ANITA J LALWANI, MUMBAI V. ITO WD 23(2)(1), MUMBAI

ITA 6263/MUM/2012

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 9926 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 9 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-07-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 26-04-2017
• Assessment Year: 2003-2004
• Appeal Filed On: 11-10-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: AGAINST DATED PASSED
• Keywords: Unexplained cash credit; Search and seizure
• Section: 143(3); 147; 68; 148; 132

Judgement Text

IN T HE INCOME TAX APPELLATE TRIBUNA L A BENCH, MUMBAI BEFORE SHRI RAJENDRA , AM AND SHRI AMARJIT SINGH , JM / I .T.A. NO. 6263 / M/ 20 12 ( / ASSESSMENT YEAR: 20 0 3 - 0 4 ) ANITA J LALWANI J - 301, VARDHMAN NAGAR, JN OF R.P. ROAD & M.G. MUMBAI. PIN:400080 / VS. ITO WD 23(2)(1) C - 10 PRATYAKSHKAR BHAVAN, 2 ND FLOOR KURLA COMPLEX, BANDRA MUMBAI. PIN:400007 ./ ./ PAN/GIR NO. : AAAPL 4171 F ( / APPELLANT ) .. ( / RESPONDENT ) / DATE OF HEARING : 26 .0 4 .2017 / DATE OF PRONOUNCEMENT : . 14.07. 2017 / O R D E R PER AMARJIT SINGH, JM: THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER DATED 23 .0 7 .201 2 PASSED BY THE COMMIS SIONER OF INCOME TAX (CENTRAL) - 11 , MUMBAI [HEREINAFTER REFERRED TO AS THE CIT(A)] RELEVANT TO THE ASSESSMENT YEAR 200 3 - 0 4 . 2 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE PROCEEDINGS INITIATED U/S 147 OF THE I.T. ACT IS INVALID AND BAD IN LAW. ASSESSEE BY: NONE DEPARTMENT BY: SHRI RAJESH KUMAR YADAV ANITA J LALWANI 2 ON THE FACTS AND IN THE CIRCUMSTANCES AND IN LAW, THE ASSESSMENT ORDER PASSED U/S 143(3) R.W.S. 147 OF THE I.T. ACT IS INVALID AND BAD IN LAW. ON THE FA CTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DISMISSING THE GROUNDS OF APPEAL PERTAINING TO SALE SHARES BY HOLDING THAT ALL THE TRANSACTIONS ARE BOGUS AND ALSO THE LONG TERM CAPITAL GAINS SHOWN IN THE RETURN IS BOGUS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN CONFIRMING THE ACTION OF THE A.O. AND SIMULTANEOUSLY DIRECTING HIM COLLECT DETAILS IN THE NAME OF THE APPELLANT FROM THE RECORDS SEIZED FROM THE BROKER SHRI MUKESH CHOKSHI AND HIS ASSOCIATES AVAILABLE IN THE OFFICE OF DGIT(INV.) OR THE AO OF SHRI MUKESH CHOKSHI AND HIS ASSOCIATE CONCERNS AND TAX ONLY SUCH AMOUNT AS HE WOULD DETERMINE TO BE THE PAYMENT RECEIVED BY THE APPELLANT FROM SHRI MUKESH CHOKSHI AND HIS ASSOCIATE CONCERNS U/S 68 OF THE I.T. ACT. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN NOT DEALING WITH THE CLAIM OF 54EC OF THE I.T. ACT. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED HER RETURN OF INCOME ON 17.09.2003 DECLARING HER TOTAL INCOME TO THE TUNE OF RS. 1,04,909/ - . THE CASE WAS REOPENED U/S 147 OF THE ACT AFTER RECORDING THE REASONS FOR REOPENING AND GETTING THE APPROVAL FROM A DDL. CIT RANGE 23(2) MUMBAI. N OTICE U/S 148 DATED 31.03.2010 WAS ISSUED AND SERVED UPON THE ASSESSEE ON THE SAME DA Y. IN RESPONSE TO THE NOTICE THE ASSESSEE ALONGWITH HER REPRESENTATIVE APPEAR ED AND FILED THE RETURN WHICH SHE HAD ALREADY FILED ON 17.09.2003. NOTICE U/S 143(2) AND 142(1 ) WERE ISSUED AND SERVED UPON THE ASSESSEE. THERE WAS AN INFORMATION FROM ADDL. UNIT - 4 MUMBAI BASED ON SEARCH AND SEIZURE ACTION U/S 132 OF THE ACT ON 25.11.2009 CONDUCTED BY IT ON MAHASAGAR SECURITIES P. LTD. (NOW ALAG SECURITIES PVT. LTD.) LOCATED AT BLO CK H, SHREE SADA SHIV CHS, SANTA CRUZ EAST, MUMBAI - 55. ANITA J LALWANI 3 DURING THE COURSE OF THE SEARCH IT WAS NOTICED THAT THE MAHASAGAR SECURITIES P RIVATE . LTD AND ITS RELATED GROUP OF 34 ODD COMPANIES (THE PROMINENT ONE INCLUDES M/S GOLDSTAR FINVEST PRIVATE LTD.) RUN BY MUKESH CHOKSHI , WERE ENGAGED IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATION PROFIT. THE ASSES SEE WAS ONE OF THE BENEFICIARY AND PROCURED BILL S FROM GOLDSTAR FINVEST P. LTD. THE TOTAL BILL S TO THE TUNE OF RS.8,49,691/ - W ERE FOUND WITH THE NAME OF THE ASSESSEE . A FTER GIVING NOTICE TO THE ASSESSEE AND OBSERVING NON SATISFACTORILY REPLY THE SAID SALE I.E. RS.8,49,691/ - ALONG WITH BROKERAGE PAID TO THE TUNE OF RS. 115/ - WAS TREATED AS UNEXPLAINED CASH CREDIT U/S 68 OF THE ACT AS BOGUS THEREFORE THE SAME WAS ADDED TO THE INCOME OF THE ASSESSEE. FEELING AGGRIEVED THE ASSESSEE FILED AN APPEAL BEFORE THE CIT(A) W HO DISMISSED THE APPEAL OF THE ASS ESSEE THEREFORE, THE ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US. ISSUE NO S .1 & 5 : - 4 . WE HAVE HEARD THE ARGUMENTS ADVANCED BY THE LEARNED REPRESENTATIVE OF THE DEPARTMENT AND HAVE GONE THROUGH THE CASE FILE CAREFULLY. THE ASSESSEE DID NOT APPEAR BEFORE US DESPITE SERVICE OF THE NOTICE. NO MATERIAL OF ANY KIND WAS PRODUCED BEFORE US TO CONTRADICT THE FINDING OF THE CIT(A) ON RECORD. NO DOUBT, THE ASSESSEE TOOK THE PLEA IN CONNECTION WITH SUBMITTING THE BILLS ISSUE D BY THE BROKERS AND PAYMENT RECEIVED FROM BROKER ALONGWITH XEROX OF BANK STATEMENT AND ALSO TOOK THE PLEA THAT THE ASSESSEE W AS NOT ALLOWED TO CROSS - EXAMINE ANITA J LALWANI 4 THE BROKER WHOSE STATEMENT WAS RELIED UPON BY THE AO WHILE DECIDING THE MATTER OF CONTROVERSY AGAINST THE ASSESSEE. THE ASSESSEE ALSO TOOK THE PLEA THAT THE TRANSACTION WAS EFFECTED THROUGH BANKING CHANNEL. B U T NO MATERIAL OF ANY KIND WAS PRODUCED BEFORE US TO SUBSTANTIATE THE PLEA RAISED BY THE ASSESSEE. AT THE COST OF REPETITION N O MATERIAL OF ANY KIND WAS PRODUCED IN SUPPORT OF THE CONTENTION RAISED BY THE ASSESSEE AND THE ASSESSEE DID NOT APPEAR BEFORE US TO CONTRADICT T HE FINDING OF THE CIT(A). THEREFORE, WE ARE OF THE VIEW THAT THE CIT(A) HAS DECIDED THE MATTER OF CONTROVERSY JUDICIOUSLY AND CORRECTLY WHICH IS NOT REQUIRED TO BE INTERFERE D WITH AT THIS APPELLATE STAGE. ACCORDINGLY, WE DECIDED THESE ISSUES IN FAVOUR OF T HE REVENUE. 5 . IN THE RESULT , APPEAL OF THE ASSESSEE IS HEREBY ORDERED TO BE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14.07. 2017 SD/ - SD/ - ( RAJENDRA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; DATED : 14.07. 201 7 V.P.SINGH ANITA J LALWANI 5 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI