NAVJEEVAN CREDIT & HOLDINGS LTD, MUMBAI V. ITO 4(3)(1), MUMBAI

ITA 5422/MUM/2012

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 9498 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-11-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 22-11-2012
• Assessment Year: 2005-2006
• Appeal Filed On: 29-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ROOPAK KUMAR
• Assessee Lawyers: H S RAHIJA
• Keywords: Accommodation entries
• Section: 147

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R.K.GUPTA , J M ITA NO. 5422 / MUM/ 20 1 2 ( ASSESSMENT YEA R : 200 5 - 20 0 6 ) NAVJEEVAN CREDIT & HOLDINGS LTD., 158/164, LAXMI BHAVAN, 4 TH FLOOR, KALBADEVI ROAD, MUMBAI - 400 002. VS. ITO, WARD 4 ( 3 ) - 1 , MUMBAI PAN/GIR NO. : A AACN 4228 N ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : MR. H.S. RAHIJA /REVENUE BY : MR. ROOPAK KUMAR DATE OF HEARING : 2 2 ND NOV. , 2012 DATE OF PRONOUNCEMENT : 27 TH NOV. ,2012 O R D E R THIS IS AN APPEAL BY THE ASSESSEE AGAINST THE ORDER DATED 9 - 7 - 2012 OF LEANED CIT(A) - 8 , MUMBAI RELATING TO THE ASSESSMENT YEAR 200 5 - 2006 . 2. THE ASSESSEE HAS FILED ADDITIONAL GROUND AGAINST INITIATION OF PROCEEDING UNDER SECTION 147 OF THE ACT, WHI CH WAS NOT PRESSED DURING THE COURSE OF HEARING. THEREFORE, THE SAME IS DISMISSED AS NOT PRESSED. 3. THE GROUND ON MERIT IS AGAINST UPHOLDING THE ADDITION OF RS. 1,71,615/ - MADE BY THE ASSESSING OFFICER UNDER SECTION 68. ITA NO. 5422 /20 1 2 2 4 . BRIEF FACTS OF THE CASE ARE TH AT THE ASSESSMENT IN THIS CASE WAS REOPENED ON RECEIVING SOME INFORMATION REGARDING PURCHASING OF SHARES AND SELLING OF THE SAME. THE ASSESSEE WAS FOUND IN HAVING PURCHASED THE SHARE OF 1800 OF BUNIYAD CHEMICALS LIMITED ON 4 - 5 - 2003 FOR A CONSIDERATION OF R S. 18,801/ - FROM STATUS CREDIT &CAPITAL PVT. LTD.. THE SHARES WERE PURCHASED THROUGH ACCOUNT PAYEE CHEQUE S AND THEY WERE TRANSFERRED TO D - MAT ACCOUNT. THEREAFTER THE SHARES WERE SOLD FOR A CONSIDERATION OF RS. 1,71,615/ - THROUGH M/S ALLIANCE INTERMEDIATERIES & NETWORK PVT. LTD. 5 . THE ASSESSING OFFICER HELD THAT THE STATEMENT OF ONE SHRI MUKESH CHOKSHI WAS RECORDED UNDER SECTION 13 2(4) , WHO WAS ONE OF THE DIRECTOR OF BUNIYAD CHEMICALS LIMITED. IN HIS STATEMENT, HE HAS STATED THAT THESE COMPANIES ARE EITHER SHOWN AS BROKER OR DEALERS TO A STOCK EXCHANGE BUT ARE DEFAULTERS AND ARE NOT ALLOWED TO OPERATE ON THE STOCK EXCHANGE. SHRI MUKESH CHOKS HI STATED THAT THE MODUS OPERANDI OF THESE CONCERNS OF PROVIDING THE ACCOMMODATION ENTRIES FOR PERSONS WHO HAD UNACCOUN TED MONEY AND ARE IN A NEED OF CLAIMING BOGUS PROFITS, CAPITAL GAINS ETC. WHEREBY FOR A COMMISSION OF 0.15% IS CHARGED . ACCORDINGLY, THESE TRANSACTIONS WERE HELD BOGUS BY THE ASSESSING OFFICER AND CONSIDERATION OF RS. 1,71,615/ - WAS ADDED UNDER SECTION 68. 6 . THE CIT(A) HAS ALSO CONFIRMED THE ACTION OF THE ASSESSING OFFICER. HENCE, THE ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. ITA NO. 5422 /20 1 2 3 7 . LEARNED COUNSEL OF THE ASSESSEE STATED THAT THE ISSUE IS SQUARELY COVERED BY THE ORDER OF THE TRIBUNAL IN THE CASE OF SMT. DURGADEVI MUNDRA AND IN THE CASE OF MAHESH MUNDRA, DECIDED IN ITA NO.1175 & 1176/M/2012, FOR THE ASSESSMENT YEAR 2003 - 2004 VIDE ORDER DATED 1 - 6 - 2012 . COPY OF THE SAME HAS ALSO BEEN FILED. IT WAS FURTHER SUBMITTED THAT IN THESE CASES, THE SAME BROKER I.E. S HRI MUKESH CHOKSHI , WAS INVOLVED AND THE SHARE OF S A ME COMPANIES WERE PURCHASED. THE TRIBUNAL HAS HELD THAT THE PURCHASE OF SHARES AND SALE OF SHARES WERE GENUINE AND ACCORDINGLY THE ENTIRE ADDITION WERE DELETED. 8. ON THE OTHER HAND, LEARNED DR PLACED R ELIANCE ON THE ORDER OF THE CIT(A). 9 . AFTER CONSIDERING THE SUBMISSIONS AND PERUSING THE MATERIAL ON RECORD, I FOUND THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE TRIBUNAL IN THE CASE OF SMT. DURGADEVI MUNDRA AND SHRI MUKESH MUNDRA (SUPRA) , WHERE IDENTICAL FACTS WERE INVOLVED. SIMILARLY, THESE CASES WERE ALSO REOPENED ON INFORMATION THAT THE ASSESSEE WAS INVOLVED IN CLAIMING PURCHASE AND SALE OF SHARES TO EARN CAPITAL GAIN ETC. THE TRIBUNAL AFTER EXAMINING THE ISSUE IN DETAIL AND FOLLOWING TH E DECISION MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF CHANDRAKANT BABULA L SHAH , PASSED IN 6108/M/2008 , WHERE SIMILAR FACTS WERE INVOLVED, ALLOWED THE ISSUE IN FAVOUR OF THE ASSESSEE. COPY OF THE DECISION OF THE TRIBUNAL HAS BEEN PLACED ON RECORD. THEREFOR E, ITA NO. 5422 /20 1 2 4 FOLLOWING THE AFORESAID DECISIONS, I DELETE THE ADDITION OF RS. 1,71,615/ - AS THE FACTS ARE SIMILAR TO THE ABOVE MENTIONED CASES. I ORDER ACCORDINGLY. 10 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH D AY OF NOV. 2012. 2012 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI ; DATED : 27 TH / 11 / 2012 . /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) - X, MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( DY./ASSTT. REGISTRAR) / ITAT, MUMBAI