HITEN DHANAJI SHAH, MUMBAI V. ITO 23(2)(3), MUMBAI

ITA 2233/MUM/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 8155 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-09-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: H
• Next Hearing Date: 19-08-2014
• Assessment Year: 2003-2004
• Appeal Filed On: 20-03-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Search and seizure; Source of fund; Accommodation entries
• Section: 147

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUM BAI .. , , BEFORE SHRI I. P. BANSAL, JM AND SHRI SANJAY ARORA , AM ./ I.T.A. NO. 2233/MUM/2013 ( / ASSESSMENT YEAR: 2003-04) HITEN DHANJI SHAH E-31, KONARK INDRAPRASTHA C.H.S, JAIN MANDIR ROAD, S. P. NAGAR, MULUND (W), MUMBAI-400 080 / VS. ITO-23(2)(3), MUMBAI ./! ./PAN/GIR NO. AAEPS 3719 C ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) ' % & / APPELLANT BY : NONE #$ ' % & / RESPONDENT BY : SHRI TUSHAR DHAWAL SINGH ' ()* % +, / DATE OF HEARING : 19.08.2014 -./ % +, / DATE OF PRONOUNCEMENT : 30.09.2014 0 / O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE ASSESSEE DIRECTED AGAINST THE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-11, MUMBAI (CIT(A) FOR SH ORT) DATED 24.01.2013, DISMISSING THE ASSESSEES APPEAL CONTESTING ITS ASSESSMENT U/S .143(3) R/W S. 147 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) FOR THE ASSESSMEN T YEAR (A.Y.) 2003-04 VIDE ORDER DATED 20.12.2010. 2. NONE APPEARED FOR AND ON BEHALF OF THE ASSESSEE WHEN HIS APPEAL WAS CALLED OUT FOR HEARING NOR ANY ADJOURNMENT APPLICATION STANDS RECEIVED. THIS, DESPITE PROPER SERVICE 2 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO OF NOTICE ON 01.07.2014, PROOF OF WHICH IS ON RECOR D. WE, ACCORDINGLY, PROCEED TO DECIDE THIS APPEAL ON THE BASIS OF THE MATERIAL ON RECORD AFTER HEARING THE PARTY BEFORE US. 3.1 THE ONLY ISSUE ARISING IN THE INSTANT APPEAL IS THE VALIDITY IN LAW OF THE ADDITION U/S.68 IN THE SUM OF RS.7,37,528/-, RETURNED BY WAY OF LONG TERM CAPITAL GAIN (LTCG) ON THE SALE OF SHARES BY THE ASSESSEE, HAVING BEEN SINCE SUSTAINED BY THE FIRST APPELLATE AUTHORITY. THE IMPUGNED GAIN WAS DISCLOSED AS ON TH E SALE OF THE SHARES IN M/S. BUNIYAD CHEMICALS LTD.; M/S. BSES (FULL NAME NOT MENTIONED) AND M/S. MUNOTH HIRE PURCHASE LTD. THE PURCHASE AND SALE OF SHARES WAS THROUGH M/ S. GOLD STAR FINVEST PVT. LTD. THE INFORMATION IN POSSESSION OF THE REVENUE, HOWEVER, REVEALED THAT THE SAID COMPANY AND M/S. MAHASAGAR SECURITIES P. LTD. (NAME SUBSEQUENTL Y CHANGED TO ALAG SECURITIES PVT. LTD.) WERE AMONG THE 34 ODD COMPANIES FLOATED BY ON E, SHRI MUKESH CHOKSI, WHICH WERE ENGAGED IN PROVIDING BOGUS PROFIT/GAIN BY WAY OF FR AUDULENT BILLING ACTIVITIES. ACCORDINGLY, THE ASSESSEES CASE WAS REOPENED BY TH E ISSUE OF NOTICE IN MARCH, 2009. A SEARCH AND SEIZURE ACTION U/S.132 OF THE ACT, HELD ON 25.11.2009, LED TO THE CONFIRMATION/ VALIDATION OF THE SAID INFORMATION. THESE COMPANIES DID NOT HAVE A VALID LICENSE AS A BROKER TO TRADE ON ANY STOCK EXCHANGE. IN FACT, SEC TION 13 OF THE SECURITIES CONTRACTS (REGULATION) ACT, 1956 (SCRA FOR SHORT), BARS TRA NSACTIONS OTHER THAN THOSE ENTERED INTO BETWEEN THE MEMBERS OF THE RECOGNIZED STOCK EXCHANG ES. THE ONLY EXCEPTION IS AS PROVIDED U/S.18 OF THE SAID ACT, WHICH WAS FOR SPOT TRANSACTIONS, SO THAT THE DELIVERY AND PAYMENT ARE TO BE COMPLETED WITHIN 24 HOURS OF THE TRADE, AND WHICH WAS NOT THE CASE. THERE WERE HEAVY CASH DEPOSITS IN THE ACCOUNTS OF T HESE COMPANIES, INCLUDING M/S. GOLD STAR FINVEST PVT. LTD. THE MODUS OPERANDI BEING FOLLOWED WAS ALSO REVEALED DURING THE COURSE OF THE SEARCH OPERATIONS, INCLUDING THE DEPO SITION U/S.131 OF THE ACT BY SHRI MUKESH CHOKSI ON 11.12.2009. INFORMATION WAS CALLED FOR BY THE ASSESSING OFFICER (A.O.) FROM THE SECURITIES EXCHANGE BOARD OF INDIA (SEBI FOR SHORT - THE REGULATORY BODY FOR CAPITAL MARKETS IN THE COUNTRY) U/S. 133(6 ), AND WHICH VIDE ITS LETTER DATED 02.11.2010 CONFIRMED THAT THE TRADES SPECIFIED IN T HE CONTRACT NOTES WERE NOT EXECUTED BETWEEN THE COMBINATION OF THE MEMBER AND CLIENT, A S STATED, DURING THE PERIOD 3 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO 01.04.2001 TO 31.03.2003, I.E., THE PERIOD COVERING THE PURCHASE AND SALE OF SHARES IN THE INSTANT CASE. THE ASSESSEE WAS, ACCORDINGLY, SHOW C AUSED ON 15.11.2010, IN RESPONSE WHEREOF THE ASSESSEE RELIED ON THE DOCUMENTARY EVID ENCES ADDUCED BY IT. AGAIN, INFORMATION TO PROVE ITS CLAIMS AND AVERMENTS, AS W ELL AS TO PUT IT TO NOTICE, ANOTHER OPPORTUNITY WAS AFFORDED TO THE ASSESSEE BY THE A.O . VIDE LETTER DATED 02.12.2010, TO THOUGH THE SAME EFFECT. THE INFORMATION IN THE POSS ESSION OF THE REVENUE HAVING NOT BEEN REBUTTED IN ANY SIGNIFICANT MANNER; THE ASSESS EE EVEN FAILING TO EXPLAIN AS TO WHY THE SHARES WERE PURCHASED IN CASH, THE ASSESSEES CLAIM OF LTCG WAS FOUND NOT GENUINE, AND THE SALE PROCEEDS AT RS.7.38 LACS AND THE BROKERAGE EXPENSES OF RS.108/- TREATED AS UNEXPLAINED, AND BOGUS AND BROUGHT TO TAX U/S.68. 3.2 IN APPEAL, THE MATTER WAS AGAIN EXAMINED AT LEN GTH BY THE LD. CIT(A). SEVERAL DECISIONS BY THE TRIBUNAL IN THE CASE OF COMPANIES OF SHRI MUKESH CHOKSI, INCLUDING M/S. GOLD STAR FINVEST PVT. LTD., AS UNDER, WERE NO TICED BY THE LD. CIT(A), REPRODUCING FROM THE DECISION IN THE CASE OF M/S. GOLD STAR FINVEST PVT. LTD. (IN ITA NO. 4625/MUM/2005 DATED 28.03.2008) AT PARA 14 OF HIS O RDER: ITO VS. PALRESHA & CO. (IN ITA NO. 1640/BOM/82); KIRAN & CO. VS. ITO (IN ITA NO. 3604/BOM/83); M/S. MIHIR AGENCIES PVT. LTD. (IN ITA NO. 4912/MUM/2005 DATED 30.05.2008); M/S. RICHMOND SECURITIES PVT. LTD. (IN ITA NO. 4624/MUM/2005 & ITA NO. 5099/MUM/2005 DATED 29.08.2008); M/S. ALPHA CHEMIE TRADE AGENCIES PVT. LTD. (IN ITA NO. 4999/MUM/2005 DATED 29.08.2008); AND THE TRIBUNAL HAD IN THE CASE OF GOLD STAR FINVEST PVT. LTD. (SUPRA) (GSFPL) ALSO EXAMINED AND CONSIDERED THE OTHER DECISIONS BY THE TRIBUNAL TO THE SAME EFFECT, AS IN THE CASE OF ALEMBIC SECURITIES PVT. LTD. AND ADOLF PATRIC PINTO . IN ALL THESE CASES, THE TRIBUNAL CONFIRMED THAT THESE CONCERNS WERE MERE NAME LENDER S, ENGAGED IN BOGUS BILLING FOR A CONSIDERATION, BY WAY OF COMMISSION, RANGING FROM 0 .1% TO 0.5% OF THE CREDIT ENTRY; THE 4 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO NORMATIVE RATE BEING 0.5% FOR LTCG AND 0.2% FOR OTH ER ENTRIES. THE ORDERS IN THE CASE OF BENEFICIARIES, AS FOR EXAMPLE IN THE CASE OF MUKESH CHANDRA AND RAVSHI SHAH, WHEREIN THEY ADMITTED TO BEING BENEFICIARIES OF SUCH ACCOMM ODATION ENTRIES, WERE ALSO REFERRED TO THEREIN. FURTHER, THE STATEMENT OF SHRI MUKESH CHOK SI U/S.131 DATED 11.12.2009 STANDS REPRODUCED AT PARA 4 (PGS. 7 TO 11) OF THE IMPUGNED ORDER. THE NOTE-BOOKS, DIARIES, HARD DISK, FILE FOLDERS, ETC. FOUND DURING THE COURSE OF SEARCH WERE CONFRONTED TO HIM THEREAT, AND THE ENTRIES AS WELL AS THE DETAILS THEREIN ADMI TTED AND EXPLAINED. THE ADMISSION TO THE ENTIRE TRANSACTIONS BEING BOGUS IS CATEGORICAL AND REPETITIVE, WITH HE EXPLAINING THE TRANSACTIONS IN THEIR VARIOUS FACETS AS WELL AS THE MODUS OPERANDI FOLLOWED, LISTING THE VARIOUS TYPES OF ACCOMMODATION ENTRIES BEING PROVID ED. THE RELIANCE BY THE ASSESSEE IN THE CASE OF MUKESH R. MAROLIA VS. ADDL. CIT [2006] 6 SOT 247 (MUM), HOLDING THE TRANSACTION AS GENUINE, WAS ALSO CONSIDERED BY HIM. THOUGH THE SAME STANDS APPROVED BY THE HIGH COURT, THE HONBLE COURT HAD ONLY DECLINED TO INTERFERE WITH THE FINDING OF THE FACT BY THE TRIBUNAL. THE SAME, THEREFORE, WOULD NOT DIL UTE THE FINDINGS OF FACT BY THE TRIBUNAL, AS PER ITS SUBSEQUENT DECISIONS IN THE CASE OF GSFPL (SUPRA) AND RICHMOND SECURITIES PVT. LTD. (SUPRA), THE RELEVANT EXTRACT OF WHICH ALSO FINDS R EPRODUCTION AT PARA 18 OF THE IMPUGNED ORDER, AS WELL AS SEVERAL OTHER DECISIONS BY THE TRIBUNAL. THE DECISION BY THE TRIBUNAL IN THE CASE OF MUKESH R. MAROLIA (SUPRA) IS THUS DISTINGUISHABLE ON FACTS AND, ACCORDINGLY, CANNOT BE CONSIDERED AS BINDING. THE A DDITION STOOD THUS CONFIRMED BY HIM. 4. BEFORE US, THE LD. DR RELIED ON THE ORDERS BY TH E AUTHORITIES BELOW, STATING THAT NO MATERIAL EXCEPT RELYING ON THE DOCUMENTARY EVIDENCE S, THE TRUTH OF WHICH, IN THE FACE OF VARIOUS INCRIMINATING MATERIAL WITH THE REVENUE, IS UNDER CHALLENGE, HAS BEEN BROUGHT ON RECORD BY THE ASSESSEE AT ANY STAGE OF THE PROCEEDI NGS. 5. WE HAVE HEARD THE PARTY, AND PERUSED THE MATERIA L ON RECORD. OUR FIRST OBSERVATION IN THE MATTER IS THAT THE ASS ESSEE HAS BEFORE US NOT CHALLENGED THE VALIDITY OF THE REOPENING OF ITS ASSESSMENT, AN D ASSAILS THE IMPUGNED ORDER ONLY ON THE 5 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO MERITS OF THE ADDITION MADE, AND WHICH HAD IN FACT PROMPTED US TO STATE OF THE SAME AS BEING THE FACT IN ISSUE (REFER PARA 3). ON MERITS, WE ARE CLEARLY UNABLE TO, IN VIEW OF THE OVERWHELMING EVIDENCES BEING RELIED UPON BY THE REVENUE, AND THE FINDINGS OF FAC T ISSUED ON THE BASIS THEREOF, WHICH REMAIN UNREBUTTED AT ANY STAGE, INCLUDING BEFORE US , ARRIVE AT A FINDING/S ANY DIFFERENT FROM THAT BY THE AUTHORITIES BELOW. THE CREDIBILITY OF THE VERY PARTIES, AS M/S. GOLD STAR FINVEST (P.) LTD., THROUGH WHICH THE SHARES, ON WHI CH THE CAPITAL GAINS STANDS DISCLOSED, ARE TRANSACTED, STANDS THOROUGHLY DEMOLISHED BY THE REVENUE, REMOVING THE VERY EDIFICE ON WHICH THE CLAIM OF CAPITAL GAINS RESTS, I.E., THE DOCUMENTARY EVIDENCES IN THE FORM OF BILLS, DELIVERY CHALLANS, ETC. ISSUED BY THE BRO KER. THE ENTIRE MODUS OPERANDI ADOPTED FOR THE PURPOSE HAS BEEN DELINEATED BY SHRI MUKESH CHOKSI, THE KEY PERSON, AND WITH REFERENCE TO THE MATERIALS IN THE FORM OF DIARIES, NOTEBOOKS, FILE FOLDERS, HARD DISK, ETC. FOUND AND SEIZED IN SEARCH, EXPLAINING ALSO THE DIF FERENT NOTATIONS AND SYMBOLS USED THEREIN. HIS STATEMENT STANDS REPRODUCED IN BY THE FIRST APPELLATE AUTHORITY IN HIS ORDER. THE ASSESSEE THOUGH PLEADS OF SH. MUKESH CHOKSI HAV ING NOT BEEN CROSS EXAMINED BY HIM, THERE IS NOTHING ON RECORD TO SHOW THAT HE SOU GHT THE SAME AT ANY TIME OR WAS DENIED SO BY THE REVENUE. MAKING A BALD PLEA, THEREFORE, W ITHOUT ANY SUBSTANTIATION, WOULD BE OF NO CONSEQUENCE. IN THIS CONTEXT, IT ALSO NEEDS TO B E APPRECIATED THAT THE STATEMENT OF SH. MUKESH CHOKSI, WHO, AS APPARENT FROM THE SEVERAL DE CISIONS BY THE TRIBUNAL, STANDS ALSO INDICTED AND BLACK LISTED BY SEBI FOR MALPRACTICES, IS IN RESPECT OF HIS OWN COMPANIES, I.E., THAT FLOATED AND MANAGED BY HIM. IT IS THUS A CASE OF SELF-INCRIMINATION BY HIM, IN THE FACE OF EVIDENCES ARRAIGNED AGAINST HIM, AND HIS DE POSITION IS NOT TARGETED TOWARD EITHER THE ASSESSEE OR ANY OTHER PARTICULAR CLIENT FOR T HAT MATTER. THAT THE ASSESSEE GETS INDICTED IS ONLY INCIDENTAL, BEING SO FOR THE REASON OF HE B EING ONE OF THE BENEFICIARIES OF THE TRANSACTIONS UNDERTAKEN THROUGH HIS COMPANY/S, AND WHICH STAND ADMITTED BY HIM AS BOGUS AND SHAM, AND BEING ONLY IN THE NATURE OF ACC OMMODATION ENTRIES, WITH A VIEW TO EVADE TAX. THEN, AGAIN, THE CASH DEPOSITS IN THE BROKER FIRM, WHICH ARE CRUCIAL IN EXPLAINING THE TRANSACTIONS OR IN DETERMINING THEIR GENUINENES S, CONTINUE TO REMAIN UNEXPLAINED. 6 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO SHARES IN NONDESCRIPT COMPANIES ARE BOUGHT LOW AN D SOLD HIGH, IN CASH, FROM AND TO PERSONS, WHO ARE INVISIBLE. THE PURCHASE TO PURCH ASE CYCLE IN THUS IN CASH, SO THAT THE SOURCE OF FUNDS INURING TO THE SELLER (AT THOSE HIG H RATES) IS UNKNOWN - EXCEPT OF COURSE WHERE LOSSES ARE ALSO TO BE CLAIMED PER TAX RETURNS . THE ONLY TRANSACTION THROUGH BANK IS OF THE PERSON CLAIMING PROFIT, I.E., THE BENEFICIAR Y OF THOSE HIGH RATES, AS THE ASSESSEE, PERHAPS TO PROVIDE A SEMBLANCE OF GENUINENESS TO TH E TRANSACTIONS. THE ABSENCE OF THE PERSONS INCURRING THE LOSSES, BY VIRTUE OF HAVING B EEN BOUGHT HIGH OR SOLD LOW, I.E., THE CORRESPONDING PARTY/S, MYSTERIOUS TO SAY THE LEAST, IS FATAL TO ANY CLAIM TO GENUINENESS. THERE IS, TO CONTINUE FURTHER, AS EXPECTED, NO REFERENCE OR A LLUDING TO ANY ECONOMIC ACTIVITY IN THE RELEVANT COMPANIES, MUCH LESS TO SU PPORT THE HIGH RATES AT WHICH THEIR SCRIPS TRANSACT AT. NO WONDER THEY FALL, JUST AS ABRUPTLY AND DRAMATICALLY AS HAD RISEN, ONLY TO RISE AGAIN, IN A TIME SPAN MATCHING THE PER IOD WHICH WOULD ENABLE THE GAIN TO QUALIFY AS LONG TERM, TO YIELD ANOTHER SET OF PRO FIT (OR LOSSES) TO ANOTHER SET OF BENEFICIARIES. THE PROFIT IS ACCOMPANIED BY CONCESS IONAL TAX RATES ON LTCG OR IS LIABLE FOR TAX HOLIDAY ON SPECIFIED INVESTMENTS PROVIDES T HE TAX INCENTIVE BEHIND THE ENTIRE EXERCISE, COMPLETING THE PICTURE. THE TRIBUNAL IN T HE CASE OF GSFPL (SUPRA), ON A CONSPECTUS OF THE FACTS AND CIRCUMSTANCES AND RELYI NG ON SEVERAL OTHER DECISIONS BY IT, HELD THE SAID COMPANY TO BE ENGAGED IN MONEY LAUNDE RING/BOGUS BILLING, ETC., AND ASSESSED ITS INCOME AT A PERCENTAGE OF THE ACCOMMOD ATION ENTRIES SO PROVIDED. WE MAY NEXT CONSIDER THE DECISION IN THE CASE OF MUKESH R. MAROLIA (SUPRA) RELIED UPON THE ASSESSEE. IN THE FACTS OF THE SAID CASE, A S ITS READING WOULD SHOW, THE SOLE BASIS FOR THE REVENUE TO HOLD THE TRANSACTIONS AS NOT GEN UINE WAS OF THEIR HAVING BEEN EXECUTED OUTSIDE THE FLOOR OF THE EXCHANGE, I.E., AS OFF MAR KET TRANSACTIONS. THE TRIBUNAL OPINED THAT IN-SO-FAR AS THE SAID ACTIVITY CANNOT BE SAID TO BE UNLAWFUL, THE SAME COULD NOT BE HELD AS NOT GENUINE ON THAT GROUND. IT IS THIS VIEW THAT ST OOD CONFIRMED BY THE HONBLE HIGH COURT, HOLDING THAT IN VIEW OF THE SAID FINDING OF FACT BY THE TRIBUNAL, THERE WAS NOTHING TO IMPUGN ITS ORDER. WE ARE UNABLE TO SEE AS TO HOW TH E SAID CASE WOULD BE OF ASSISTANCE IN THE FACTS OF THE PRESENT CASE. A DECISION, IT IS TR ITE LAW, IS ONLY AN AUTHORITY ON WHAT IT ACTUALLY DECIDES, AND NOT WHAT MAY REMOTELY OR EVEN LOGICALLY FLOW FROM IT (REFER: 7 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO GOODYEAR INDIA LTD. V. STATE OF HARYANA [1991] 188 ITR 402 (SC)). THERE IS, IN THE FACTS OF THE CASE, AS STATED BY THE LD. CIT(A), NOTHING O N RECORD TO SUGGEST THAT THE IMPUGNED TRANSACTIONS WERE OFF MARKET TRANSACTIONS . THE BILLS AND THE OTHER DOCUMENTS ISSUED BY THE BROKER, EXTENSIVELY RELIED UPON BY THE ASSESSEE , AND WHICH IN FACT FORMS THE SUBSTRATUM OF ITS CASE, WERE ISSUED BY IT IN THE CA PACITY