MANJARI P. SHAH, MUMBAI V. ASSISTANT COMMISSIONER OF INCOME TAX RANGE 23(2), MUMBAI

MA 313/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6253 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 12-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: I
• Assessment Year: 2008-2009
• Appeal Filed On: 23-06-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: POOJA SWAROOP

Judgement Text

I IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI C.N PRASAD , JUDICIAL MEMBER AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER MA NO. 313/MUM/2017 ARISING OUT OF ITA NO. 1078/MUM/2012 ( / ASSESSMENT YEAR : 2008 - 09 ) MANJARI P. SHAH, 302, ABICH APARTMENTS, SAROJINI NAIDU ROAD, MULUND (WEST), MUMBAI 400 080. / V. ASST. COMMISSIONER OF INCOME TAX; RANGE 23(2), C - 10, PRATYAKSHA KAR BHAVAN, BANDRA KURLA COMPLEX, BANDRA EAST, MUMBAI 400 051. ./ PAN : ANQPS5900A ( / APPLICANT ) .. ( / RESPONDENT ) APPLICANT BY : NONE RESPONDENT BY: MS. POOJA SWAROOP (DR) / DATE OF HEARING : 02 - 02 - 2018 / DATE OF PRONOUNCEMENT : 12 - 02 - 2018 / O R D E R PER RAMIT KOCHAR, ACCOUNTANT MEMBER BY THIS M ISCELLANEOUS A PPLICATION THE ASSESSEE HAS REQUESTED FOR RECTIFICATION OF THE INCOME - TAX APPELLATE T RIBUNAL ORDER IN ITA NO. 1078/ MUM/2012 DATED 22.02.2017 FOR ASSESSMENT YEAR 2008 - 09 . 2. THE BACKGROUND OF THE CASE IS THAT T HE ASSESSEE IS TRADER IN SHARE AND HAD UNDER TAKEN TRANSACTION S IN SECURITIES THROUGH BOMBAY STOCK EXCHANGE AND AS PER THE CERTIFICATE ISSUED BY BOMBAY STOCK EXCHANGE THE TOTAL TRANSACTION OF THE ASSESSEE WAS RS. 32,94,49,013.30/ - DURING THE RELEVANT PERIOD ON WHICH SECURITIES TRANSACTIONS TAX(STT) WAS CHARGED . THE ASSESSEE HAD CLAIMED BENEFIT OF STT BY CLAIMING REBA T E UNDER SECTION 80E TO TUNE OF RS. 2,56,963/ - . TH E ASSESSEE HAS REPORTED THAT IT PURCHASE D SHARE S TO THE TUNE OF RS. 24.14 CRORES AND SOLD SHARES OF RS. 24.28 CRORES . F ROM THE INFORMATION CAPTURED FROM AIR DATA BASE OF THE DEPARTMENT READ IN CONJUNC TION WITH THE BOOKS OF ACCOUNTS AS ALSO THOSE REPORTED/RECONFIRMED MA NO. 313/MUM/2017 ARISING OUT OF ITA NO. 1078/MUM/2012 2 BY BSE , THERE WAS A DIFFERENCE OF RS. 7,52,65,347/ - IN THE TRANSACTIONS REPORTED IN AIR /BSE AND THOSE RECORDED IN BOOKS OF ACCOUNTS OF THE ASSESSEE . THE ASSESSEE SIMPLY DENIED THAT THE SAID DIFFERENTIAL TRANSACTIONS TO THE TUNE OF RS. 7.53 CRORES ARE NOT PERTAINING TO THE ASSESSEE AND NO EFFORTS WAS MADE BY THE ASSESSEE TO APPROACH SHARE BROKER/BSE TO GET THE CORRECT STATUS OF THE TRANSACTIONS OR TO OBTAIN AFFIDAVITS ETC FROM THESE AGENCIES . THE SHARE BROKER WAS ALSO NOT PRODUCED BEFORE THE AUTHORITIES BELOW. B OTH THE AUTHORITIES BELOW VIZ . ASSESSING OFFICER AND LEARNED COMMISSIONER OF INCOME - TAX(APPEALS) HAD HELD THAT THESE DIFFERENTIAL UNRECORDED TRANSACTIONS TO THE TUNE OF RS. 7.53 CRORES AS REPORTED IN AIR TO PERTAIN TO THE ASSESSEE AS THEY WERE CAPTURED THROUGH THE PLATFORM OF BOMBAY STOCK EXCHANGE IN THE COMPUTER NETWORK SYSTEM OF THE R EVENUE. THE AO ESTIMATED PROFIT @2% ON THESE UNRECORDED TRANSACTIONS IN SHARES TO THE TUNE OF RS. 7.53 CRORES WHICH WAS LATER CONFIRMED BY LEARNED CIT(A). THE TRIBUNAL HAD TAKEN A PRAGMATIC VIEW IN ORDER TO DO COMPLETE AND SUBSTANTIAL JUSTICE TO END THE LITIGATION BY ESTIMATI NG NET PROFIT AS THE RATE OF 0.59 % OF THE SAID AMOUNT OF UNRECORDED TRANSACTIONS TO THE TUNE OF RS. 7.53 CRORES BASED UPON THE NET PROFIT EARNED BY THE ASSESSEE ON THE OTHER UNDISPUTED REPORTED TRANSACTIONS RECORDED IN THE BOOKS OF ACCOUNTS TO BRING IN PARITY BETWEEN THE INCOME EARNED ON RECORDED AS WELL UNRECORDED TRANSACTIONS IN THE BO OKS OF ACCOUNTS MANDATE BY THE ASSESSEE. THE ASSESSEE HAS NOW FILED THIS MA AND EVEN IN MA NO EFFORT IS MADE TO RECONCILE THE DIFFERENTIAL FIGURE OF RS. 7.53 CRORES BETWEEN THE TRANSACTION REPORTED IN AIR AND THE BOOKS OF ACCOUNT RATHER A HYPER TECHNICAL VIEW IS TAKEN TO DO HAIR SPLITTING OF THE TRIBUNAL ORDER. STILL NOTHING IS BROUGHT ON RECORD THAT ANY EFFORT WAS MADE BY THE ASSESSEE WITH ITS SHARE BROKER /BSE TO GET THE FIGURES RECONCILED OR CERTIFIED TO BE TRANSACTIONS OF THE ASSESSEE BUT THE ASSESSEE IS SIMPLY IN A DENIAL MODE . THE ASSESSEE FILED WRITTEN SUBMISSIONS WHICH ARE DULY TAKEN INTO CONSIDERATION WHILE DISPOSING OF THIS MA. W E DO NOT FIND ANY INFIRMITY /MISTAKE IN THE DETAILED ORDER PASSED BY THE TRIBUNAL WHICH COULD BE RECTIFIED WITHIN LIMITED MANDATE OF PROVISION OF SECTION 254(2) AS THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TRIBUNAL AS CONSCIOUS DECISION WAS TAKEN BY THE TRIBUNAL AFTER DUE APPLICATION OF MIND KEEPING IN VIEW FACTUAL MATRIX OF THE CASE TO BRING TO TAX INCOME ESTIMATED TO BE 0.59% OF THE SAID UNRECORDED TRANSACTION S OF RS. 7.5 3 CRORES IN PARITY WITH THE INCOME EARNED BY THE ASSESSEE ON THE UNDISPUTED AND RECORDED TRANSACTION S MA NO. 313/MUM/2017 ARISING OUT OF ITA NO. 1078/MUM/2012 3 IN ITS BOOKS OF ACCOUNT IN ORDER TO DO COMPLETE AND S UBSTANTIAL JUSTICE IN THIS CASE W ITH A VIEW TO END LITIGATION. THUS, THE MA FILED BY THE ASSESSEE LACKS MERIT AND IS DISMISSED. WE ORDER ACCORDINGLY. 3 . THUS IN THE RESULT , MA FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12 .02.2018 12 .02.2018 SD/ - SD/ - (C.N PRASAD ) (RAMIT KOCHAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 12 .02.2018 NISHANT VERMA SR. PRIVATE SECRETARY COPY TO 1 . THE APPELLANT 2 . THE RESPONDENT 3 . THE CIT(A) CONCERNED, MUMBAI 4 . THE CIT - CONCERNED, MUMBAI 5 . THE DR BENCH, 6 . MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI