DANNY VENILAL SHAH, MUMBAI V. INCOME TAX OFFICER 13(3)(1), MUMBAI

ITA 2598/MUM/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 8533 (ITAT-MUMBAI)
• Duration Of Justice: 8 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-12-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2014-2015
• Appeal Filed On: 26-04-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Unexplained cash credit; Accommodation entries
• Section: 133(6); 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH SMC , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER ITA NO . 2598 /MUM/201 8 (A.Y: 2014 - 15) SHRI DANNY VENILAL SHAH 402/B, 4 TH FLOOR, CRYSTAL APARTMENT, S.V. ROAD, KANDIVALI (W), MUMBAI 400 067 PAN: ALPPS 9824 G V . INCOME TAX OFFICER 13(3)(1) ROOM NO . 7/8, 3 RD FLOOR, MITTAL COURT, MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE DEPARTMENT BY : SHRI CHAITANY A ANJARIA DATE OF HEARING : 31.12.2018 DATE OF PRONOUNCEMENT : 31 .12 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 21, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 07.03.2018 F OR THE ASSESSMENT YEAR 2014 - 15. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE IN ITS APPEAL , IS THAT THE LD.CIT(A) ERRED IN LAW IN CONFIRMING THE ADDITION OF . 27,51,277/ - MADE ON ACCOUNT OF LONG TERM CAPITAL GAIN AND DENYING THE EXEMPTION U/S. 10(38) OF THE ACT. 2 ITA NO.2598/MUM/2018 (A.Y: 2014 - 15) SHRI DANNY VENILAL SHAH 3. NOTICES ISSUED TO THE ASS ESSEE BY REGISTERED POST POSTING CASE FOR HEARING ON 26.11.2018 & 31.12.2018 WERE RETURNED UNSERVED WITH THE POSTAL ENDORSEMENT THAT ADDRESSEE IS LEFT. THEREFORE, I PROCEED TO DISPOSE OF F THE APPEAL ON MERITS ON HEARING THE LD.DR. 4. LD. DR REFERRING TO THE A SSESSMENT O RDER SUBMITTED THAT THE ASSESSING OFFICER MADE ADDITION U/S. 68 OF THE ACT BEING THE SALE PROCEEDS OF THE SHARES AND THE LONG TERM CAPITAL GAIN WHICH WAS CLAIMED EXEMPTION U/S. 10(38) OF THE ACT BASED ON THE FINDINGS OF THE SEARCH/ SURVEY , ENQUIRES CONDUCTED IN THE CASE OF ASSESSEE, BROKERS, OPERATORS AND THE ENTRY PROVIDER S , IT HAS BEEN ESTABLISHED THAT THE NATURE OF TRANSACTIONS ENTERED INTO BY THE ASSESSEE AND THE CLAIM OF THE ASSESSEE THAT LONG TERM CAPITAL GAIN OF .27,51,277/ - AS EXEM PTION CANNOT BE ALLOWED. IT IS SUBMITTED THAT THE ASSESSING OFFICER ESTABLISHED BASED ON THE MATERIAL THAT THE ASSESSEE HAS RECEIVED BACK SALE PROCEEDS AND SALE OF SHARES AND THE BROKERS HAVE PROVIDED ONLY ACCOMMODATION ENTRIES TO THE ASSESSEE AND T HEREFO RE THE ASSESSING OFFICER WAS RIGHTLY DENIED THE EXEMPTION U/S. 10(38) OF THE ACT, CLAIMED BY THE ASSESSEE AS LONG TERM CAPITAL GAIN ON SALE OF SHARES AND BROUGHT TO TAX THE SALE PROCEEDS AS UNEXPLAINED CASH CREDIT OF THE ASSESSEE. 5. LD.DR SUBMITTED THAT THIS ACTION OF THE ASSESSING OFFICER WAS UPHELD BY THE LD.CIT(A) AFTER EXAMINING THE SUBMISSIONS OF THE ASSESSEE WITH REFERENCE TO THE FACTS AND INVESTIGATIONS CARRIED OUT ON THE REPORT OF THE 3 ITA NO.2598/MUM/2018 (A.Y: 2014 - 15) SHRI DANNY VENILAL SHAH SECURITIES AND EXCHANGE BOARD OF INDIA ( SEBI ), ASSESSEES VERIFICAT ION BY ISSUE OF NOTICES U/S. 133(6) OF THE ACT, IT WAS CONCLUDED THAT THE TRANSACTION WAS BOGUS AND T HEREFORE SUSTAINED THE ACTION OF THE ASSESSING OFFICER IN DENYING THE CLAIM FOR EXEMPTION U/S. 10(38) OF THE ACT AS UNEXPLAINED CASH CREDIT OF THE ASSESSEE U/S. 68 OF THE ACT. 6. HEARD THE LD. DR, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. ON A PERUSAL OF THE ORDER OF THE ASSESSING OFFICER AS WELL AS THE FIRST APPELLATE O RDER, I FIND THAT THE CLAIM FOR EXEMPTION U/S. 10(38) OF THE ACT WAS DENIED BY THE ASSESSING OFFICER BASE D ON THE INVESTIGATIONS, SEARCH/ SURVEY BY VARIOUS AGENCIES TO ESTABLISH THAT THE TRANSACTIONS OF PURCHASES AND SALE OF SHARES BY THE ASSESSEE WAS NOT GENUINE AND THE BROKERS HAVE PROVIDED ONLY ACCOMMODATION ENTRIES. NONE OF THE FINDINGS OF THE ASSESSING OFFICER HAVE BEEN REBUTTED BEFORE ME. IN THESE CIRCUMSTANCES, I UPHOLD THE FINDINGS OF THE ASSESSING OFFICER AND THE LD.CIT(A). HENCE, ORDERS OF THE LOWER AUTHORITIES ARE SUSTAINED. GROUND S RAISED BY THE ASSESSEE ARE REJECTED. 7. IN THE RESU LT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 31 ST DECEMBER , 2018 SD/ - (C.N. PRASAD) JUDICIAL MEMBER MUMBAI / DATED 31 / 12 / 2018 GIRIDHAR , S R. PS 4 ITA NO.2598/MUM/2018 (A.Y: 2014 - 15) SHRI DANNY VENILAL SHAH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER (ASSTT. REGISTRAR) ITAT, MUM