ACIT CENT. CIR. - 11, MUMBAI V. BRIJESH D. SHAH, MUMBAI

MA 126/MUM/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 4796 (ITAT-MUMBAI)
• Duration Of Justice: 3 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 16-09-2016
• Appeal Filed By: Department
• Bench Allotted: J
• Assessment Year: 2002-2003
• Appeal Filed On: 03-06-2016
• Court: TRIBUNAL
• Keywords: Difference of opinion; Deemed dividend; Block assessment; Change of opinion

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL J , BENCH MUMBAI BEFORE SHRI R. C. SHARMA , A M & SHRI AMARJIT SINGH , J M MISCELLANEOUS APPLICATION NO S . 126 TO 129 / MUM/20 1 6 (ARISING OUT OF ITA NO . 1417 TO 1420 /MUM/201 0 ) ( / ASSESSMENT YEAR : 20 0 2 - 03 TO 2005 - 06 ) ACIT, CC - 11, MUMBAI VS. SHRI BRIJESH D. SHAH, A - 602, EKTA MILAN, DEVKI NAGAR, EKSAR VILLAGE, BORIVALI (W), MUMBAI ./ ./ PAN/GIR NO. : A AJPS 5346 J /REVENUE BY : SMT. SURABHI SHARMA /ASSESSEE BY : SHRI SASHI TULSIYAN / DATE OF HEARING : 16 /0 9 /2016 / DATE OF PRONOUNCEMENT : 16 / 0 9 / 2016 / O R D E R PER R.C.SHAR MA ( A .M.) : TH ESE MISCELLANEOUS APPLICATION S FILED BY THE REVENUE AROSE OUT OF ITA NO S . 1417 TO 1420 /MUM/201 0 , ORDER DATED 3 - 2 - 2016 , FOR ASSESSMENT YEARS 2002 - 03 TO 2005 - 06 . 2. THROUGH THESE MISCELLANEOUS APPLICATIONS THE REVENUE CONTENDED THAT THERE IS A MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL DATED 3 - 2 - 2016, INSOFAR AS THE TRIBUNAL HAVE NOT CONSIDERED THE JUDICIAL PRONOUNCEMENTS CITED BY LD. DR DURING THE COURSE OF HEARING. IT WAS ALSO SUBMITTED THAT PROVISIONS OF SEC.153A/153C ARE MACHINERY PROVISI ONS AND IT SHOULD BE LITERARY INTERPRETED AND NOT HARMONIOUSLY SO THAT SUCH INTERPRETATION SHOULD NOT DEFEAT THE BASIC OBJECTIVE OF PROMULGATION OF CHARGE BY THE ACT AS ENUNCIATED BY THE HONBLE FINANCE MINISTER IN THE PROVISION OF THE FINANCE BILL 2003 (B UDGET SPEECH) AND THE CBDT CIRCULAR NO.7 OF 2003 DTD.05.09.2003. M A NO S . 126 - 129/16 2 3. WE HAD CAREFULLY GONE THROUGH THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE AS WELL AS ORDER OF THE TRIBUNAL DATED 3 - 2 - 2016, WHEREIN THE TRIBUNAL HAVE DEALT WITH ALL THE JUDICIAL PRO NOUNCEMENTS REFERRED BY LD. AR IN ITS PARA NOS.12, 13 & 14. THE OBSERVATIONS OF THE TRIBUNAL ARE AS UNDER : - 12. ON THE OTHER HAND, THE LD. D.R. VEHEMENTLY ARGUED THAT DURING THE COURSE OF SEARCH, IT WAS GATHERED THAT ASSESSEE HAD OBTAINED ARTIFICIAL CAPI TAL GAIN BY WAY OF SHARE TRANSACTION OF VARIOUS STOCK COMPANIES. HE FURTHER CONTENDED THAT THE DIRECTOR OF SUCH COMPANY HAD ALSO ADMITTED IN HIS STATEMENT THAT THEY HAVE ISSUED BOGUS ACCOMMODATION BILLS FOR FACILITATING CAPITAL GAIN TO THE ULTIMATE BENEFI CIARIES AND FOR WHICH THEY HAVE NOT HANDED OVER THE BILLS TO THE BENEFICIARIES. RELIANCE WAS PLACED ON THE DECISION OF HONBLE KERALA HIGH COURT IN THE CASE OF O. ABDUL RAZAK 350 ITR 71 WHEREIN IT WAS HELD THAT WHERE ADDITION WAS MADE BY AO ON THE BASIS O F CLEAR ADMISSION MADE BY THE ASSESSEE FOR THE STATEMENT RECORDED UNDER SECTION 132(4) AND THE ASSESSEE HAVING NOT PROVED ANY THREAT OR COERCION AND FURTHER HAVING FAILED TO PROVE THE AMOUNT SHOWN IN THE DOCUMENTS WERE THE ONLY PAYMENTS MADE, THE TRIBUNAL WAS HELD TO BE NOT RIGHT IN DELETING THE ADDITIONS. RELIANCE WAS ALSO PLACED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF MUKUNDRAY K. SHAH 290 ITR 433 WHEREIN IT WAS HELD THAT THE DIARY SEIZED DURING THE SEARCH WAS REVEALING THAT COMPANY IN WH ICH ASSESSEE HAD SUBSTANTIAL INTEREST AND WHICH HAD ACCUMULATED PROFITS, ADVANCED MONIES TO CLOSELY RELATED PARTNERSHIP FIRMS IN WHICH ALSO ASSESSEE WAS A PARTNER WHICH AMOUNTS WERE WITHDRAWN BY ASSESSEE AND UTILIZED FOR PURCHASE OF RBI BONDS, IT WAS HELD THAT AMOUNT WAS ADVANCED FOR THE BENEFIT OF THE ASSESSEE BY USING THE TWO FORMS AS CONDUCES AND THE SAID AMOUNT WAS RIGHTLY ASSESSED AS DEEMED DIVIDEND IN THE HANDS OF THE ASSESSEE IN BLOCK ASSESSMENT. 13. RELIANCE WAS ALSO PLACED ON THE DECISION OF THE ITAT DELHI BENCH IN CASE OF RUBBER ENTERPRISES PVT. LTD. 88 ITD 95 WHEREIN IT WAS HELD THAT ONUS OF PROOF THAT COMMISSION PAID WAS GENUINE, THE ASSESSEE SHOULD MISERABLY FAILED TO DEMONSTRATE THAT SERVICES WERE RENDERED TO IT AND FAILED TO DISCHARGE ONUS, THEREFORE NOT ENTITLED TO DEDUCTION TO COMMISSION PAID. RELIANCE WAS ALSO PLACED ON THE DECISION OF RAJESH JHAVERI STOCK BROKERS PVT. LTD. IN SUPPORT OF THE PROPOSITION THAT INTIMATION UNDER SECTION 143(1)(A) CANNOT BE TREATED AN ORDER BY ISSUING AND THE RE BEING NO ISSUE UNDER SECTION 143(1)(A), THE QUESTION OF CHANGE OF OPINION DOES NOT ARISE. THE LD. D.R. ALSO RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF CALCUTTA KNITWEARS 43 TAXMAN.COM 446, SUJIT SINGH CHAVRA ORDER DATED 25.10.96 . 14. THE LD. D.R. ALSO HAS DRAWN OUR ATTENTION TO THE BUDGET SPEECH OF FINANCE MINISTER EXPLAINING THE PROVISIONS OF FINANCE BILL, 2003 AND ALSO DEPARTMENTAL CIRCULAR NO.7 OF 2003 DATED M A NO S . 126 - 129/16 3 05.09.2003 WHEREIN IT WAS STATED THAT THE AO SHALL REASSESS THE TO TAL INCOME OF EACH OF SIX ASSESSMENT YEARS. ASSESSMENT OR REASSESSMENT, IF ANY, RELATING TO ANY ASSESSMENT YEAR FALLING WITHIN PERIOD OF SIX ASSESSMENT YEARS PENDING ON THE DATE OF INITIATION OF SEARCH UNDER 132 OR REQUISITION UNDER SECTION 132A AS THE CA SE MAY BE SHALL ABATE. 4 . LD. DR FAIRLY CONCEDED THAT TRIBUNAL HAVE CONSIDERED VARIOUS JUDICIAL PRONOUNCEMENTS REFERRED DURING THE COURSE OF HEARING. 5 . WE ALSO FOUND THAT IN PARA NO.15, THE TRIBUNAL PRECISELY WRITTEN THAT IT HAD DELIBERATED ON THE JUDIC IAL PRONOUNCEMENTS REFERRED BY LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS AS WELL AS CITED BY LD. AR AND LD. DR DURING THE COURSE OF HEARING. UNDER THESE FACTS AND CIRCUMSTANCES, WE DO NOT FIND ANY MISTAKE MUCH LESS AN APPARENT MISTAKE IN THE ORDER OF TH E TRIBUNAL. 6 . IN THE RESULT, ALL THE MISCELLANEOUS APPLICATIONS FILED BY THE REVENUE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 16/09/2016 SD/ - SD/ - AMARJIT SINGH R.C.SHARMA JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI ; DATED 16 / 0 9 /201 6 . . /PKM , . / PS / COPY OF THE ORDER FORWARDED TO : / BY ORDER, ( ASSTT. REGISTRAR) , / ITAT, MUMBAI 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A), MUMB AI. 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. //TRUE COPY//