RITU SANJAY MANTRY, MUMBAI V. INCOME TAX OFFICER WARD 24(3)(4), MUMBAI

MA 408/MUM/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 8645 (ITAT-MUMBAI)
• Duration Of Justice: 10 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D G
• Keywords: Unexplained cash credit; Business income; Rectification of order; Opportunity of being heard; Question of law; Tangible material; Accommodation entries
• Section: 133(6); 68; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , ACCOUNTANT MEMBER M .A. NO. 408 / MUM./2018 ( ARISING OUT OF ITA NO. 2003 /M UM. /201 7 ) ( ASSESSMENT YEAR : 20 08 09 ) RITU SANJAY MANTRY C 24, PADMA NAGAR ANDHERI KURLA ROAD ANDHER I (E), MUMBAI 400 099 PAN AGHPM2569F . APPLICANT V/S INCOME TAX OFFICER WARD 24(3)(4), MUMBAI . RESPONDENT ASSESSEE BY : SHRI NISHIT GANDHI REVENUE BY : SHRI D.G. PANSARI DATE OF HEARING 18 . 01 .201 9 DATE OF ORDER 04.04.2019 O R D E R B Y WAY OF THIS MISC. APPLICATION, THE ASSESSEE SEEKS RECTIFICATION OF MISTAKE UNDER SECTION 254(2) OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) IN THE ORDER DATED 9 TH FEBRUARY 2018, PASSED BY THE TRIBUNAL IN ITA NO.2003/MUM./2017, PERTAINING TO THE ASSESSMENT YEAR 2008 09. 2 . BEFORE US, THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE ARE AS UNDER: RITU SANJAY MANTRY 2 4. UNDER THE ABOVE CIRCUMSTANCES, THE APPLICANT MOST RESPECTFULLY SUBMITS THAT CERTAIN INADVERTENT ERRORS HAVE CREPT IN, IN THE ORDER PASSED BY T HE HONBLE TRIBUNAL WHICH ARE AS UNDER: I . WHILE AFFIRMING THE ORDER OF THE CIT(A), THE HONBLE TRIBUNAL HAS OBSERVED THAT LINK INTIME INDIA PVT. LTD., THE REGISTRAR AUTHORITY FOR CABLE CORPORATION OF INDIA LTD. H A D STA T E D I N TH E I R R E PLY D A T E D 2 7 . 0 2. 201 5 TO TH E AO TH A T A S P E R TH E D E TAIL S A VAIL A BL E WITH TH E M TH E A PP E LLANT W A S N O T HOLDIN G ANY SH A R ES IN C A BL E CORPOR A TION O F INDIA L TD . ON 21 . 0 2. 2008 AND 31 . 03. 2 0 08 (REF.P G. 4 OF ASSE S SMENT ORD E R). BA SE D ON THIS REPLY , THE T RIBUN A L HA S OBSERV ED THAT TH E TRAN S ACTI ON ENT ERE D IN T O BY THE APPELLANT WAS BOGUS (REF.P G. 10 , 11 OF EX .A). HOWEVER , THE APPELLANT HAD ACTUALLY SOLD ALL THE SHARES OF CABLE CORPORATION INDIA LTD . BY 04 . 02.2008 WHICH WER E MOVED OUT OF TH E DEMAT ACCOUNT BY 06 . 02.2008. IN THIS RE G ARD , TH E DEMAT STA TEM E NT I S SUED BY HD F C BANK LTD., THE DEPOSITORY PARTICIPANT WITH WHOM TH E APPELLANT H E LD I TS DEMAT ACCOUNT, REFLECTIN G THE SALE WA S A LSO PRODUCED AND POINTED OUT AT TH E TIME O F HEARING BEFORE THE TRIBUNAL (REF. PG . 20 OF EX . B) . THE APPELLANT NOT ONLY RELI ED ON THE SAID DEMAT STATEMENT AT THE TIME OF HEARING BUT ALSO CATEGORICALLY PLEADED BEFORE THE TRIBUNAL THAT , TH E REPLY FROM LINK INTIME INDIA P . LTD . D I D NOT HOLD ANYTHING AGAINST THE APPELLANT SINCE , THE APPELLANT SOLD ALL THE SHARES OF CABLE CORPORATI ON BY 06 . 02 . 2008 WHER E AS AS PER TH E REPLY OF LINK INTIME , TH E APPELLANT DID NOT HOLD ANY SHARES OF CABLE CORPORATION ON 2 1.02.2008 AND 31.03.2008 I . E. DAYS AFTER THE SHARES WERE ACTUALLY SOLD BY THE APPELLANT . THE APPELLANT THEREFORE , RESPECTFULLY SUBMITS THAT , THIS OBSERVATION OF THE TRIBUNAL AT PARA . 16 PG.11 OF ITS ORDER HOLDING TH E SALE OF THE SHARES BY THE APPELLANT AS BOGUS ON THE BASIS OF THE REPLY F ROM LINK INTIME INDIA P . LTD . IS IN FACT CONTRARY TO THE FACTS ON RECORD SINCE LINK INTIME HAS NOWHER E SAID THAT T HE APPELLANT WAS NEVER HOLDING THE SHARES OR THAT IT HAD NEVER SOLD T HE S HARES OF CABLE CORPORATION OF INDIA LTD. AS REFLECTED IN ITS DEMAT STATEMENTS ISSUED BY HDFC BANK . FURTHER THE DATES ON WHI C H THE APPELLANT DID NOT HOLD S HAR E S ARE IN FAC T OF A PERIOD AFTER THE SHARES SOLD BY THE APPELLANT AND AS SUCH THE REPLY DOES NOT HOLD ANYTHING AGAINST THE APPELLANT. IT IS THEREFORE PLEADED THAT THIS OBSERVATION AT PARA 16 PG . 11 BE ACCORDINGLY REVER SE D AND RECTIFIED. II. THE TRIBUNAL HA S FURTHER OBSERV E D AT PARA 17 PG. 11 OF IT S ORDER THAT THE SHARES OF AN UNKNOWN COMPANY WERE SOLD . THIS OBS E RVATION IS AGAIN FACTUALLY INCORR E CT SINCE CABL E CORPORATION OF INDIA LTD . IS A REPUTED COMPANY I NCORPORA TE D SINCE 1957 AND WAS ALSO HIGHLY TRAD E D DURING TH E PERIOD WHEN THE APPELLANT SOLD THE SHARES . IN FACT , THE NETWORTH OF T H E SAID COMP A NY HAD ALMOST RITU SANJAY MANTRY 3 TRIPLED IN 2 008 - 09. THE SAID SCRIP IS NOT AMONG THOSE C OMPANI E S A LLE GE DLY RUN BY M R . MUK ES H CH OKS H I , IN FACT, TH E ENTIRE DE TA IL S OF CABLE CORPOR A TION W E R E A LSO POINT E D OU T AND FUR N I S H E D BEF ORE TH E HON ' BL E TRIBUNAL AT THE TIME OF H E ARIN G (REF . PG. 3 OF EX. B) WHICH I S IN F A C T AL S O REPRODUCED BY THE CIT(A) IN HIS ORDER A T PG.7 BUT IT SEEMS TH A T HA S INADV E RT E NTL Y SKIPPED THE ATTENTION OF TH E TRIBUN A L . AS SUCH , IT SE E MS THAT THE HON ' BL E TRIBUN A L HA S INADVERTENTLY ERRONEOUSLY HELD THAT CABL E CORPO RA TION OF INDIA LTD. I S A N UNKNOWN COMPANY SINCE SUCH OBSERVATION I S ERRONEOUS AND E VEN NOT BORNE OUT O F TH E R EC ORDS. III. THE TRIBUNAL FURTHER OBSERVED THA T THE SHARES OF THE SAID COMPANY W E R E SOLD IN AN OF F - MARKET DEAL. THIS OBSERVATION IS AGAIN FACTUALLY INCORRECT IN AS MU C H AS TH E S ALE HAS BEEN MADE BY THE APPELLANT ON THE NATIONAL STOCK EXCHANG E (NS E ) THROUGH IT S DEPOSITORY PARTICIPANT HDFC BANK WITH WHOM TH E D EM AT ACCO UNT W AS HELD BY THE APPELLANT. AS SUCH THE SAL E WAS NOT AN OFF - MARKET DEAL AS ERRON E OU S LY OBSERV E D . IN FACT , ELABORATE DETAILS EVIDENCING THE SALE WER E FURNISHED , REL I ED ON AND POINT E D OUT A T THE TIME OF H E ARING BEFORE THE HON ' BLE TRIBUNAL. MORE PARTICULAR LY , T H E BROKER NOT ES EVIDENCING SALE AND SIT PAID (REF . PG. 11 TO 18 OF E X .B), THE B A NK STATEMENT REFLECTING RECEIPT OF CONSIDERATION FOR SALE (REF. P G. 19 OF EX.B) AND COPY OF DEMAT STATEMENT OF THE APPELLANT EVIDENCING THE TRANSFER OF THE SHARES FROM HE R ACCOUNT (REF.PG.20 AND PG.32 OF EX.B). NOT ONLY THAT , IT WAS ALSO POINTED OU T THAT THE ENTIRE TRANSACTION IS VERIFIABLE ON THE OFFICIAL W E BSITE NSE (REF . PG.4 OF EX . B). HOWEVER , WHILE MAKING THE ABOVE OBSERVATION THAT T HE SHAR ES WERE SOLD IN AN O FF - MARKE T DEAL , THE HON'BLE TRIBUNAL HAS INADVERTENTLY NOT CONSIDERED THE ABOVE DOCUMENTS. AS SUCH BASED ON THE ABOVE RECORDS / DOCUMENT S, I T IS APPAR E NT THAT THE HON ' BL E TRIBUNAL HAS INADVERTENTLY MADE AN ERRONEOUS OBSERVATION THAT THE SHARES WERE SOLD OFF - MARKE T . WITHOUT PREJUDICE TO THE ABOVE , THE APPELLANT HAD EVEN RELIED ON AND FURNISHED A COPY OF THE JUDGEMENT OF THE HON ' BLE TRIBUNAL IN THE CASE OF ACIT VIS SHRI RAVINDER KUMAR TOSHNIWAL - ITA NO . 5302 I M 108 STATING THAT A PART I CULAR TRANSACTION COULD NOT BE TREATED AS BO G US M E RELY BECAUSE IT IS AN OF F - MARKET TRANSACTION . AS IT APPEARS FROM THE ORD E R , TH E SA ID J UDGEMENT HA S ALSO NOT B E EN CONSIDERED BY THE HON ' BLE TRIBUNAL BEFORE MAKING THE SAID OBSERVATION TO T RE AT THE TRANSACTION AS BOGU S . IV. AFTER MAK ING THE ABOVEMENTIONED OBSERVATIONS, THE TRIBUNAL HAS FURTHER OBSERVED THAT THE PRICES OF THE SHARES OF CABLE CORPORATION JUMPED MANIFOLD WITHOUT ANY APPARENT REASON AND THERE IS NO ECONOMIC OR FINANCIAL BASIS FOR SUCH ASTRONOMICAL APPRECIATION IN A SHORT SPAN OF TIME. IN THIS REGARD, THE APPELLANT SUBMITS THAT, THE SHARES WERE SOLD AT THE PREVAILING MARKET PRICE AT WHICH THE SHARES WERE ACTUALLY TRADED ON THE NSE. COPY OF THE RITU SANJAY MANTRY 4 HISTORICAL PRICE DATA OF CABLE CORPORATION ON NSE WAS ALSO FURNISHED AND SPECIFI CALLY RELIED UPON AT THE TIME OF HEARING (REF.PG.33 T O 37 OF EX. B) WHICH HAS INADVERTENTLY NOT BEEN CONSIDERED BY THE HON 'BLE TRIBUNAL. IT WAS ALSO STATED THAT CABLE CORPORATION IS A REPUTED COMPANY AND NO INVESTIGATION HAD BEEN CARRIED ON AGAINST IT BY SEBI OR ANY AUTHORITY WHATSOEVER, SO AS TO EVEN REMOTELY SUGGEST THAT THE PRICES WERE RIGGED. AS SUCH, IT IS HUMBLY SUBMITTED THAT, EVEN THIS OBSERVATION IS ERRONEOUS IN AS MUCH AS THE ASTRONOMICAL RISE IN PRICES WAS DUE TO THE FACT THAT ITS NETWORTH HAD A LMOST TRIPLED IN 2008 - 09. AS SUCH, THE SAID OBSERVATION IS ALSO CONTRARY TO THE EVIDENCES PRODUCED AND RELIED ON BY THE APPELLANT AT THE TIME OF HEARING WHICH HAVE INADVERTENTLY SKIPPED THE ATTENTION OF THE HON'BLE TRIBUNAL. V. THE TRIBUNAL HAS WHILE CO MING TO ITS CONCLUSION RELIED ON THE JUDGEMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN V/ S PRI.C IT. IN THIS REGARD, IT IS WORTH NOTING THAT THE HEARING IN THE CASE OF THE APPELLANT WAS CONCLUDED ON 30.11.2017 WHEREAS THE ORDER OF THE HON'BLE BOMBAY HIGH COURT RELIED ON BY THE TRIBUNAL WAS PASSED ON 16.1 2.2017. THE APPELLANT THEREFORE, DID NOT HAVE ANY OPPORTUNITY WHATSOEVER TO DEAL WITH THE SAID JUDGEMENT, SINCE THE SAME WAS NOT AVAILABLE AT THE TIME OF HEARING NOR WAS THE APPELLANT MADE AWARE OF THE SAME POST THE HEARING. WITHOUT PREJUDICE TO THE ABOVE AND IN ANY CASE , THE SAID JUDGEMENT IS NOT APPLICABLE TO THE FACTS OF THE APPELLANT'S CASE SINCE THE FACTS IN THAT CASE ARE COMPLETELY DIFFERENT AS COMPARED TO THE CASE OF THE APPELLANT . IN THAT CASE THERE WAS A NEGATIVE FINDING AS REGARDS THE NET - WORTH OF THE COMPANY BASIS WHICH APPREHENSIONS WERE RAISED STATING THAT THE RISE IN PRICE OF THE SHARES WAS U NBELIEVABLE AND UNJUSTIFIABLE. SUCH FINDINGS ARE COMPLETELY MISSING IN THE PRESENT CASE. FURTHER, THE APP E LLANT C RA VE S L E AV E OF TH E HON ' BL E T RIBUNAL TO FURNISH ADDI T ION A L POIN TS O F DI S TIN C TION AT THE TIM E OF HEARIN G O F THIS MI S C E LLANEOUS APPLICATION. V I. T H E APPELL A NT FURTHER SUBMIT S THAT TH E HON ' BLE TRIBUNAL AT PARA 13 O F TH E ORDER HA S AFF IRM E D THE OB S ER V ATION S OF TH E R ES PONDENT , THAT TH E AS SESS E E (THE APPLICANT H E R E IN ) HAD PAID CASH OF E QUIVALENT A M O UNT AND RECEIVED BACK BY CHEQUE AND BOGU S C ONTR A CT NOT ES AND BILLS FOR THE TRAN S A C TION S NOT ACTUALLY R OUTED THROUGH S TOCK EX CHAN GE . TH E RESPONDENT MAD E TH E S E OB S ERVATIONS WITHOUT ANY E VIDENCE WHAT S O E VER. THIS FACT WA S CATEGORI C ALLY POINTED OUT TO THE TRIBUNAL. HOWEVER , IT SE E M S THI S FA C T HAS REMAINED UNNOTIC E D AT TH E TIME OF PASSING THE ORDE R AND THE OB SE RVATION O F TH E RESPO NDENT HA S B EE N A FF IRM E D WITHOUT ANY EVIDENCE TO SUPPORT TH E S AM E. VII. TH E APPELLANT FURTHER SUBMITS THAT A S APPARENT FROM THE ORDER , VARIOUS FACTUAL AND L E GAL CONTENTION S A S RAIS E D BY THE RITU SANJAY MANTRY 5 APP E LLANT HAVE INADVERTENTLY NOT BEEN DEALT WITH B Y T H E TRIBUNAL AT THE TIME OF HEARING . THEY ARE AS FOLLOWS: A. THE APPLICANT MOST RESPECTFULL Y SUBMIT S, AT THE OUTSET , THAT THE HON ' BLE TRIBUNAL HA S UPHELD THE JURISDICTION O F TH E AO TO FRAME THE ASSESSMENT U / S 148 ON THE GROUND THAT THERE WAS PRIMA - FAC I E INFORMATION ON THE BAS I S OF WHICH ASSESSMENT WAS R E - OPENED AND IN ORDER TO UPHOLD THE SAME THE HON'BLE T RIBUNAL RELIED ON THE JUD G EMENT IN THE CASE OF A CIT V / S RAJESH JHAVERI STOCK BROKERS - (2007) 291 ITR 500 (SC) . HOWEVER , THE PLE A RAISED AT THE TIME OF HEARING WA S NOT WHETHER TH E RE WAS TANGIBLE MATERIAL OR NOT BEFORE THE AO . RATHER , THE PLEA RAISED AT THE TIME OF HEARING WA S THAT THE A O HAS NOT APPLIED HIS MIND TO THE SAID INFORMATION BEFORE RECORDING REASONS AND INITIATING THE RE - ASSESSMENT PROCEEDINGS. AS SUCH , THE SAID CONTENTION O F THE APPELLANT RE M AINED UNADDRESSED BY THE HON ' BLE TRIBUNAL AND THE RE - ASSESSMENT WAS AFFIRMED WITHOUT CONSIDERING THE PLEA OF THE APP E LLANT AS STATED ABOVE . B. THE APPELLANT HAD POINT E D OUT THAT THE DEPARTMENT RELIED ON CERTAIN IN FORMAT I ON A ND S TA T EMENTS OF MR. MUKE S H C HOKSH I GA THERED AT THE BACK OF THE APPELLANT. THE SAID STATEMENTS AS WELL A S ALL INFORMATION RECEIVED FROM THE INVESTIGATION WIN G REMAINED UNCON FRONTED TO THE APPELLANT . THE APPELLANT C ATEGORICALLY ARGUED THAT AN OPP ORTUNITY TO REBUT THE SAID INFORMATION / ST A T E MEN TS AND AL S O TO C RO SS E X AMINE MR. MUKE S H CHOK S HI WA S NOT GRANTED TO THE APP E LLANT D ES PITE SPECIFIC REQUEST RIGHT FROM THE STAGE OF ASSESSMENT [REF . PG.49 OF EX. B AND PG. 10 OF THE CIT(A) ' S ORDER] . AS SUCH THE S AM E COULD NOT BE USED AGAINST THE ASSESSEE. FOR THI S PROPOSITION , THE APPELLANT HAD EVEN RELIED ON AND FILED COPIES OF THE JUD G EM E NT OF THE HON ' BLE JURISDICTION A L HIGH COURT IN THE CASE OF H. R. MEHTA V/S ACIT - ITXA NO.58 OF 2001 WHEREIN IT HAS BEEN HELD THAT THE DENIAL OF AN OPPORTUNITY TO CROSS EXAMINE THE DEPONENT AND TO PROVIDE THE DOCUMENTS/INFORMATION RELIED ON BY THE DEPARTMEN T GOES TO ROOT OF THE MATTER AND STRIKES AT THE VERY FOUNDATION OF THE REASSESSMENT . THE APPELLANT F URTHER RELIED ON AND FURN ISHED COPIES OF THE JUDGEMENT OF THE HON ' BLE RAJASTHAN HIGH COURT IN THE CASE OF CIT V / S KAN SINGH RATHORE - D. B . INCOME TAX APPEAL 192 OF 2014 WHEREIN IT WAS HELD THAT WHEN SHRI MUKESH CHOKSI WAS NOT CONFRONTED TO BY THE ASSESSEE , THE DEPARTMENT COULD NOT USE HIS STATEMENT AGAINST THE ASSESSEE . FURTHER , THE A PPELLANT HAD ALSO RELIED ON THE JUDGEMENT OF THE DIVISION BENCH OF THE HON'BLE TRIBUNAL IN THE CASE OF KAMLADEVI S. DOSHI V / S ITO - ITA NO. 1957/ MUM ./ 2015 ALONGWITH ITA NOS . 3018 AND 3019/ MUM . /2015 ON THE SAME PROPOSITION WHEREIN THE HON'BLE TRIBUNAL HAD DELETED THE ADDITIONS MADE IN THE HANDS OF THE ASSESSEE SINCE SHE WAS NOT GRANTED CROSS - EXAMINATION OF MR . MUKESH CHOKSHI BEFORE MAKING THE ADDITIONS IN RESPECT OF LONG RITU SANJAY MANTRY 6 TERM CAPITAL GAINS ON SHARES PUR CHASED THROUGH CONCERNS RUN BY MR. MUKESH CHOKSHI. THIS SPECIFIC ARGUMENT AND THE JUDGEMENTS RELIED ON THEREFOR , HAVE INADVERTENTLY , NOT BEEN CONSIDERED BY THE TRIBUNAL AS APPARENT FROM THE ORDER . C. THE APPELLANT HAD FURTHER ARGUED THAT NO ADDITION COUL D HAVE BEEN MADE IN ITS HANDS MERELY ON THE BASIS OF STATEMENTS OF