ACIT CEN CIR 32, MUMBAI V. JOGIA PROPERTIOES LTD, MUMBAI

ITA 6106/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1925 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: J
• Next Hearing Date: 02-06-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D V LAKHANI
• Assessee Lawyers: ALOK JOHRI
• Keywords: Unexplained cash credit; Unexplained investment; Search and seizure; Speculation loss; Accommodation entries; Retraction
• Section: 133A; 153A; 131; 68; 132

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH J, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ITA NOS.6106 & 6107/M/2012 ASSESSMENT YEARS: 2008-09 & 2009-10 ACIT, CENTRAL CIRCLE 32, ROOM NO.32(2), GROUND FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MARINE LINES, MUMBAI 400 020 VS. M/S. JOGIA PROPERTIES LTD., 324, BLDG. NO.F, MASTER MIND IV, 3 RD FLOOR, ROYAL PALMS, AAREY COLONY, GOREGAON (E), MUMBAI - 400065 PAN: AAACJ 9901H (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI ALOK JOHRI, D.R. REVENUE BY : SHRI D.V. LAKHANI, A.R. DATE OF HEARING : 24.10.2015 DATE OF PRONOUNCEMENT : 18.12.2015 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY TH E REVENUE AGAINST THE COMMON ORDER DATED 27.07.2012 OF THE COMMISSIONER O F INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)] R ELEVANT TO AY 2008-09 AND AY 2009-10. AS THE FACTS AND ISSUES INVOLVED IN BO TH THE APPEALS ARE SIMILAR AND THE IMPUGNED ORDER OF THE LD. CIT(A) IS ALSO CO MMON IN BOTH THE APPEALS, HENCE THE SAME ARE TAKEN TOGETHER FOR DISPOSAL WITH THIS COMMON ORDER. 2. THE BRIEF FACTS OF THE CASE AS DRAWN OUT FROM TH E IMPUGNED ORDER AND THE AVAILABLE RECORD ON THE FILE ARE THAT A SEARCH AND SEIZURE OPERATION WAS CARRIED OUT U/S. 132 OF THE I.T. ACT AT THE BUSINESS PREMIS ES OF ASSESSEE ON 04.03.2010 SITUATED AT 208, ASHIRWAD BUILDING, AHMEDABAD STREE T, CARNAC BUNDER, ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 2 MUMBAI. DURING THE COURSE OF SEARCH IT WAS FOUND TH AT ASSESSEE HAD BEEN MAINTAINING ITS BOOKS OF ACCOUNTS AT ANOTHER PREMIS ES SITUATED AT 20, BHATIA NIWAS, 233/235, SAMUEL STREET, MASJID BUNDER, MUMBA I - 400 009. THEREFORE, THE SAID PREMISE WAS COVERED FOR SURVEY ACTION U/S. 133A OF THE I.T. ACT. DURING THE SURVEY ACTION, IT WAS REVEALED THAT SEVE N OTHER COMPANIES HAVE ALSO BEEN OPERATING FROM THE SAID PREMISE BHATIA NIWAS. IT REVEALED THAT THE ASSESSEE AND ALL THE ABOVE STATED SEVEN COMPANIES W ERE ENGAGED IN INVESTMENT ACTIVITIES AND HAVE MADE INVESTMENTS IN EQUITY SHAR ES OF VARIOUS COMPANIES INCLUDING ONE M/S. SHREE GLOBAL TRADE FIN. LTD. TH E INVESTMENTS WERE MADE OUT OF THE SHARE CAPITAL OF THE COMPANY, WHICH CONS ISTED OF THE SHARE APPLICATION MONEY RECEIVED FROM VARIOUS OTHER CONCE RNS. IT WAS ALSO REVEALED THAT THERE WAS ONE COMMON DIRECTOR IN SOME OF THE A BOVE STATED SEVEN COMPANIES E.G. SHRI AJAY KUMAR HAS BEEN THE DIRECTO R OF M/S JOGIA PROPERTIES PVT. LTD., M/S AUSTER PROPERTIES PVT. LTD. AND M/S REVA PROPERTIES PVT. LTD. SIMILARLY SHRI OM HARI HALAN HAS BEEN A DIRECTOR IN M/S ARCHIVE REALTY DEVELOPERS PVT. LTD. AND M/S. VEDISA PROPERTIES PVT . LTD.; SIMILARLY SH. NARAYAN HARI HALAN WAS DIRECTOR IN M/S. MARTAND PROPERTIES PVT. LTD., M/S. KARBURI PROPRTIES PVT. LTD. AND M/S. CIKURA PROPERT IES PVT. LTD. FURTHER, IT WAS ALSO REVEALED THAT ALL THE ABOVE SAID DIRECTORS WER E CLOSELY RELATED TO EACH OTHER. THE CASE OF THE ASSESSEE WAS THUS COVERED UN DER SECTION 153A AND THE OTHER SEVEN COMPANIES WERE COVERED U/S. 153C OF THE I.T. ACT. 3. DURING THE COURSE OF ANOTHER SEPARATE SURVEY ACT ION IN THE CASE OF M/S. SHREE GLOBAL TRADE FIN. LTD. I.E. THE COMPANY IN W HICH THE ASSESSEE COMPANY HAD MADE INVESTMENT, STATEMENT OF ONE SHRI JOSE MAT HEW, JT. GENERAL MANAGER IN THE SAID COMPANY M/S. SHREE GLOBAL TRADE FIN. LTD. WAS ALSO RECORDED ON 04.03.2010. IN HIS STATEMENT, HE STATED THAT THE SH ARE APPLICATION MONEY RECEIVED IN THE ASSESSEE COMPANY AND OTHER GROUP CO MPANIES HAVE BEEN OBTAINED BY PAYING CASH IN LIEU OF THE CHEQUES RECE IVED AS SHARE CAPITAL. THE ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 3 SAID MONEY RECEIVED AS SHARE CAPITAL BY THE ASSESSE E COMPANY AND OTHER GROUP COMPANIES WAS FURTHER INVESTED IN HIS COMPANY M/S SHREE GLOBAL TRADE FIN. LTD.; THIS STATEMENT OF SHRI JOSE MATHEW WAS CONFRO NTED TO SHRI AJAY KUMAR, ONE OF THE DIRECTORS OF THE ASSESSEE COMPANY WHO IN TURN OFFERED THE AMOUNT RECEIVED AS SHARE CAPITAL FROM THE COMPANIES AS MEN TIONED IN THE ASSESSMENT ORDER AS UNEXPLAINED CREDITS. SHRI JOSE MATHEW AND SH. AJAY KUMAR HOWEVER, RETRACTED FROM THEIR STATEMENTS LATTER ON. 4. THE ASSESSING OFFICER (HEREINAFTER REFERRED TO A S THE AO) ISSUED NOTICE U/S. 153A TO THE ASSESSEE. IN THE RETURN FILED IN R ESPONSE TO THE NOTICE U/S 153A, THE AMOUNT DECLARED AS UNDISCLOSED INCOME IN THE ST ATEMENT OF SHRI AJAY KUMAR, DIRECTOR OF THE COMPANY DURING THE SEARCH AC TION HAD NOT BEEN DISCLOSED. THE AO OBSERVED THAT ALL THE ABOVE SAID 7 COMPANIES HAVE BEEN DOING THEIR BUSINESS FROM THE SAME PLACE AND THAT T HESE CONCERNS WERE ALSO NOT WELL ESTABLISHED COMPANIES. A TOTAL OF TEN COMPANIE S (8 COMPANIES IN AY 2008-09 & 2 COMPANIES IN AY 2009-10), NAMES OF WHIC H HAVE BEEN MENTIONED IN THE ASSESSMENT ORDER, HAD SUBSCRIBED T O THE SHARES OF THESE COMPANIES INCLUDING THE ASSESSEE. THE AO FURTHER NO TED THAT THE ABOVE CONCERNS WERE SISTER CONCERNS AND THEIR NATURE AND THE MODUS OPERANDI WAS SAME AS THAT OF THE ASSESSEE COMPANY. THE AO FURTHE R OBSERVED THAT THE SEARCH AND SEIZURE OPERATION WAS ALSO CONDUCTED ON ONE SHR I MUKESH CHOKSHI, WHO WAS OPERATING MANY COMPANIES THROUGH WHICH HE WAS I NDULGED IN PROVIDING THE BOGUS ENTRIES INCLUDING LONG TERM CAPITAL GAIN, SHORT TERM CAPITAL GAIN, LOSSES, SPECULATIVE LOSSES AND SHARE APPLICATION MO NEY ETC. IT WAS ALSO OBSERVED THAT TWO COMPANIES OF MR. MUKESH CHOKSHI, I.E. M/S. TALENT INFOWAY AND M/S. MIHIR AGENCIES HAVE ALSO MADE INVESTMENT IN AY 200 9-10 FOR THE PURCHASE OF SHARES IN THE M/S. JOGIA GROUP OF COMPANIES. THE AO OBSERVED THAT SHRI AJAY KUMAR, DIRECTOR OF T HE COMPANY HAD OFFERED THE AMOUNT RECEIVED AS SHARE CAPITAL FROM ABOVE SAI D COMPANIES AS ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 4 UNEXPLAINED CREDITS IN AY. 2008-09 & AY 2009-10. SI NCE THE UNDISCLOSED INCOME DECLARED IN THE STATEMENT WAS NOT OFFERED FO R TAXATION IN THE RETURN FILED, THEREFORE, THE AO GAVE A SHOW CAUSE NOTICE T O THE ASSESSEE TO SUBMIT COMPLETE DETAILS OF SHARE APPLICATION MONEY RECEIVE D AND UTILIZED. THE AO ALSO ASKED THE ASSESSEE TO SUBMIT THE COMPLETE EVID ENCES TO PROVE THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTIO N OF THE SHARE HOLDING COMPANIES. IN RESPONSE TO THE SHOW CAUSE NOTICE, TH E LD. AR OF THE ASSESSEE SUBMITTED ITS REPLY ALONG WITH RELEVANT DETAILS, CO NFIRMATIONS AND EVIDENCES ETC.; THE AO HOWEVER WAS NOT SATISFIED WITH THE REP LY OF THE ASSESSEE AND NOTED CERTAIN DISCREPANCIES IN THE EVIDENCES SUBMIT TED BY THE ASSESSEE VIZ. THE ASSESSEE HAD NOT PROVIDED SHARE APPLICATION FORM; N O BOARD RESOLUTION WAS PROVIDED; BANK STATEMENTS WERE NOT PROVIDED IN SOME CASES OR THAT THE DIRECTORS OF THE COMPANY WERE NOT PRODUCED FOR CROS S EXAMINATION. THE AO THEREAFTER DISCUSSED THE ISSUE OF RETRACTION OF STA TEMENT GIVEN BY THE DIRECTOR OF THE COMPANY, SHRI AJAY KUMAR AND OBSERVED THAT T HE STATEMENT RECORDED BY THE INCOME-TAX AUTHORITIES U/S. 131 HAS EVIDENTIARY VALUE EVEN AFTER ITS RETRACTION AND THAT THE SAME CAN BE USED AGAINST TH E ASSESSEE. THE AO FURTHER HELD THAT THE DOCUMENTS FILED RELATING TO SHARE APP LICATION MONEY WERE ALL RESULT OF AN AFTERTHOUGHT AND THE SAME CANNOT BE RE LIED OR CONSIDERED AS SUPPORTING DOCUMENTARY EVIDENCES FOR RECEIVING SHAR E APPLICATION MONEY AND RETRACTING THE DECLARATION MADE. IN VIEW OF ALL THE SE FACTS AND CIRCUMSTANCES, THE AO HELD THAT THE ASSESSEE HAD FAILED TO PROVE T HE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTION OF THE ABOVE SHA RE HOLDING COMPANIES, HE THEREFORE, TREATED THE INVESTMENT MADE BY THESE COM PANIES AMOUNTING TO RS.12,80,00,000/- AND RS.3,90,00,000/- FOR THE AYS. 2008-09 & 2009-10 RESPECTIVELY AS UNDISCLOSED INCOME OF THE ASSESSEE COMPANY U/S. 68 OF THE I.T. ACT. BEING AGGRIEVED BY THE ABOVE ADDITIONS, THE A SSESSEE FILED APPEAL BEFORE THE CIT(A). ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 5 5. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSION S OF THE ASSESSEE AND ANALYZING THE FACTS AND CIRCUMSTANCES OF THE CASE, OBSERVED THAT 10 COMPANIES HAD SUBSCRIBED THE SHARE APPLICATION MONEY IN THE A SSESSEE COMPANY. THE PAPERS RELATING TO THE IDENTITY, CREDITWORTHINESS A ND GENUINENESS OF THE TRANSACTION RELATING TO THESE COMPANIES WERE SUBMIT TED BY THE ASSESSEE TO THE AO. THE AO HAD ALSO MADE BANK ENQUIRY IN THIS RESP ECT BUT NO DISCREPANCY OR INCRIMINATING EVIDENCE WAS FOUND. THE LD. CIT(A) FU RTHER NOTED THAT NO INCRIMINATING DOCUMENT RELATING TO THE SHARE APPLIC ATION MONEY WAS FOUND OR SEIZED DURING THE COURSE OF SEARCH. FURTHER IN RESP ECT TO THE COMPANIES, M/S. MIHIR AGENCIES P. LTD. & M/S. TALENT INFOWAY LTD. I N WHICH ONE MR. MUKESH CHOKSI HAS BEEN A DIRECTOR, THE LD. CIT(A) OBSERVED THAT THESE COMPANIES HAD BEEN REGISTERED WITH THE REGISTRAR OF COMPANIES. TH ESE COMPANIES HAD SUBSCRIBED TO THE SHARES OF THE ASSESSEE COMPANY IN AY 2009-10. THE LD. CIT(A) IN THIS RESPECT OBSERVED THAT DURING ASSESSM ENT PROCEEDINGS, THE LD. AR OF THE ASSESSEE HAD SUBMITTED ALL THE DETAILS RE LATING TO THESE COMPANIES. ALL THE COMPANIES WERE HAVING PAN AND INDEPENDENTLY AND REGULARLY ASSESSED TO TAX. COMPLETE DETAILS OF CHEQUE NUMBER., DATE OF CHEQUE, BANK A/C. SHARE ALLOTMENT LETTERS GIVING DETAIL OF SHARE CERTIFICAT E NUMBER, COPY OF BANK ACCOUNT OF THE ASSESSEE WAS SUBMITTED BEFORE THE AO . HE FURTHER NOTED THAT THE STATEMENT OF MR. CHOKSI WAS NOT RECORDED IN THE CON TEXT OF THIS CASE BUT WAS RECORDED IN SOME OTHER CASE. MR. CHOKSI HAD GIVEN A GENERAL STATEMENT THAT HE WAS GIVING ACCOMMODATION ENTRIES TO THE COMPANIES A GAINST CASH RECEIVED FROM THEM. NOWHERE IN THE STATEMENT, HAD HE STATED THAT CASH WAS RECEIVED FROM THE ASSESSEE COMPANY AND CHEQUE WAS ISSUED AGA INST THE CASH AS SHARE APPLICATION MONEY. THERE WAS NO MENTION IN THE SAID STATEMENT THAT TRANSACTION WITH THE ASSESSEE COMPANY WAS NOT GENUINE. NO INCRI MINATING DOCUMENT WAS FOUND AND SEIZED DURING SEARCH OPERATION TO PROVE T HAT CASH WAS GIVEN AGAINST CHEQUES RECEIVED FROM THESE COMPANIES. EVEN INDEPEN DENT ENQUIRY MADE IN RESPECT OF THE BANK ACCOUNTS OF THESE COMPANIES, TH E AO COULD NOT FIND ANY ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 6 INSTANCE OF CASH DEPOSIT AGAINST ISSUING OF CHEQUES . THE LD. CIT(A) THEREAFTER EXAMINED THE APPLICABILITY OF SECTION 68 OF THE ACT TO THE SET OF FACTS OF THE CASE OF THE ASSESSEE AND CONCLUDED THAT FOR THE EST ABLISHMENT OF IDENTITY, EACH COMPANY WAS HAVING PAN AND REGULARLY ASSESSED TO TA X; FOR CREDITWORTHINESS, EACH COMPANY HAD INDEPENDENT BANK ACCOUNT AND DETAI LS WERE SUBMITTED TO THE AO; FOR GENUINENESS OF TRANSACTION, ALL PAYMENTS WE RE MADE THROUGH ACCOUNT PAYEE CHEQUES DULY REFLECTED IN THE BANK OF EACH CO MPANY AND THE ASSESSEE COMPANY'S BANK ACCOUNT. THEREFORE, ALL THE CONDITIO NS, I.E. IDENTITY, CREDITWORTHINESS AND GENUINENESS OF TRANSACTION WER E FULFILLED. THUS RELIANCE CANNOT BE PLACED ON A GENERAL STATEMENT OF MR. CHOK SI ALONE WHICH WAS NOT CORROBORATED BY ANY DOCUMENTARY EVIDENCE. HE THEREF ORE HELD THAT IN TOTALITY OF FACTS & CIRCUMSTANCES, THE CASE WAS COVERED BY THE DECISION OF HON'BLE SUPREME COURT IN CASE OF LOVELY EXPORTS PVT. LTD.[2 16 CTR 195 (SC)].HE THEREFORE DELETED THE ADDITIONS SO MADE BY THE ASSE SSING OFFICER U/S. 68 OF THE ACT. BEING AGGRIEVED BY THE ABOVE DELETION OF THE ADDITI ONS MADE BY THE AO, THE REVENUE HAS THUS COME IN APPEAL BEFORE US. 6. WE HAVE HEARD THE RIVAL CONTENTIONS OF THE LD. R EPRESENTATIVES OF THE PARTIES AT LENGTH AND HAVE ALSO GONE THROUGH THE RE CORD. THE CONTENTION OF THE LD. DR HAS BEEN THAT DURING THE SEARCH ACTION, SH A JAY KUMAR, ONE OF THE DIRECTORS OF THE COMPANY HAD ADMITTED THAT THE MONE Y RECEIVED AS SHARE APPLICATION MONEY WAS UNEXPLAINED INCOME OF THE ASS ESSEE AND HE HAD OFFERED IT FOR TAXATION. HE THEREFORE HAS CONTENDED THAT SU BSEQUENT RETRACTION IS NOTHING BUT AN AFTERTHOUGHT OF THE ASSESSEE. THE LD. DR HAS FURTHER CONTENDED THAT SH. MUKESH CHOKSHI WAS A HAWALA DEALER, HENCE THE SHARE APPLICATION MONEY RECEIVED BY THE ASSESSEE WAS THE RESULT OF A BOGUS TRANSACTION. THE LD. DR IN THIS RESPECT HAS RELIED UPON THE DECISION OF THE CO -ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF GOLD STAR FINVEST (P) LTD. [2013] 33 TAXMANN.COM ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 7 129. THE LD. DR HAS ALSO REFERRED TO THE DECISIONS OF TH E TRIBUNAL IN THE CASE OF M/S. RICHMAND SECURITIES PVT. LTD. IN ITA NO.4 624/MUM/2005 DATED 29.8.2008 AND FURTHER IN THE CASE M/S. MIHIR AGENC IES PVT. LTD. IN ITA NO.4912/MUM/2005 DATED 30.5.2008 WHEREIN THE DECISI ON IN THE CASE OF M/S GOLD STAR FINVEST (P) LTD HAS BEEN FOLLOWED. 7. THE LD. A.R. ON THE OTHER HAND HAS RELIED UPON T HE DOCUMENTS PRODUCED BEFORE THE LOWER AUTHORITIES AND HAS REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE LOWER AUTHORITIES. INVITING OUR ATTENTIO N TO THE CASE RECORD RELATING TO AY 2008-09, THE LD. AR HAS POINTED OUT THAT NONE OF THE COMPANIES WHO HAD INVESTED IN THE ASSESSEE COMPANY IN THE AY 2008-09 BELONGED TO SH. MUKESH CHOKSHI. HE HAS FURTHER INVITED OUR ATTENTION TO TH E VARIOUS DOCUMENTS FILED IN THE PAPER BOOK TO CONTEND THAT THE ASSESSEE HAD SUB MITTED ALL THE REQUIRED DETAILS SUCH AS BALANCE SHEET, RETURN FILED GIVING THE FULL PARTICULARS ABOUT THE COMPANY, THE CONFIRMATIONS FROM THE INVESTING COMPA NIES REGARDING THE INVESTMENTS MADE IN THE SHARE CAPITAL OF THE ASSESS EE COMPANY, CERTIFICATE FROM THE AUDITORS TO THE EFFECT THAT THE SAID COMPANY WA S ASSESSED TO TAX AND THAT THE INVESTMENT WAS DULY REFLECTED IN THEIR REGULAR BOOK S OF ACCOUNTS. THE DETAILS OF ALLOTMENT OF SHARES, THE COMPLETE DETAILS GIVING CHEQUE NUMBER, NAME OF THE BANK, DATE, AMOUNT, ADDRESS, PAN NUMBER, ROC NUMBER ETC. IN RESPECT OF EACH OF THE 8 COMPANIES FROM WHOM THE ASSESSEE HAD RECEIVED THE SHARE APPLICATION MONEY IN THE AY 2008-09 WAS FILED. THE DETAILS OF THE NOTICE ISSUED BY THE ASSESSEE COMPANY FOR HOLDING THE MEET INGS OF THE SHAREHOLDERS AND THE PROOF OF DISPATCH OF THE NOTICE TO THE SHAR EHOLDER WERE ALSO SUBMITTED. THE LD. AR HAS FURTHER SUBMITTED THAT EVEN IN RESPE CT THE 2 COMPANIES WHICH BELONGED TO SH. MUKESH CHOKSHI, WHO HAD INVESTED IN THE ASSESSEE COMPANY IN THE AY 2009-10, THE ASSESSEE HAD SUBMITTED ALL THE REQUISITE DETAILS SUCH AS THE NAME, ADDRESS, PAN NUMBER, REGISTRATION NUMBER WITH REGISTRAR OF COMPANIES, DETAILS OF THE BANK ACCOUNT, DETAILS OF SHARES ALLOTTED, INTIMATION TO ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 8 ROC ABOUT ISSUE OF SHARES, ISSUE OF NOTICES BY THE ASSESSEE COMPANY FOR HOLDING, THE MEETINGS OF THE SHAREHOLDERS AND PROOF OF DISPATCH OF NOTICE TO THE SHAREHOLDER. 8. HE HAS FURTHER CONTENDED THAT THERE WAS NOTHING INCRIMINATING FOUND EITHER DURING THE SEARCH ACTION OR OTHERWISE ON THE RECORD WARRANTING SUCH ADDITIONS IN THE CASE OF ASSESSEE. THE LD. AR HAS F URTHER INVITED OUR ATTENTION TO THE WRITTEN SUBMISSIONS FILED BEFORE THE LD. CIT (A), WHEREIN, EACH OF THE OBJECTIONS RAISED BY THE AO IN RESPECT OF THE EVIDE NCES SUBMITTED IN RELATION TO EACH OF THE 8 COMPANIES WAS DULY REPLIED AND DEALT WITH. IT HAS BEEN EXPLAINED THAT THE ASSESSEE HAD PROVIDED THE COMPLETE DETAILS OF THE SHARE APPLICATION MONEY RECEIVED TOGETHER WITH CONFIRMATIONS AND THAT THERE WAS NO STATUTORY OBLIGATION TO OBTAIN THE APPLICATION FORM FROM THE INVESTOR. THE INVESTOR COMPANIES HAD GIVEN A LEDGER ACCOUNT CONFIRMATIONS. COMPLETE DETAILS ABOUT THE BANK ACCOUNT GIVING CHEQUE NUMBER, DATE, NAME O F BANK WAS SUBMITTED. THE LEDGER ACCOUNT CONFIRMATION IN THE BOOKS OF INV ESTOR COMPANY WAS ALSO SUBMITTED. THE BOARD RESOLUTION WAS NOT AVAILABLE WITH ASSESSEE AS THE ASSESSEE HAS GOT NO LEGAL RIGHT TO ASK FOR COPY OF BOARD RESOLUTION WHEN COMPLETE INFORMATION ABOUT THE INVESTMENTS MADE WAS AVAILABLE. THE EVIDENCE RELATING TO THE NET WORTH OF THE INVESTING COMPANIE S WAS ALSO SUBMITTED. THE LD. DR ON THE OTHER HAND, THOUGH, HAS FAIRLY AD MITTED THAT NO DIRECT INCRIMINATING MATERIAL AGAINST THE ASSESSEE WAS FOU ND DURING THE SEARCH ACTION, HE, HOWEVER, HAS CONTENDED THAT IT IS A CASE OF CIR CUMSTANTIAL EVIDENCE WHICH IS CORROBORATED WITH THE ADMISSION OF ONE OF THE DIREC TORS OF THE ASSESSEE COMPANY. AT THIS STAGE THE LD. AR HAS POINTED TO THE QUESTIO N NO. 15 IN THE STATEMENT OF SH. AJAY KUMAR, DIRECTOR OF THE COMPAN Y, WHEREIN IT WAS POINTED OUT TO HIM THAT ONE MR. JOSE MATHEWS HAD ON 4.3.201 0, DURING THE COURSE OF SURVEY IN THE CASE OF SHREE GLOBAL TRADE FIN. LTD., HAD STATED THAT THE SHARE ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 9 APPLICATION RECEIVED IN CASE OF THE ASSESSEE FROM C ERTAIN COMPANIES HAD BEEN OBTAINED BY PAYING CASH. IN REPLY TO QUESTION NO. 15, IT HAS BEEN STATED BY THE SAID SH. AJAY KUMAR THAT THE STATEMENT GIVEN BY MR. JOSE MATHEWS WAS NOT TRUE. HE WAS NOT AWARE ABOUT THE BUSINESS ACTIVITY OF THE ASSESSEE COMPANY. THE LD. AR HAS FURTHER STATED THAT MR. JOSE MATHEWS HAD NOTHING TO DO WITH THE BUSINESS ACTIVITY OF THE ASSESSEE COMPANY. MR. JOSE MATHEWS ALSO HAD RETRACTED THE STATEMENT WHICH WAS RECORDED DURING T HE COURSE OF SURVEY U/S. 133A AND THE NECESSARY PROOF AND EVIDENCE FOR THE S AME WAS ALSO PRODUCED BEFORE THE AO. THE AO HAD ALSO THEREAFTER NOT ISSUE D ANY NOTICE TO MR. JOSE MATHEWS. THE LD. AR THEREFORE HAS SUBMITTED THAT N O RELIANCE CAN BE PLACED IN THE STATEMENT OF MR. JOSE MATHEWS. 9. WE HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE LD. AR OF THE ASSESSEE. WE HAVE ALSO GONE THROUGH THE STATEMENT O F SH. AJAY KUMAR HALAN, RECORDED UNDER SECTION 131 OF THE ACT. THE RELEVANT PART OF HIS STATEMENT FOR THE PURPOSE OF PROPER ANALYSIS IS REPRODUCED AS UND ER: ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 10 ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 11 WE FIND FORCE IN THE ABOVE SUBMISSIONS OF THE LD. A R. OF THE ASSESSEE. MR. JOSE MATHEWS WAS THE EMPLOYEE OF SHREE GLOBAL T RADE FIN. LTD. AND NOT OF THE ASSESSEE COMPANY NEITHER OF THE ALLEGED SEVEN G ROUP COMPANIES OF THE ASSESSEE. THE SAID MR. JOSE MATHEWS WAS EVEN IN NO WAY RELATED TO THE INVESTING COMPANIES WHO MADE INVESTMENTS IN THE ASS ESSEE COMPANY, THE TRANSACTIONS RELATING TO WHICH HAVE BEEN TREATED BO GUS BY THE AO. WHEN THE ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 12 SAID PERSON WAS NEITHER THE EMPLOYEE OF THE ASSESSE E COMPANY NOR WAS IN ANY WAY RELATED TO THE INVESTING COMPANIES, HIS STATEME NT IN THE CIRCUMSTANCES COULD NOT BE SAID TO HAVE ANY EVIDENTIARY VALUE. M R. JOSE MATHEWS WAS THE EMPLOYEE OF THE COMPANY IN WHICH THE ASSESSEE HAD M ADE THE INVESTMENTS, WHICH WAS A TOTALLY DIFFERENT TRANSACTION. HE WAS N OT IN ANY MANNER CONNECTED TO THE TRANSACTIONS IN QUESTION BEFORE US. AS REGA RDS THE STATEMENT OF SHRI AJAY KUMAR HALAN, THE LD. AR WHILE INVITING OUR ATTENTIO N TO ANSWER TO QUESTION NO.3 OF THE STATEMENT HAS SUBMITTED THAT HE WAS APP OINTED AS THE DIRECTOR ON 15.2.2010 ONLY. THAT HE WAS NOT THE DIRECTOR IN TH E PREVIOUS YEAR RELEVANT TO A.Y. 2009-10. HE WAS ALSO NOT THE DIRECTOR DURING THE PREVIOUS YEAR FROM 1.4.2009 TO 15.2.2010, DURING THE TIME WHEN THE TRA NSACTION HAD TAKEN PLACE. HE WAS NOT THE EMPLOYEE OF THE ASSESSEE COMPANY NOR WAS ANY WAY CONNECTED WITH THE BUSINESS OF THE ASSESSEE PRIOR TO 15.2.201 0. HE HAS FURTHER POINTED OUT THAT THERE WAS NO DIRECT ADMISSION OF SH. AJAY KUMA R ABOUT ANY UNEXPLAINED INCOME. HE HAS DEMONSTRATED THAT HE WAS GIVEN AN IM PRESSION THAT IN VIEW OF THE STATEMENT OF SH. MUKESH CHOKSHI AND SH. MR. JOS E MATHEWS IN SOME OTHER SEARCH OR SURVEY ACTIONS, IT WAS ESTABLISHED THAT T HE ASSESSEE HAD RECEIVED UNEXPLAINED INVESTMENT, IN RESPONSE TO WHICH HE STA TED THAT HE HAS COME TO KNOW ABOUT THESE FACTS THEN ONLY AS REVEALED BY THE DEPARTMENT AND TAKING INTO CONSIDERATION THE FACT AND CIRCUMSTANCES AS WERE BE FORE HIM WHEN THESE QUESTION WERE PUT TO HIM, HE AGREED TO OFFER THE AM OUNT AS UNEXPLAINED INCOME OF THE COMPANY. IN VIEW OF THIS THE LD. AR HAS SUB MITTED THAT NO RELIANCE CAN BE PLACED ON THE STATEMENT OF SH. AJAY KUMAR WHO WA S NEITHER IN ANY WAY CONNECTED WITH THE ACTIVITIES OF THE COMPANY WHEN T HE TRANSACTION TOOK PLACE NOR HIS ADMISSION WAS BASED ON HIS PERSONAL KNOWLED GE, RATHER HE AGREED TO ADMIT THE ADDITIONS ON THE BASIS OF FACTS PRESENTED TO HIM I.E. THE ALLEGED UNRELIABLE STATEMENTS OF MUKESH CHOKSHIAND MR. J OSE MATHEWS. ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 13 10. THE LD. AR HAS FURTHER EXPLAINED THAT DURING TH E ASSESSMENT PROCEEDINGS, THE ASSESSEE VIDE DIFFERENT LETTERS IN CLUDING LETTER DATED NOVEMBER 30, 2011 HAD EXPLAINED TO THE ASSESSING OFFICER ALL THE ABOVE FACTS AND THAT THE DISCLOSURE WAS MADE SOLELY ON THE BASIS OF INFORMAT ION PROVIDED TO HIM BY THE INVESTIGATION WING AND PURELY ON THE MISTAKEN BELIE F THAT THE TRANSACTION OF SHARE INVESTMENTS BY NINE COMPANIES COULD NOT BE EX PLAINED. HOWEVER SUBSEQUENTLY HE GATHERED THE INFORMATION, THE PAPER S, THE DOCUMENTS, THE CONFIRMATIONS, BANK STATEMENTS, BALANCE SHEETS AND OTHER RECORDS OF ALL THE NINE COMPANIES. BASED ON THE INFORMATION AND DOCUMENTS H E FOUND THAT ALL THE NINE COMPANIES WERE GENUINE AND THEY HAD INVESTED IN THE SHARE CAPITAL OF THE ASSESSEE COMPANY. NO CONFESSIONAL STATEMENT WAS GIV EN BY ANY OF THE NINE SHAREHOLDING COMPANY BEFORE THE INVESTIGATION WING. 11. WE FIND FORCE IN THIS CONTENTION ALSO OF THE LD . AR. A PERUSAL OF THE STATEMENT OF SH. AJAY KUMAR, RECORDED UNDER SECTION 131 OF THE ACT, AS REPRODUCED ABOVE, REVEALS THAT THE ACCEPTANCE OR OF FER OF THE UNEXPLAINED INCOME WAS NOT BASED ON HIS OWN KNOWLEDGE OR ADMISS ION OF FACTS BUT ON THE BASIS OF FACTS AND STATEMENTS PRESENTED BY THE REVE NUE BEFORE HIM. HE HAS NEVER ADMITTED THAT THE TRANSACTIONS WERE NOT GENUI NE OR THE SAME WERE BOGUS. IN ANSWER TO QUESTION NO.13 PUT TO HIM, HE HAS STAT ED TO THE INVESTIGATION WING THAT HE DID NOT KNOW MR. MUKESH CHOKSI, NEITHER HE WAS AWARE OF HIS GROUP CONCERNS. THE SHARES WERE ALLOTTED TO M/S. TALENT I NFOWAYS AND M/S MIHIR AGENCIES IN DUE COURSE AFTER DULY COMPLYING WITH AL L THE LEGAL PROVISIONS. SIMILARLY IN THE CASE OF OTHER COMPANIES AS IS REVE ALED FROM THE ANSWER TO QUESTION NO.15, THAT OWING TO THE FACTS MENTIONED B Y THE INVESTIGATION WING AND THE FACTS AND CIRCUMSTANCES WHICH WERE AVAILABL E TO HIM ON THAT DATE, HE HAD AGREED TO DISCLOSE THE SHARE APPLICATION MONEY RECEIVED AS UNEXPLAINED. THE LD. AR HAS DULY BROUGHT ON THE FILE THAT HE WAS NOT CONNECTED TO THE COMPANY WHEN THE TRANSACTIONS TOOK PLACE. UNDER SUC H CIRCUMSTANCES, IN THE ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 14 ABSENCE OF ANY CORROBORATING EVIDENCE AND SOLELY ON THE BASIS OF RETRACTED STATEMENT OF THE SAID SH. AJAY KUMAR, A PERUSAL OF WHICH REVEALS THAT THE SAME WAS NOT BASED ON HIS OWN KNOWLEDGE OF THE RELEVANT FACTS/TRANSACTION IN QUESTION, ADDITIONS MADE BY THE AO CANNOT BE HELD T O BE JUSTIFIED IN ANY MANNER. THE LD. AR HAS FURTHER BROUGHT OUR ATTENTION IN THI S RESPECT TO THE INSTRUCTIONS ISSUED BY CBDT BEARING NO.F.NO.286/2/2 003-IT (INV.II) DATED 10/3/2003 WHEREIN IT HAS BEEN STATED THAT DURING TH E COURSE OF SEARCH / SURVEY, NO ATTEMPT SHOULD BE MADE TO OBTAIN THE CONFESSION AS TO THE UNDISCLOSED INCOME. ANY ACTION ON THE CONTRARY SHALL BE REVIEWE D ADVERSELY. CBDT HAS ALSO REFERRED TO THE FACT THAT IF THE CONFESSION ST ATEMENTS ARE TAKEN WHICH ARE NOT BASED ON CREDIBLE EVIDENCE THEN LATER THEY ARE RETRACTED. IN THE PRESENT CASE ALSO, NOT A SINGLE INCRIMINATING MATERIAL WAS FOUND DURING THE SEARCH ACTION. THE ADDITION IS MADE PURELY ON THE BASIS OF DECLARA TION MADE BY SH AJAY KUMAR, DIRECTOR. THE LD. AR HAS RELIED UPON THE FOL LOWING DECISIONS IN THIS RESPECT. (A) DCIT VS PRAMUKH BUILDERS ITA NO. 2170/AHD./1999 A.Y. 1994-95 DATED 6.7.2007 REPORTED IN 115TTJ P. 330 (T HIRD MEMBER) (B) CIT VS. K. BHUVANENDRA AND OTHERS 303 ITR P. 23 5 (MADRAS HIGH COURT) (C) S. KHADER KHAN SON REPORTED IN 300 ITR P. 157 ( MADRAS HIGH COURT) (D) ORIENTAL CONTAINERS LTD. VS. ACIT (2010) 6 TAXM ANN.COM 121 (MUM). (E) PREM SONS ITA NO.4698/MUM/2006 AY 2003-04 DT. 1 5/1/2009 (F) KALASHBENMANHARLALCHOKSHI 174 TAXMANN PG.466 (G UJ.HIGH COURT) (G) RAJESH JAIN ITA NO.SSA NO.203/DEL/2003 REPORTED IN 100 TTJ 929 12. WE HAVE GONE THROUGH THE ABOVE CASE LAWS RELIED UPON BY THE LD. AR. WE FIND THAT IN THE ABOVE MENTIONED JUDICIAL DECISI ONS, THE VARIOUS COURTS OF LAW HAVE BEEN ALMOST UNANIMOUS IN HOLDING THAT THOU GH THE ADMISSION IS AN ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 15 IMPORTANT PIECE OF EVIDENCE BUT IT CAN NOT BE SAID THAT IT IS CONCLUSIVE; IT IS OPEN TO THE PERSON WHO MADE THE ADMISSION TO SHOW T HAT IT IS INCORRECT AND THAT MERELY ON THE BASIS OF STATEMENT RECORDED DURI NG THE SEARCH UNDER MISTAKEN BELIEF AND WHICH HAS BEEN RETRACTED SUBSEQ UENTLY AND WITHOUT THERE BEING ANY CORROBORATIVE EVIDENCE OR INCRIMINATING M ATERIAL FOUND, NO ADDITION CAN BE MADE. AS REGARDS THE STATEMENT OF MR. MUKESH CHOKSI RELI ED UPON BY THE REVENUE, THE LD. AR HAS SUBMITTED THAT HE HAD NEVER STATED T HAT ASSESSEE HAD GIVEN ANY CASH TO HIM OR ANY ACCOMMODATION ENTRY WAS PROVID ED BY HIM TO THE ASSESSEE. NO NAME OF THE ASSESSEE FIGURED IN HIS ST ATEMENT RECORDED IN ANY OTHER CASE. DURING THE COURSE OF SURVEY/SEARCH ON A SSESSEE ALSO, NOT A SINGLE EVIDENCE WAS FOUND TO SUGGEST THAT CASH WAS GIVEN T O MR. MUKESH CHOKSI AND ACCOMMODATION ENTRIES WERE TAKEN. THE LD. AR HAS RE LIED UPON THE DECISIONS OF THE HONBLE BOMBAY HIGH COURT AS WELL AS VARIOUS DE CISIONS OF THE MUMBAI TRIBUNAL WHEREIN IT HAS BEEN HELD THAT NO RELIANCE CAN BE PLACED ON THE STATEMENT OF MR. MUKESH CHOKSI WHEN THE ASSESSEE HA S INDEPENDENTLY ESTABLISHED THE GENUINENESS OF THE TRANSACTION. THE LD. AR HAS FURTHER RELIED UPON THE FOLLOWING DE CISIONS WHEREIN IT HAS BEEN HELD THAT ONCE THE ASSESSEE SUBMITS THE BASIC INFOR MATION ABOUT THE INVESTOR COMPANY AND SUBSTANTIATES THE SAME NO ADDITION CAN BE MADE BY INVOKING THE PROVISIONS OF SECTION 68 OF THE INCOME TAX ACT, 196 1. A) LOVELY EXPORTS PVT. LTD. 299 ITR (DELHI HIGH C OURT) PAGE 268 AND SLP REJECTED BY THE SUPREME COURT IN 319 ITR (STATUTE P AGE 5). B) CIT VS CREATIVE WORLD TELEFILMS LIMITED 333 ITR P. 100 (BOMBAY HIGH COURT) C) ACIT VS. VENKETESHWARISPAT (P) LTD. (CHHATISGARH HIGH COURT) (2010) 41 DTR 350 D) CIT VSGANGOUR INVESTMENTS LTD. (2009) 18 DTR (DE LHI) 242 E) CIT VS STL EXTRUSION PVT. LTD. (2011) 333 ITR P. 269 (MP HIGH COURT) ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 16 F) CIT VS. G.P. INTERNATIONAL LIMITED (2010) 325 IT R P. 25 (P&H) G) CIT VS. SIRI RAM SYAL HYDRO POWER PVT. LTD. 196 TAXMAN P. 444 (DELHI HIGH COURT) H) CIT VS HLT FINANCE PVT. LTD. (2011) 201 TAXMAN P . 28 (DELHI HIGH COURT) 13. ON THE OTHER HAND THE LD. DR HAS RELIED UPON ON E DECISION OF MUMBAI ITAT IN THE CASE OF GOLD STAR FINVEST PVT. LTD. (SU PRA) WHEREIN WHILE DETERMINING THE INCOME OF THAT ASSESSEE, THE TRIBUN AL HAS ESTIMATED THE INCOME AT CERTAIN PERCENTAGE. THE LD. AR HAS HOWEVER SUBM ITTED THAT THE RATIO OF THIS DECISION CANNOT OVERRULE THE DECISIONS OF BOMBAY HI GH COURT AND SEVERAL MUMBAI ITAT DECISIONS AS RELIED UPON BY HIM. HE HAS FURTHER RELIED UPON THE FOLLOWING DECISIONS WHEREIN THE ADDITIONS MADE BY T HE AO ON THE BASIS OF GENERAL STATEMENT OF MUKESH CHOKSHI HAVE ULTIMATELY BEEN DELETED BY THE HIGHER AUTHORITIES. 1. KATARIA KETAN ISHWARLAL VS. ITO ITA NO.4304/M/ 2007 DECIDED ON 30.04.2010. 2. ACIT VS. SHRI RAVINDRAKUMAR TOSHNIWAL ITA NO. 5302/M/2008 DECIDED ON 24.02.2010 3. ITO VS. TRUPTIC SHAH ITA NO.1442/M/2010 DECIDE D ON 29.04.2011 4. SMT. MANJULABEN L. SHAH VS. ITO ITA NO.3112/M/ 2014 DECIDED ON 31.10.2014 5. M/S SDB ESTATE PRIVATE LTD. VS. ITO ITA NO. 584/ M/2015 DECIDED ON 15.04.2015 6. M/S. YAMUNA ESTATE PVT. LTD. VS. ITO ITA NO.2672 /M/2012 DECIDED ON 09.09.2015 7. CIT VS. RAJNI DEVI A. CHOUDHRY (BOM. HC) ITA NO. 1333OF 2008 DECIDED ON 27.4.2009 8. SHRI MUKESH R. MAROLIA VS. ADDITIONAL CIT (200 6) 6 SOT 247 (MUM) 9. CIT VS. SHRI MUKESH R. MAROLIA IN ITA NO.456 O F 2007 DECIDED ON 07.09.2011 (BOM HC) 10. SLP NO.20146/2012 STYLED AS CIT VS. SHRI MUKES H R. MAROLIA VIDE ORDER DATED 27.01.14 (SC) 11. CIT VS. M/S. KESAR A. GADA IN ITA NO.300 OF 20 13 DECIDED ON 21.01.15(BOM. HC) ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 17 12. CIT VS. KASTURBEN H. GADA IN ITA NO.299 OF 20 13 DECIDED ON 21.01.15.(BOM HC) 13. CIT VS. M/S SHARDA CREDIT PVT. LTD. ITA NO. 309 0 OF 2009 DECIDED ON 12.9.2011(BOM. HC) 14. WE HAVE PERUSED THE CASE LAWS RELIED UPON BY TH E LD. REPRESENTATIVES OF THE PARTIES. IN OUR VIEW, EACH CASE HAS TO BE DECI DED ON ITS OWN FACTS. MERELY BECAUSE, IN THE CASE OF ONE COMPANY GOLD STAR FINVE ST PVT. LTD. RUN BY MUKESH CHOKSHI, THE INCOME HAS BEEN DETERMINED ON P ERCENTAGE/COMMISSION BASIS TREATING THE SAID COMPANY AS ACCOMMODATION EN TRY PROVIDER, THAT ITSELF CANNOT HOLD A JUSTIFICATION TO COMPLETELY IGNORE TH E FACTS AND EVIDENCES BROUGHT ON THE FILE BY THE ASSESSEE. THE CASE OF THE ASSESS EE HAS TO BE ADJUDGED ON THE BASIS OF ITS OWN SET OF FACTS AND EVIDENCES. MOREOV ER THE FACTS AND CIRCUMSTANCES OF THE CASE OF THE ASSESSEE ARE SQUAR ELY COVERED BY THE VARIOUS DECISIONS OF THE HONBLE JURISDICTIONAL HIGH COURT OF BOMBAY. WE FURTHER FIND THAT THE ISSUE, RELATING TO THE INVESTMENTS MA DE BY THE COMPANIES RELATING TO THE SAID MR. MUKESH CHOKSHI IN SOME OTHER CASES, HAS TRAVELLED UP TO THE LEVEL OF HONBLE SUPREME COURT. IN THE CASE OF SH RI MUKESH R. MAROLIA VS. ADDITIONAL CIT (2006) 6 SOT 247 (MUM), THE ASSESSE E HAD MADE SHARE TRANSACTION THROUGH THE COMPANIES M/S. RICHMOND SE CURITIES PVT. LTD. AND M/S. SCORPIO MANAGEMENT. MR. MUKESH CHOKSHI HAS BE EN THE DIRECTOR OF M/S. RICHMOND SECURITIES PVT. LTD. THE TRIBUNAL, AFTER CONSIDERING THE OVERALL FACTS AND CIRCUMSTANCES OF THE CASE, OBSERVED INTER-ALIA THAT ON THE BASIS OF EVIDENCE AVAILABLE AND THERE BEING NO INCRIMINATING MATERIAL FOUND DURING THE SEARCH ACTION, OBSERVED THAT THE ASSESSMENT HAS TO BE COMP LETED ON THE BASIS OF RECORDS AND MATERIAL AVAILABLE BEFORE THE ASSESSING AUTHORITY. THE PERSONAL KNOWLEDGE AND EXCITEMENT ON EVENTS SHOULD NOT LEAD THE AO TO A STATE OF AFFAIRS WHERE SALIENT EVIDENCES ARE OVERLOOKED. WH ERE EVERY TRANSACTION OF THE ASSESSEE HAS BEEN ACCOUNTED, DOCUMENTED AND SUPPORT ED IN SUCH AN EVENT, EVEN THOUGH, THE AMOUNT INVESTED BY THE ASSESSEE HAS GRO WN INTO A VERY SIZEABLE ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 18 AMOUNT WHICH LOOKS QUITE AMAZING, THE EVIDENCE PROD UCED BY THE ASSESSEE CANNOT BE BRUSHED ASIDE. THE TRIBUNAL UNDER SUCH C IRCUMSTANCES DELETED THE ADDITION. THE REVENUE TOOK THE MATTER TO THE HONB LE BOMBAY HIGH COURT. THE HONBLE BOMBAY HIGH COURT, WHILE ADJUDICATING T HE ABOVE ISSUE IN THE CASE STYLED AS CIT VS. SHRI MUKESH R. MAROLIA IN ITA NO.456 OF 2007 DECIDED ON 07.09.2011, OBSERVED THAT THOUGH THERE W AS SOME DISCREPANCY IN THE STATEMENT OF DIRECTOR (MR. MUKESH CHOKSHI) OF M /S. RICHMOND SECURITIES PVT. LTD. REGARDING THE SALE TRANSACTION, BUT OWING TO THE FACTUAL FINDING GIVEN BY THE TRIBUNAL ON THE BASIS OF EVIDENCES FURNISHED BY THE ASSESSEE, THE DECISION OF THE TRIBUNAL CANNOT BE FAULTED. THE H ONBLE BOMBAY HIGH COURT UPHELD THE FINDING OF THE TRIBUNAL HOLDING THE SALE TRANSACTIONS AS GENUINE. THE DEPARTMENT PREFERRED APPEAL BEFORE THE HONBLE SUPREME COURT. THE HONBLE SUPREME COURT DISMISSED THE SLP NO.20146/20 12 STYLED AS CIT VS. SHRI MUKESH R. MAROLIA VIDE ORDER DATED 27.01.14. SIMILARLY IN THE CASE OF CIT VS. M/S. KESAR A. GA DA IN ITA NO.300 OF 2013 DECIDED ON 21.01.15 WHEREIN THE AO, WHILE MAKING TH E ADDITIONS UNDER SECTION 68 OF THE ACT, HAD RELIED UPON THE STATEMENT OF MR. MUKESH CHOKSHI THAT HE HAD GIVEN VARIOUS ACCOMMODATION ENTRIES TO VARIOUS PARTIES. THE HONBLE BOMBAY HIGH COURT OBSERVED THAT WHERE THE ASSESSEE HAD BROUGHT THE RELEVANT EVIDENCES REGARDING THE GENUINENESS OF TRANSACTION AND THAT IN HIS STATEMENT MR. MUKESH CHOKSHI HAD NOT MENTIONED THE NAME OF TH E RESPONDENT/ASSESSEE AS ONE TO WHOM ACCOMMODATION ENTRIES WERE GIVEN, TH E HONBLE BOMBAY HIGH COURT UPHELD THE FINDINGS OF THE LD. CIT(A) WHICH W ERE FURTHER CONFIRMED BY THE TRIBUNAL HOLDING THAT THE TRANSACTIONS WERE GEN UINE AND THE ADDITIONS UNDER SECTION 68 OF THE ACT WERE NOT WARRANTED. SIMILAR FINDINGS HAVE BEEN GIVEN BY THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT V S. KASTURBEN H. GADA IN ITA NO.299 OF 2013 DECIDED ON 21.01.15. IN CIT VS. M/S SHARDA CREDIT PVT. LTD. (SUPRA), THE HONBLE HIGH COURT HAS DISMI SSED THE APPEAL OF THE REVENUE ON IDENTICAL FACTS. THE HONBLE BOMBAY HIG H COURT WHILE UPHOLDING ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 19 THE ORDER OF THE TRIBUNAL IN THE ABOVE STATED APPEA LS HAS ALSO RELIED UPON THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CA SE OF SHRI MUKESH R. MAROLIA (SUPRA). EVEN IN THE CASE OF SMT RAJNI S CHOWDHRY (SUPRA), THE HONBLE BOMBAY HIGH COURT HAS UPHELD THE DECISION O F THE TRIBUNAL GIVEN ON THE BASIS OF APPRECIATION OF EVIDENCE AND FACTUAL F INDING, ACCEPTING THE TRANSACTION CARRIED CARRIES THROUGH BROKER M/S GOLD STAR FINVEST (P) LTD. AS GENUINE. 15. WE FURTHER FIND THAT THE ISSUE IS SQUARELY COVE RED BY THE VARIOUS DECISIONS OF THE TRIBUNAL ON THE BASIS OF SAME FACT S. RECENTLY THE TRIBUNAL, IN THE CASE OF ITO VS. SUPERLINE CONSTRUCTION PVT. LT D. & OTHERS IN ITA NO.3645/M/2014 & OTHERS VIDE COMMON ORDER DATED 30. 11.2015 IN IDENTICAL FACTS AND CIRCUMSTANCES WHILE DEALING WITH THE ISSU E OF MAKING INVESTMENTS BY WAY OF SHARE APPLICATION MONEY INVESTED BY THE SAME COMPANIES AS IN THE CASE OF AN ASSESSEE I.E. M/S. TALENT INFOWAYS AND M/S. M IHIR AGENCIES, HAS UPHELD THE FINDINGS OF THE LD. CIT(A) DELETING THE ADDITIO NS. THE OTHER CASE LAWS RELIED UPON BY THE LD. DR ARE T HUS NOT APPLICABLE TO THE CASE OF THE ASSESSEE IN THE LIGHT OF THE DIRECT DEC ISION OF THE JURISDICTIONAL HIGH COURT ON THE IDENTICAL FACTS WHICH HOLDS A BINDING PRECEDENT ON THIS TRIBUNAL. EVEN OTHERWISE THERE IS NO EVIDENCE ON RECORD THAT THE ASSESSEE HAD GIVEN ITS OWN MONEY TO THE INVESTING COMPANY FOR THE PURPOSE OF MAKING INVESTMENTS. IT MAY BE OBSERVED THAT THE HONBLE SUPREME COURT I N THE CASE OF LOVELY EXPORTS PVT. LTD. REFERRED ABOVE HAS CLEARLY LAID D OWN THE LAW THAT ONCE THE ASSESSEE HAS GIVEN THE COMPLETE DETAILS AND THE INF ORMATION OF THE INVESTORS WHO HAVE MADE INVESTMENTS IN THE SHARE CAPITAL OF T HE COMPANY AND PROVED IDENTIFY THEN NO ADDITION CAN BE MADE IN THE HANDS OF THE ASSESSEE COMPANY AND IN RESPECT OF SUCH INVESTMENTS THE DEPARTMENT S HOULD PROCEED AGAINST THE INDIVIDUAL INVESTOR. IN THE CASE IN HAND ALSO, THE REQUISITE DETAILS, PROOF, ITA NOS.6106 & 6107/M/2012 M/S. JOGIA PROPERTIES LTD. 20 CONFIRMATION, EVIDENCES ETC. ARE PRODUCED. THE RA TIO OF THE DECISION OF THE HONBLE SUPREME COURT IS DIRECTLY APPLICABLE ON THE FACTS OF THE CASE. IN VIEW OF THE ABOVE DISCUSSION OF THE MATTER, WE D O NOT FIND ANY INFIRMITY IN THE FACTUAL FINDING GIVEN BY THE CIT(A) AFTER DULY APPRECIATION OF EVIDENCE ON THE FILE AND THE SAME IS ACCORDINGLY UPHELD. 16. IN THE RESULT, THE ABOVE CAPTIONED APPEALS OF T HE REVENUE ARE HEREBY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2015. SD/- SD/- (G.S. PANNU) (SANJAY GARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 18.12.2015. * KISHORE, SR. P.S. COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.