HEMA MAHESH HARIA, MUMBAI V. ITO 19(2)(3), MUMBAI

ITA 7473/MUM/2012

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 6272 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 5 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-06-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 17-12-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SATISH CHANDRA RAJORE
• Keywords: Unexplained cash credit; Unexplained investment; Principle of natural justice; Accommodation entries
• Section: 133A; 131; 148; 6; 132; 10; 2; 68

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 7473/MUM/2012 ASSESSMENT Y EAR: 2005 - 2006 SMT. HEMA MAHESH HARIA, 22, MANGESH DARSHAN, PHIROZSHAH MEHTA ROAD, SANTACRUZ (W), MUMBAI - 400054 PAN: AAVPH6203K VS. THE INCOME TAX OFFICER - 19(2)(3), MUMBAI (APPELLANT) (RESPONDENT) & ITA NO. 7474/MUM/2012 ASSESSMENT Y EAR: 2005 - 2006 SHRI MAHESH D. HARIA, 22, MANGESH DARSHAN, PHIROZSHAH MEHTA ROAD, SANTACRUZ (W), MUMBAI - 400054 PAN: AAAPH3473J VS. THE INCOME TAX OFFICER - 19(2)(4), MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : NONE REVENUE BY : SHRI SATISH CHANDRA RAJORE ( D R ) DATE OF HEARING: 19/03 /201 9 DATE O F PRONOUNCEMENT: 07 / 06 /201 9 O R D E R PER RAM LAL NEGI, JM THESE APPEAL S HAVE BEEN FILED BY THE ASSESSEE AGAINST THE TWO ORDER S DATED 12.09.2012 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 30 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE A SSESSMENT YEAR S 2005 - 2006, WHEREBY THE LD. CIT(A) HAS DISMISSED APPEAL S FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER S PASSED U/S 143 (3) R.W.S 147 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE 2 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 ACT). SINCE, THE ISSUES INVOLVED ARE IDENTICAL IN BOTH TH E APPEALS AND THE SAME WERE HEARD TOGETHER , THESE APPEALS ARE BEING DISPOSED OF BY THIS COMMON AND CONSOLIDATED ORDER FOR THE SAKE OF CONVENIENCE. ITA NO. 7473/MUM/2012 (ASSESSMENT YEAR: 2005 - 2006) BRIEF LY STATED FACTS ARE THAT THE ASSESSEE FILED ITS R ETURN OF INCOME FOR THE ASSESSMENT YEAR UNDER CONSIDERATION DECLARING TOTAL INCOME OF RS. 2,74,343/ - . THE RETURN WAS PROCESSED U/S 143 (1) OF THE ACT. SUBSEQUENTLY, THE CASE WAS REOPENED U/S 147 ISSUING NOTICE U/S 148 FOR THE REASON THAT DURING THE COURSE OF SEARCH PROCEEDINGS, IN THE CASE OF MAHASAGAR SECURITIES PRIVATE LTD., MUKESH M CHOKSI, DIRECTOR OF THE SAID COMPANY STATED ON OATH U/S 131 OF THE ACT THAT THE GROUP COMPANY IS INVOLVED IN PROVIDING BOGUS SPECULATION PROFIT/LOSS, SHORT TERM/LONG TERM CAP ITAL GAIN/LOSS, COMMODITIES PROFIT/LOSS AND THE ASSESSEE WAS ONE OF THE BENEFICIARIES OF SUCH FRAUDULENT BILLING ACTIVITIES. IN RESPONSE TO THE NOTICE, THE ASSESSEE SUBMITTED THAT THE ORIGINAL RETURN FILED MAY BE TREATED AS THE RETURN OF INCOME IN RESPONSE TO THE NOTICE U/S 148 OF THE ACT. 2. IN RESPONSE TO NOTICE U/S 