KANCHAN GAURAV RAIMALANI, MUMBAI V. ACIT 13(3), MUMBAI

ITA 4399/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 3388 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2007-2008
• Appeal Filed On: 05-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AKHTAR HANSARI
• Keywords: Reopening of assessment; Unexplained cash credit; Gift; Accommodation entries; Reason to believe; Documents seized; Set aside; Capital Gains
• Section: 143(3); 143(1); 147; 148; 132; 68

Judgement Text

IN THE INCOME-TAX APPELLATE TRIBUNAL SMC BENCH MU MBAI BEFORE SHRI PAWAN SINGH JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTANT MEMBER ITA NO. 4399/MUM/2018 (ASSESSMENT YEAR 2007-08 ) SMT. KANCHAN GAURAV RAIMALANI, 1605, RAHEJA CLASSIQUE, BLDG. NO.4, NEW LINK ROAD, ANDHERI (WEST), MUMBAI- 400053. PAN: AHAPR0883M VS. ACIT - 19(3) MUMBAI. APPELLANT RESPONDE NT APPELLANT BY : SHRI K. GOPAL WITH MS. NEHA PARANJPE (AR S) RESPONDENT BY : SHRI AKHTAR H. ANSARI (SR. DR) DATE OF HEARING : 30.09.2019 DATE OF PRONOUNCEMEN T : 13.11.2019 ORDERUNDER SECTION 254(1)OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER ; 1. THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF LD. CIT(A)-57, MUMBAI DATED 22.03.2018 FOR ASSESSMENT YEAR 2007-08 . 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME FOR ASSESSMENT YEAR 2007-08 ON 31.07.2007 DECLARING TOT AL INCOME OF RS. 6,69,651/-. IN THE RETURN OF INCOME, THE ASSESSEE C LAIMED SHORT TERM CAPITAL GAIN (STCG). THE CASE WAS SELECTED FOR SCRU TINY AND ASSESSMENT WAS COMPLETED UNDER SECTION 143(3) ALLOWING THE STC G. SUBSEQUENTLY, THE CASE WAS RE-OPENED ON THE BASIS OF INFORMATION RECEIVED FROM CCIT CENTRAL-1 THAT ASSESSEE AVAILED A BOGUS BILL FROM M UKESH CHOKSHI, WHO ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 2 WAS ALLEGEDLY INDULGING IN PROVIDING SUCH BOGUS BIL LS/ENTRY. INFORMATION WAS ALSO RECEIVED THAT A SEARCH ACTION UNDER SECTIO N 132 WAS CONDUCTED IN CASE OF MUKESH CHOKSHI ON 18.06.1998 AND ON 02.0 6.2006. ON THE BASIS OF SUCH INFORMATION, THE CASE OF ASSESSEE WAS RE-OPENED. NOTICE UNDER SECTION 148 DATED 30.03.2013 WAS ISSUED TO TH E ASSESSEE. IN RESPONSE TO THE NOTICE UNDER SECTION 148, THE ASSES SEE FILED ITS REPLY DATED 15.04.2013. IN THE REPLY, THE ASSESSEE STATED THAT THE RETURN FILED ON 31.07.2007 MAY BE TREATED AS RETURN IN RESPONSE TO THE NOTICE UNDER SECTION 148. THE ASSESSEE ALSO REQUESTED FOR REASON S RECORDED FOR RE- OPENING. THE ASSESSEE WAS SERVED WITH THE REASONS R ECORDED. ON RECEIPT OF THE REASONS RECORDED, THE ASSESSEE FILED HER OBJ ECTION DATED 11.02.2014. THE ASSESSEE OBJECTED FOR THE RE-OPENIN G AND STATED THAT SHE NEVER INVOLVED IN AVAILING ACCOMMODATION ENTRY AS A LLEGEDLY DISCLOSED BY MUKESH CHOKSHI. THE PROFIT RECEIVED BY THE ASSES SEE FROM THE TRANSACTION HAS BEEN SHOWN IN THE RETURN OF INCOME WHICH WAS ACCEPTED IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143(3) . THE ASSESSEE SPECIFICALLY DENIED ABOUT ANY FRAUDULENT BILLING AN D PAYMENT DETAILS OF M/S ALLIANCE INTERMEDIARY AND NETWORK PVT. LTD. THE ASSESSEE SPECIFICALLY STATED THAT SHE PURCHASED AND SOLD SHA RE OF ALCHEMIST LTD. WORTH RS. 2,57,005/- AND RS. 8,03,344/- AND NET PRO FIT EARNED FROM SALE OF SUCH SCRIP WAS SHOWN AS STCG. THE ASSESSING OFFI CER COMPLETED THE RE-ASSESSMENT ON 14.03.2014 AND TREATED THE CAPITAL GAIN AS UNEXPLAINED ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 3 CASH CREDIT. ON APPEAL BEFORE THE LD. CIT(A), THE A CTION OF ASSESSING OFFICER ON ACCOUNT OF RE-OPENING AS WELL AS ADDITIO N ON ACCOUNT OF UNEXPLAINED CASH CREDIT WAS CONFIRMED. THUS, FURTHE R AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSESSEE HAS FILED THE PRE SENT APPEAL BEFORE US. 3. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF AP PEAL: 1. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) [HE REINAFTER REFERRED TO AS 'CIT (A)'] ERRED IN CONFIRMING THE FOLLOWING ADD ITIONS AND DISALLOWANCES MADE BY THE LD. ASSESSING OFFICER WITHOUT APPRECIAT ING THE FACTS AND CIRCUMSTANCES OF THE CASE: SR. NO. PARTICULARS AMOUNT (RS.) A CONFIRMING THE ADDITION ON ACCOUNT OF SALE OF SHARES THROUGH ALLIANCE INTERMEDIARIES AND NETWORK PVT. LTD. MADE IN THE ASSESSMENT PROCEEDINGS U/S 143(3) READ WITH SECTION 147. B CONFIRMING THE ADDITION OF RS. 8,04,605/- RECEIVED FROM SALE OF SHARES THROUGH ALLIANCE INTERMEDIARIES & NETWORK PVT. LTD. AS UNEXPLAINED CASH CREDIT U/S 68. 8,04,605 C CONFIRMING ADDITION OF RS. 8,04,605/- U/S 68 WHILE THE APPELLANT HAS ALREADY SHOWN SHORT TERM CAPITAL GAIN FROM SHARE TRANSACTION. 40,566/ - A. ON THE FACTS AND IN LAW, THE LEARNED CIT (A) ERR ED IN CONFIRMING THE ADDITION ON ACCOUNT OF SALE OF SHARES THROUGH ALLIA NCE INTERMEDIARIES AND NETWORK PVT. LTD. MADE IN THE ASSESSMENT PROCEEDING S U/S 143(3) READ WITH SECTION 147 WITHOUT APPRECIATING THE FACT THAT THE REOPENING OF ASSESSMENT WAS MERELY ON THE BASIS OF THE INFORMATION RECEIVED FROM THE DGIT (INV], MUMBAI AND WITHOUT ANY MATERIAL ON RECORD TO SHOW T HAT THE TRANSACTIONS ENTERED INTO BY THE APPELLANT WERE NON GENUINE. B. ADDITION OF RS. 8,04,605/- FROM SALE OF SHARES T HROUGH ALLIANCE INTERMEDIARIES & NETWORK PVT. LTD. AS UNEXPLAINED C ASH CREDIT U/S 68. ON THE FACTS AND IN LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 8,04,605/- RECEIVED FROM SALE OF SHARES OF A LCHEMIST LTD. THROUGH ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 4 ALLIANCE INTERMEDIARIES & NETWORK PVT. LTD. AS UNEX PLAINED CASH CREDIT U/S 68 ON THE BASIS OF STATEMENT OF SHRI MUKESH CHOKSHI . C. CONFIRMING ADDITION OF RS. 8,04,605/- U/S 68 WHI LE THE APPELLANT HAS ALREADY SHOWN SHORT TERM CAPITAL GAIN FROM SHARE TR ANSACTION . ON THE FACTS AND IN LAW, THE LEARNED CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 8,04,605/ - RECEIVED FROM SALE OF SHARES OF ALCHEMIST LTD. THROUGH ALLIANCE INTERMEDIARIES & NETWORK PVT. LTD. AS UNEX PLAINED CASH CREDIT U/S 68 WHILE THE APPELLANT HAS ALREADY SHOWN SHORT TERM CAPITAL GAIN OF RS.5,45,426/- FROM SHARE TRANSACTION. 4. THE ASSESSEE FURTHER VIDE APPLICATION DATED 27.06.2 009 RAISED THE FOLLOWING ADDITIONAL GROUNDS OF APPEAL: 1. THE NOTICE ISSUED U/S 148( 1) OF THE ACT IS BARR ED BY LIMITATION IN VIEW OF THE PROVISO TO SECTION 147 OF THE ACT AS THE SAID N OTICE IS ISSUED BEYOND FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR WHEN THE ORIGINAL ASSESSMENT WAS COMPLETED VIDE ORDER DATED 21.12.201 4 U/S 143(3) OF THE ACT. 2. THE REASONS RECORDED TO ISSUE NOTICE U/S 148(1) DATED 30.03.2013 HAVE NOT ALLEGED ANY FAILURE ON PART OF THE APPELLANT TO DIS CLOSE ALL THE MATERIAL FACTS TRULY AND FULLY. THUS, THE NOTICE UNDER SECTION 148 OF THE ACT AND SUBSEQUENT REASSESSMENT ORDER ARE BAD IN LAW AND THE SAME MAY BE QUASHED AND SET ASIDE. 5. AT THE OUTSET OF HEARING, THE LD. AUTHORIZED REPRES ENTATIVE (AR) OF THE ASSESSEE SUBMITS THAT HE HAS RAISED ADDITION GROUND OF APPEAL. THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE IS P URELY LEGAL IN NATURE. THE LD. AR OF THE ASSESSEE FURTHER SUBMITS THAT NO NEW FACTS ARE NECESSARY TO BE BROUGHT ON RECORD FOR ADJUDICATION OF ADDITIONAL GROUND OF APPEAL. IN SUPPORT OF HIS SUBMISSION, THE LD. AR OF THE ASSESSEE RELIED UPON THE DECISION OF NATIONAL THERMAL CORPORATION L TD. (NTPC) [229 ITR 383(SC)] AND FULL BENCH DECISION OF HONBLE BOM BAY HIGH COURT IN AHMADABAD ELECTRICITY COMPANY LTD. VS. CIT [199 ITR 351 (BOM) (FB)]. ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 5 6. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTAT IVE (DR) FOR THE REVENUE SUBMITS THAT ASSESSEE HAS NOT RAISED GROUND AT EARLIER STAGE AND NOW THE ASSESSEE IS PRECLUDED FROM RAISING THE ADDI TIONAL GROUND OF APPEAL AS PER THE PROVISION OF SECTION 124(3) OF TH E ACT. THE LD. DR PRAYED THAT ADDITIONAL GROUND OF APPEAL MAY NOT BE ADMITTED AT THIS STAGE. 7. WE HAVE CONSIDERED THE CONTENTION OF BOTH THE PARTI ES AND FIND THAT THE ASSESSEE HAS RAISED THE ADDITIONAL GROUND OF APPEAL CHALLENGING THE VALIDITY OF NOTICE UNDER SECTION 148 DATED 30.03.20 13. IN OUR VIEW, NO ADDITIONAL FACTS ARE NECESSARY TO BE BROUGHT ON REC ORD FOR ADJUDICATION OF THE ADDITIONAL GROUND OF APPEAL. THE FACTS RELATED TO ADJUDICATION OF ADDITIONAL GROUND OF APPEAL ARE ALREADY ON RECORD. THE ADDITIONAL GROUND OF APPEAL IS PURELY LEGAL IN NATURE. THE SUBMISSION OF LD. DR FOR THE REVENUE THAT IS THAT THE ASSESSEE IS PRECLUDED TO R AISE THE OBJECTION/ GROUND OF APPEAL AS IT WAS NOT RAISED EARLIER IN VI EW OF SECTION 124(3). IN OUR CONSIDERED VIEW THAT THE SUBMISSION OF LD. DR I S MISCONCEIVED. SECTION 124 PRESCRIBES THE JURISDICTION OF ASSESSIN G OFFICER, WHICH IS NOT THE ISSUE RAISED BY ASSESSEE IN ADDITIONAL GROU ND OF APPEAL. THE ASSESSEE HAS RAISED THE GROUND AGAINST THE VALIDITY OF NOTICE UNDER SECTION 148 AND THAT REASONS RECORDED BY ASSESSING OFFICER HAVE NO LIVE LINK. CONSIDERING THE FACT THAT NO NEW FACTS ARE NE CESSARY TO BE BROUGHT ON RECORD FOR ADJUDICATION OF ADDITIONAL GROUND OF APPEAL AND THAT ALL ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 6 FACTS RELATED TO THE ADDITIONAL GROUND RAISED BY AS SESSEE ARE AVAILABLE/EMANATING FROM THE FACTS AVAILABLE ON REC ORD. THUS, THE ADDITIONAL GROUND OF APPEAL RAISED BY ASSESSEE IS A DMITTED. 8. ON THE MERIT OF ADDITIONAL GROUND OF APPEAL, THE LD . AR OF THE ASSESSEE SUBMITS THAT THE ASSESSMENT WAS COMPLETED UNDER SEC TION 143(3) ON 25.11.2009. THE NOTICE UNDER SECTION 148 DATED 30.0 3.2013 WAS SERVED AFTER FOUR YEARS FROM THE END OF RELEVANT ASSESSMEN T YEAR. THE ASSESSEE DEMANDED THE REASONS RECORDED WHICH WERE SERVED TO THE ASSESSEE. THE COPY OF REASONS OF RE-OPENING IS PLACED ON RECORD A T PAGE NO. 38 OF THE PAPER BOOK. THE REASONS RECORDED, NOWHERE DISCLOSED THAT ANY INCOME ESCAPED FROM THE ASSESSMENT FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DUE TO THE FAILURE ON THE PART OF ASS ESSEE IN DISCLOSING FULLY AND TRULY ALL FACTS NECESSARY FOR HER ASSESSMENT. T HE LD. AR OF THE ASSESSEE FURTHER SUBMITS ADMITTEDLY THE CASE OF ASS ESSEE IS RE-OPENED AFTER THE EXPIRY OF FOUR YEAR FROM THE RELEVANT ASS ESSMENT YEAR AND THERE IS NO REFERENCE IN THE REASONS RECORDED THAT ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR THIS ASSESSMENT Y EAR BY THE REASONS OF FAILURE ON THE PART OF ASSESSEE. THE ASSESSEE HA S DISCLOSED ALL THE MATERIAL FULLY AND TRULY AT THE TIME OF FILING RETU RN OF INCOME. HENCE, THERE IS NO FAILURE ON THE PART OF ASSESSEE IN DISC LOSING FULL AND TRUE MATERIAL. THEREFORE, THE NOTICE UNDER SECTION 148 I S BAD-IN-LAW. IN SUPPORT OF HIS SUBMISSION, THE LD. AR OF THE ASSESS EE RELIED UPON THE ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 7 DECISION OF HONBLE BOMBAY HIGH COURT IN HINDUSTAN LEVER LTD. VS. R.B. WADKAR (268 ITR 332). THE LD. AR OF THE ASSESS EE FURTHER SUBMITS THAT IN THE REASONS RECORDED, THE ASSESSING OFFICER MUST DISCLOSED IN THE REASONS AS TO WHICH FACT OR MATERIAL NOT DISCLOSED BY ASSESSEE FULLY AND TRULY NECESSARY FOR ASSESSMENT FOR THAT ASSESSMENT YEAR SO AS TO ESTABLISH LIVE LINK BETWEEN THE REASONS AND EVIDENC E. THE LD. AR SUBMITS THAT THE RE-OPENING IS INVALID AND THE SUBS EQUENT ACTION INITIATED BY ASSESSING OFFICER INCLUDING THE ASSESSMENT ORDER IS VOID AB-INITIO. THE LD. AR SUBMITS THAT EVEN ON MERIT, THE CASE IS COVERED BY THE DECISION OF MUMBAI TRIBUNAL IN LATE SMT. GODAVARIDE VI D. RAIMALANI VS. ITO IN ITA NO. 1153/MUM/2018 DATED 30.01.2019. 9. ON THE OTHER HAND, THE LD. DR SUPPORTED THE ORDER O F LOWER AUTHORITIES. THE LD. DR SUBMITS THAT ASSESSEE WAS SUPPLIED THE R EASONS RECORDED. THE ASSESSEE CONTESTED THE PROCEEDING BEFORE THE ASSESS ING OFFICER AND NO SUCH ISSUE WAS RAISED BY ASSESSEE. THE CONTENTION OF ASSESSEE IS LIABLE TO BE REJECTED. 10. WE HAVE CONSIDERED THE SUBMISSION OF BOTH THE PARTI ES AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE NOTED THAT TH E ASSESSEE ON SERVICE OF NOTICE UNDER SECTION 148 FILED ITS REPLY STATING THEREIN THAT THE RETURN FILED ORIGINALLY ON 31.07.2007 MAY BE TREATED AS RE TURN IN RESPONSE TO THE NOTICE. THE ASSESSEE IS DEMANDED REASONS OF RE-OPEN ING. THE ASSESSEE WAS FURNISHED THE REASONS RECORDED BY ASSESSING OFF ICER. ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 8 11. WE HAVE NOTED THAT THE ASSESSING OFFICER HAS NOWHER E MENTIONED THE REASONS RECORDED IN HIS ORDER. THE LD. AR OF THE AS SESSEE HAS PLACED ON RECORD, THE COPY OF REASONS RECORDED. TO APPRECIATE THE FACTS OF THE REASONS RECORDED, WHICH WAS SUPPLIED TO THE ASSESSE E IS EXTRACTED BELOW: THE ASSESSEE FILED THE RETURN OF INCOME ON SHOWING THE INCOME OF RS. 669650/- CHARGEABLE TO TAX. THE TOTAL INCOME INCLUD ES SHORT TERM CAPITAL GAIN OF RS. 545975/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE I.T, ACT 1961 AND THE RETURNED INCOME WAS ACCEPTED. SUBSEQUE NTLY, INFORMATION HAS BEEN RECEIVED FROM THE CCIT(CENTRAL)-I, MUMBAI THAT THE ASSESSEE HAS OBTAINED BOGUS BILLS FROM SHRI MUKESH CHOKSHI AND H IS GROUP OF COMPANIES SHOWING THE PURCHASE AND SALES OF SHARES. INFORMATI ON HAS ALSO BEEN RECEIVED FROM THE CCIT(CENTRAL)-1 MUMBAI THAT THE A SEARCH ACTION U/S 132 WAS CONDUCTED ON 25-11-20.0.9 IN THE CASE OF M/S MA HASAGAR SECURITIES AND MUKESH CHOKSHI GROUP AND SEARCHES WERE ALSO CONDUCT ED ON THIS GROUP ON 18.06.1998 AND ON 02.06.2006. DETAILS OF INFORMATION IS AS UNDER: 1. IN HIS SWORN STATEMENT RECORDED, SHRI MUKESH CHO KSHI ADMITTED THAT HE AND HIS GROUP OF ENTITIES WERE ENGAGED IN FRAUDU LENT BILLING ACTIVITIES AND IN GIVING ACCOMMODATION ENTRIES IN ORDER TO ENA BLE THE CLIENTS TO DECLARE SPECULATION PROFIT/LOSS, SHORT TERM CAPITAL GAINS, LONG TERM CAPITAL GAINS, PROFITS /LOSS ON ACCOUNT OF COMMODIT Y TRADING, INTRODUCE SHARE APPLICATION MONEY, OR INTRODUCE MONEY IN THE FORM OF GIFTS. 2. STATEMENTS HAVE ALSO BEEN RECORDED FROM TWO O~ H IS EMPLOYEES AND AN AGENT I.E. MISS ANUPAMA PATEL (EMPLOYEE), ON 25- 11-200.9, SHRI KAPIL CHATURVEDI (EMPLOYEE) ON 13-01-2010 AND SHRI KAMAL KISHORE RATHI (AGENT) ON 25-11-20.0.9. 3. THIS GROUP DELIBERATELY CONDUCTED TRANSACTIONS I N SUCH A MANNER THAT A PART OF THE TRANSACTION IS EVIDENCED THROUGH BANK O R THROUGH STOCK EXCHANGE SUCH THAT A MISLEADING PICTURE IS GIVEN AN D A COLOUR OF GENUINENESS IS GIVEN TO THE ENTIRE TRANSACTIONS. FO R EXAMPLE, SHARES ARE PURCHASED FROM A BROKER/AGENT AND TRANSFERRED TO DE MAT ACCOUNT AND WITHIN A FEW DAYS THE SHARES ARE SHOWN AS SOLD THRO UGH STOCK EXCHANGE. ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 9 THIS GIVES THE PICTURE THAT THE SALE IS GENUINE. HO WEVER, THE HOLDING PERIOD IS NOT A YEAR OR MORE. 4. IN THE SWORN' STATEMENT DATED 16.0.1.20.13 SHRI MUKESH CHOKSHI HAS ADMITTED THAT HE WAS ONLY INVOLVED IN GIVING ACCOMM ODATION ENTRIES. BEFORE, GIVING THE SAID STATEMENT HE HAS PERUSED AL L THE DATA AND DOCUMENTS SEIZED/IMPOUNDED FROM HIS OFFICE PREMISES . IN THE SWORN STATEMENT HE HAD IDENTIFIED 829 NAMES OF BENEFICIAR IES AND CERTIFIED THAT THEY ARE ACCOMMODATIONS ENTRIES. 5. OUT OF THE BENEFICIARIES IDENTIFIED BY SHRI MUKE SH CHOKSHI IN HIS SWORN STATEMENT, ONE OF THE BENEFICIARIES IS SMT. K ANCHAN G RAIMALANI IS ASSESSED IN THIS CHARGE. THE SPECIFIC INFORMATIO N IS THAT SMT. KANCHAN G RAIMALANI HAS SOUGHT ACCOMMODATION ENTRIES FOR TH E PURCHASE SHARES RS. 513150 AND FOR THE SALES OF SAME SHARES AT RS. 804605/- THUS SHOWING SHORT TERM CAPITAL GAIN OF RS. 291455/-. TA KING INTO ACCOUNT THE STATEMENT GIVEN UNDER OATH BY SHRI MUKESH CHOKSHI , THE PURCHASE AND SALES ARE ONLY ACCOMMODATION ENTRIES. THE ASSESSEE HAS INTRODUCED HER UNACCOUNTED FUNDS OF RS. 804605/- TO THE REGULAR BO OKS BY WAY OF SALES SHARES. IN THE PROCESS THE ASSESSEE HAS SHOWN SHORT TERM CAPITAL GAIN OF RS. 291455/- BY PAYING TAX AT 10% WHICH IS RS. 2914 5/-. HOWEVER, SHE HAS INTRODUCED UNACCOUNTED FUNDS OF RS.804605/- TO THE REGULAR BOOKS ON WHICH TAX PAYABLE IS 30%. TAX PAYABLE ON RS. 804 60.5/- IS RS.241381/- . THUS THE ASSESSEE HAS PAID TAX AT TOO IOWA RATE. IN VIEW OF THE ABOVE, I HAVE REASON TO BELIEVE THAT THE ASSESSEES TAXABLE INCOME HAS ESCAPED ASSESSMENT WITHIN THE ME ANING OF PROVISIONS OF SEC. 147 OF THE INCOME-TAX ACT, 1961. 12. A CAREFUL PERUSAL OF REASONS RECORDED NOWHERE DISCL OSED THAT THERE IS ANY REFERENCE IN THE REASONS RECORDED THAT THE ASSE SSEE HAS NOT DISCLOSED ALL MATERIAL FULLY AND TRULY NECESSARY FOR ASSESSME NT OF THAT ASSESSMENT YEAR WHILE FILING THE RETURN OF INCOME. THE ASSESSE E HAS ALSO PLACED ON RECORD THE ASSESSMENT ORDER PASSED UNDER SECTION 14 3(3). THE ASSESSEE HAS ALSO FURNISHED THE COPY OF ACKNOWLEDGMENT OF RE TURN ALONG WITH THE ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 10 COMPUTATION OF WORKING OF STCG, COPY OF BANK STATEM ENT, COPY OF DMAT STATEMENT, COPY OF LEDGER BILL AND BROKERAGE S HOWING THE DETAILS OF PURCHASE AND SALE OF THE SHARE. THE ASSESSEE ALS O FURNISHED THE CERTIFICATE THAT ALL THESE DOCUMENTS WERE FURNISHED BEFORE THE ASSESSING OFFICER. 13. THE HONBLE BOMBAY HIGH COURT IN CASE OF HINDUSTAN LEVER LTD. VS. R.B. WADKAR (SUPRA) HELD THAT WHEN THE PETITIONER H AD STATED THAT THE NOTICE ISSUED UNDER SECTION 148 IS WITHOUT JURISDIC TION BEING HIT BY THE PROVISO OF SECTION 147 AND THAT WHERE THE ASSESSMEN T IS COMPLETED UNDER SECTION 143(3), NO ACTION CAN BE TAKEN UNDER SECTIO N 147 AFTER THE EXPIRY OF FOUR YEAR FROM THE END OF RELEVANT ASSESSMENT YE AR. UNLESS ANY INCOME CHARGEABLE TO TAX HAS ESCAPED ASSESSMENT FOR SUCH ASSESSMENT YEAR BY THE REASONS ON THE FAILURE ON THE PART OF A SSESSEE TO DISCLOSE ALL MATERIAL FACTS NECESSARY FOR HIS ASSESSMENT FOR THA T ASSESSMENT YEAR. 14. NOW TURNING TO THE FACTS OF THE PRESENT CASE, WHICH RELATES TO ASSESSMENT YEAR 2007-08 AND FOUR YEAR FOR THE END O F RELEVANT ASSESSMENT YEAR EXPIRED ON 31.03.2012. ADMITTEDLY, THE NOTICE UNDER SECTION 148 DATED 30.03.2013 WAS ISSUED ADMITTEDLY AFTER THE EXPIRY OF FOUR YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR. FURTHER, THE REASONS RECORDED BY ASSESSING OFFICER, NOWHERE SUGGESTS THA T THERE WAS ANY FAILURE ON THE PART OF ASSESSEE TO DISCLOSE FULLY A ND TRULY ALL MATERIAL FACTS NECESSARY FOR THAT ASSESSMENT YEAR. CONSIDERI NG THE MANDATE OF ITA NO. 4399 MUM 2018- SMT. KANCHAN GAURAV RAIMALANI. 11 DECISION OF JURISDICTIONAL HIGH COURT IN HINDUSTAN LEVER LTD. VS. R.B. WADKAR (SUPRA), WE ARE OF THE VIEW THAT THE NOTICE BEING BEYOND THE FOUR YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR AND D OES NOT COMPLY WITH THE REQUIREMENT OF PROVISO OF SECTION 147. THU S, THE ASSESSING OFFICER HAS NO JURISDICTION TO RE-OPEN THE ASSESSME NT CONCLUDED UNDER SECTION 143(3). THUS, WE ALLOWED THE ADDITIONAL GRO UND OF APPEAL RAISED BY ASSESSEE. SINCE WE HAVE ALLOWED THE ADDITIONAL G ROUND OF APPEAL RAISED BY ASSESSEE. THEREFORE, THE OTHER GROUNDS OF APPEAL RAISED BY ASSESSEE HAVE BECOME ACADEMIC. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN C OURT ON 13/11/2019. SD/- SD/- RAJESH KUMAR PAWAN SING H ACCOUNTANT MEMBER J UDICIAL MEMBER MUMBAI, DATE: 13.11.2019 SK COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. DR SMC BENCH, ITAT, MUMBAI 6. GUARD FILE BY ORDER, DY./ASST. REGISTRAR ITAT, MUMBAI \