OF A BROKER. THE INQUIRY BY THE A.O., HOWEVER, REVELS ABSENCE OF ANY SUCH TRANSACTI ONS, I.E., AS REPORTED. IT IS IN THAT CONTEXT THAT THE LD. CIT(A) REFERS TO SECTIONS 13 A ND 18 OF THE SCRA, SO THAT SUCH TRANSACTIONS COULD ONLY BE ENTERED INTO BY A BROKER ON PRINCIPAL TO PRINCIPAL BASIS AND, FURTHER, AS SPOT TRANSACTIONS, WHICH IS CLEARLY NOT THE CASE IN THE PRESENT CASE. NOTHING MORE IS TO BE INFERRED FROM THE OBSERVATIONS BY THE LD. CIT(A) MADE WITH REFERENCE TO THE SAID PROVISIONS OF THE ACT. THE ENTIRE BASIS OF THE REVENUES CASE, ON THE OTHER HAND, AS CLARIFIED ABOVE, IS OF THE TRUTH OF THE RELEVANT TR ANSACTIONS, OR THEIR REPRESENTING GENUINE TRANSACTIONS. RATHER THAN THEREFORE BEING A QUESTIO N OF WHETHER THE TRANSACTIONS WERE CONDUCTED AS ON OR OFF MARKET TRANSACTIONS, THE ISS UE FOR OUR CONSIDERATION IS THE GENUINENESS AS THE RELEVANT TRANSACTIONS, HAVING BE EN ASSAILED AS BOGUS OR SHAM BY THE REVENUE. THE TRIBUNAL, AS AFORE-STATED, IN THE CASE OF ITS BROKER ITSELF, HELD THE ENTIRE TRANSACTIONS AS BOGUS/NOT GENUINE, AND ESTIMATED HI S PROFIT AT A COMMISSION OF THE PROFIT ENTRIES EXTENDED BY IT. WE, ON THE BASIS OF THE MAT ERIALS BEFORE US, HAVE FOUND THE CREDIT ENTRIES TO HAVE BEEN RIGHTLY IMPUGNED BY THE REVENU E. THE ASSESSEE, RATHER THAN RAISING LEGAL/TECHNICAL I SSUES, OR RELYING ON THE DOCUMENTARY EVIDENCES FROM ITS BROKER, WAS UNDER TH E CIRCUMSTANCES REQUIRED TO DISLODGE THE REVENUES FINDINGS WITH POSITIVE MATERIALS, AND WHICH IT HAS NOT. HE HAS IN FACT COMPLETELY FAILED TO REBUT THE PLETHORA OF EVIDENCE S UNEARTHED BY THE REVENUE, AS A RESULT OF INVESTIGATION BY IT PROBING THE MATTER. THE GENU INENESS OR OTHERWISE OF AN EXPENDITURE, IT IS TO BE APPRECIATED, IS ESSENTIALLY A MATTER OF FACT. IN FACT, THE TRIBUNAL HAS IN A SERIES OF CASES, CITED SUPRA, UPHELD ITS CLAIM/S. UNDER THE CIRCUMSTANCES, WE IN THE CONSPECTUS OF THE CASE ARE OF THE CLEAR VIEW THAT IN-AS-MUCH AS T HE ASSESSEE IS A BENEFICIARY OF THE SUMS RECEIVED BY IT, IT HAS BEEN UNABLE TO EXPLAIN THE S AME AND PROVE THE GENUINENESS OF THE 8 ITA NO. 2233/MUM/2013 (A.Y. 2003-04) HITEN DHANJI SHAH VS. ITO TRANSACTIONS ON THE ANVIL OF SECTION 68, SO THAT TH E SAME STANDS RIGHTLY INVOKED BY THE REVENUE. THE ASSESSEE ACCORDINGLY FAILS, WE DECIDE ACCORDINGLY. 6. IN THE RESULT, THE ASSESSEES APPEAL IS DISMISSE D. 1/+2 (341+ % 1 % + 56 ORDER PRONOUNCED IN THE OPEN COURT ON SEPTEMBER 30, 2014 SD/- SD/- (I. P. BANSAL) (SANJAY ARORA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER ' * MUMBAI; 7( DATED : 30.09.2014 ).(. ./ ROSHANI , SR. PS ! ' #$%& ' &$ / COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 8+ ( ) / THE CIT(A) 4. ' 8+ / CIT - CONCERNED 5. ;)<= #+(>3 , , >3/ , ' * / DR, ITAT, MUMBAI 6. =?4 @* / GUARD FILE ! ( / BY ORDER, )/(* + (DY./ASSTT. REGISTRAR) , ' * / ITAT, MUMBAI