142 (1), THE ASSESSEE FILED DETAILS CALLED FOR BY THE AO. IT WAS NOTICED THAT ASSESSEE HAD SHOWN INCOME FROM BUSINESS , SHORT TERM CAPITAL GAINS, LONG TERM CAPITAL GAINS AND INCOME FROM OTHER SOURCES. THE ASSESSEE HAD CLAIMED LONG TERM CAPITAL GAIN ON ACCOUNT OF SALE OF SHARES. IT WAS FURTHER NOTICED THAT THE TRANSACTION OF PURCHASE OF THE SHARE HAD NOT BEEN DONE THROUGH STOCK EXCHANGE. SINCE, T HE ASSESSEE FAILED TO ESTABLISH THE GENUINENESS O F TRANSACTION BY ADDUCING COGENT AND CONVINCING EVIDENCE , THE AO DETERMINED THE TOTAL INCOME OF THE ASSESSEE AT RS. 23,03,580/ - AFTER MAKING ADDITION OF RS. 20,29,235/ - U/S 68 OF THE ACT AS UNEXPLAINED CREDITS. IN THE FIRST APPEAL, THE LD. CIT (A) DISMISS E D THE APPEAL AND CONFIRMED THE 3 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 ADDITION MADE BY THE AO. THE ASSESSEE IS IN APPEAL AGAINST THE SAID ORDER PASSED BY THE LD. CIT (A). 3. T HE ASSESSEE HAS PREFERRED THIS APPEAL AGAINST THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON VARIOUS GROUNDS : - 1. ON TH E FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION IN COMPLETING ASSESSMENT U1S.143(3) WITHOUT ISSUE OF NOTICE ULS.143(2). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION IN REOPENING THE ASSESSMENT U/S. 147 WITHOUT FURNISHING TO THE APPELLANT. THE COPY OF SANCTION CLAIMED TO HAVE BEEN OBTAINED FROM THE JOINT COMMISSIONER OF INCOME TAX AS REQUIRED BY SECTION 151(2). 3. ON THE FACTS AN D IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION COMPLETING ASSESSMENT U/S.143(3) R.W.S. 147 WITHOUT FURNISHING TO THE APPELLANT, THE COPY OF REASONS RECORDED U/S. 148. 4. ON THE FACTS AND IN THE CIRCUMSTANC ES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S CONTENTION THAT TO CLAIM EXEMPTION U/S. 10(38) WHILE TRANSFERRING SHARES, THE SHARES SHOULD BE HELD IN DEMAT A/C FOR A PERIOD OF 12 MONTHS OR MORE. 5. ON THE FACTS AND IN THE CIRCUMSTAN CES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING THE AO'S CONTENTION THAT THE TRANSACTION OF PURCHASE OF SHARES IS ILLEGAL AND VOID U/S. 13 OF THE SECURITIES CONTRACT ACT, IN SPITE OF THE PROOF OF PAYMENT AND DELIVERY OF SHARES. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING THE AO'S ACTION OF COMPLETING ASSESSMENT MERELY RELYING ON THE STATEMENT OF THIRD PARTY, WITHOUT GIVING THE COPY OF STATEMENT AND THE OPPORTUNITY TO CROSS EXAMIN E THE THIRD PARTY TO THE APPELLANT, THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 4 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO 'S ACTION OF DENYING EXEMPTION U/S. 10(38) IN RESPECT OF LONG TERM CAPITAL GAIN OF RS.20, 29,235/ - AND TREATING THE SAME AS TAN EXPLAINED INVESTMENT U/S.68. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN CONFIRMING ADDITION MADE BY THE AO OF RS.20,29,235/ - TOWARDS ALLEGE D UNEXPLAINED INVESTMENT U/S.68. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION OF CASTING ONUS ON APPELLANT U/S. 292C, WITHOUT THERE BEING ANY SEARCH U/S. 132 OR REQUISITION U/S. 132A IN THE APPELLANT'S CASE. 10. FOR VARIOUS REASONS AND ON DIFFERENT GROUNDS, THE ADDITION OF RS. 20,29,237/ - MADE BY THE AO AND UPHELD BY THE LEARNED 01(A), DESERVES TO BE DELETED. 11. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO AND ARE INDEPENDENT OF EACH OTHER. 4. DURING PENDENCY OF THE SAID APPEAL T HE ASSESSEE FILED THE AMENDED GROUNDS OF APPEAL WHICH READ AS UNDER: - 1 ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT (A) HAS ERRED IN UPHOLDING LD. AOS ACTION OF DENY ING EXEMPTION U/S 10(38) IN RESPECT OF LONG TERM CAPITAL GAIN OF RS. 20,29,235/ - AND TREATING THE SAME AS UNEXPLAINED INVESTMENT U/S 68. 2. ON FACTS AND IN CIRCUMSTANCES OF THE CASE AND IN LAW, LEARNED CIT (A) ERRED IN CONFIRMING ADDITION MADE BY THE LD . AO OF RS. 20,29,235/ - TOWARDS ALLEGED UNEXPLAINED INVESTMENT U/S 68. 3. AGAINST CONFIRMATION OF ABOVE ADDITIONS, THE APPELLANT IS IN APPEAL BEFORE THE HONBLE TRIBUNAL WITH A PRAYER TO DELETE SUCH ADDITIONS. 5 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 5. THIS CASE WAS FIXED FOR HEARING ON 19.03 .2019. HOWEVER, WHEN THE CASE WAS CALLED OUT FOR HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. WE NOTICE THAT ON THE LAST DATE OF HEARING I.E. 17.01.2019 HEARING WAS ADJOURNED AS NONE APPEARED ON BEHALF OF THE ASSESSEE. BEFORE THAT THE HEARINGS WERE AD JOURNED EITHER AT THE REQUEST OF THE ASSESSEE OR THE ASSESSEE DID NOT APPEAR. FROM THE CONDUCT OF THE ASSESSEE, WE ARE CONVINCED THAT THE ASSESSEE IS NOT INTERESTED IN PURSUING ITS APPEAL. HENCE, WE DECIDED TO DISPOSE OF THE PRESENT APPEAL ON THE BASIS OF MATERIAL ON RECORD AFTER HEARING THE LD . D EPARTMENTAL R EPRESENTATIVE . 6. BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) RELYING ON THE ORDER PASSED BY THE LD. CIT (A) SUBMITTED THAT SINCE THE ASSESSEE HAS ENTERED INTO A BOGUS TRANSACTION THROUGH MUK ESH M CHOKSI , A HAWALA OPERATOR FOR SALE AND PURCHASE OF SHARES AND SINCE SHRI MUKESH M. CHOKSI HAS ADMITTED IN HIS STATEMENT RECORDED U/S 131 OF THE ACT THAT THE GROUP COMPANY WAS INVOLVED IN PROVIDING BOGUS SPECULATION PROFIT/LOSS, SHORT /LONG TERM CAPI TAL GAIN/LOSS, COMMODITIES PROFIT/LOSS THROUGH VARIOUS BOGUS COMPANIES , DURING THE RELEVANT PERIOD AND SINCE HE HAS ADMITTED BEFORE THE DDIT (INV.) THAT THE ASSESSEE IS ONE OF THE BENEFICIARIES, THE LD. CIT (A) HAS RIGHTLY CONFIRMED THE ADDITION MADE BY TH E AO. THE LD. DR FURTHER POINTED OUT THAT THE TRANSACTIONS OF PURCHASE OF THESE SHARES WERE NOT DONE THROUGH STOCK EXCHANGE , HENCE THE TRANSACTION IS ILLEGAL AS PER SECTION 13 OF THE SECURITIES CONTRACT REGULATION ACT . THE LD. DR FURTHER CONTENDED THAT SIN CE THE CLAIM OF THE ASSESSEE OF LONG TERM CAPITAL GAIN IS NOT TENABLE, THERE IS NO MERIT IN THE APPEAL OF THE ASSESSEE. 7. WE HAVE PERUSED THE MATERIAL ON RECORD IN THE LIGHT OF THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE AND THE SUBMISSIONS MADE BY THE LD. DR. THE SOLE GRIEVANCE OF THE ASSESSEE IS THAT THE LD. CIT (A) HAS WRONGLY UPHELD THE ACTION OF AO IN CONFIRMING ADDITION OF RS. 20,29,235/ - HOLDING THE SAME AS 6 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 UNEXPLAINED INVESTMENT U/S 68 OF THE ACT. THE LD . CIT (A) HAS DISMISSED THE APPEAL OF THE ASSESSEE HOLDING AS UNDER: - I HAVE CAREFULLY GONE THROUGH THE ASSESSMENT ORDER AND THE SUBMISSIONS MADE ON BEHALF OF THE APPELLANT. IN THIS CASE, THE APPELLANT HAS ENTERED INTO SHARE TRANSACTIONS THROUGH MUKESH MANEKLAL CHOKSI ONE OF THE HAWALA OPERATOR S FOR SALE AND PURCHASE OF SHARES. SHRI M.M. CHOKSI HAD ADMITTED IN HIS STATEMENT RECORDED U/S. 131 OF THE I.T. ACT, 1961 BEFORE DDIT(LNV),UNIT - 6, MUMBAI ON 11 - 12 - 2009 OF HAVING ISSUED CHEQUES/DDS FOR ACCOMMODATION ENTRIES TO VARIOUS BENEFICIARIES AGAINST THE RECEIPT OF CASH AND THIRD PARTY CHEQUES FOR GIVING CHEQUES FOR ACCOMMODATION ENTRIES TO THE BENEFICIARIES. IT WAS THE FINDING OF THE INVESTIGATION WING THAT SHRI MUKESH MANEKLAL CHOKSI WITH THE TOOLS OF HIS BROKING CONCERNS VIZ M/S. MAHASAGAR SECURITIE S PVT. LTD. AND ITS RELATED GROUP OF 34 ODD COMPANIES WAS INVOLVED IN FRAUDULENT BILLING ACTIVITIES AND IN THE BUSINESS OF PROVIDING BOGUS SPECULATION PROFIT/LOSS, SHORT TERM/LONG TERM CAPITAL GAINS/LOSS, COMMODITIES PROFIT/LOSS ON COMMODITY TRADING THROUG H MCX AND HAS BEEN CONTINUING THIS BUSINESS FOR MANY YEARS. SHRI MUKESH MANEKLAL CHOKSI HAD ADMITTED BEFORE THE DDIT (INV.) UNIT - 1, MUMBAI THAT ONE OF THE BENEFICIARIES FOR ACCOMMODATION ENTRIES IS MRS. HEMA MAHESH HARIA. THE APPELLANT I.E. MRS. H EMA MAHES H HARIA HAS EARNED LTCG BY INDULGING IN TRADING OF SHARES OF BUNIYAD CHEMICAL AND TALENT INFOWAYS. THE SHARES HAVE NOT BEEN HELD IN THE DEMAT ACCOUNT FOR A PERIOD OF 12 MONTHS OR MORE. THE TRANSACTION OF PURCHASE OF THESE SHARES HAVE NOT BEEN DONE THROUGH STOCK EXCHANGE. SHRI MUKESH CHOKSI, THE DIRECTOR OF MAHASAGAR SECURITIES PVT. LTD HAS CATEGORICALLY ADMITTED THAT M/S. MAHASAGAR SECURITIES PVT. LTD WAS ENGAGED IN THE BUSINESS OF PROVIDING ACCOMMODATION ENTRIES IN THE NATURE OF BOGUS LTCG. THE ITAT VIDE I TS ORDER DATED 29 - 08 - 2008 IN ITS NO.462/MUM/2005 FOR THE A.Y. 2002 - 03 IN THE CASE OF M/S.MAHASAGAR SECURITIES PVT. LTD. HAS ACCEPTED THIS CLAIM 'AND DECLARED THE COMPANY AS AN ENTRY PROVIDER AND ORDERED THAT ITS INCOME SHOULD BE COMPUTED @ 0.15% OF TOTAL E NTRIES PROVIDED BY THIS COMPANY. FURTHER, AS PER THE INFORMATION MADE AVAILABLE BY THE INVESTIGATION WING, THE APPELLANT HAS INDULGED HERSELF IN 7 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 BOGUS SHARE TRANSACTIONS OF BUNIYAD CHEMICALS AND TALENT .I NFOWAYS LTD. AND THAT TOO IN A SPAN EIGHT TO TEN DAY S. IN VIEW OF THE ABOVE, THE A.O. TREATED THE LTCG EARNED FROM SHARE TRANSACTIONS OF BUNIYAD CHEMICALS AND TALENT INFOWAYS LTD. TO THE TUNE OF RS. 19,66,139/ - AS BOGUS TRANSACTIONS AND ACCORDINGLY TREATED THE SUM OF RS. 20,29,235/ - AS UNEXPLAINED INVESTMEN T OF THE APPELLANT WITHIN THE MEANING OF SECTION 68 OF THE I.T. ACT AND ADDED THE SAME TO THE TOTAL INCOME OF THE APPELLANT. THE A.O. ALSO MENTIONED IN THE ASSESSMENT ORDER THAT THE PROVISION OF SECTION 292(C) OF THE I.T. ACT INSERTED TO THE ACT WITH RETRO SPECTIVE EFFECT FROM 01 - 04 - 1970 CASTS ONUS UPON ASSESSEE TO EXPLAIN ALL THE MATERIAL GATHERED AND SEIZED IN COURSE OF SEARCH ACTION U/S. 132 OR SURVEY U/S. 133A OF THE I.T. ACT. 5.11 IN VIEW OF THE ABOVE DISCUSSION, I FIND THAT THE A.O. IS QUITE JUSTIFIED IN HOLDING THAT THE APPELLANT HAS ENTERED INTO BOGUS TRANSACTIONS OF PURCHASE AND SALE OF SHARES AND THEREFORE, HAS RIGHTLY MADE ADDITION OF RS. 20,29,235/ - BEING UNEXPLAINED INVESTMENT U/S. 68 OF THE I.T. ACT. THE ADDITION SO MADE BY THE A.O. IS ACCORDING LY CONFIRMED. THE GROUNDS OF APPEAL ARE DISMISSED. 8. WE NOTICE THAT THE LD. CIT (A) HAS CONFIRMED THE ADDITION MADE BY THE AO ON THE BASIS OF EVIDENCE ON RECORD WHICH INCLUDES THE STATEMENT OF SH. MUKESH M CHOKSI MADE BEFORE THE DDIT (INV.) UNIT THAT TH E ASSESSEE IS ONE OF THE BENEFICIARIES OF ACCOMMODATION ENTRIES PROVIDED BY ITS GROUP COMPANIES. THE LD. CIT (A) HAS FURTHER POINTED OUT THAT THE SHARES IN QUESTION WERE NOT HELD IN THE DMAT ACCOUNT FOR A PERIOD OF 12 MONTHS OR MORE AND THE TRANSACTION OF PURCHASE WERE NOT DONE THROUGH STOCK EXCHANGE. THE LD. CIT (A) HAS FURTHER POINTED OUT THAT THE ITAT, MUMBAI IN ITS ORDER DATED 29.08.2008 IN ITA NO. 462/MUM/2005 FOR THE AY 2002 - 03 IN THE CASE OF M/S MAHASAGAR SECURITIES LTD. HAS DECLARED THE COMPANY AS A N ENTRY PROVIDER AND ORDERED TO COMPUTE ITS INCOME @ 0.15% OF TOTAL ENTRIES PROVIDED BY THE COMPANY. 8 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 IN OUR CONSIDERED VIEW, THE FINDINGS OF THE LD . CIT (A) ARE BASED ON THE EVIDENCE ON RECORD AND IN ACCORDANCE WITH THE ESTABLISHED PRINCIPLES OF LAW. H ENC E, WE DO NOT FIND ANY REASON TO INTERFERE WITH THE SAME. ACCORDINGLY, WE DISMISS ALL THE GROUNDS OF THE APPEAL OF THE ASSESSEE AND UPHOLD THE ORDER PASSED BY THE LD. CIT (A). ITA NO. 7474 /MUM/2012 (ASSESSMENT YEAR: 2005 - 2006) THE FACTS AND THE ISSUES I NVOLVED IN THE PRESENT CASE ARE SIMILAR TO THE FACTS AND THE ISSUES INVOLVED IN THE RELATED CASE ITA NO. 7473/MUM/2012 AFORESAID EXCEPT THE AMOUNT OF DISALLOWANCE MADE U/S 68 OF THE ACT. HENCE, WE DO NOT CONSIDER IT NECESSARY TO REPRODUCE THE SAME IN THIS CASE . IN THE PRESENT CASE, THE AO MADE ADDITION OF RS. 20,04,321/ - TOWARDS UNEXPLAINED INVESTMENT U/S 68 OF THE ACT. IN THE FIRST APPEAL, THE LD. CIT (A) CONFIRMED THE ORDER PASSED BY THE AO 2. AGGRIEVED BY THE ORDER OF LD. CIT (APPEAL S ), THE ASSESSEE HAS PREFERRED THIS APPEAL BEFORE THE TRIBUNAL ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION IN COMPLETING ASSESSMENT U1S.143(3) WITHOUT ISSUE OF NOTICE UL S.143(2). 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION IN REOPENING THE ASSESSMENT U/S. 147 WITHOUT FURNISHING TO THE APPELLANT. THE COPY OF SANCTION CLAIMED TO HAVE BEEN OBTAINED FROM THE JOINT COMMISSIONER OF INCOME TAX AS REQUIRED BY SECTION 151(2). 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION COMPLETING ASSESSMENT U/S.143(3) R.W.S. 147 WITHOUT FURNISHING TO THE AP PELLANT, THE COPY OF REASONS RECORDED U/S. 148. 9 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S CONTENTION THAT TO CLAIM EXEMPTION U/S. 10(38) WHILE TRANSFERRING SHARES, THE SHARES SHOULD BE HELD IN DEMAT A/C FOR A PERIOD OF 12 MONTHS OR MORE. 5. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING THE AO'S CONTENTION THAT THE TRANSACTION OF PURCHASE OF SHARES IS ILLEGAL AND VOID U/S. 13 OF THE SECUR ITIES CONTRACT ACT, IN SPITE OF THE PROOF OF PAYMENT AND DELIVERY OF SHARES. 6. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING THE AO'S ACTION OF COMPLETING ASSESSMENT MERELY RELYING ON THE STATEMENT OF THIRD PARTY, WITHOUT GIVING THE COPY OF STATEMENT AND THE OPPORTUNITY TO CROSS EXAMINE THE THIRD PARTY TO THE APPELLANT, THEREBY VIOLATING THE PRINCIPLES OF NATURAL JUSTICE. 7. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION OF DENYING EXEMPTION U/S. 10(38) IN RESPECT OF LONG TERM CAPITAL GAIN OF RS.20, 04 , 321 / - AND TREATING THE SAME AS TAN EXPLAINED INVESTMENT U/S.68. 8. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CI T (A) HAS ERRED IN CONFIRMING ADD ITION MADE BY THE AO OF RS.20,04,321 / - TOWARDS ALLEGED UNEXPLAINED INVESTMENT U/S.68. 9. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ID. CIT (A) HAS ERRED IN UPHOLDING AO'S ACTION OF CASTING ONUS ON AP PELLANT U/S. 292C, WITHOUT THERE BEING ANY SEARCH U/S. 132 OR REQUISITION U/S. 132A IN THE APPELLANT'S CASE. 10. THE ABOVE GROUNDS OF APPEAL ARE WITHOUT PREJUDICE TO AND ARE INDEPENDENT OF EACH OTHER. 3. SINCE, THE ISSUES INVOLVED IN THE PRESENT CASE AR E IDENTICAL TO THE ISSUES INVOLVED IN THE RELATED APPEAL ITA NO. 7473/MUM/2012 AFORESAID AND SINCE THE LD. CIT (A) HAS CONFIRMED THE ORDER PASSED BY THE AO ON THE SAME GROUNDS, 10 ITA NO S . 7473 & 7474 / MUM/2012 ASSESSMEN T YEAR: 2005 - 06 CONSISTENT WITH OUR FINDINGS IN THE AFORESAID CASE, WE DISMISS ALL THE GROUNDS OF APPEAL OF THE ASSESSEE IN THE PRESENT CASE FOR THE SAME REASONS. IN THE RESULT, BOTH APPEAL S FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2005 - 06 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 7 TH JUNE , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 07 / 0 6 / 201 9 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITA T, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI