UTTAMCHAND BIRAWAT, MUMBAI V. ACIT CEN CIR 14, MUMBAI

ITA 983/MUM/2010

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88368 (ITAT-MUMBAI)
• Duration Of Justice: 5 year(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 05-03-2012
• Assessment Year: 2004-2005
• Appeal Filed On: 08-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWAMY
• Assessee Lawyers: HITAL PANCHAL; RAJIV KHANDELWAL NAGIN PAREKH
• Keywords: Bogus purchase; Transfer pricing; Search and seizure; Share purchase agreement; Penny stocks
• Section: 153A; 131; 68; 132; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE S/SHRI JOGINDER SINGH (JM) AND B.R.BASKARA N (AM) , , . . , ./I.T.A. NO. 989, 990 AND 982/MUM/2010 ( / ASSESSMENT YEARS : 2004-05 TO 2006-07) SHRI VASANTRAJ BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AACPB5785B ./I.T.A. NO. 983, 984 AND 985/MUM/2010 ( / ASSESSMENT YEARS : 2004-05 TO 2006-07) SHRI UTTAMCHAND BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAHPB9195Q ./I.T.A. NO. 986, 987 AND 988/MUM/2010 ( / ASSESSMENT YEARS : 2004-05 TO 2006-07) SHRI KIRANRAJ BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ITA. NO.986/M/2010 AND OTHER CASES 2 ./ ! ./PAN/GIR NO. :AACPB9890K ./I.T.A. NO. 966 AND 967/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 AND 2006-07) SHRI ANISH BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AHXPB3008R ./I.T.A. NO. 978 AND 979/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 & 2006-07) SHRI ANKIT BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. : AHXPB3007A ./I.T.A. NO. 972 AND 973/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 & 2006-07) SMT. CHANCHALBEN BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAMPB2975P ITA. NO.986/M/2010 AND OTHER CASES 3 ./I.T.A. NO. 974 AND 975/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 AND 2006-07) SMT.KALABEN BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :ADSPB9905A ./I.T.A. NO. 968 AND 969/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 & 2006-07) SHRI AVANI BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AHJPB5561H ./I.T.A. NO. 970 AND 971/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 AND 2006-07) SMT.SHWETA ANISH BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AVBPS7750A ITA. NO.986/M/2010 AND OTHER CASES 4 ./I.T.A. NO. 980 AND 981/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 AND 2006-07) SMT.VEENABEN BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :ADSPB9905A ./I.T.A. NO. 7399 AND 7411/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 AND 2006-07) SHRI UTTAMCHAND BIRAWAT HUF, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAAFK4838L ./I.T.A. NO. 6946 & 6947/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 & 2006-07) SHRI KIRANRAJ BIRAWAT, HUF 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAAHB4420M ITA. NO.986/M/2010 AND OTHER CASES 5 ./I.T.A. NO. 7400 & 7401/MUM/2010 ( / ASSESSMENT YEARS : 2005-06 & 2006-07) SHRI VASANTRAJ BIRAWAT, HUF 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AAAHB4200M ./I.T.A. NO.976/MUM/2010 ( / ASSESSMENT YEAR : 2005-06) SMT.SWETA KIRANRAJ BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AHHPB8970C ./I.T.A. NO.977/MUM/2010 ( / ASSESSMENT YEAR : 2006-07) SMT.AKSHATA BIRAWAT, 105/106, 305/306- B BLOCK DEEPAK JYOTI TOWER, G D AMBEDKAR MARG, KALACHOWKI, MUMBAI-400033 / VS. ASSTT.COMMISSIONER OF INCOME TAX CENTRAL CIRCLE -14, OLD CGO BUILDING, M K ROAD, MUMBAI-400020 ( / APPELLANT) .. ( / RESPONDENT) ./ ! ./PAN/GIR NO. :AIYPB322E ITA. NO.986/M/2010 AND OTHER CASES 6 ' / APPELLANT BY S/SHRI RAJIV KHANDELWAL, NAGIN PAREKH AND MS. HITAL PANCHAL # ' / RESPONDENT BY SHRI MANJUNATHA SWAMY $ % # &' / DATE OF HEARING : 14.1.2015 ()* # &' /DATE OF PRONOUNCEMENT : 20.2.2015 / O R D E R PER BENCH: ALL THESE ASSESSEES HAVE FILED THESE APPEALS CHALLE NGING THE ORDERS PASSED BY LD CIT(A) IN THEIR RESPECTIVE HANDS FOR T HE ASSESSMENT YEARS MENTIONED IN THE CAUSE TITLE AGAINST THEIR RESPECTI VE NAMES. SINCE THE ISSUES URGED IN THESE APPEALS ARE IDENTICAL IN NATU RE AND FURTHER SINCE ALL THE ASSESSEES BELONG TO SAME FAMILY, ALL THESE APPE ALS WERE HEARD TOGETHER AND THEY ARE BEING DISPOSED OF BY THIS COM MON ORDER, FOR THE SAKE OF CONVENIENCE. 2. ALL THESE ASSESSEES ARE AGGRIEVED BY THE DECIS ION OF LD CIT(A) IN CONFIRMING THE ASSESSMENT OF SALE PROCEEDS OF SHARE S DECLARED BY EACH OF THEM AS INCOME FROM OTHER SOURCES BY REJECTING THE CLAIM OF LONG TERM CAPITAL GAINS. 3. THE FACTS RELATING TO THE CASES ARE STATED IN B RIEF. ALL THESE ASSESSEES BELONG TO BIRAWAT GROUP AND ALL OF THEM ARE FAMILY MEMBERS. THE REVENUE CARRIED OUT SEARCH AND SEIZURE OPERATIO NS ARE THE RESIDENTIAL PREMISES OF BIRAWAT GROUP U/S 132 OF THE ACT. CONS EQUENT THERETO, THE PRESENT ASSESSMENTS WERE COMPLETED BY THE AO U/S 15 3A OF THE ACT IN THE HANDS OF THE ASSESSEES CITED ABOVE EXCEPT IN THE CA SES OF SHWETA K BIRAWAT AND AKSHATA BIRAWAT, IN WHOSE HANDS THE ASSESSMENTS WERE COMPLETED U/S 153C OF THE ACT. IT IS PERTINENT TO NOTE THAT THE DEPARTMENT DID NOT UNEARTH ANY INCRIMINATING MATERIAL DURING T HE COURSE OF SEARCH. ALL ITA. NO.986/M/2010 AND OTHER CASES 7 THESE ASSESSEES FILED RETURNS OF INCOME, WHEREIN TH EY, INTER ALIA, DECLARED INCOME ARISING ON SALE OF SHARES UNDER THE HEAD CA PITAL GAINS. 4. THE AO NOTICED THAT THE INVESTIGATION WING OF T HE DEPARTMENT HAVE FOUND THAT A PERSON NAMED SHRI NARENDRA R SHAH WAS USING THE NAMES OF TWO ENTITIES VIZ., M/S G.R PANDYA SHARE BROKING LTD AND M/S T.H. VAKIL SHARES & SECURITIES PVT LTD, TO ISSUE BOGUS PURCHAS E BILLS RELATING TO THE SHARES OF COMPANIES NAMED M/S INTERLINK FINANCIAL SERVICES LTD AND M/S DATA FINANCE LTD . THE INVESTIGATION WING ALSO RECORDED A STATEMENT OF SHRI NARENDRA R SHAH ON 09-10-2006, WHEREIN HE CONF IRMED THE ABOVE SAID FACT. HE ALSO STATED THAT HE HAD ISSUED BOGUS PURCHASE BILLS ON THE INSTRUCTIONS OF SHRI PARAS CHPLOT AND SHRI SHIRISH SHAH, BOTH WERE CALLED OPERATORS. 5. THE AO NOTICED THAT THE ASSESSEES HEREIN HAV E ALSO PURCHASED SHARES OF M/S INTERLINK FINANCIAL SERVICES LTD. THEY HAD RECEIVED THE SHARES IN THEIR RESPECTIVE DEMAT ACCOUNTS FROM OTHER DEMAT AC COUNTS, MOST OF THE TIMES BY TRANSFER FROM DEMAT ACCOUNTS BELONGING TO M/S T.H. VAKIL SHARES & SECURITIES PVT LTD AND M/S AMIZARA SECURITIES & F INANCE P. LTD. ALL THESE ASSESSEES HAD CLAIMED TO HAVE PURCHASED THE SHARES IN PHYSICAL FORM FROM M/S AMIZARA SECURITIES & FINANCE P LTD (A SUB-BROKE R). IT WAS CLAIMED THAT THE PHYSICAL SHARE CERTIFICATES WERE HELD BY T HE ABOVE SAID BROKER ON BEHALF OF THE ASSESSEES, SINCE AT THAT POINT OF TIM E THESE ASSESSEES DID NOT HAVE ANY DEMAT ACCOUNTS. SUBSEQUENTLY, AFTER OPENI NG THE DEMAT ACCOUNTS IN THE NAME OF THE ASSESSEES, THE SHARES W ERE TRANSFERRED FROM THE DEMAT ACCOUNT OF THE ABOVE SAID SUB-BROKER. 6. IN THE SWORN STATEMENT, SHRI NARENDRA R SHAH HAD STATED THAT THE DEMAT ACCOUNT BELONGING TO M/S T.H. VAKIL SHARES & SECURITIES P LTD WAS OPENED ON 22.12.2004 ONLY. HE ALSO STATED THAT HE HAD NOT PURCHASED ANY SHARES OF M/S INTERLINK FINANCIAL SERVICES LTD ON B EHALF OF SUB-BROKER M/S ITA. NO.986/M/2010 AND OTHER CASES 8 AMIZARA SECURITIES AND FINANCE P LTD OR ON BEHALF OF BIRAWAT GROUP PRIOR TO THE ABOVE SAID DATE. HE FURTHER STATED THAT PUR CHASE BILLS WERE ISSUED TO THE PERSONS WHO WANTED TO GENERATE ARTIFICIAL CA PITAL GAINS. HE ALSO CONFIRMED THAT THE BILLS WERE ISSUED WITHOUT EXECUT ING ANY ACTUAL SALE AND PURCHASE OF THE SHARES. HENCE THE AO TOOK THE VIEW THAT THE SHARES OF INTERLINK FINANCIAL SERVICES LTD WERE NOT ACTUALLY PURCHASED BY THESE ASSESSEES, BUT THEY HAVE OBTAINED ONLY ACCOMMODATIO N BILLS. 7. THESE ASSESSEES HAD ALSO PURCHASED AND SOLD SHA RES OF M/S SURYADEEP SALT REFINERY & CHEMICALS WORKS LTD. TH E AO MADE ENQUIRIES WITH THE ABOVE SAID COMPANY. THE DIRECTOR OF THE A BOVE SAID COMPANY, VIDE HIS LETTER DATED 20.11.2008, SUBMITTED THAT TH E NAMES OF THESE ASSESSEES DO NOT FIND PLACE IN THEIR RECORDS AND FU RTHER HIS COMPANY HAS NOT RECEIVED ANY REQUEST FROM THEM FOR TRANSFER OF SHARES TO THEIR NAMES. THE SHARES OF M/S SURYADEEP SALT REFINERY & CHEMIC ALS WORKS LTD WERE ALSO SEEN PURCHASED THROUGH THE SUB-BROKER, I.E., M /S AMIZARA SECURITIES & FINANCE P LTD. 8. HENCE, THE AO ASKED THESE ASSESSEES TO PRODUCE ANYBODY FROM M/S AMIZARA SECURITIES & FINANCE P LTD. BUT, ACCORDING TO THE AO, THESE ASSESSEES DID NOT PRODUCE THE SUB-BROKER. 9. WITH THE FACTS MENTIONED ABOVE, THE AO CAME TO THE FOLLOWING CONCLUSIONS:- 11. THE PICTURE THAT EMERGES IS THAT M/S T.H. VAK IL SHARES & SECURITIES PVT LTD HAVE CONFIRMED THAT THEY NEVER A CTUALLY BOUGHT ANY SHARES ON BEHALF OF THE ASSESSEES OF THIS GROUP AND THE SO CALLED PURCHASE BILLS ATTRIBUTABLE TO THEM ARE BOGU S, AS THESE BILLS WERE MERE ACCOMMODATION BILLS, NOT BACKED BY ANY RE AL TRANSACTIONS. M/S SURYADEEP SALT REFINERY & CHEMIC ALS WORKS LTD HAVE CONFIRMED THAT NONE OF THE ASSESSEES IN THIS GROUP EVER HELD ANY SHARES IN THE COMPANY M/S SURYADEEP SALT REFINE RY & CHEMICALS WORKS LTD. THE PERSONS FROM M/S AMIZARA SECURITIES & FINANCE P LTD WERE NEVER PRODUCED. THUS, THE PURCHASES OF AF ORESAID SHARES BEING BOGUS WERE CONFIRMED. WHEN PURCHASES THEMSELV ES ARE ITA. NO.986/M/2010 AND OTHER CASES 9 BOGUS, THE LOGICAL INFERENCE IS THAT THE WHOLE TRAN SACTION INVOLVING SUPPOSED EARNING OF LONG TERM CAPITAL GAINS/ SHORT TERM CAPITAL GAINS WAS BOGUS AND ENGINEERED. IT IS ALSO LOGICAL TO IN FER THAT THE ASSESSEE WOULD HAVE PAID CERTAIN REMUNERATION OR FE E OR COMMISSION OR ANY SUCH AMOUNT FOR OBTAINING THESE B OGUS GAINS. AS PER INFORMATION IN POSSESSION OF THE DEPARTMENT, A SUM OF 5% OF THE TOTAL PROCEEDS WOULD HAVE BEEN PAID. 10. THE AO ALSO NOTICED THAT THE SHARES OF THE AB OVE SAID TWO COMPANIES AND ALSO THAT OF OTHER COMPANIES WERE FOU ND CREDITED TO THE DEMAT ACCOUNT OF THE ASSESSEES ONLY FEW DAYS PRIOR TO THEIR RESPECTIVE SALES. HOWEVER, THEY HAD CLAIMED TO HAVE PURCHASED SHARES MUCH EARLIER AND THUS CLAIMED LONG TERM CAPITAL GAINS ON THEIR S ALES. THESE ASSESSEES PRODUCED ALL THE RELEVANT DOCUMENTS TO PROVE THE CL AIM OF PURCHASES BEFORE THE ASSESSING OFFICER. HOWEVER, THE AO DISB ELIEVED ALL THOSE DOCUMENTS. THESE ASSESSEES ALSO SOUGHT AN OPPORTUN ITY TO CROSS VERIFY SHRI NARENDRA R SHAH, ON WHOSE STATEMENT THE AO HAD PLACED MUCH RELIANCE. WITH REGARD TO M/S AMIZARA SECURITIES & FINANCE P LTD (SUB- BROKER), THESE ASSESSEES FURNISHED LAST KNOWN ADDRE SS OF THE SUB-BROKER AS 170/172, KALBA DEVI, 3 RD FLOOR, KALBADEVI ROAD, MUMBAI-400 002 AND ALSO STATED THAT THE SUB-BROKER HAS VACATED FROM TH E ABOVE SAID ADDRESS. ACCORDINGLY, THESE ASSESSEES FURNISHED THE REASON F OR NOT PRODUCING M/S AMIZARA SECURITIES & FINANCE P LTD (AFSL). IT WAS ALSO POINTED OUT TO THE AO THAT THE SEARCH DID NOT REVEAL ANY INCRIMINATING DOCUMENTS AND FURTHER NONE OF THE MEMBERS HAVE STATED THAT THESE SHARE TR ANSACTIONS ARE BOGUS IN THEIR RESPECTIVE STATEMENTS TAKEN FROM EACH OF T HEM SEPARATELY. THEY FURTHER STATED THAT THEY DO NOT HAVE ANY CONNECTION WITH M/S T.H. VAKIL SHARES & SECURITIES PVT LTD OR WITH SHRI NARENDRA R SHAH. ACCORDINGLY THEY PLEADED BEFORE THE AO THAT THE CAPITAL GAINS D ECLARED BY THEM ARE GENUINE TRANSACTIONS. ITA. NO.986/M/2010 AND OTHER CASES 10 11. THE AO WAS NOT CONVINCED WITH THE SUBMISSIONS MADE BY THESE ASSESSEES. ACCORDINGLY, THE ASSESSING OFFICER CAME TO THE FOLLOWING CONCLUSIONS:- I. THE TRANSACTIONS RELATED TO SHARES ARE BOGUS AND TO CONVERT THE BLACK MONEY IN THE BOOKS BY SHOWING THE CAPITAL GAI NS. II. NEITHER THESE SHARES WERE HELD BY THE ASSESSE E NOR ON THEIR BEHALF BY M/S ASFL AND M/S T.H. VAKIL SHARES & SECU RITIES PVT LTD AS CLAIMED. III. MOST IMPORTANTLY, THE ACCOUNTS OF M/S ASFL A ND M/S T.H. VAKIL SHARES & SECURITIES PVT LTD FROM WHERE THESE SHARES WERE TRANSFERRED INTO DEMAT ACCOUNT OF THE ASSESSEES OF BIRAWAT GROUP WERE OPENED ON 06.03.2004 AND 22.12.2004 AS CONFIRM ED BY THE CENTRAL DEPOSITORY SERVICES INDIA LTD, VIDE THEIR L ETTER DATED 26.11.2008. THE ASSESSEES OF BIRAWAT GROUP HAS CLA IMED THAT BROKER M/S AFSL OR M/S T.H. VAKIL HAS PURCHASED SHA RES FOR THEM AND KEPT THE SAME IN THEIR OWN DEMAT ACCOUNT UPON P URCHASE. THIS HAS BEEN PROVED INCORRECT. IV. REGARDING PURCHASE OF SHARES OF INTERLINK FI NANCIAL SERVICES LTD IN PHYSICAL FORM AS CLAIMED BY ASSESSEES OF BIRAWAT GROUP NOTHING COULD BE PRODUCED TO SUBSTANTIATE THEIR CLAIM THAT THESE WERE PURCHASED AND KEPT BY THEM FOR MORE THAN TWELVE MON THS. NOTHING HAS BEEN BROUGHT ON RECORD TO PROVE THE GENUINENESS OF SHARE TRANSACTIONS OF THIS COMPANY (INTERLINK FINANCIAL S ERVICES LTD). FURTHER THEY ALSO FAILED TO PRODUCE ANY PERSON FROM M/S AFSL. THEREFORE THE ENTIRE SALE PROCEEDS CLAIMED TO HAVE BEEN RECEIVED ON SALE OF SHARES OF IFSL SHALL BE TAXED AS INCOME FRO M OTHER SOURCES IN THE HANDS OF ASSESSEES OF BIRAWAT GROUP IN THE RESP ECTIVE ASSESSMENT YEARS. ACCORDINGLY, THE AO ASSESSED THE ENTIRE AMOUNT OF S ALE PROCEEDS OF SHARES AS INCOME OF THE ASSESSEES UNDER THE HEAD INCOME FR OM OTHER SOURCES. IT IS PERTINENT TO NOTE THAT THESE ASSESSEES HAVE ALSO PURCHASED AND SOLD SHARES OF OTHER REPUTED COMPANIES LIKE ARAVIND MILL S, MAHINDRA & MAHINDRA, ORIENTAL BANK, TELCO ETC. HOWEVER, THE A O ASSESSED THE SALE PROCEEDS RELATING TO THEM ALSO AS INCOME FROM OTHER SOURCES, SINCE HE ITA. NO.986/M/2010 AND OTHER CASES 11 HELD THAT THE SUB-BROKER AFSL HAD ISSUED BOGUS BILL S. FURTHER, THE AO RECOGNIZED THE DATE OF PURCHASE OF SHARES AS THE DA TE ON WHICH THEY WERE CREDITED IN THE DEMAT ACCOUNTS AND ACCORDINGLY EXPR ESSED THE VIEW THAT THESE ASSESSEES HAVE NOT HELD OR POSSESSED SHARES FOR A PERIOD EXCEEDING ONE YEAR IN ORDER TO CLAIM THE GAINS AS L ONG TERM CAPITAL GAINS. 12 THE AO FURTHER HELD THAT THESE ASSESSEES WOULD H AVE SPENT 5% OF THE GROSS AMOUNT FOR OBTAINING ACCOMMODATION BILLS FOR PURCHASE AND SALE OF SHARES. ACCORDINGLY HE ASSESSED 5% OF THE GROSS SALE RECEIPTS AS UNEXPLAINED MONEY IN POSSESSION OF THE ASSESSEE. 13. THESE ASSESSEES CARRIED THE MATTERS BY FILING APPEALS BEFORE LD CIT(A). THE FIRST APPELLATE AUTHORITY DISCUSSED IN DETAIL ON THE MODUS OPERANDI ADOPTED FOR ENGINEERING BOGUS CAPITAL GAIN S USING PENNY STOCKS AND ALSO DISCUSSED ABOUT THE ORDER PASSED BY SEBI. ACCORDINGLY HE UPHELD THE DECISION OF THE AO IN ASSESSING THE GROS S RECEIPTS AS INCOME OF THESE ASSESSEES UNDER THE HEAD INCOME FROM OTHER SO URCES. HE ALSO UPHELD THE ASSESSMENT OF 5% OF GROSS RECEIPTS ALSO AS INCOME OF THESE ASSESSEES. AGGRIEVED, ALL THESE ASSESSEES HAVE FIL ED THESE APPEALS BEFORE US. IT IS PERTINENT TO NOTE THAT THESE ASSESSEES H AD ALSO RAISED CERTAIN LEGAL GROUNDS BEFORE LD CIT(A), BUT THEY DID NOT FI ND FAVOUR WITH HIM. 14. WE SHALL FIRST CONSIDER THE ARGUMENTS ADVANCE D BY BOTH THE PARTIES ON MERITS. THE CONTENTIONS OF LD A.R WERE SUMMARIZ ED AS UNDER:- (A) THE REVENUE DID NOT UNEARTH ANY INCRIMINATING MATERIAL DURING THE COURSE OF SEARCH WHICH INDICATED THAT THE LONG TERM CAPITAL GAINS DISCLOSED BY THESE ASSESSEES ARE BOGUS IN NAT URE. (B) ALL THE ASSESSEES WERE EXAMINED INDEPENDENTLY AND NONE OF THEM DISCLOSED ANYTHING ABOUT THE BOGUS NATURE OF T RANSACTIONS. (C) THE ASSESSING OFFICER HAS PRIMARILY RELIED UP ON THE STATEMENT TAKEN FROM SHRI NARENDRA R SHA ON 09-10-2006, I.E., MUCH PRIOR TO THE DATE OF SEARCH THAT TOOK PLACE ON 10-01-2007. T HE ASSESSEES ITA. NO.986/M/2010 AND OTHER CASES 12 HAVE REQUESTED FOR AN OPPORTUNITY TO CROSS EXAMINE SHRI NARENDRA R SHAH. HOWEVER NO SUCH OPPORTUNITY WAS GIVEN TO THE SE ASSESSEES BY THE ASSESSING OFFICER AND HENCE HE IS NOT ENTITL ED TO RELY UPON THE STATEMENT GIVEN BY SHRI NARENDRA R SHAH. (D) THESE ASSESSEES, IN FACT, DID NOT INDULGE IN A NY TYPE OF TRANSACTION WITH SHRI NARENDRA R SHAH. THESE ASSE SSEES HAVE PURCHASED SHARES FROM THE SUB-BROKER NAMED M/S AFSL AND THEY HAVE SOLD THE SHARES THROUGH OTHER BROKERS NAMED M/ S YOGESH /M/S NICHE. BOTH THE BROKERS ARE NOT CONNECTED TO EACH OTHER. FURTHER M/S AFSL WAS NOT CONNECTED TO SHRI NARENDRA R SHAH. (E) EVEN IN THE STATEMENT TAKEN FROM NARENDRA R S HAH, HE HAS ONLY STATED THAT HE DID NOT CARRY ANY TRANSACTION W ITH BIRAWAT GROUP. HE HAS ONLY STATED THAT HE HAD GIVEN BOGUS BILLS FO R TRADING IN SHARES OF INTERLINK FINANCIAL SERVICES LTD AND DATA BASE FINANCE LTD. FURTHER, HE HAS STATED THAT THE BILLS WERE ISSUED T HROUGH M/S G.R. PANDIA AND M/S T.H. VAKIL. HOWEVER, THESE ASSESSEE S HAVE PURCHASED SHARES OF INTERLINK FINANCIAL SERVICES LT D ONLY FROM M/S AFSL AND NOT FROM SHRI NARENDRA R SHAH OR HIS GROUP OF COMPANIES. HENCE HIS STATEMENT COULD NOT BE RELIED UPON TO TAK E ADVERSE INFERENCE AGAINST THE ASSESSEES. (F) SHRI NARENDRA R SHAH HAD STATED THAT HE HAS G IVEN BOGUS BILLS ON THE INSTRUCTIONS OF TWO OPERATORS NAMED SHRI PAR AS CHALOT AND SHRI SHIRISH SHAH. HOWEVER, THE AO DID NOT MAKE AN Y TYPE OF ENQUIRY WITH THE ABOVE SAID TWO OPERATORS TO FIND O UT THE VERACITY OF SHRI NARENDRA R SHAH, I.E., THE AO HAS ACCEPTED THE SAME ON THE FACE OF IT. (G) SHRI NARENDRA R SHAH DID NOT STATE ANYTHING ABOUT THE COLLUSION BETWEEN HIM/GROUP WITH M/S AFSL, THROUGH WHOM THE ASSESSEE HAD PURCHASED THE SHARES. THE ASSESSEE HA D PURCHASED THE SHARES THROUGH M/S AFSL ONLY AND FURTHER THERE WAS NO RELATIONSHIP BETWEEN THE ASSESSEE AND SHRI NARENDRA R SHAH/HIS GROUP. THIS IS FURTHER VINDICATED BY THE FACT THAT SHRI NARENDRA R SHAH HAS HIMSELF STATED THAT HE HAS NOT PURCHASED S HARES ON BEHALF OF M/S AFSL OR BIRAWAT GROUP. (H) HENCE, THE AO IS TRYING TO LINK THE ASSESSEES WITH THE STATEMENT OF SHRI NARENDRA R SHAH ONLY ON SURMISES AND CONJECTURES. (I) ANOTHER ALLEGATION OF THE AO WAS THAT THE ASS ESSEES DID NOT PRODUCE M/S AFSL BEFORE HIM. HOWEVER, THESE ASSESS EES HAVE ITA. NO.986/M/2010 AND OTHER CASES 13 GIVEN THE LAST KNOWN ADDRESS OF M/S AFSL AND HAVE A LSO FURTHER STATED THAT IT HAS VACATED THE SAID PLACE. SINCE T HE ASSESSEES HAVE GIVEN PROPER REASONS FOR NOT PRODUCING M/S AFSL, TH E AO WAS NOT JUSTIFIED IN DRAWING ADVERSE INFERENCE IN THIS MATT ER. THE LD A.R ALSO PLACED RELIANCE ON THE FOLLOWING CASE LAW TO C ONTEND THAT THE TRANSACTIONS CANNOT BE CONSIDERED TO BE NON-GENUINE , MERELY BECAUSE THE BROKERS DO NOT PRESENT THEMSELVES BEFOR E THE AO. EMERALD COMMERCIAL LTD 250 ITR 539 (CAL) CURRENCY INVESTMENT CO. LTD 241 ITR 494 (CAL) CARBO INDUSTRIAL HOLDINGS LTD 244 ITR 422 (CAL) JANKI TEXTILES & INDUSTRIES LTD 264 ITR 579 (GAU) (J) WITH REGARD TO THE PURCHASE OF SHARES OF M/S SURYADEEP SALT REFINERY & CHEMICALS WORKS LTD, THE LD A.R SUBMITTE D THAT THEY WERE PURCHASED THROUGH THE SUB-BROKER AND FURTHER T HEY HAVE BEEN TRANSFERRED TO THE DEMAT ACCOUNT OF THE ASSESSEES B Y THE SUB- BROKER. LATER ALL THESE SHARES HAVE BEEN SOLD THRO UGH THE DEMAT ACCOUNT ONLY THROUGH SOME OTHER BROKER. HE FURTHER SUBMITTED THAT THE ASSESSEES, AS INVESTORS, ARE NOT CONCERNED ABOU T THE DEMAT ACCOUNT, FROM WHERE THESE SHARES WERE RECEIVED AND IN FACT NONE OF THE INVESTORS IN THE COUNTRY ARE AWARE ABOUT THE SA ME. HE FURTHER SUBMITTED THAT THE SHARES COULD NOT BE SOLD UNLESS THEY HAVE BEEN PURCHASED. ACCORDINGLY HE SUBMITTED THAT THE AO SH OULD NOT HAVE REJECTED THE CLAIM OF PURCHASE OF SHARES OF M/S SUR YADEEP SALT REFINERY & CHEMICALS WORKS LTD MERELY ON THE BASIS OF A LETTER GIVEN BY A DIRECTOR OF THE SAID COMPANY, WHEN OTHER MATER IALS FURNISHED BY THE ASSESSEE CLEARLY SHOW THE GENUINENESS OF THE TRANSACTIONS. IN ANY CASE, THE AO HAS NOT GIVEN AN OPPORTUNITY TO CROSS EXAMINE THE DIRECTOR OF M/S SURYADEEP SALT REFINERY & CHEMI CALS WORKS LTD. (K) THE LD A.R SUBMITTED THAT IN THE FOLLOWING CAS ES, IT HAS BEEN HELD THAT THE PURCHASES ARE TO BE CONSIDERED TO BE GENUINE, IF SALES ARE FOUND TO BE GENUINE. BALAJI TEXTILE INDUSTRIES P LTD 49 ITD 177 (MUM) NANGALIA FABRICS P LTD 220 TAXMANN 17 (GUJ) SURANA TRADERS 92 ITD 212 (MUM) (L) THE ASSESSING OFFICER HAS NOT PROVED THAT THE PURCHASES MADE FROM M/S AFSL AND THE SHARES RECEIVED FROM M/S AFSL WERE BOGUS. ITA. NO.986/M/2010 AND OTHER CASES 14 (M) THE ASSESSEES HAVE RECEIVED PART OF SHARES FRO M THE DEMAT ACCOUNT OF M/S T.H. VAKIL SHARES & SECURITIES P LTD , A CONCERN BELONGING TO SHRI NARENDRA R SHAH. HE SUBMITTED TH AT THE INVESTORS ARE CONCERNED WITH RECEIPT OF SHARES ONLY IN THEIR DEMAT ACCOUNT AND THEY ARE NOT CONCERNED ABOUT THE DEMAT ACCOUNT FROM WHERE THEY WERE RECEIVED. ACCORDINGLY HE SUBMITTED THAT THESE ASSESSEES WERE NOT AWARE ABOUT THE FACT THAT SOME OF THE SHARES WE RE RECEIVED FROM M/S T.H. VAKIL SHARES & SECURITIES P LTD. (N) WITH REGARD TO THE OBSERVATIONS MADE BY THE A O ABOUT THE HOLDING PERIOD, THE LD A.R SUBMITTED THAT THE AO WA S NOT CORRECT IN LAW IN STATING THAT THE PERIOD OF HOLDING SHOULD BE TAKEN FROM THE DATE OF DEMAT CREDIT. THE LD A.R SUBMITTED THAT TH E PERIOD OF HOLDING SHOULD BE CONSIDERED FROM THE DATE OF BROKE R CONTRACT NOTE AS EXPLAINED BY INSTRUCTION NO.704 DATED 26.4.1995 ISSUED BY THE CBDT AND ALSO BY THE TRIBUNAL IN THE CASE OF MAX TE LECOM VENTURES LTD (114 ITD 46)(ASR). (O) THESE ASSESSEES HAVE SOLD SHARES THROUGH M/S Y OGESH SECURITIES, WHO DOES NOT HAVE ANY TYPE OF RELATIONS HIP EITHER WITH SHRI NAREHDRA R SHAH OR M/S AFSL. THE LD A.R SUBMI TTED THAT THERE WILL BE COMPLETE RELATIONSHIP BETWEEN THE PARTIES I N THE CASES OF TAINTED TRANSACTIONS, AS THEY ARE NORMALLY ENTERED WITH COLLUSION BETWEEN THEM. M/S YOGESH SECURITIES WAS A REGISTER ED BROKER WITH BSE. (P) THE AO HAS CONSIDERED THE PURCHASE AND SALE OF SHARES OF BLUE CHIP COMPANIES ALSO AS NON-GENUINE WITHOUT ASSIGNIN G ANY REASON. (Q) THE AO HAS ACCEPTED THE SPECULATION PROFITS D ECLARED BY SOME OF THE ASSESSEES AS GENUINE. HENCE, HE WAS NOT JUS TIFIED IN NOT ACCEPTING THE OTHER TRANSACTIONS IN SHARES. (R) THE AO HAS NOT BROUGHT ON RECORD ANY MATERIAL TO SHOW THAT THE PURCHASE AND SALE TRANSACTIONS WERE NOT AT ARMS LENGTH PRICES. FURTHER, NO EVIDENCE WERE FOUND OR BROUGHT ON RECOR D TO SHOW THAT THESE ASSESSEES WERE HAVING UNACCOUNTED CASH AND TH EY HAVE CONVERTED THE SAME INTO ACCOUNTED MONEY THROUGH THE IMPUGNED TRANSACTIONS. ITA. NO.986/M/2010 AND OTHER CASES 15 (S) THE AO HAS NOT REJECTED THE BOOKS OF ACCOUNT. IN THIS REGARD, THE LD A.R PLACED RELIANCE ON THE DECISIONS OF HON BLE SUPREME COURT REPORTED IN 66 ITR 462; 37 ITR 151 AND 26 ITR 775. (T) THE LD A.R SUBMITTED THAT THE APPARENT SHOULD BE CONSIDERED TO BE REAL UNTIL IT IS SHOWN OTHERWISE (214 ITR 801)(S C); (87 ITR 349)(SC). HE FURTHER SUBMITTED THAT THE TOTALITY OF FACTS SHOULD BE CONSIDERED WHILE COMPLETING THE ASSESSMENT (176 ITR 535)(SC). 15. THE LD D.R FURNISHED HIS CONTENTIONS BY WAY OF WRITTEN SUBMISSIONS. FOR THE SAKE OF CONVENIENCE, WE HAVE EXTRACTED THE RELEVANT POINTS BELOW:- (A) THE ASSESSEES HAVE CLAIMED TO HAVE PURCHASED S HARES FROM M/S ASFL. HOWEVER, THE SHARES WERE TRANSFERRED TO THE DEMAT ACCOUNT OF THE ASSESSEES FROM THE DEMAT ACCOUNTS OF AFSL AN D T.H. VAKIL SHARES & SECURITIES P LTD. (B) SHRI NARENDRA R SHAH HAS ADMITTED TO HAVE ISSU ED BOGUS PURCHASE BILLS OF SHARES TWO COMPANIES (INTERLINK F INANCIAL SERVICES LTD AND DATABASE FINANCE LTD), BY USING THE NAME OF TWO ENTITIES, VIZ., M/S T.H. VAKIL SHARES & SECURITIES AND M/S G. R PANDYA SHARE BROKING LTD. (C) THE ADMISSION OF SHRI NARENDRA R SHAH PROVES T HAT THE ASSESSEES HAVE NOT, IN REALITY, PURCHASED THE SHARE S OF M/S INTERLINK FINANCIAL SERVICES LTD. HE HAS FURTHER ADMITTED THA T HE HAS NOT PURCHASED SHARES ON BEHALF OF BIRAWAT GROUP. (D) THE ASSESSEES HAVE ADMITTED IN THE REPLY TO Q NO.5 THAT THEY HAVE NOT ENTERED THE DETAILS OF PURCHASES IN THE BO OKS. (E) THE ENQUIRIES MADE WITH M/S SURYADEV SALT REFI NERY & CHEMICALS WORKS LTD CLEARLY SHOW THAT THE ASSESSEES HAVE ALSO, IN REALITY, NOT PURCHASED THOSE SHARES ALSO. (F) M/S AFSL WAS NOT PRODUCED BEFORE THE AO AND HENCE THE CLAIM OF PURCHASE OF SHARES THROUGH M/S AFSL WAS ALSO PRO VED TO BE BOGUS. (G) THE CLAIM OF THESE ASSESSEES THAT THEY HAVE HE LD THE SHARES FOR MORE THAN 12 MONTHS WAS PROVED TO BE INCORRECT. TH E CLAIM THAT ITA. NO.986/M/2010 AND OTHER CASES 16 THE BROKERS HELD THE SHARES ON BEHALF OF THESE ASSE SSEES WAS ALSO MATERIALLY INCORRECT. (H) THE ASSESSEES HAVE ADMITTED THAT THE SALE PROC EEDS CAN BE TAKEN AS THEIR INCOME FROM OTHER SOURCES. (I) THE SALE PROCEEDS OF SHARES DECLARED BY THE AS SESSEE COULD BE ASSESSED AS INCOME U/S 68 OF THE ACT AS PER THE FOL LOWING DECISIONS. ARAVIND KARIA (ITA NO. 7024/M/201 0 DATED 30.1.2013) MAJOR METALS LTD VS. UNION OF INDIA (359 ITR 450) (BOM) LUMINANT INVESTMENT PVT LTD (42 TAXMANN 14) (M) THE ASSESSEES DID NOT HAVE DEMAT ACCOUNTS ON T HE DATE OF PURCHASE. (N) THE COMPANY, M/S INTERLINK FINANCIAL SERVICES LTD HAS SPLIT THE SHARES ON 8.7.2005 AND ALSO DECLARED DIVIDEND ON 24 .9.2005. THE ASSESSEES HAVE NOT EXPLAINED WHETHER AND WHEN THE S HARES WERE SENT THE SHARES FOR SPLITTING UP. THEY HAVE ALSO N OT DECLARED DIVIDENDS. (O) AT THE TIME OF DEMATERIALIZATION, THE ASSESSEE S HAVE TO PRODUCE PURCHASE BILLS, PAYMENT DETAILS, SERVICE TAX DETAIL S AND BROKER NOTES. HOWEVER THESE DETAILS WERE NOT FURNISHED BY THE ASS ESSEES. 16. IN THE REJOINDER, THE LD A.R SUBMITTED THAT THESE ASSESSEES HAVE ACCOUNTED FOR THE PURCHASE OF SHARES IN THE BOOKS O F ACCOUNT AND THEY HAVE NEVER ADMITTED THAT THE GAINS ARISING ON SALE OF SHARES MAY BE ASSESSED AS INCOME FROM OTHER SOURCES. HE FURTHER SUBMITTED THAT THE ENTIRE ASSESSMENTS HAVE BEEN FRAMED ON THE BASIS OF STATEMENT GIVEN BY SHRI NARENDRA R SHAH, WHICH WAS NOT CONFRONTED WITH THE ASSESSEES. HE FURTHER SUBMITTED THAT THE STATEMENT WAS TAKEN FROM SHRI NARENDRA R SHAH PRIOR TO THE DATE OF SEARCH. 17. WE HAVE HEARD THE RIVAL CONTENTIONS AND PER USED THE RECORD. THE ADMITTED FACTS ARE THAT THE SEARCH OPERATIONS DID N OT REVEAL ANY INCRIMINATING MATERIAL, MEANING THEREBY, NO EVIDENC E WAS FOUND DURING THE COURSE OF SEARCH IN ORDER TO DOUBT ABOUT THE VE RACITY OF THE LONG TERM ITA. NO.986/M/2010 AND OTHER CASES 17 CAPITAL GAINS DECLARED BY THE ASSESSEES. WE NOTICE THAT THE ASSESSING OFFICER HAS FULLY RELIED UPON THE INFORMATION GIVEN BY THE INVESTIGATION WING OF THE DEPARTMENT WITH REGARD TO THE ALLEGED P ENNY STOCKS AND THEIR PRICE RIGGING. WE HAVE EARLIER NOTICED THAT THE IN VESTIGATION WING HAS FURNISHED THE STATEMENT RECORDED FROM A PERSON NAME D SHRI NARENDRA R SHAH TO THE AO AND IN THAT STATEMENT, HE HAD ADMITT ED TO HAVE ISSUED BOGUS PURCHASE BILLS FOR PURCHASE OF SHARES IN THE COMPANIES OF M/S INTERLINK FINANCIAL SERVICES LTD AND M/S DATA FINAN CE LTD. THE ASSESSEES HEREIN HAD ALSO PURCHASED SHARES OF M/S INTERLINK F INANCIAL SERVICES LTD THROUGH A SUB-BROKER NAMED M/S AFSL. SINCE THE ASS ESSEES HAVE PURCHASED SHARES OF M/S INTERLINK FINANCIAL SERVICE S LTD, THE ASSESSING OFFICER AS WELL AS LD CIT(A) HAVE TAKEN THE VIEW TH E ASSESSEES HAVE ALSO PURCHASED ACCOMMODATION BILLS AND ACCORDINGLY DECLA RED BOGUS LONG TERM CAPITAL GAINS. ACCORDINGLY, THE TAX AUTHORITIES HA VE TAKEN THE VIEW THAT THE ASSESSEES HAVE INTRODUCED THEIR UNACCOUNTED MON EY IN THE FORM OF LONG TERM CAPITAL GAINS. ACCORDINGLY THEY HAVE REJE CTED THE CLAIM OF LONG TERM CAPITAL GAINS AND ASSESSED THE GROSS RECEIPTS AS INCOME FROM OTHER SOURCES. IT IS PERTINENT TO NOTE THAT THE TAX AUTH ORITIES HAVE ALSO ASSESSED THE SALE PROCEEDS ARISING ON SALE OF OTHER COMPANIE S ALSO AS INCOME FROM OTHER SOURCES, EVEN THOUGH THE SHARES OF M/S INTERL INK FINANCIAL SERVICES LTD ALONE WAS FOUND TO FALL IN THE CATEGORY OF PENN Y STOCKS, WHOSE PRICES WERE ALLEGED TO HAVE BEEN RIGGED. 18. NOW THE ISSUE THAT REQUIRES EXAMINATION IS WHETHER THE EVIDENCES / MATERIALS AVAILABLE IN THE CASE OF THESE ASSESSEES WERE SUFFICIENT ENOUGH TO ENTERTAIN THE VIEW SO TAKEN BY THE TAX AUTHORITI ES, I.E., WHETHER THESE ASSESSEES CAN BE CONSIDERED TO HAVE TAKEN THE ACCOM MODATION BILLS WITH THE INTENTION OF GENERATING BOGUS LONG TERM CAPITAL GAINS. ITA. NO.986/M/2010 AND OTHER CASES 18 19. WE HAVE ALREADY NOTICED THAT THE ASSESSING OFF ICER HAS FULLY PLACED RELIANCE ON THE STATEMENT GIVEN BY SHRI NARENDRA R SHAH. ADMITTEDLY THIS STATEMENT WAS TAKEN BY THE INVESTIGATION WING ON 09 -10-2006, I.E., MUCH PRIOR TO THE DATE OF SEARCH CONDUCTED ON 10-01-2007 IN THE HANDS OF THESE ASSESSEES. THOUGH SHRI NARENDRA R SHAH HAS ADMITTE D TO HAVE GIVEN BOGUS BILLS IN RESPECT OF SHARES OF M/S INTERLINK F INANCIAL SERVICES LTD, YET HE HAS CATEGORICALLY STATED THAT HE HAS NOT PURCHAS ED OR SOLD SHARES OF THE ABOVE SAID COMPANIES PRIOR TO 22.12.2004 (DATE OF O PENING OF DEMAT ACCOUNT) ON BEHALF OF M/S ASFL (SUB-BROKER) OR THE BIRAWAT GROUP. HE HAS FURTHER STATED THAT HE HAS NOT PURCHASED OR SOLD SH ARES OF M/S INTERLINK FINANCIAL SERVICES LTD PRIOR TO 22.12.2004. HOWEVE R, THE CLAIM OF THE ASSESSEES IS THAT THEY HAVE PURCHASED THE SHARES OF M/S INTERLINK FINANCIAL SERVICES LTD WERE PURCHASED MUCH PRIOR TO 22.12.200 4. THUS, EVEN ACCORDING TO THE STATEMENT OF SHRI NARENDRA R SHAH, HE HAS NOT PURCHASED THE SHARES OF M/S INTERLINK FINANCIAL SERVICES LTD PRIOR TO 22.12.2004. IT IS NOBODYS CASE THAT THE ASSESSEES HAVE PURCHASED THE SHARES OF THE ABOVE SAID COMPANY AFTER 22.12.2004. THUS, WE ARE OF THE VIEW THAT, FROM THE STATEMENT GIVEN BY SHRI NARENDRA R SHAH, IT MAY NOT BE POSSIBLE TO PRESUME THAT THE SHARES PURCHASED BY THE ASSESSEES ARE BOGUS PURCHASES, MORE PARTICULARLY IN VIEW OF THE FACT THAT THE DEPA RTMENT HAS NOT ESTABLISHED THAT THERE WAS LINK BETWEEN SHRI NAREND RA R SHAH AND M/S ASFL. 20. WE NOTICE THAT THE ASSESSEES HEREIN HAVE ASKE D FOR CROSS EXAMINATION OF SHRI NARENDRA R SHAH, SINCE THE AO H AS TOTALLY RELIED UPON HIS STATEMENT. HOWEVER, SUCH AN OPPORTUNITY FOR CR OSS EXAMINATION WAS NOT GIVEN TO THE ASSESSEES. FURTHER SHRI NARENDRA R SHAH HAS STATED THAT HE HAS ISSUED ACCOMMODATION BILLS AT THE INSTANCE O F TWO OPERATORS VIZ., SHRI PARAS CHALOT AND SHRI SHIRISH SHAH. HOWEVER, THERE IS NO INFORMATION ON RECORD TO THE EFFECT THAT THESE TWO OPERATORS WE RE EXAMINED BY THE ITA. NO.986/M/2010 AND OTHER CASES 19 DEPARTMENT. HENCE, WE FIND MERIT IN THE CONTENTION S OF THE LD A.R THAT THE STATEMENT GIVEN BY SHRI NARENDRA R SHAH SHOULD NOT HAVE BEEN RELIED UPON ON THE FACE OF IT, WITHOUT CORROBORATING THE S AME WITH OTHER INDEPENDENT EVIDENCES. 21. THE CLAIM OF THE ASSESSEES IS THAT THEY HAVE PURCHASED THE SHARES FROM M/S ASFL. IN THIS REGARD, THE CASE OF THE ASSE SSEES IS THAT THEY HAVE FURNISHED ALL THE RELEVANT DETAILS TO SUPPORT THE C LAIM OF PURCHASE OF SHARES. THE AO HAS REJECTED THE CLAIM OF PURCHASES , ONLY FOR THE REASON THAT THE ASSESSEES HAVE FAILED TO PRODUCE ANYBODY F ROM M/S ASFL. HOWEVER, WE NOTICE THAT THE ASSESSEES HAVE TRIED TO LOCATE THE ABOVE SAID BROKER, BUT COULD NOT FIND IT, SINCE THE BROKER HAD VACATED ITS OFFICE. THIS FACT, WE NOTICE, WAS BROUGHT TO THE NOTICE OF THE A SSESSING OFFICER. HOWEVER, WE NOTICE THAT THE AO DID NOT TAKE ANY FUR THER STEPS TO TRACE M/S ASFL. UNDER THESE SET OF FACTS, IN OUR VIEW, THE A O SHOULD NOT HAVE DRAWN ADVERSE INFERENCE AGAINST THE ASSESSEES, WHEN THEY HAVE EXPRESSED THEIR INABILITY FOR THE REASONS STATED ABOVE. 22. THE AO HAS TAKEN THE VIEW THAT THE ASSESSEES H AVE OPENED THE DEMAT ACCOUNT ONLY SUBSEQUENTLY AND THE SHARES HAVE COME TO THEIR DEMAT ACCOUNT FROM OTHER DEMAT ACCOUNTS ONLY FEW DA YS PRIOR TO THE DATE OF SALE. ACCORDINGLY, THE AO HAS EXPRESSED THE VIE W THAT THE PERIOD OF HOLDING SHOULD BE COMPUTED FROM THE DATE ON WHICH T HE SHARES HAVE COME TO THE CREDIT OF DEMAT ACCOUNTS. HOWEVER, THE SUBM ISSIONS OF THE ASSESSEES IN THIS REGARD ARE THAT THEY HAD PURCHASE D THE SHARES IN PHYSICAL FORM AND THE SAID SHARES WERE HELD BY THE SUB-BROKE R ON THEIR BEHALF. AFTER THE ASSESSEES HAVE OPENED THE DEMAT ACCOUNTS, THE SHARES WERE TRANSFERRED TO THEIR ACCOUNT BY THE SUB-BROKER. TH E ASSESSEES HAVE CITED THE CBDT CIRCULAR TO SUBMIT THAT THE PERIOD OF HOLD ING OF SHARES SHOULD BE COMPUTED ON THE BASIS OF BROKERS NOTE FOR PURCHASE OF SHARES. ANOTHER OBSERVATION MADE BY THE AO WAS THAT THE SHARES HAVE COME TO THE DEMAT ITA. NO.986/M/2010 AND OTHER CASES 20 ACCOUNT OF THE ASSESSEES FROM M/S T.H. VAKIL SHARES & SECURITIES P LTD., A CONCERN BELONGING TO SHRI NARENDRA R SHAH. IN THIS REGARD, THE ASSESSEES HAVE SUBMITTED THAT THEY, AS INVESTORS, ARE NOT CON CERNED ABOUT THE DEMAT ACCOUNTS FROM WHICH THE SHARES HAVE BEEN RECE IVED. SIMILARLY IN THE CASE OF SHARES OF M/S SURYADEEP SALT REFINERY A ND CHEMICALS LTD ALSO, THESE ASSESSEES HAVE RECEIVED SHARES THROUGH DEMAT ACCOUNT. HENCE THE PROCEDURE FOR NAME TRANSFER OF PHYSICAL SHARES SHAL L NOT APPLY TO IT. HENCE THE LETTER WRITTEN BY THE DIRECTOR OF THAT COMPANY MAY NOT HAVE MUCH RELEVANCE. 23. IN THIS REGARD, WE FIND FORCE IN THE SUBMISSI ONS MADE BY THE ASSESSEES. AS PER THE CBDT CIRCULAR, REFERRED EARL IER, THE DATE OF PURCHASE OF SHARES SHOULD BE RECOGNIZED AS THE DATE ON WHICH THE BROKER HAS ISSUED THE CONTRACT NOTES. HENCE, WE ARE UNABLE TO AGREE WITH THE VIEW TAKEN BY THE AO THAT THE DATE OF PURCHASE SHOULD BE CONSIDER ED AS THE DATE ON WHICH THE SHARES WERE CREDITED TO DEMAT ACCOUNT. T HE UNDISPUTED FACT REMAINS THAT THE ASSESSEES HAVE OPENED THE DEMAT AC COUNT ONLY SUBSEQUENT TO THE DATE OF PURCHASE OF SHARES. HENC E, IN THE ABSENCE OF A DEMAT ACCOUNT, ONE COULD HAVE PURCHASED THE SHARES IN PHYSICAL FORM ONLY. THOUGH THE ASSESSEE HAS FURNISHED THE DETAIL S OF PURCHASES OF SHARES, WE NOTICE THAT THE AO HAS REJECTED THEM WIT HOUT EXAMINING THEM. THIS APPROACH OF THE ASSESSING OFFICER, IN OUR VIEW , WAS NOT APPRECIABLE AT ALL. WHEN THE ASSESSEES ARE FURNISHING THE NECESSA RY DETAILS AVAILABLE WITH THEM AND IF THE AO FEELS THAT THEY ARE NOT RELIABLE THEN HE SHOULD HAVE CONDUCTED FURTHER INVESTIGATION AND BROUGHT ANY OTH ER MATERIAL ON RECORD TO DISPROVE THE CLAIMS PUT FORTH BY THE ASSESSEES. HOWEVER, THE AO HAS TAKEN ADVERSE INFERENCES AGAINST THE ASSESSEES WITH OUT CAUSING FURTHER EXAMINATION OF THE MATERIALS FURNISHED BY THE ASSES SEES. FURTHER, WE ARE AWARE THAT THERE IS NO COMPULSION UNDER ANY LAW THA T THE SHARES SHOULD BE HELD ONLY IN DEMAT ACCOUNT FORM ONLY. AS PER THE T RADE PRACTICE, IN OUR ITA. NO.986/M/2010 AND OTHER CASES 21 KNOWLEDGE, THE BROKER IS LIABLE TO DELIVER THE SHAR ES WHICH WERE PURCHASED ON BEHALF OF THE CLIENTS AND IN THIS CONNECTION ONL Y THE BROKER CONTRACT NOTES ARE ISSUED. WE FURTHER NOTICE THAT THE SUBMI SSIONS OF THE ASSESSEES THAT THE SHARES WERE IN THE POSSESSION OF THE BROKE R WERE ALSO REJECTED WITHOUT MAKING FURTHER EXAMINATION. 24. THE LD D.R, IN HIS WRITTEN SUBMISSIONS, HAS S TATED THAT THE ASSESSEES HAVE TO PRODUCE PURCHASE BILLS, PAYMENT D ETAILS, SERVICE TAX PAYMENT DETAILS, BROKER BOOKS OF ACCOUNT AT THE TIM E OF DEMATERIALIZATION. THE SAID SUBMISSIONS DO NOT APPEAR TO BE CORRECT AS PER THE PREVAILING PRACTICE. FOR DEMATERIALIZATION, TO OUR KNOWLEDGE, ONLY THE SHARE CERTIFICATES HAVE TO BE FURNISHED. HOWEVER, IN THE INSTANT CASE, THE SUB- BROKER HAS GOT THE SHARES DEMATERIALIZED THE SHARE CERTIFICATES AND THEN TRANSFERRED THEM TO THE ACCOUNT OF THE ASSESSEES HE REIN. WE HAVE ALREADY NOTICED THAT THE ASSESSING OFFICER HAS NOT TAKEN AN Y STEPS OR BROUGHT ANY MATERIAL ON RECORD TO SHOW THAT THE CLAIM OF PURCHA SE OF SHARES IN PHYSICAL FORM FROM M/S ASFL WAS WRONG. IN THE ABSENCE OF SU CH AN EXERCISE, IN OUR VIEW, IT MAY NOT BE PROPER ON THEIR PART TO SUS PECT THE RECEIPT OF SHARES IN DEMAT ACCOUNT. 25. ANOTHER POINT, WHICH IS PERTINENT TO NOTE I S THAT ALL THESE SHARES HAVE BEEN SOLD THROUGH ANOTHER BROKER THROUGH BSE. HENCE, THERE IS MERIT IN THE CONTENTIONS OF THE LD A.R THAT, IN THE ABSENCE OF PURCHASE OF SHARES, IT WOULD NOT BE POSSIBLE TO SELL THE SHARES . THE LD A.R ALSO SUBMITTED THAT, IF IT WERE BOGUS TRANSACTIONS, THEN BOTH PURCHASES AND SALES WOULD HAVE BEEN ROUTED THROUGH THE SAME BROKE R. FURTHER, WE NOTICE THAT THE AO HAS ASSESSED THE SALE PROCEEDS R EALIZED ON SALE OF SHARES OF REPUTED COMPANIES ALSO AS INCOME FROM OTH ER SOURCES. THE SAID ACTION OF THE ASSESSING OFFICER WOULD ONLY SHOW THA T HE HAS PROCEEDED TO ASSESS THE GROSS RECEIPTS REALIZED ON SALE OF SHARE S AS INCOME FROM OTHER SOURCES ONLY ON PRESUMPTIONS, SURMISES AND CONJECTU RES WITHOUT BRINGING ITA. NO.986/M/2010 AND OTHER CASES 22 ANY CREDIBLE EVIDENCE ON RECORD TO REFUTE THE CLAIM OF THE ASSESSEE. WE HAVE ALREADY NOTICED THAT THE LD CIT(A) HAS UPHELD THE ASSESSMENT ORDER ON THIS ISSUE, SIMPLY ON THE BASIS OF SEBI REPORT W ITHOUT ENSURING THAT THE ASSESSEES HEREIN HAVE ALSO PARTICIPATED IN THE CLAN DESTINE DEALS. FURTHER THE FACT THAT THE REVENUE, DURING THE COURSE OF SEA RCH OPERATIONS, DID NOT UNEARTH ANY EVIDENCE ABOUT EXISTENCE OF UNACCOUNTED MONEY OR ANY DOCUMENT TO DISPROVE THE CLAIM OF EARNING OF LONG T ERM CAPITAL GAIN WOULD ONLY GO TO PROVE THAT THERE WAS NO EVIDENCE T O SUSPECT THE CLAIM OF LONG TERM CAPITAL GAINS DECLARED BY THESE ASSESSEES . 26. DURING THE COURSE OF HEARING, THE LD D.R SUB MITTED THAT THE ASSESSEES HAVE CONFESSED ABOUT THE NON ACCOUNTING O F PURCHASES AND FURTHER SUBMITTED THAT THEY HAVE ALSO AGREED FOR TH E ADDITION OF GROSS SALE PROCEEDS AS INCOME FROM OTHER SOURCES. THE LD D.R ALSO FURNISHED A COPY OF SWORN STATEMENT RECORDED FROM SHRI UTTAMCHAND BI RAWAT U/S 131 OF THE ACT ON 23.4.2007. APPARENTLY, THE LD D.R IS REFERR ING TO THE ANSWER GIVEN TO Q. NO.2 AND Q. NO.11. THE RELEVANT QUESTIONS AN D ANSWERS ARE EXTRACTED BELOW, FOR THE SAKE OF CONVENIENCE:- Q 2 YOU HAVE STATED SEVERAL TIMES THAT YOU SHALL SUBMIT THE DETAILS OF CAPITAL GAINS ON ACCOUNT OF TRANSACTIONS IN SHAR ES. HOWEVER, YOU HAVE NOT YET SUBMITTED THE SAID DETAILS SUCH AS NAM E OF THE SCRIP, DATE OF PURCHASE, NAME & ADDRESS OF THE PURCHASE BR OKER, NUMBER OF SHARES, AMOUNT AND SIMILARLY THE DETAILS OF SALE ETC. PLEASE EXPLAIN. ANS.: AS STATED EARLIER, THE NECESSARY DETAILS CALL ED FOR ARE NOT READILY AVAILABLE WITH US. WE ARE TRYING TO TRACE OUT THESE DETAILS AND SHALL SUBMIT THE SAME AS