SUMERU STOCKS & SHARES P. LTD, MUMBAI V. ACIT 5(3), MUMBAI

ITA 2010/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 92961 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-06-2015
• Appeal Filed By: Assessee
• Bench Allotted: E
• Next Hearing Date: 22-06-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 13-03-2013
• Court: TRIBUNAL
• Department Lawyers: VIJAY KUMAR BORA
• Keywords: Additional evidence
• Section: 143(3); 69; 132

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E , BENCH MUMBAI . . , , BEFORE SHRI R.C.SHARMA , A M & SHRI SANJAY GARG , J M ./ ITA NO . 2010 / MUM/20 1 3 ( / ASSESSMENT YEAR : 200 5 - 20 06 ) SUMERU STOCKS & SHARES PVT. LTD., 71, LOYALKA APARTMENTS, 7 TH FLOOR, SIIR ROAD, MUMBAI - 400006 VS. ACIT - 5(3), MUMBAI ./ ./ PAN/GIR NO. : A ABCS 3584 R ( / APPELLAN T ) .. ( / RESPONDENT ) /ASSESSEE BY : SHRI DEVENDRA JAIN /REVENUE BY : SHRI VIJAY KUMAR BORA / DATE OF HEARING : 22 /0 6 / 2015 / DATE OF PRONOUNCEMENT 22/06 /2 015 / O R D E R PER R.C.SHARMA (A.M) : TH IS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) , MUMBAI FOR THE ASSESSMENT YEAR 2005 - 06 IN THE MATTER OF ORDER PASSED U/S. 143(3) R.W.S.147 OF THE IT ACT. 2. IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR NOT ACCEPTING THE ADDITIONAL EVIDENCE FILED BEFORE THE CIT(A) AND ALSO FOR VARIOUS ADDITIONS MADE IN THE INCOME OF THE ASSESSEE. 3. WE HAVE CONSIDERED RIVAL CONTENTIONS AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. IN THE REASSESSMEN T ORDER FRAMED U/S.147 R.W.S.143(3) OF THE ACT DATED 31 - 12 - 2010, THE AO HAS DISALLOWED ITA NO. 2010 /1 3 2 ASSESSEE S CLAIM OF BUSINESS LOSS OF RS. 17,51,538/ - THROUGH M/S GOLD STAR FINVEST (P) LTD. AS BOGUS LOSS. HE HAS FURTHER TAXED RS. 25,89,839/ - AS UNEXPLAINED I NVESTMENT U NDER SECTION 69 OF THE ACT AS DISCUSSED IN PARA 9 APPEARING ON PAGES 5 & 6 OF THE RELEVANT RE - ASSESSMENT ORDER DATED 30 - 12 - 2011. AGAINST THESE ADDITIONS ASSESSEE APPROACHED TO THE CIT(A) AND FILED APPLICATION UNDER RULE 46A IN RESPECT OF ADDITIONAL EVIDEN CE VIDE LETTER DATED 25 - 5 - 2012 . C OPY OF THESE ADDITIONAL EVIDENCES ALONG WITH ASSESSEES APPLICATION U/R. 46A WERE FORWARDED BY CIT(A) TO THE AO VIDE ITS LETTER DATED 30 - 5 - 2012. IN REPLY TO THE SAME, THE AO STATED THAT THESE DOCUMENTS WERE ALREADY IN HIS RE CORD, ACCORDINGLY THE SAME CANNOT BE ACCEPTED AS ADDITIONAL EVIDENCE. AFTER RECEIPT OF THE AOS LETTER THE CIT(A) ALSO DECLINED TO ACCEPT ADDITIONAL EVIDENCE AND CONFIRMED THE ADDITIONS MADE BY THE AO, AGAINST WHICH ASSESSEE IS IN FURTHER APPEAL BEFORE US. 4. FROM THE RECORD WE FOUND THAT FOLLOWING DOCUMENTS WERE FILED BY THE ASSESSEE ALONG WITH THE APPLICATION U/R.46A : - 1. CONFIRMATION MEMO DTD.22.05.2012 OF M/S GOLDSTAR FINVEST PVT. LTD.; 2. STATE MENT OF MR. MUKESH CHOKSHI RECORDED U/S. 132 DTD.25.11.0 9; 3. BANK STATEMENT SHOWING PAYMENT MADE TO M/S GOLDSTAR FINVEST P VT. LTD; AND 4. LEDGER A/C OF M/S GOLDSTAR FINVEST P. LTD. IN THE BOOKS OF THE ASSESSEE. ALL THESE EVIDENCES GOES TO THE ROOT OF THE ISSUE FOR MAKING ADDITION ON ACCOUNT OF INVESTMENT W HICH WAS HELD TO BE UNEXPLAINED AND ADDED U/S.69 OF THE ACT AND FOR DECIDING THE ISSUE AS TO WHETHER LO SS INCURRED ON SALE OF CAPITAL LOSS OR BUSINESS LOSS ALSO REQUIRES CONSIDERATION OF ABOVE ITA NO. 2010 /1 3 3 EVIDENCES. IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE RESTORE THE APPEAL BACK TO THE FILE OF AO FOR CONSIDERATION OF ADDITIONAL EVIDENCES SO FILED BY THE ASSESSEE. 5. FROM THE RECORD, WE FOUND THAT THE AO HAS HELD THAT TRANSACTION ENTERED INTO BY THE ASSESSEE THROUGH M/S GOLDSTAR FINVEST LTD. AND THE SAME TRANSACTIO N WITHOUT GOING INTO THE DOCUMENTS SO FILED AS ADDITIONAL EVIDENCE. IN THE INTEREST OF JUSTICE, WE DIRECT THE AO TO RECONSIDER THE GENUINENESS OF THE CONSIDERATION IN VIEW OF THESE ADDITIONAL EVIDENCE AND TO DECIDE AFRESH AS PER LAW. 6 . IN THE RESULT, APPE AL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES. O RDER PRONOUNCED IN THE OPEN COURT ON THIS 22/06 / 201 5 . SD/ - SD/ - ( ) ( SANJAY GARG ) ( . . ) ( R.C.SHARMA ) / JUDI CIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 31/08 /201 5 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, / ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMBAI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//