Shri Rakeshbhai K. Rajput, Ahmedabad V. The Income Tax Officer, Ward 7(3), Ahmedabad

ITA 2248/AHD/2013

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 3398 (ITAT-AHMEDABAD)
• Duration Of Justice: 5 year(s) 7 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 11-07-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 04-09-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K DEV
• Keywords: Unexplained investment; Business income; Principle of natural justice; Capital Gains
• Section: 143(2); 69; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI WASEEM AHMED, ACCOUNTANT MEMBER) ITA. NO: 2248/AHD/2013 (ASSESSMENT YEAR: 2003-04) SHRI RAKESHBHAI K. RAJPUT, 2/40, GAGANVIHAR APARTMENTS, NR. BHAVSAR HOSTEL, NAVA VADAJ, AHMEDABAD V/S INCOME TAX OFFICER, WARD- 7 (3), AHMEDABAD (APPELLANT) (RESPONDENT) PAN: AJRPR4160N APPELLANT BY : SHRI TUSHAR P. HEMANI, AR RESPONDENT BY : SHRI S. K. DEV, SR. D.R. ( )/ ORDER DATE OF HEARING : 08 -03-201 9 DATE OF PRONOUNCEMENT : 30 -04-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER OF THE LD. CIT(A)-XIV, AHMEDABAD DATED 18.06.2013 PERTAINING T O A.Y. 2003-04 AND FOLLOWING GROUNDS HAVE BEEN TAKEN: ITA NO. 2248 /AHD/2013 . A.Y. 2003-04 2 1. THE LEARNED CIT(A) HAS ERRED BOTH IN LAW AND ON THE FACTS OF THE CASE IN DISMISSING THE APPELLANT'S GROUND OF APPEAL CHALLEN GING THE VALIDITY OF NOTICE ISSUED U/S 148 OF THE ACT AS REGARDS RE-OPENING THE ASSESSMENT. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LEARNED CIT(A) OUGHT TO HAVE HELD THAT NOTICE U/S 148 OF THE ACT AND THE CONSEQUENTIAL RE-ASSESSMENT PROC EEDINGS ARE INVALID. THE SAME BE HELD SO NOW. 2. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN DISMISSING THE GROUND CHALLENGING THE ACT OF FRAMING THE ASSESSMEN T WITHOUT ISSUANCE OF STATUTORY NOTICE U/S 143(2) OF THE ACT. 3. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ADDITION MADE U/S 69 TO THE EXTENT OF RS.2,28,600/- . 4. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING THE ADDITION OF RS.4,09,637/- BEING SHORT TERM CAPITAL GAIN ON ALLEGED TRANSFER OF SHARES IN KHYATI MULTIMEDIA. 5. BOTH THE LOWER AUTHORITIES HAVE PASSED THE ORDER S WITHOUT PROPERLY APPRECIATING THE FACT AND THAT THEY FURTHER ERRED I N GROSSLY IGNORING VARIOUS SUBMISSIONS, EXPLANATIONS AND INFORMATION SUBMITTED BY THE APPELLANT FROM TIME TO TIME WHICH OUGHT TO HAVE BEEN CONSIDERED BEFORE PASSING THE IMPUGNED ORDER. THIS ACTION OF THE LOWER AUTHORITIES IS IN CLEAR BR EACH OF LAW AND PRINCIPLES OF NATURAL JUSTICE AND THEREFORE DESERVES TO BE QUASHE D. 6. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE ID. AO IN LEVYING INTEREST U/S 234AB C OF THE ACT. 7. THE LEARNED CIT(A) HAS ERRED IN LAW AND ON FACTS OF THE CASE IN CONFIRMING ACTION OF THE LD. AO IN INITIATING PENALTY U/S 271( L)(C) OF THE ACT. 2. GROUND NO. 1 TO 3 ARE NOT PRESSED BY THE LD. A.R. N OW EFFECTIVE GROUND REMAINING WITH REGARD TO CONFIRMING ADDITION OF RS. 4,09,637/- BEING SHORT TERM CAPITAL GAIN ON ALLEGED TRANSFER OF SHARES IN KHYATI MULTIMEDIA. ITA NO. 2248 /AHD/2013 . A.Y. 2003-04 3 3. FACTS OF THE CASE ARE AS EMANATED FROM THE ASSESSME NT ORDER: 'ON VERIFICATION OF THE D-MAT STATEMENT, IT IS NOTI CED THAT THE ASSESSEE HAS SOLD TRANSFERRED 1,27,182 EQUITY SHARES OF KHYATI MULTIMEDIA EQUITY ON VARIOUS DATES RELEVANT TO THE A. Y. 2003-04 AND EARNED SHOR T TERM CAPITAL GAINS OF RS. 4,09,637/- WHICH IS CALCULATED AT MARKET RATE THREE DAYS PRIOR TO DATE OF TRANSFER IN D-MAT STATEMENT BECAUSE TRANSACTION LAKES PLACE NORMALLY THREE DAYS PRIOR TO THE DATE OF TRANSFER IN D-MAT STATEMENT. THE DET AILED CALCULATION IS AS UNDER:- THE ASSESSEE HAS SOLD 127182 EQUITY SHARES OF KHYAT I MULTIMEDIA EQUITY TILL 10 TH FEBRUARY 2003 AND EARNED SHORT TERM CAPITAL GAINS OF RS. 4,09,636,90/- (RATES ADOPTED ARE THREE DAYS PRIOR TO ENTRY IN D-M ATE STATEMENT AT LOWEST MARKET PRICE OF THE DAY AT BSE). DAT E TRANSACTION NO. NAME OF BROKER / DEPOSITORY NO. OF HARES RULE AMOUNT 19/09/2002 6040852 H NHYALCHAND FINANCIAL SERVICES PVT. LTD 1 0000473 4500 7.55 33,975.00 27/09/2002 6051819 HDFC BANK LTD /1721826 500 5.40 2,700.00 21/10/2002 60 74807 H NHYALC HAND FINANCIAL SERVICES PVT. LTD./ 10001269 115100 4.35 500, 685.00 23/10/2002 6078568 U NHYTILCHAND FINANCIAL SENDEES PVT. LID. / 10001269 32 4.75 152.00 31/12/2002 6168984 H NHYALCHAND FINANCIAL SERVICES PVT. LTD. /1 00004 73 350 14.75 5,162.50 13/01/2003 6191 7 76 C M PARKLIGHT INVT. PVT. LLIL /ROLLING MARKET LOT / 0203198 500 12.45 6,225.00 21/01/2003 6206136 H NHYALCHAND FINANCIAL SERVICES PVT. LTD. /1 00004 73 1000 14.95 14,950.00 30/01/2003 6223 096 C M I'ARKLIGLIT INVI. I'VL. LTD. /ROLLING MARKET LOT / 02032 11 100 14.75 1,475.00 ITA NO. 2248 /AHD/2013 . A.Y. 2003-04 4 07/ 02/2003 6236257 PRAVIN RATILALASHSTK /1 01 21 01 3 2000 14.30 28,600.00 10/02/20 03 6238691 H NHYALCHAND FINANCIAL SERVICES PVT. LTD. /1 00094 73 3100 14.40 44,640.00 TOTAL SALES VALUE 127182 638,564.50 TOTAL ACQUISITION COS T AS PER UNEXPLAINED INVESTMENT 127182 1.80 228927.60 SHORT TERM CAPITAL GAIINS 409636.90 THE ASSESSEE HAS NOT FURNISHED ANY DETAILS REGARDIN G THE SHORT TERM CAPITAL GAIN OF RS. 4,09,637/- NOT ATTENDED MY OFFICE. UND ER THE CIRCUMSTANCES, I HAVE NO OTHER OPTION BUT TO ADD THE AMOUNT AS UNDIS CLOSED SHORT TERM CAPITAL GAIN EARNED BY THE ASSESSED DURING A. Y. 2003-04. 4. THEREAFTER, ASSESSEE PREFERRED FIRST STATUTORY APPE AL BEFORE THE LD. CIT(A) WHO DISMISSED THE APPEAL OF THE ASSESSEE. 5. NOW APPELLANT HAS COME BEFORE US. 6. WE HAVE GONE THROUGH THE RELEVANT RECORD AND IMPUGN ED ORDER. IT IS A CASE WHERE ASSESSEE HAS SOLD 1,27,182 EQUITY SHARES OF K HYATI MULTIMEDIA ON VARIOUS DATES DURING THE YEAR UNDER CONSIDERATION AND ACCOR DINGLY LD. A.O. ADOPTED MARKET RATE OF IMPUGNED SHARE ON THREE DAYS PRIOR T O DATE OF SALE AND DETERMINED SHORT TERM CAPITAL GAIN. BUT ASSESSEE CO ULD NOT SUBMIT ANY EVIDENCE EITHER BEFORE THE LD. CIT(A) OR BEFORE US TO CONTRO VERT THE FINDING OF THE LD. A.O. HE HAS NOT FILED ANY EVIDENCE IN ITS SUPPORT O F HIS CASE BEFORE THE LOWER AUTHORITIES IN ORDER TO PROVE THAT CASE OF REVENUE IS ILLEGAL OR UNJUSTIFIED. ITA NO. 2248 /AHD/2013 . A.Y. 2003-04 5 7. CONSIDERING THE ABOVE FACT, WE DO NOT FIND ANY MERI T AND THE APPEAL OF THE ASSESSEE THEREFORE, SAME IS DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS DISM ISSED. ORDER PRONOUNCED IN OPEN COURT ON 30- 04- 2019 SD/- SD/- (WASEEM AHMED) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 30/04/2019 RAJESH COPY OF THE ORDER FORWARDED TO: - 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT (APPEALS) 4. THE CIT CONCERNED. 5. THE DR., ITAT, AHMEDABAD. 6. GUARD FILE. BY ORDER DEPUTY/ASSTT.REGISTRAR ITAT,AHME DABAD