SOON AS WE ARE ABLE TO TRACE OUT THE SAME. . Q 11 ON SIMILAR LINES NARRATED IN QUESTION NO. 10 , THE TOTAL LTCG CLAIMED BY YOU AND YOUR FAMILY MEMBERS ON ACCOUNT O F TRANSACTIONS SHOWN OF A OR B GROUP STOCKS OF BSE WORKS OUT T O RS.3.08 CRORES, APPROX. AS PER FACTS MENTIONED ABOVE, THE PERIOD OF HOLDING SHOWN BY YOU IS BOGUS AND ACCORDINGLY THE PURCHASES SHOWN BY YOU ARE ALSO NOT GENUINE. HENCE THE SAID LTCG IS ARTIF ICIAL AND BOGUS. PLEASE EXPLAIN. ITA. NO.986/M/2010 AND OTHER CASES 23 ANS.: AS STATED IN MY STATEMENTS DTD 25-1-07, 31-1 -07 AND 05-04- 07, I AM TRYING TO TRACE OUT THE DETAILS OF CAPITAL GAINS OF RS.10,22,64,376/- (WHICH INCLUDES THE ABOVE RS.3.08 CR.) AND SHALL SUBMIT THE SAME. IN CASE, I AM UNABLE TO TRACE OUT AND FURNISH THE REQUIRED DETAILS, I HEREBY UNDERTAKE TO DECLARE THE SAME AS OUR INCOME FOR THE RESPECTIVE ASST. YEARS IN THE HANDS OF RESPECTIVE ASSESSEES. SINCE I HAVE VOLUNTARILY AGREED TO DECL ARE THIS INCOME, IF I FAIL TO SUBMIT THE DETAILS, I REQUEST THE DEPARTM ENT TO GRANT IMMUNITY FROM PENALTY U/S 271(1)(C) OF THE I.T ACT. A CAREFUL PERUSAL OF THE ABOVE SAID QUESTIONS AND A NSWERS WOULD SHOW THAT THE VIEW EXPRESSED BY LD D.R DOES NOT APPEAR T O BE CORRECT. 27. IN VIEW OF THE FOREGOING DISCUSSIONS, WE ARE OF THE CONSIDERED VIEW THAT THERE WAS NO CREDIBLE MATERIAL WITH THE DEPART MENT TO DISPROVE THE CLAIM OF LONG TERM CAPITAL GAINS MADE BY THESE ASSE SSEES IN THEIR RESPECTIVE RETURNS OF INCOME. ACCORDINGLY WE SET A SIDE THE ORDERS OF LD CIT(A) PASSED IN THE RESPECTIVE HANDS OF THE ASSESS EES HEREIN ON THIS ISSUE AND DIRECT THE ASSESSING OFFICER TO DELETE TH E ASSESSMENT OF GROSS SALE RECEIPTS AS INCOME FROM OTHER SOURCES IN ALL T HE YEARS UNDER CONSIDERATION AND ACCORDINGLY DIRECT THE AO TO ACCE PT THE LTCG DECLARED BY THESE ASSESSEES IN ALL THE YEARS UNDER CONSIDERA TION. 28. SINCE WE HAVE UPHELD THE DISCLOSURE OF LTCG, THE QUESTION OF ASSESSING 5% OF THE GROSS SALE RECEIPTS AS UNACCOUN TED INCOME OF ASSESSEES DOES NOT ARISE. ACCORDINGLY, WE SET ASID E THE ORDERS OF LD CIT(A) ON THIS ISSUE AND DIRECT THE ASSESSING OFFIC ER TO DELETE THIS ADDITION IN THE HANDS OF ALL THE ASSESSEES IN ALL THE ASSESS MENT YEARS UNDER CONSIDERATION. 29. THE ASSESSEES HAVE ALSO URGED FOLLOWING LEGA L GROUNDS BEFORE US:- (I) IN THE CASE OF FOLLOWING ASSESSEES, NO WARRAN T EXECUTED IN THEIR NAME. HENCE THE ASSESSMENTS COMPLETED U/S 153A WER E NOT VALID. ITA. NO.986/M/2010 AND OTHER CASES 24 (I) UTTAMRAJ A BIRAWAT (HUF) ITA NO.7399/M/10 & 7411/M/10 RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. (II) KIRANRAJ U BIRAWAT (HUF) ITA NO.6946/M/10 & 6947/M/10 RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. (III) VASANTRAJ A BIRAWAT (HUF) ITA NO.7400/M/10 & 7401/M/10 RELATING TO ASSESSMENT YEARS 2005-06 AND 2006-07 RESPECTIVELY. (II) IN THE FOLLOWING CASES, NO INCRIMINATING MATE RIAL WAS FOUND AND FURTHER THE ASSESSMENTS OF FOLLOWING ASSESSMENT YEA RS DO NOT ABATE, I.E., THESE YEARS FALL IN THE CATEGORY OF COMPLETED ASSESSMENTS, SINCE THE DATE FOR ISSUING THE NOTICE U/S 143(2) HAS EXPI RED AS ON THE DATE OF SEARCH. HENCE NO ADDITION COULD BE MADE IN THE ABSENCE OF ANY INCRIMINATING MATERIAL AS PER THE DECISION OF JURIS DICTIONAL BOMBAY HIGH COURTS DECISION RENDERED IN THE CASE OF MURAL I AGRO PRODUCTS LTD (36 TAXMANN.COM 523) AND THE SPECIAL BENCH DECI SION RENDERED IN THE CASE OF ALL CARGO GLOBAL LOGISTICS LTD (18 I TR (T) 105)(MUM)(SB). (A) ASSESSMENT YEAR 2004-05 IN THE CASE OF UTTAMCH AND A BIRAWAT, VASANTRAJ A BIRAWAT AND KIRANRAJ A BIRAWAT IN ITA N O.983/M/10, 989/M/10 AND 986/M/10 RESPECTIVELY. FOLLOWING CASES IN AY 2005-06. ITA NO. DATE OF FILING RETURN (A) VASANTRAJ A BIRAWAT ITA NO.990/M/2010 31.10 .2005 (B) KIRANRAJ U BIRAWAT ITA NO.987/M/2010 31.10 .2005 (C) ANKIT BIRAWAT ITA NO.978/M/2010 01.12.2005 (D) CHANCHALABEN BIRAWAT- ITA NO.972/M/2010 0 1.12.2005 (E) KALABEN BIRAWAT - ITA NO.974/M/2010 0 1.12.2005 (F) AVANI BIRAWAT - ITA NO.968/M/2010 08. 12.2005 (G) VEENABEN BIRAWAT - ITA NO.980/M/2010 01.12.2005 (H) UTTAMCHAND A BIRAWAT(HUF)ITA.NO.7399/M/2010 08.12. 2005 (I) KIRANRAJ A BIRAWAT(HUF)- ITA NO.6946/M/2010 31 .10.2005 ITA. NO.986/M/2010 AND OTHER CASES 25 (J) VASANTRAJ A BIRAWAT(HUF) -ITA NO.7400/M/2010 08. 12.2005 (K) SHWETA K BIRAWAT - ITA NO.976/M/2010 1 4.12.2005 (III) IN THE CASE OF SHWETA K BIRAWAT (ITA 976/M/ 10 RELATING TO AY 2005 06) AND AKSHATA BIRAWAT (ITA NO.977/M/10 RELAT ING TO AY 2006-07), THE ASSESSMENTS WERE COMPLETED U/S 153C O F THE ACT. HOWEVER, THE ASSESSING OFFICER OF SEARCHED PERSON D ID NOT RECORD SATISFACTION AS REQUIRED UNDER THE PROVISIONS OF SE C. 153C. 30. WE DO NOT FIND IT NECESSARY TO ADJUDICATE THE A BOVE SAID LEGAL GROUNDS, SINCE WE HAVE DECIDED THE ISSUE RELATING T O THE ADDITIONS IN FAVOUR OF THE ASSESSEE. 31. IN THE RESULT, ALL THE APPEALS FILED BY ALL THE ASSESSEES ARE ALLOWED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 20TH FEB , 2015 . ()* $ +, - . 20TH FEB , 2015 # / SD SD ( / JOGINDER SINGH) ( . . / B.R. BASKARAN) / JUDICIAL MEMBER / ACCOUNTANT MEMBER + $ MUMBAI: 20TH FEB,2015. % . . ./ SRL , SR. PS ! '#$% &%# / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. $ 0& ( ) / THE CIT(A)- CONCERNED 4. $ 0& / CIT CONCERNED 5. 1%2 &3 , ' 3* , + $ / DR, ITAT, MUMBAI CONCERNED 6. 45 6 / GUARD FILE. 7 $ / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) ' 3* , + $ /ITAT, MUMBAI