KAMLESH MUNDRA, MUMBAI V. ITO WD 19(2)(3), MUMBAI

ITA 6248/MUM/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3691 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-06-2015
• Assessment Year: 2003-2004
• Appeal Filed On: 11-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Unexplained cash credit; Share purchase agreement; Speculation loss
• Section: 131; 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUM BAI BEFORE SHRI R.C. SHARMA, AM AND SHRI SANDEEP GOSAIN , JM ./ I.T.A. NO. 6248/MUM/2012 ( / ASSESSMENT YEAR: 2003-04) SHRI KAMLESH MUNDRA A-101, MANEK SMRUTI, NEHRU ROAD, VILE PARLE (EAST), MUMBAI-400 057. / VS. ITO, WARD-19(2)(3), MUMBAI. ./ ./PAN/GIR NO. AAGPM 6981L ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI RAKESH JOSHI / RESPONDENT BY : SHRI MANOJ KUMAR / DATE OF HEARING : 31/12/2015 !'# / DATE OF PRONOUNCEMENT : 04/03/2016 $% / O R D E R PER SANDEEP GOSAIN, J. M.: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE A GAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)- 30, DATED 03. 08.2012 FOR A.Y. 2003-04 ON THE FOLLOWING GROUNDS OF APPEAL. 2 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO 1. BASED ON THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS IN LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F THE LEANED ASSESSING OFFICER IN REOPENING THE CASE U/S 148 OF THE INCOME TAX ACT, 1961, ON THE BASIS OF THE STATEMENT OF A THIRD PARTY, WITHOUT CO NSIDERING THE MERIT OF THE CASE. 2. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AS WELL AS THE LAW, THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTI ON OF THE LEARNED ASSESSING OFFICER IN TREATING LONG TERM CAPITAL GAI N OF RS.2,72,550/- AS INCOME FROM OTHER SOURCES. 3. THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTI ON OF THE LEANED ASSESSING OFFICER IN NOT GRANTING THE SET OFF OF LO NG TERM CAPITAL LOSS AMOUNTING TO RS.2,84,814/-WITHOUT CONSIDERING THE F ACTS AND CIRCUMSTANCES OF THE GIVEN CASE. 4. THE APPELLANT PLEADS LEAVE TO ADD, AMEND, ALTER, OR DELETE THE SAID GROUNDS OF APPEAL. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE RETURN OF INCOME DECLARING TOTAL INCOME OF RS.3,30,754/- WAS FILED ON 27.08.2003. TH E RETURN WAS PROCESSED UNDER SECTION 143(1)(A)OF THE ACT. THE CASE WAS SUBSEQUEN TLY REOPENED UNDER SECTION 3 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO 147 AND A NOTICE UNDER SECTION 148 WAS ISSUED ON 30 .03.2010 AFTER DULY RECORDING THE REASONS FOR THE SAME. LATER ON THE CASE WAS SEL ECTED FOR SCRUTINY AND NOTICE UNDER SECTION 143 (2) WAS ISSUED AND SERVED ON THE ASSESSEE. NECESSITY DETAILS WERE CALLED UPON FROM THE ASSESSEE AND AFTER CONSIDERING THE DETAILS, THE AO HOLD THAT SINCE THE ASSESSEE COULD NOT OFFER ANY EXPLANATION TO THE NATURE OF TRANSACTIONS, SOURCES OF INVESTMENT, MODE OF INVESTMENT ETC. HENC E IN THE ABSENCE OF ANY FURTHER DETAILS, THE ASSESSING OFFICER COMPUTED THE AMOUNT OF RS. 2,78,750/- AS UNEXPLAINED CREDITS UNDER SECTION 68 OF THE INCOME TAX ACT AND THEREFORE ADDED THE SAME IN THE TOTAL INCOME OF THE ASSESSEE. 3. AGGRIEVED BY THE ORDER OF THE AO, ASSESSEE FILED THE APPEAL BEFORE CIT(A) AND THE CIT(A) AFTER CONSIDERING THE CASE DISMISSED THE APPEAL VIDE ITS ORDER DATED 03.08.2012. 4. AGGRIEVED BY THE ORDER OF CIT(A) THE ASSESSEE FI LED THE PRESENT APPEAL BEFORE US ON THE GROUNDS MENTIONED HEREIN ABOVE. 4. AT THE VERY OUTSET, LD. AR APPEARING ON BEHALF OF ASSESSEE SUBMITTED AT PAR THAT HE DID NOT WANT TO PRESS GROUND NO. 1 AND 3 THEREFORE CONSIDERING THE REQUEST OF LD. AR WE DISMISS GROUND NO. 1 AND 3 AS NOT PRESSED. 4 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO GROUND NO.2 5. LD. AR REPRESENTING THE ASSESSEE SUBMITTED THAT THE AO HAS MADE ADDITIONS ONLY ON THE BASIS OF INFORMATION RECEIVED FROM DDIT (INVESTIGATION) BOMBAY IN RESPECT OF SEARCH ACTION CONDUCTED ON M/S. MAHANAGA R SECURTIES (NOW M/S. ALAG SECURITIES PVT. LTD.) AND GROUP COMPANIES. IT WAS F URTHER SUBMITTED THAT THE ENTIRE ACTION OF AO IS BASED ON THE STATEMENT OF SHRI MUKE SH CHOKSHI WHO CLAIMED TO BE MENTOR AND THE MAIN PERSON IN THE M/S. MAHANAGAR SE CURTIES GROUP COMPANIES IT WAS FURTHER SUBMITTED THAT THE ASSESSEE HAS CLAIMED LONG TERM CAPITAL GAIN ON THE SHARE TRANSACTION OF M/S. BUNIYAD CHEMICALS AND M/S . JAY KAY DEE INDUSTRIES LTD AND SINCE BOTH THE AFORE MENTIONED COMPANIES WERE C ONTROLLED BY SHRI MUKESH CHOKSHI THEREFORE, THE AO WHILE BELIEVING THE STATE MENT OF SHRI MUKESH CHOKSHI HAD HELD THAT THE TRANSACTION OF ASSESSEE WITH M/S. BUNIYAD CHEMICALS AND M/S. JAY KAY DEE INDUSTRIES LIMITED ARE BOGUS, THEREFORE , THE AO HAS ERRONEOUSLY MADE THE ADDITIONS ON THE BASIS OF THE STATEMENT OF SHRI MUKESH CHOKSHI . LD. AR ALSO DRAWN OUR ATTENTION TO THE PAPER BOOK WHICH CONTAIN S COPY OF BILL FOR PURCHASE OF SHARES, COPY OF INTIMATION BY COMPANY FOR DEMATERIS ATION OF SHARES IN THE NAME OF ASSESSEEE, COPY OF BILL FOR SALE OF SHARES ETC., AN D ON THE BASIS OF AFORE MENTIONED DOCUMENTS IT WAS SUBMITTED BY THE LD. AR THAT IT IS SIMPLY A CASE OF LEGAL PURCHASES OF SHARES IN PHYSICAL FORM DEMATERIALIZED AND THEN SOLD IN RECOGNIZED STOCK 5 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO EXCHANGE. IT WAS FURTHER SUBMITTED THAT M/S. BUNIYA D CHEMICALS AND M/S. JAY KAY DEE INDUSTRIES LIMITED ARE REGISTERED COMPANIES AND THE ACTIVITIES AND ADMINISTRATION OF THE REGISTERED COMPANIES ARE GOVE RNED BY COMPANIES ACT IN INDIA. LD. AR ALSO DRAWN OUR ATTENTION TO THE JUDGE MENT RENDERED BY ITAT MUMBAI BENCH IN ITA NO. 1175/MUM/2012 AND ITA NO . 1176/MUM/2012 WHEREIN THE HONBLE ITAT HAS DEALT WITH THE SIMILAR SITUATION AND DECIDED IN FAVOUR OF ASSESSEE. ON THE OTHER HAND LD. DR RELIE D UPON THE ORDERS PASSED BY AO AS WELL AS CIT(A). 6. WE HAVE HEARD THE COUNSELS FOR BOTH THE PARTIES AND WE HAVE ALSO PERUSED THE MATERIAL PLACED ON RECORD AS WELL AS THE ORDERS PASSED BY THE LOWER AUTHORITIES AND AFTER CONSIDERING THE SAME, WE HAVE OBSERVED TH AT THE CO-ORDINATE BENCH OF ITAT MUMBAI HAS ALREADY DEALT WITH THE SIMILAR IS SUE IN ITA NO. 1175/MUM/2012 AND ITA NO. 1176/MUM/2012 WHERE IN AL SO THE ASSESSEES IN THOSE CASES HAVE DEALT WITH THE SHARE TRANSACTION W ITH THE SAME COMPANIES. WE REFERRED THE OPERATIVE PARA OF ITA NO. 1175/MUM/201 2 TITLED SMT. DURGADEVI MUDRA VS. ITO AND THE SAME IS REPRODUCED HERE IN B ELOW: I HAVE HEARD THE PARTIES AND PERUSED THE RECORD. T HE LD. COUNSEL SUBMITS THAT IN RESPECT OF THE 'SHARES SCAM' ALLEGE D TO BE INVOLVED BY SHRI MUKESH CHOKSHI ACTIONS WERE TAKEN AGAINST MANY PERSONS DISALLOWING THEIR CLAIM IN RESPECT OF LONG-TERM CAP ITAL GAIN AND SHORT- 6 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO TERM CAPITAL GAIN. HE SUBMITS THAT ON IDENTICAL SET OF FACTS THE ISSUE HAS BEEN CONSIDERED BY THE TRIBUNAL. THE LD. COUNSEL FI LED THE COPIES OF THE TRIBUNAL DECISION BY WAY OF COMPILATION AS UNDER: I) MUKESH R. MAROLIA VS. ADDL. CIT -6 SOT 247 II) RAJNUDEVI CHOWDHARY VS. ITO -ITA 6455/M/2007( BOM) III) ITO VS. TRUPTIC SHAH -ITA 6455/M/2007(BOM) IV) CHANDRAKANT BABULAL SHAH -ITA 6108/M/2009(BO M) V) ACIT VS. SHRI RAVINDRAKUMAR THSHINWAL -ITA5302/M /2008(BOM) 5. HE, THEREFORE, PLEADED FOR ACCEPTING THE CLAIM O F THE ASSESSEE IN RESPECT OF LONG-TERM CAPITAL GAIN. I HAVE ALSO HEAR D THE LD. D.R. 6. I FIND THAT IN THE PRESENT CASE, THE ASSESSEE HA S PRODUCED THE BILLS SHOWING THE PURCHASE OF THE SHARES. THE ASSESSEE AL SO PROVED THAT THE SHARES WERE SOLD THROUGH THE SHARE BROKER AND HE PR ODUCED THE PROOF FOR THE SAME. THE IDENTICAL SITUATION HAS BEEN CONSIDER ED BY THE ITAT C BENCH, MUMBAI IN THE CASE OF CHANDRAKANT BABULAL SH AH (SUPRA). THE OPERATIVE PART OF THE ORDER OF THE TRIBUNAL IS AS U NDER: '7. WE HAVE CONSIDERED THE SUBMISSIONS OF THE RIVAL PARTIES AND EXAMINED THE RECORD. THE CASE RELIED UPON BY THE LEARNED COU NSEL ARE NOT DIRECTLY APPLICABLE TO THE FACTS OF THE CASE AS IN THOSE CAS ES THE SALE PROCEEDS ARE TREATED AS UNDISCLOSED INCOME DENYING THE ENTIRE TR ANSACTION AS SUCH, 7 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO WHEREAS, IN THE PRESENT CASE, THE ASSESSING OFFICER DID NOT TREAT THE SALE OF SHARES AS BOGUS. HE HAS ONLY EXAMINED THE PURCHA SE OF SHARES AND DOUBTED THE DATE OF PURCHASE. BUT IN THE COMPUTATIO N HE HAS GIVEN BENEFIT TO THE SAME COST OF PURCHASE OF SHARES AND TAXED THE LONG TERM CAPITAL GAIN OFFERED AS SHORT TERM CAPITAL GAIN ONL Y. AS FAR AS THE DATE OF PURCHASE IS CONCERNED, THE EVIDENCE ON RECORD INDIC ATE THAT THE ASSESSEE HAD INDEED EARNED SPECULATION PROFIT BY SALE OF APT ECH SHARES WHICH THE ASSESSING OFFICER HAS NOT DOUBTED. FURTHER THE ASSESSEE ALSO SUFFERED SPECULATION LOSS AS STATED ABOVE IN FEBRUARY, 2001 AND DEBIT AND CREDIT ENTRIES PERTAINING TO SAME BROKER WERE SHOWN IN THE BALANCE SHEET IN THE RETURN FILED FOR THE AY 2001-2002 IN AUGUST, 2001. THERE IS ALSO A MENTION OF PURCHASING OF SHARES OF THE COMPANY IN T HE RETURN. IT IS ALSO ON RECORD THAT THE SAID COMPANY VIDE LETTER DATED 3 0-6-2000 HAD TRANSFERRED THE SHARES IN THE NAME OF THE ASSESSEE WITH THE FOLIO NO. 15021 AND CERTIFICATE NOS. 105744 TO 105848. THE AS SESSING OFFICER NEITHER QUESTIONED THE SAID COMPANY NOR DISPROVED T HE TRANSFER OF SHARE CERTIFICATES BY 30/6/2000. THE ONLY BASIS FOR ARRIV ING AT THE CONCLUSION THAT THE TRANSACTION IS NOT GENUINE IS ON THE BASIS OF THE STATEMENT GIVEN BY MR. MUKESH CHOKSHI ON 20-6-2004/20-6-2002 BEFORE THE DDIT (INV.) WITH REFERENCE TO CERTAIN TRANSACTIONS UNDERTAKEN B Y MR. MUKESH CHOKSHI AND HIS GROUP OF COMPANIES, MAINLY GOLD FIN VEST PVT. LTD. RICHMOND SECURITIES AND ALEMBIC SECURITIES, WHICH A RE DEALING IN INTERCONNECTED STOCK EXCHANGE/ NSC. MOST OF THE ENQ UIRIES PERTAINS TO THE TRANSACTIONS IN INTERCONNECTED STOCK EXCHANGE A ND SALE OF SHARES IN THE COMPANY VIZ., RASHEL AGRO TECH LTD. THE ENQUIRY IN THE SAID GROUP OF COMPANIES WAS WITH REFERENCE. TO THE ISSUANCE OF BO GUS , PURCHASE AND SALE BILLS AND ACCOMMODATING VARIOUS PARTIES IN EAR NING THE CAPITAL GAINS. HOWEVER, AS SUBMITTED BY THE LEARNED COUNSEL , THE ASSESSEE'S 8 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO NAME IS NOT FIGURING IN THE TRANSACTIONS WHICH WERE ORIGINALLY ENQUIRED BY THE DDIT (INV.) ON 26-4-2002. EVEN THOUGH THE MO DUS OPERANDI WAS EXPLAINED AND STATED THAT THEY WERE GETTING 0.5% CO MMISSION IN ARRANGING THE TRANSACTIONS, NOTHING WAS CONCLUDED A GAINST THE ASSESSEE IN THE SAID STATEMENT. THE ASSESSING OFFICER IN THE COURSE OF ASSESSMENT AGAIN RECORDED THE STATEMENT UNDER SECTION 131 ON 9 -11-2006 IN WHICH QUESTION NO. 4 AND 5 WHICH ARE EXTRACTED IN THE ASS ESSMENT ORDER ITSELF. THE MAIN RELIANCE IS ON QUESTION NO. 5 WHICH IS AS UNDER: 'Q.5 : PLEASE GIVE THE DETAILS OF BILLS OF PROFIT I SSUED BY YOUR COMPANY AS STATED ABOVE. ANS: THESE BILLS NUMBERS BILLS NO. CC /2000/16/12501 DT.18-4-2000 WHICH SHOWS THAT B.87610.85 PAYABLE TO SHRI CHANDRAKANT D. SHAH. THERE IS ANOTHER BILL NO. CC/2001/07/164 ( N) DT.20/2/2001 IN WHICH RS.89602 WAS RECEIVABLE BY SHRI CHANDRAKANT B . SHAH. THESE BILLS ARE ISSUED SHOWING FICTITIOUS PROFIT AND THER EFORE THE PURCHASE ARE NOT SUBSTANTIATED BY GENUINE PAYMENTS.' '8. THIS STATEMENT WAS RELIED UPON BY THE ASSESSING OFFICER TO STATE THAT THE PURCHASE BILLS ARE ISSUED SHOWING FICTITIOUS PR OFIT. HOWEVER, THE ASSESSEE WAS NOT GIVEN AN OPPORTUNITY TO CROSS EXAM INE MR. MUKESH CHOKSHI AND WHEN AN OPPORTUNITY WAS GIVEN AND ASSES SEE WAS PRESENT MR. MUKESH CHOKSHI WAS NOT AVAILABLE. THE ONLY BASI S FOR THIS ABOVE STATEMENT IS THAT THE PAYMENTS ARE NOT MADE IMMEDIA TELY BUT EVEN STATEMENT ITSELF INDICATE THAT THEY WERE CAPITAL GA INS EARNED BY THE ASSESSEE AS SPECULATION PROFITS AND IN QUESTION NO. 4 IN THE STATEMENT MR. MUKESH CHOKSHI ADMITS THE PURCHASE OF 10500 SHA RES OF RASHEL AGRO TECH, LTD. MADE OUT OF ADJUSTED SHARE PROFITS AND THEREFORE CONFIRMED THAT THIS IS AN 'ADJUSTMENT TRANSACTION). IN VIEW OF THIS 9 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO STATEMENT IN QUESTION NOS. 4 AND 5) WE ARE UNABLE T O UNDERSTAND HOW THE TRANSACTIONS BECOMES A BOGUS ONE. THERE IS NO EVIDE NCE EXCEPT THIS ORAL STATEMENT WHICH IS ALSO NOT SUBMITTED FOR CROSS-EXA MINATION TO PROVE/ DISPROVE THE TRANSACTION. WHEREAS THE ASSESSEE FURN ISHED TRANSACTION DETAILS) THE BANK ACCOUNTS) PURCHASE AND SALE OF OT HER LISTED COMPANIES) SPECULATION PROFIT AND LOSS AND ALSO EVIDENCE IN TH E FORM OF BALANCE SHEET FILED MUCH BEFORE THE SAID SHARES WERE SOLD. THE SALE OF SHARES WAS UNDERTAKEN IN DECEMBER 2001 WHEREAS THE RETURN FOR AY 2001-2002 WAS FILED BY AUGUST 2001 ITSELF INDICATING THE PURCHASE OF SHARES AND OUTSTANDING AMOUNTS TO M/ S. GOLDEN FINVEST LTD IN THE STATEMENTS. IN VIEW OF THE DOCUMENTARY EVIDENCE IN FAVOUR OF THE A SSESSEE, WE ARE UNABLE TO ACCEPT THE CONTENTION OF THE ASSESSING OF FICER BASED ON THE STATEMENT WHICH IS ALSO UN- SUPPORTED BY ANY OTHER EVIDENCE TO DENY THE BENEFIT OF PURCHASE OF SHARES BY THE ASSESSEE ON 8- 4-2000. NOT ONLY THAT THE ASSESSING OFFICER HAS ALSO GAVE CREDIT FOR THE SAME AMOUNT OF PURCHASE OF SHARES AT COST AND DID NOT TREAT THE SA LE PROCEEDS AS BOGUS/UNACCOUNTED INCOME. THE ONLY ACTION TAKEN BY THE ASSESSING OFFICER IS TO DENY THE ASSESSEE THE BENEFIT OF LONG TERM CAPITAL GAIN AND SUBSEQUENT DEDUCTION UNDER SECTION 54EC OF THE ACT AS THE ASSESSEE INVESTED THE CAPITAL GAINS IN REC BONDS. WE DO NOT SEE ANY REASON TO AGREE WITH THE FINDINGS OF THE' ASSESSING OFFICER A ND ALSO THE FINDINGS OF THE CIT (A). IN FACT, THE CIT (A) HAS WENT AHEAD IN TREATING THE ENTIRE TRANSACTION AS BOGUS AND CONFIRMED THE ACTION OF TH E ASSESSING OFFICER WHILE HOLDING 'THIS WILL BE MORE FOR AN UNEXPLAINED RECEIPT OF MONEY OF THE APPELLANT. HENCE, ASSESSING OFFICER HAD RIGHTLY ADDED THE AMOUNT BY AND THE ACTION OF THE ASSESSING OFFICER IN MAKING T HIS ADDITION IS CONFIRMED TREATING IT AS STCG)). IN ARRIVING AT THI S CONCLUSION, THE CIT (A) PRESUMED THAT ASSESSEE COULD HAVE PAID FULL PAY MENT OF 16 LAKHS BY 10 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO WAY OF CASH WHICH WAS NOT THE CASE OF THE ASSESSING OFFICER EITHER. THERE IS NO EVIDENCE EVEN TO PRESUME THESE OBSERVATIONS O F THE CIT (A) AS STATED ABOVE. 7. THE FACTS ARE IDENTICAL IN THIS CASE AS IN THE C ASE OF CHANDRAKANT BABULAL SHAH (SUPRA). I HOLD THAT THE ASSESSEE HAS PROVED THE GENUINENESS OF THE SHARE TRANSACTIONS AND THERE IS NO JUSTIFICATION TO DISALLOW THE CLAIM OF THE ASSESSEE IN RESPECT OF TH E LONG-TERM CAPITAL GAIN. I, ACCORDINGLY, DIRECT THE A.O. TO ALLOW THE SAME. ACCORDINGLY, GROUND NO.2 IS ALLOWED. ASSESSEE'S APPEAL IS PARTLY ALLOWED. IN ADDITION WE HAVE ALSO ANALYSE THE ORDERS PASSED IN ITA NO. 1176/MUM/2012 TITLED SHRI MAHESH MUNDRA VS. ITO T HE OPERATIVE PARA IS REPRODUCED HERE IN BELOW: I HAVE HEARD THE PARTIES. IN THIS CASE ALSO THE ASS ESSEE HAS DECLARED THE LONG-TERM CAPITAL GAIN IN RESPECT OF THE SALE OF TH E SHARES OF M/ S. BUNIYAD CHEMICALS LTD. IT WAS CLAIMED THAT THE SHAR ES WERE SOLD THROUGH M/ S. GOLDSTAR FINVEST PVT. LTD. THERE WAS INVESTIGATION AGAINST SHRI MUKESH CHOKSHI WHO WAS THE MENTOR AND THE MAIN PERSON IN THE ENTIRE SHARES' 'SCAM'. THE FACTS ARE IDENTICAL AS I N THE CASE OF SMT. DURGADEVI MUNDRA IN ITA NO.1175/M/2012. HENCE, TO A VOID THE REPETITION OF THE FACTS AND FOR THE SAKE OF BREVITY , I ADOPT THE FACTS MENTIONED IN THE CASE OF SMT. DURGADEVI MUNDRA AS W ELL AS THE REASONS. 11 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO IN THIS CASE ALSO THE A.O. ASSESSED CAPITAL GAIN DE CLARED BY THE ASSESSEE AS 'INCOME FROM OTHER SOURCES'. I, THEREFORE, FOLLO WING MY REASONS AND DECISION IN THE CASE OF SMT. DURGADEVI MUNDRA (SUPR A) ALLOW GROUND NO.2 IN THIS APPEAL ALSO AND DIRECT THE A.O. TO ASS ESS THE LONG-TERM CAPITAL GAIN DECLARED BY THE ASSESSEE AS SUCH AND A CCEPT THE SAME. 7. AFTER ANALYZING THE AFORE MENTIONED ORDERS, WE F OUND THAT THE ISSUE CONTAINED IN THE PRESENT CASE ARE SIMILAR TO THE IS SUES OF AFORE MENTIONED CASES. THEREFORE, KEEPING IN VIEW THE PRINCIPLES OF JUDICI AL CONSISTENCY AND WHILE RESPECTFULLY FOLLOWING THE JUDGEMENTS PASSED BY THE CO-ORDINATE BENCH, WE ALSO HOLD THAT IN THE PRESENT CASE BY VIRTUE OF INDEPEND ENT DOCUMENTS AS REFERRED IN PAPER BOOK THE ASSESSEE HAS PROVED THE GENUINENESS OF THE SHARE TRANSACTION AND THERE WAS NO JUSTIFICATION TO DISALLOW THE CLAIM OF THE ASSESSEE IN RESPECT OF LONG TERM CAPITAL GAIN MERELY ON THE BASIS OF INFORMATIO N RECEIVED FROM DDIT WHICH IS BASED ON ADMISSION OF SHRI MUKESH CHOKSHI. THEREFOR E ACCORDINGLY, WE DIRECT THE AO TO ASSESS THE LONG TERM CAPITAL GAIN DECLARED BY ASSESSEE AS SUCH AND ACCEPT THE SAME. GROUND NO. 4 IS GENERAL IN NATURE AND NEEDS NO SEPA RATE ADJUDICATION IN VIEW OF THE DECISION ON ABOVE GROUNDS. 12 ITA NO. 6248/MUM/2012 (A.Y. 2003-04) KAMLESH MUNDRA VS. ITO 8. IN THE RESULT, THE ASSESSEES APPEAL IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 4TH MARCH, 2016 SD/- SD/- (R.C. SHARMA) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :04.03.2016 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI