VIDYA S. JOSHI, MUMBAI V. ITO WD 33(3)(5), MUMBAI

ITA 2423/MUM/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 0136 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-07-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 08-06-2017
• Assessment Year: 2007-2008
• Appeal Filed On: 06-04-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 2423 /MUM/ 2 017 (ASSESSMENT YEAR 20 07 - 08 ) VIDYA S. JOSHI 50/602, PRATHAMESH SOCIETY, CSR COMPLEX GANESH NAGAR NEAR EKTA NAGAR KANDIVALI WEST MUMBAI - 400 067. VS. ITO WARD 33(3)(5) BANDRA KURLA COMPLEX, BANDRA MUMBAI. ( APPELLANT ) ( RESPONDENT ) PAN NO . ACYPJ1973D ASSESSEE BY SHRI PRITESH MEHTA DEPARTMENT BY SHRI RAKESH RANJAN DATE OF HEARING 8 .6 . 201 7 DATE OF PRONOUNCEMENT 5.7 . 201 7 O R D E R THE APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2007 - 08 IS DIRECTED AGAINST THE ORDER DATED 02 - 02 - 2017 PASSED BY LD CIT(A) - 45, MUMBAI. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN CONFIRMING THE DISALLOWANCE OF SHORT TERM CAPITAL LO SS ARISING ON SALE OF SHARES AND THE ADDITION OF PURCHASE VALUE OF SHARES AS UNDISCLOSED INCOME. 2. I HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSMENT OF THE YEAR UNDER CONSIDERATION WAS REOPENED ON THE REASONING THAT THE ASSESSEE HAD PURCHASE D SHARES FROM M/S ALLIANCE INTERMEDIARY, A MUKESH CHOKSIS GROUP COMPANY WHO WAS ACCEPTED THAT HE AND HIS GROUP OF COMPANIES WERE PROVIDING ONLY ACCOMMODATION BILLS WITHOUT ACTUALLY PURCHASING AND SELLING SHARES. BEFORE THE AO THE ASSESSEE DID NOT FURNISH ANY MATERIAL TO PROVE THE PURCHASES. THE ASSESSEE HAD SOLD THE SHARES THROUGH ANOTHER BROKER NAMED M/S INDIA INFOLINE VIDYA S. JOSHI 2 BY DE - MATERIALISING THE SHARES. IN THE PROCESS, THE ASSESSEE HAD INCURRED LOSS. ACCORDINGLY THE ASSESSEE CONTENDED BEFORE THE AO THAT TH E PURCHASE AND SALE OF SHARES ARE GENUINE. SINCE THE ASSESSEE DID NOT PROVE THE PURCHASES AND SINCE THE PURCHASE WAS CLAIMED TO HAVE BEEN MADE THROUGH MUKESH CHOKSIS GROUP COMPANY, THE AO DISALLOWED THE SHORT TERM CAPITAL LOSS AND ALSO ASSESSED THE PURCH ASE VALUE OF SHARES AS UNDISCLOSED INCOME OF THE ASSESSEE. THE LD CIT(A) ALSO CONFIRMED THE SAME. 3. BEFORE ME, THE LD A.R FURNISHED A PAPER BOOK, WHEREIN THE DETAILS PURCHASES ALONG WITH BROKER NOTES & PAYMENT DETAILS, BANK ACCOUNT COPIES ARE PRODUCE D. I HAVE NOTICED THAT ONE OF THE REASONS FOR MAKING THESE ADDITIONS IS THAT THE ASSESSEE DID NOT FURNISH THE DETAILS OF PURCHASES. FURTHER THE FACT THE ASSESSEE HAS DEMATERIALISED THE SHARES WOULD SHOW THAT THE ASSESSEE HAS ACTUALLY PURCHASED THE SHARES . IT IS ALSO A FACT THAT THE ASSESSEE HAS SOLD THE SHARES THROUGH ANOTHER BROKER. HENCE, IN MY VIEW, IT CANNOT BE SAID THAT THE ASSESSEE DID NOT PURCHASE SHARES AT ALL. UNDER THESE SET OF FACTS, I AM OF THE VIEW THAT ENTIRE ISSUE REQUIRES FRESH EXAMINAT ION AT THE END OF THE AO. ACCORDINGLY I SET ASIDE THE ORDER PASSED BY LD CIT(A) AND RESTORE THE SAME TO THE FILE OF THE AO FOR EXAMINING THE ISSUE AFRESH BY DULY CONSIDERING THE PURCHASE DETAILS OF SHARES. THE ASSESSEE SHOULD BE GIVEN ADEQUATE OPPORTUNIT Y OF BEING HEARD. 4. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 5 . 7 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEM BER MUMBAI ; DATED : 5 / 7 / 20 1 7 VIDYA S. JOSHI 3 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./A SSTT. REGISTRAR) PS ITAT, MUMBAI