BUNIYAD CHEMICALS. ACCORDING TO THE ASSESSEE, I T HAD A LONG TERM CAPITAL GAIN OF RS.3,93,356/-. THIS TRANSACTION OF THE ASS ESSEE HAS BEEN DISBELIEVED AND ADDITION UNDER THE HEAD INCOME FROM UNDISCLOSED SOURCES HAS BEEN MADE. THE AO HAS HIGHLIGHTED MODUS OPERANDI OF GENERATION OF ALLEGED BOGUS LONG TERM CAPITAL GAIN. 9. BEFORE ADVERTING TO THE ARGUMENT OF THE LD.COUNS EL FOR THE ASSESSEE, I DEEM IT APPROPRIATE TO TAKE NOTE OF THE DISCUSSION MADE BY THE AO. IT READS AS UNDER: 9. BEFORE TAKING UP THE ASSESSMENT PART OF THE ASS ESSES FOR THE YEAR UNDER CONSIDERATION, IT IS NECESSARY TO MENTION ABO UT THE BACKGROUND OF THE CASE FOR PROPER APPRECIATION OF THE FACTS. IN O NE OF THE GROUP CASES OF M/S. MAHASAGAR SECURITIES PVT. LTD., SEARCHES U/ S.132 WERE CARRIED OUT ON 25-11-2009. DIRECTOR OF THESE COMPANIES WERE ONE MUKESH M CHOKSHI AND JAYESH K SAMPAT. ITA NO.1570/AHD/2012 5 DURING THE COURSE OF THE SEARCH, IT WAS REVEALED TH AT MAHASAGAR SECURITIES PVT. LTD. AND ITS RELATED GROUP OF 34 CO MPANIES (THE PROMINENT ONES BEING M/S.ALLIANCE INTERMEDIARIES & NET WORK PVT. LTD.,M/S. MIHIR AGENCIES PVT. LTD, M/S., GOLDSTAR F INVEST PVT. LTD. ETC ALL RUN BY MUKESH CHOKSHI) WERE ENGAGED IN FRADULAN T BILLING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATIVE PROFIT/LOSS, SHORT TERM CAPITAL GAIN/LOSS, LONG TERM CAPITAL GAIN/LOSS , COMMODITIES PROFIT / LOSS ON COMMODITY TRADING (THROUGH MCX). T HE LIST OF CLIENTS WHO HAVE TAKEN ENTRIES FROM THESE COMPANIES HAS BEE N EXTRACTED FROM COMPUTER DATA SEIZED FROM THE ASSESSEE'S OFFICE PRE MISES AND HAS BEEN FOUND TO CONSIST OF MORE THAN 3000 BENEFICIARIES. S UCH BENEFICIARIES HAVE TAKEN BOGUS CAPITAL GAIN/LOSS ETC DURING THE F .Y. 2002-03. THE MODUS OPERAND! OF SUCH CASES WAS THAT THE CONSIDERA TION FOR PURCHASE OF THESE SHARES WERE PAID IN CASH. IN ALL THESE CAS ES, THERE WAS NO SHARE PURCHASES ON THE DATE MENTIONED IN BILL. NONE OF TH E COMPANIES RUN BY SHRI MUKESH CHOKSHI HAS A VALID LICENSE AS A BROKER TO TRADE ON ANY STOCK EXCHANGE AS ON DATE. IT IS VERIFIED DURING TH E COURSE OF SEARCH THAT TRANSACTIONS WERE NOT TAKEN PLACE AT ALL ON AN Y STOCK EXCHANGE. ONLY FICTITIOUS BILL WERE PREPARED IN ORDER TO SHOW THAT TRANSACTIONS WERE TAKING PLACE ON STOCK EXCHANGE. SO FAR AS ENTR IES OF CAPITAL GAINS/LOSS ARE CONCERNED, STAFF OF COMPANIES PREPAR ED A LIST OF SCRIPTS HAVING SEIZABLE PRICE DIFFERENCE OVER A PERIOD OF T IME. WHEN CLIENT APPROACHED THE COMPANY FOR BOGUS DELIVERY PROFIT, T HEY WOULD FEED BOGUS 'SAUDAS' IN THEIR 'LEEDHA-DEEDHA' SOFTWARE BY ENTERING BOGUS DATES, TIME, NO. OF ORDER SHARING PURCHASE AND SALE OF SCRIPTS IN DEMAT/PHYSICAL LOT. THESE TRANSACTIONS ARE NOT DONE THROUGH THE STOCK EXCHANGE BUT THE BILL SHOWN THEM TO BE SO AND APPEA R TO BE GENUINE TRANSACTIONS DONE THROUGH THE STOCK EXCHANGES. THE CLIENT GIVES CASH AGAINST THESE PROFIT BILLS. THE CASH IS DEPOSITED I N THE SUBSIDIARY ACCOUNTS LIKE TALENT INFOWAY LTD., BUNIYAD CHEMICAL LTD. ETC AND THEN FUNDS ARE TRANSFERRED TO THE BANK ACCOUNT OF THE BR OKING COMPANY ISSUING THE BILL (MAHASAGAR SECURITIES PVT. LTD, GO LD-STAR FINVEST PVT. LTD ETC). THE CHEQUE EQUIVALENT TO THE AMOUNT OF PR OFIT IS ISSUED TO THE CLIENT FROM THE ACCOUNT OF THE BROKING COMPANY LIKE MAHASAGAR, GOLD- STAR ETC, THUS ENABLING THE CLIENT TO GENERATE PROF IT. 10. THE AFORESAID FACTS HAVE BEEN DULY CONFIRMED BY SHRI MUKESH M CHOKSHI IN HIS STATEMENT RECORDED U/S. 131 ON 11/12 /2009. IN REPLY TO QUESTION NO. 7 OF HIS STATEMENT THAT HOW GENUINE AR E THESE SALES AND PURCHASES OF SHARES. IN REPLY, IT IS STATED THAT BO TH SALE/PURCHASE BILL ISSUED BY HIM WERE BOGUS TRANSACTIONS. HE HAD ALSO EXPLAINED SOME OF THE TRANSACTIONS TOO. ITA NO.1570/AHD/2012 6 SUMMARY OF MODUS OPERANDI AS UNDERSTOOD IS AS UNDER 'EXPLANATION OF VARIOUS TERMS: 1. 'RUN DATE': THE DATE ON WHICH DATA WAS ORIGINALL Y EXTRACTED FROM CHOKSI'S COMPUTERS. 2. 'PAGE NO': EACH ASSESSEE'S LEDGER IS AVAILABLE O N A DIFFERENT PAGE NO. 3. 'GOLDSTAR FINVEST PRIVATE LIMITED'- THIS IS THE NAME OF MUKESH CHOKSI'S COMPANY WHICH HAS ISSUED THE BOGUS BILL. 4. 'PERIOD FROM': REFERS TO THE PERIOD FOR WHICH TH E LEDGER IS 5. 'CLIENT': THIS IS THE NAME OF THE BENEFICIARY WHO HAS TAKEN ENTRY FROM SHRI MUKESH CHOKSI 6. EXPLANATION OF THE VARIOUS COLUMNS OF THE LEDG ERS: S. NO. COLUMN NAME REMARKS 1 DATE REFERS TO THE ALLEGED DATE OF PURCHASE/SALE OF SHARE 2 COMPANY REFERS TO THE NAME OF THE SCRIP WHICH HAS ALLEGEDLY BEEN BOUGHT/SOLD 3 SALES/ PURCHASES WHETHER A PARTICULAR TRANSACTION IS A SALE OR PURCHASE DEPENDS UNDER WHICH COLUMN IT IS PLACED 4 QUANTITY REFERS TO THE NUMBER OF SHARES BOUGHT/SOLD 5 RATE REFER TO THE RATE AT WHICH SHARE IS BOUGHT/SOLD 6 CREDIT/DEBIT AMOUNT CREDITED/DEBITED TO THE ASSESSEES ACCOUNT 7 VALAN TRADE CYCLE IN WHICH THE TRADE TOOK PLACE (IS BOGUS) 8 TRADE NUMBER REFERS TO THE PARTICULAR TRADE NO. (IS ALSO BOGUS) IMPORTANT POINTS TO REMEMBER 1. ALL PURCHASE BILLS ARE BOGUS. THERE WILL BE NO A CTUAL PURCHASE ON THE DATE SHOWN IN THE LEDGER. ITA NO.1570/AHD/2012 7 2. IN CASES OF LONG TERM CAPITAL GAIN, IF THE SALE IS IN F.Y. 2002-03 THE BOGUS PURCHASE WOULD BE SHOWN IN F.Y. 2001-02 (TO E NSURE THAT THE BOGUS BILLS SHOW THAT THE SHARE HAS BEEN HELD FOR O VER 12 MONTHS). HOWEVER THE ACTUAL CASH WHICH IS TO BE LAUNDERED HA S PASSED HANDS ONLY A FEW DAYS PRIOR TO THE ALLEGED SALE I.E. IN F .Y. 2002-03 AND SHOULD BE TAXED IN THAT YEAR. 3. IF IT IS A CASE OF SPECULATION PROFIT THEN EITHE R THIS HAS BEEN DONE TO GENERATE INCOME (IN THE BOOKS) FOR ANOTHER PURCHASE IN THE HANDS OF THE ASSESSEE SO THAT HE/SHE SHOW FUNDS EITHER TO (1) MA KE ANOTHER PURCHASE IN WHICH LONG TERM CAPITAL GAIN IS CLAIMED OR (2) S HOW THIS SPECULATIVE PROFIT AS INCOME BY MAKING PAYMENT OF E QUIVALENT AMOUNT PLUS COMMISSION INCOME TO BRING UNACCOUNTED MONEY I NTO THE CAPITAL ACCOUNT OF THE ASSESSEE/BENEFICIARY. THE BENEFIT OF THE LONG TERM CAPITAL GAIN WILL BE U SED IN THE NEXT FINANCIAL YEAR I.E. F.Y. 2003-04 OR LATER. EXAMPLES FROM ACTUAL BILLS OF THE ASSESSEE WE LOOK AT THE BILL OF SUDHIR JUMANI HUF, 703, SARO VAR COMPLEX, NAVRANGPURA, AHMEDABAD, HE HAS SOLD 9000 SHARES OF 'BUNIYAD CHEMICALS LIMITED'TCOMPANY UNDER LIQUIDATION SR NO 137 OF LIST PUBLISHED BY THE OFFICIAL LIQUIDATOR. HON'BLE HIGH COURT OF BOMBAY CP NO. 24 OF 1993 DATE OF WINDING UP 09-07-1999) ON 25-04-2002. AS THERE ARE ONLY SALE TRANSACTIONS IN HIS LEDGER FOR THE YEAR, HE WOULD HAVE HAD A BOGUS BILL GENERATED SHOWING PURCHASE 12 MONTHS BEFORE THIS DATE, (A CASE OF LONG TERM CAPITAL GAIN ). THE PURCHASE OF THESE 9000 SHARES IS REFLECTED IN HIS LEDGER FOR F.Y. 200 1-02 ON 17/04/2001. THE PURCHASE BILL IS A BOGUS ONE. THE ACTUAL TRANSF ER OF SHARES AND PAYMENT OF CONSIDERATION (IN CASH) WOULD HAVE TAKEN PLACE A FEW DAYS PRIOR TO DATE OF SALE I.E. 17/04/2002 I.E. IN F.Y. 2002-03. THE AMOUNT SHOULD THUS BE TAXED IN FINANCIAL YEAR 2002-03 RELE VANT TO ASST YEAR 2003-04. 11. FROM THE ABOVE DISCUSSION, IT IS VERY CLEAR THA T TRANSACTIONS OF PURCHASE/SALE OF SHARES ENTERED INTO BY BENEFICIARI ES THROUGH MUKESH CHOKSHI & HIS ASSOCIATES COMPANY WERE BOGUS. THE LI ST OF ALL SUCH BENEFICIARIES WERE EXTRACTED FROM THE STORED DATA/B OOKS. THE ASSESSEE IS ALSO ONE OF THE BENEFICIARIES APPEARED IN THE LI ST WHO HAD DONE TRANSACTIONS WITH THE AFORESAID GROUP. ITA NO.1570/AHD/2012 8 10. THIS FINDING OF THE AO HAD MET CONCURRENCE OF T HE LD.CIT(A). THE LD.COUNSEL FOR THE ASSESSEE CONTENDED THAT ADDITION WAS MADE ON THE BASIS OF THE FACTS REVEALED DURING THE COURSE OF SEARCH CARR IED OUT AT THE PREMISES OF MAHASAGAR SECURITIES PVT. LTD. AND MUKESH CHOKSHI. THE ASSESSEE HAD ASKED FOR AN OPPORTUNITY TO CROSS-EXAMINE THE PERSON WHO HAS MADE STATEMENT BEFORE THE REVENUE AUTHORITIES ABOUT PROVIDING BOGU S ACCOMMODATION ENTRY. THIS OPPORTUNITY WAS NOT GRANTED TO THE ASSESSEE. HE MADE REFERENCE TO THE PAGE NOS.20 AND 21 OF THE PAPER BOOK, WHEREIN COPY OF THE LETTER GIVEN BY THE ASSESSEE TO THE AO IS AVAILABLE. HE FURTHER CONTEN DED THAT UNDER THE SIMILAR CIRCUMSTANCES, AN ISSUE WAS CONSIDERED BY THE ITAT, MUMBAI BENCH IN THE CASE OF MS.FARRAH MARKER VS. ITO, ITA NO.3801/MUM/2 011. HE HAS PLACED ON RECORD COPY OF THE ABOVE TRIBUNALS ORDER. HE ALSO RELIED UPON JUDGMENT OF HONBLE GUJARAT HIGH COURT IN THE CASE OF PR.CIT VS. CHARTERED SPEED P. LTD. HE PLACED ON RECORD COPY OF THIS DECISION (TAX APPEAL NO.126 OF 2005). 11. ON THE OTHER HAND, THE LD.DR RELIED UPON THE OR DERS OF THE REVENUE AUTHORITIES. 12. I HAVE DULY CONSIDERED RIVAL CONTENTIONS AND GO NE THROUGH THE RECORD CAREFULLY. THE AO WAS ABLE TO LAY HIS HAND ON PRIMA FACIE INFORMATION THAT MAHASAGAR SECURITIES PVT. LTD. AND MUKESH CHOKSHI W ERE GIVING BOGUS ACCOMMODATION ENTRIES WITH REGARD TO SHORT-TERM/LON G TERM CAPITAL GAIN/LOSS. THE ASSESSEE HAS PURCHASED SHARES OF BUNIYAD CHEMIC ALS AND ON THE BASIS OF THE INVESTMENT IN THIS COMPANY, HAS SHOWN CAPITAL G AIN. THE AO HAS DIRECTED THE ASSESSEE TO PRODUCE EVIDENCE DEMONSTRATING THE GENUINENESS OF THIS TRANSACTION. THE ASSESSEE FAILED TO PRODUCE ANY DO CUMENTS. FIRSTLY, ONUS IS UPON THE ASSESSEE TO DEMONSTRATE THAT HIS CLAIM TOW ARDS LONG TERM CAPITAL GAIN IS A GENUINE CLAIM. THE AO HAS NOT MADE RELIANCE E ITHER UPON THE STATEMENT ITA NO.1570/AHD/2012 9 OF MUKESH CHOKSHI OR ANY OTHER INFORMATION FROM MAH ASAGAR SECURITIES PVT. LTD. HE HAS MADE REFERENCE TO THE FACTS AND CIRCUM STANCES REVEALED DURING THE COURSE OF SEARCH, BUT HE HAS DEDUCTED DEFECTS I N THE CONDUCT OF THE ASSESSEE ONLY. IN PARA-13, HE HAS SPECIFICALLY MEN TIONED THAT THE ASSESSEE HAS NOT SUBMITTED DELIVERY NOTES, ISSUED BY GOLDSTAR FI NVEST P.LTD. INDICATING THAT THE ASSESSEE HAS PURCHASED SHARES. THE ASSESSEE HA S NOT PRODUCED DEMAT ACCOUNT, AND THEREAFTER AN ADDITIONAL CIRCUMSTANCES WAS MENTIONED BY THE AO THAT BUNIYAD CHEMICALS WENT INTO LIQUIDATION AND IT WAS WOUND UP ON 9.7.1999. ACCORDING TO THE AO NO PRUDENT BUSINESSM EN WOULD PURCHASE SHARES OF SUCH COMPANY, AND THAT WILL EVER GENERATE PROFIT TO AN ASSESSEE. THE ASSESSEE FAILED TO PRODUCE SHARE CERTIFICATE NUMBER S, DISTINCTIVE NUMBERS AND HOW THESE SHARES WERE DEALT WITH. IN OTHER WORDS, NOTHING HAS BEEN BROUGHT ON RECORD FOR JUSTIFYING THE TRANSACTION. EVEN IF FOR ARGUMENTS SAKE, THE CONTENTION MADE BY THE ASSESSEE THAT NO OPPORTUNITY TO CROSS-EXAMINATION WAS GIVEN, AND THEREFORE, THAT MATERIAL IS EXCLUDED IS ACCEPTED, THEN ALSO IT WOULD COME THAT LD.AO DID NOT RELY UPON ON THOSE EVIDENCE . THERE IS NO EVIDENCE PRODUCED BY THE ASSESSEE TO JUSTIFY THE GENUINENESS OF HIS TRANSACTION. BEFORE ME, THE ORDER OF THE ITAT, MUMBAI BENCH HAS BEEN RE FERRED. IN PARA 3.4.1, THE TRIBUNAL HAS RECORDED FINDING IN THAT CASE. TH E TRIBUNAL HAS SPECIFICALLY OBSERVED THAT DOCUMENTS PERTAINED TO THE PURCHASE A ND SALE OF SHARES OF M/SSHUKUN CONSTRUCTIONS LTD. VIS. CONTRACT NOTES OF BROKERS, COPIES OF PHYSICAL SHARE CERTIFICATES, TRANSFER OF PHYSICAL S HARES TO THE NAME OF THE ASSESSEE, AND CONSOLIDATION BY THE COMPANY, DEMAT A CCOUNT STATEMENT ETC. WERE FILED. THERE IS A VAST DIFFERENCE IN THE FACT S OF THAT CASE, VIS--VIS FACTS OF THE PRESENT CASE OF THE ASSESSEE. SIMILARLY, AS SESSEE CANNOT DRAW ANY BENEFIT FROM THE JUDGMENT OF HONBLE GUJARAT HIGH C OURT IN THE CASE OF CHARTERED SPEED P.LTD. IN THAT CASE, REVENUE FAILE D TO DISCHARGE ITS ONUS. IN THE PRESENT CASE, ASSESSEE FAILED TO DISCHARGE HIS PRIMARY ONUS OF ESTABLISHING ITA NO.1570/AHD/2012 10 CLAIM OF GENUINE CAPITAL GAIN. THEREFORE, THERE IS NO MERIT IN THE APPEAL OF THE ASSESSEE. IT IS DISMISSED. 13. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DI SMISSED. ORDER PRONOUNCED IN THE COURT ON 4 TH AUGUST, 2016 AT AHMEDABAD. SD/- (RAJPAL YADAV) JUDICIAL MEMBER AHMEDABAD; DATED 04/08/2016