SOME MR. MUKESH CHOKSHI. MORE SO, PARTICULARLY , WHEN THE CAPITAL GAINS EARNED BY IT WERE EXPLAINED AND PROVED BY A PLETHOR A OF EVIDENCES SUBSTANTIATING BOTH THE PURCHASES (REF . PG. 21 TO 29 OF EX. B) AND S AL E S (REF.PG.LL TO 20 AND 32 TO 37 O F P8) . IN F A CT , THE PURCHA S ES MAD E B Y THE APPELLANT HAVE BEEN ACCEPTED BY THE RESPONDENT HIMSELF AS INVESTMENTS IN EARLIER YEAR WHICH WAS SPECIFICALLY STATED BEFORE THE HON ' BLE TRIBUNAL. I T WAS TH E R E FOR E AR G U E D THAT ON CE PU RC H ASES A R E AC CE PT E D SA L E S C OULD N O T H AVE B EE N D O UBTED. IN ORD E R TO FUR T H ER B O L S T ER H ER SUBMI SS I O N S , TH E AP PE L LAN T H A D R E LIE D ON AND FURNISH E D COPIES OF TH E JUDGEM E NT OF TH E CO - ORDINATE BENCH ES OF TH E HO N ' BL E TRIBUN A L IN TH E FOLLOWIN G C A SE S WHER E ADDITION S M A DE ON THE BA S I S OF STAT E MENT O F MR . MUK ES H C HOKSHI AND THE DO C UMENT S / INFORMATION R ECE IVED FROM THE INV ES TIGATION WING WER E DEL E T E D: ULKA VIJAY SALVI V / S ITO , ITA NO . 2 069 / MUM ./ 2015; SHRI CHANDRAKANT G. PATEL V / S ITO , ITA 2705 / MUM . / 2004 ; SHRI SUNIL PRAKASH V / S ACIT , ITA NO. 6494 / MUM ./ 2014; ACIT V / S RAVINDER KUMAR TOSHNIWAL , ITA NO.530 2/M UM / 2008. T H E S E JUDG E MENT S A S APPARENT FROM TH E ORDER HAVE INADVER TE N T LY NO T BEEN C ON S IDERED BY THE TRIBUNAL WHILE PASSING THE IMPUG N ED ORDER. D. THE APPELLANT FURTHER SUBMITS THAT ONE OF THE REASONS FOR DISMI S SING THE APPEAL FILED BY THE APPELLANT WAS THAT IN THE OPINION OF . THE TRIBUNAL TH E R E WAS ASTRONOMICAL RISE IN PRICES OF THE SHARE S OF CABLE CORPORATION OF INDIA LT D . WHICH W E RE SOLD BY THE AP PELLANT AND ON WHICH CAPITAL GAINS WERE EARNED . I T I S WORTH NOTING THAT AS ALREADY MENTIONED EARLIER , THE SHARES WERE BOTH BOUGHT AND SOLD AT TH E PREVAILING MARKET RATES AT NS E ( REF . PG.33 TO 37 OF EX. B ). IN FACT , THE SALE WA S MADE THROUGH NSE AT THE PRIC ES RULING AT NSE. IN FACT, THE NETWORTH OF THE SAID COMPANY HAD ALMOST TRIPLED IN 2008 - 09. AS SUCH , THERE WAS NO REASON WHICH COULD LEAD TO SUSPICION AS REGARDS THE SAID TRANSACTION . FURTHER , THE APP E LLANT HAD RELIED ON AND FURNISHED A COPY OF THE JUDGEMEN T O F THE CO - ORDINAT E DIVISION BENCH OF THE HON ' BLE TRIBUNAL IN THE CAS E OF SURYA PRAKASH TOSHNIWAL V / S ITO , ITA NO. 1 213 / KOL ./2 016 , WHEREIN IT HAS BEEN HELD THAT WHEN TRAN S ACTIONS WERE CARRIED OUT AT THE PRICES PREVAILING ON THE STOCK E X CHANGE , THE S AME CO ULD NOT BE TRE A TED AS BOGUS MERELY BECAUSE THERE IS A SUBSTANTIAL APPRECIATION IN THE PRICES OR RITU SANJAY MANTRY 7 THAT THE APPELLANT FAILED TO JUSTIFY THE PRICES AT WHICH THE SHARES ARE SOLD . F URTHER, THE APPELLANT HAD AL S O RELIED ON AND FURNI S HED C OPY O F TH E JUD G EMEN T O F TH E HON ' BLE TRIBUNAL IN THE CA S E OF DOLARRAI HEMAN V / S IT O, ITA NO.19 / KOL ./ 2014 , WHEREIN IT WAS HELD THAT CAPITAL GAINS AS EARNED BY THE ASS E SS EE C O ULD N OT B E TR EATED A S B OG U S M ER E LY ON THE GRO UND THA T A T TH E TIM E O F SA L E THE PRI CES OF S T OC K S HAS S UB STA N T I A L LY / ASTRONO M ICA L LY APPR EC IATED A N D TH E D IFFE R E N CE BETWEE N THE PURCHA S E PRIC E AND S AL E PRI CE W AS UNUSUALLY HIGH . THE ABOV E FA C T S A S W E LL AS THE JUDGEMENT S, AS APP A RENT FROM TH E ORDER, WERE INADVERTENTLY NOT CONSIDERED BY THE HON ' BLE TRIBUNAL. E. FURTH E R , AS APPARENT FROM TH E ORDER , T HE HON ' BLE TRIBUNAL HA S NOT C ONSID E R E D A PLETHORA OF EVID E NCES (APART FROM AND I N ADDITION TO THOSE SPECIFICA L L Y MENTIONED ABOVE) FURNISHED IN THE FORM OF PAP E RBOOK (EX . B) BY THE APPELLANT AT TH E TIME OF HEARIN G AND WHICH W AS RELI E D UPON AND EVEN POINTED OUT BEFORE TH E HON ' BLE TRIBUNAL. 5. IN FACT , THERE ARE A PLETHORA OF JUDGEMENTS EV E N BY THE HON ' BLE JURISDICTIONAL HIGH COURT WHEREIN ON SIMILAR FACTS THE E X EMPTION ON LONG T E RM CAP I TAL GA I NS CLAIMED BY THE AS S ESSEE HAS B EEN ALLOWED AND THE ADDITION MADE IN THE HANDS OF THE A S SE S SEE U/ S 68/69 HAS BEEN DELETED E VEN IN CASES WHERE MR. MUKESH CHOKSHI AND HIS RELA T ED CONCERNS WERE A PARTY TO THE TRANSACTION [REF. CIT V / S MUKESH RATILAL MAROLIA - ITXA 456 OF 2007 BEFORE THE HON ' BLE BOMBAY H I GH COURT AND AFFIRMED BY THE HON ' BLE SUPREME COURT IN SLP (C) NO S .20146 OF 2012 , CIT V / S RAJNIDEVI CHAUDHARY - ITXA 1333 OF 2008 , CIT VIS RAVINDERKUMAR TOSHNIWAL , ITXA(L) 1739 OF 2010 BEFORE THE HON ' BLE BOMBAY HIGH COURT , ETC.] . AS IS APPARENT F R OM THE ORDER , THE SAM E HAS BEEN PASSED WITHOUT CONSIDERING THESE BINDING JURI S DICTION A L HIGH COURT JUDGEMENTS . 6. IN THE ABOVE CIRCUMSTANCES , THE APPLICANT MOST RESPECTFULLY URGES THAT THE IMPUGNED ORDER BE RECTIFIED ON THE ERRORS AS POINTED OUT ABOVE . WITHOUT PREJUDICE TO THE SAME AND IN THE ALTERNATIVE, IT IS SUBMITTED THAT IN TH E I N TEREST OF JUSTICE AND FAIR PLAY THE APPEAL BE RESTORED FOR HEARING ON MERITS ON ALL THE I SS UES AS POINTED OUT ABOVE AND ONE MO R E OPPORTUNITY OF BEING HEARD BE GIVEN TO THE APPLICANT. 3 . PER CONTRA, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE TRIBUNAL HAS PASSED AN ELABORATE ORDER PLACING RELIANCE UPON CASE LAWS FROM THE HONBLE APEX COURT AND THE HON'BLE JURISDICTIONAL RITU SANJAY MANTRY 8 HIGH COURT ON THE IMPUGNED ISSUES. HE SUB MITTED THAT THERE IS NO MISTAKE APPARENT FROM RECORD IN THE ORDER PASSED BY THE TRIBUNAL AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE LEARNED DEPARTMENTAL REPRESENTATIVE PLEADED THAT THE ASSESSEE IS SEEKING A REVIEW OF THE ORDER WHICH IS NOT P ERMISSIBLE UNDER SECTION 254(2) OF THE ACT. 4 . UPON HEARING RIVAL PARTIES AND ON A PERUSAL OF MATERIALS ON RECORD, WE FIND THAT THE INCOME TAX APPEAL RELATED TO RE OPENING OF THE CASE PURSUANT TO THE INFORMATION RECEIVED FROM THE INVESTIGATION WING REGARDING BOGUS LONG TERM CAPITAL GAIN CLAIM IN WHICH THE ASSESSEE WAS INVOLVED PURSUANT TO SHRI MUKESH CHOKSI GROUP SCAM CASES. THE TRIBUNAL HAS PASSED AN ELABORATE ORDER OPERATING PART OF WHICH IS REPRODUCED BELOW: 13. I HAVE HEARD BOTH THE COUNSEL AND PERUSE D THE RECORDS. I FIND THAT COGENT AND CREDIBLE INFORMATION WAS RECEIVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS INDULGED IN MANIPULATED BOGUS ACCOMMODATION ENTRIES IN SHARES FOR SHOWING LTCG. THE INFORMATION WAS RECEIVED THAT SUCH MANIPULATED TRANSA CTIONS WAS DONE THROUGH COMPANIES RUN BY SHRI MUKESH CHOKSI. THE ASSESSING OFFICER HAS GIVEN A FINDING THAT THE ASSESSEE HAS TAKEN ENTRIES FROM MAHASAGAR SECURITIES PVT. LTD. INVOLVED IN THE SHARES SCAM CASE FOR RS.10,39,289/ - FOR BOGUS SPECULATION PROFIT DURING THE FINANCIAL YEAR 2007 - 08. THE ASSESSING OFFICER HAS FOUND THE ASSESSEE HAS PAID CASH OF EQUIVALENT AMOUNT AND RECEIVED BACK BY CHEQUE AND BOGUS CONTRACT NOTES AND BILLS FOR THE TRANSACTIONS NOT ACTUALLY ROOTED THROUGH STOCK EXCHANGE. THE ASSESSING OFFICER HAS ALSO NOTED THAT THESE FACTS ARE ESTABLISHED BY REPLY BY LINK INTIME INDIA PVT. LTD. VIDE LETTER DATED 27.2.2015 WHICH MENTIONS AS UNDER: RITU SANJAY MANTRY 9 'WE WISH TO INFORM YOU THAT THE SAID SHAREHOLDER IS NOT HOLDING ANY SHARES UNDER DEMAT ACCOUNT NO. IN3011 51/22161785 IN THE ABOVE MENTIONED COMPANY AS PER THE DETAILS AVAILABLE WITH US AS ON 21 ST FEBRUARY 2008 AND 31 5T MARCH 2008.' 14. ON THE ABOVE FACTUAL BACKGROUND, THE ASSESSING OFFICER HAS HELD THAT IT IS CLEAR THAT THE ASSESSEE THROUGH MAHASAGAR SECURIT IES PVT. LTD. HAS SHOWN TRANSACTIONS WHICH ARE COLORABLE DEVISE USING FORGED AND FABRICATED BILLS AND CONTRACT NOTES FOR THE PURPOSE OF EVASION OF TAX. ON THESE TRANSACTIONS, THE ASSESSING OFFICER HAS ALSO ESTIMATED 2% COMMISSION AND, ACCORDINGLY, HE HAS M ADE THE ABOVE SAID DISALLOWANCE. 15. UPON THE ASSESSEES APPEAL, THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS GIVEN A FINDING THAT DEALING IN SHARES BY THE ASSESSEE IN THE ABOVE SCRIPT HAS TO BE TAKEN AS DEALING IN PENNY STOCK WHICH WAS IN THE FORM O F ACCOMMODATION ENTRIES AND HENCE THE ENTIRE SALE CONSIDERATION OF THIS SCRIP HAS TO BE TREATED AS UNEXPLAINED CASH CREDIT WITHIN THE MENAING OF SECTION 68 OF THE ACT. 16. I FIND THAT THE FACTS OF THE CASE INDICATE THAT THE ASSESSEE HAS CLAIMED TO HAVE PU RCHASED SHARE FROM CABLE CORPORATION OF INDIA LTD. THROUGH MAHASAGAR SECURITIES PVT. LTD. AND ALLIANCE INTERMEDIATERIES & NETWORK PVT. LTD. THESE INTERMEDIATERIES ARE COMPANIES OPERATED BY SHRI MUKESH CHOKSI AND ARE INVOLVED IN PROVIDING BOGUS ENTRIES. ON ENQUIRY, THE ASSESSING OFFICER HAS FOUND THAT FOR THE SAID COMPANY CABLE CORPORATION OF INDIA LTD., LINK INTIME INDIA PVT. LTD. IS THE REGISTERED AUTHORITY. THE ASSESSING OFFICER ASKED FOR INFORMATION U/S. 133(6) OF THE ACT VIDE LETTER DATED 25.2.2015 FROM LINK INTIME INDIA PVT. LTD. REGARDING THE GENUINENESS OF THE TRANSACTION. THE SAID LINK INTIME INDIA PVT. LTD. VIDE LETTER DATED 27.2.2015 STATED THAT THE ASSESSEE (SHAREHOLDER) IS NOT HOLDING ANY SHARES IN DEMAT ACCOUNT IN THE ABOVE MENTIONED COMPANY. IN THESE FACTUAL BACKGROUNDS, THE ABOVE TRANSACTION OF THE ASSESSEE HAS BEEN HELD TO BE BOGUS ACCOMMODATION TRANSACTION. THE ABOVE FACTUAL SCENARIO CLEARLY INDICATES THAT THE ASSESSEE HAS INDULGED IN BOGUS TRANSACTION TO SHOW HIS UNDISCLOSED INCOME IN THE GA RB OF LONG TERM CAPITAL GAIN. 17. NOW THE FACTS OF THE CASE AS NOTED ABOVE SHOWS THAT THE SHARES OF UNKNOWN COMPANY IN AN OFF MARKET DEAL HAS JUMPED MANIFOLD WITHOUT ANY APPARENT REASON. THERE IS NO ECONOMIC AND FINANCIAL BASIS FOR THE ASTRONOMICAL APPRE CIATION INVOLVED IN THE SHORT SPAN OF TIME. IN THE IDENTICAL SITUATION, THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF SANJAY BIMALCHAND JAIN VS. PR. CIT VIDE ORDER DATED 16.12.2017 HAS HELD AS UNDER: RITU SANJAY MANTRY 10 ( I) THE ASSESSEE HAD ON THE ADVICE OF AN INCOME TAX CONSULTANT PURCHASED SHARES OF TWO PENNY STOCK KOLKATA BASED COMPANIES I.E., 8000 SHARES AT THE RATE OF RS.5.50 PER SHARE ON 08.08.2003 AND 4000 SHARES AT THE RATE OF RS.4/PER SHARE ON 05.08.2003 FROM SYNCOM MARKETING PVT. LTD. AND OF SKYZOOM DISTRIBUT ORS PVT. LTD. THE PAYMENTS WERE MADE BY THE ASSESSEE IN CASH FOR ACQUISITION OF SHARES OF BOTH THE COMPANIES. THE ADDRESS OF BOTH THE COMPANIES WAS INTERESTINGLY, THE SAME. THE AUTHORIZED SIGNATORY OF BOTH THE COMPANIES WAS ALSO THE SAME PERSON. THE PURCHA SE OF SHARES OF BOTH THE COMPANIES WAS DONE BY THE ASSESSEE THROUGH GLOBAL STOCK AND SECURITIES LTD AND THE ADDRESS OF THE SAID BROKER WAS INCIDENTLY THE ADDRESS OF THE TWO COMPANIES. BOTH THE COMPANIES INTIMATED THE ASSESSEE ON 07.04.2004 REGARDING THE ME RGER OF THE COMPANIES WITH ANOTHER COMPANY, VIZ. KHOOBSURAT LIMITED, KOLKATA AND THE ASSESSEE RECEIVED THE SHARES OF THE NEW COMPANY IN THE RATIO OF 1:4 OF THE NUMBER OF SHARES OF THE PREVIOUS TWO COMPANIES HELD BY THE ASSESSEE. THE ASSESSEE SOLD 2200 SHAR ES AT AN EXORBITANT RATE OF RS.486.55 PER SHARE ON 07.06.2005 AND 800 SHARES ON 20.06.2005 AT THE RATE OF RS.485.65. THE SHARES WERE SOLD THROUGH ANOTHER BROKER, VIZ. ASHISH STOCK BROKING PRIVATE LIMITED. THE PROCEEDS FROM THE AFORESAID SALE TRANSACTION WE RE DIRECTLY CREDITED BY THE BROKER IN THE SAVINGS BANK ACCOUNT OF THE ASSESSEE IN THE UNION BANK OF INDIA. THE ASSESSING OFFICER DID NOT ACCEPT THE CASE OF THE ASSESSEE THAT SHE WAS ENTITLED TO EXEMPTION UNDER SECTION 10(38) OF THE INCOME TAX ACT. THE ASSE SSING OFFICER HELD THAT THE AFORESAID TRANSACTIONS OF PURCHASE OF TWO PENNY STOCK SHARES FOR RS.60,000/, THE MERGER OF THE COMPANIES WITH A NEW COMPANY AND THE SALE OF THE SHARES FOR RS.11,58,930/FELL WITHIN THE AMBIT OF ADVENTURE IN THE NATURE OF TRADE AN D THE ASSESSEE HAD PROFITED BY RS.13,98,930/. THE ASSESSING OFFICER, THEREFORE, BROUGHT THE AFORESAID AMOUNT TO TAX UNDER THE HEAD BUSINESS INCOME. (II) BEING AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE ASSESSEE FILED AN APPEAL BEFORE THE COMMI SSIONER OF INCOME TAX (APPEALS). THE APPEAL FILED BY THE ASSESSEE WAS DISMISSED AND SO WAS THE SUBSEQUENT APPEAL FILED BY THE ASSESSEE AGAINST THE RITU SANJAY MANTRY 11 ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) BEFORE THE INCOME TAX APPELLATE TRIBUNAL. (III) ON HEARING THE LEARNED COUNSEL FOR THE ASSESSEE AND ON A PERUSAL OF THE ORDERS OF THE INCOME TAX AUTHORITIES, IT APPEARS THAT THERE IS NO SCOPE FOR INTERFERENCE WITH THE SAID ORDERS IN THIS APPEAL. BY REFERRING TO THE AFORESAID FACTS, WHICH ARE NARRATED IN THE EARLI ER PART OF THIS ORDER, THE AUTHORITIES FOUND THAT THE ASSESSEE HAD MADE INVESTMENT IN TWO UNKNOWN COMPANIES OF WHICH THE DETAILS WERE NOT KNOWN TO HER. IT WAS HELD THAT THE TRANSACTION OF SALE AND PURCHASE OF SHARES OF TWO PENNY STOCK COMPANIES, THE MERGER OF THE TWO COMPANIES WITH ANOTHER COMPANY, VIZ. KHOOBSURAT LIMITED DID NOT QUALIFY AN INVESTMENT AND RATHER IT WAS AN ADVENTURE IN THE NATURE OF TRADE. IT WAS HELD BY ALL THE AUTHORITIES THAT THE MOTIVE OF THE INVESTMENT MADE BY THE ASSESSEE WAS NOT TO DE RIVE INCOME BUT TO EARN PROFIT. BOTH THE BROKERS, I.E. THE BROKER THROUGH WHOM THE ASSESSEE PURCHASED THE SHARES AND THE BROKER THROUGH WHOM THE SHARES WERE SOLD, WERE LOCATED AT KOLKATA AND THE ASSESSEE DID NOT HAVE AN INKLING AS TO WHAT WAS GOING ON IN T HE WHOLE TRANSACTION EXCEPT PAYING A SUM OF RS.65,000/IN CASH FOR THE PURCHASE OF SHARES OF THE TWO PENNY STOCK COMPANIES. THE AUTHORITIES FOUND THAT THOUGH THE SHARES WERE PURCHASED BY THE ASSESSEE AT RS.5.50 PS. PER SHARE AND RS.4/PER SHARE FROM THE TWO COMPANIES IN THE YEAR 2003, THE ASSESSEE WAS ABLE TO SELL THE SHARES JUST WITHIN A YEARS TIME AT RS.486.55 PS AND RS.485.65 PS PER SHARE. THE BROKER THROUGH WHOM THE SHARES WERE SOLD BY THE ASSESSEE DID NOT RESPOND TO THE ASSESSING OFFICERS LETTER SEEKING THE NAMES, ADDRESSES AND THE BANK ACCOUNTS OF THE PERSONS THAT HAD PURCHASED THE SHARES SOLD BY THE ASSESSEE. (IV) THE AUTHORITIES HAVE RECORDED A CLEAR FINDING OF FACT THAT THE ASSESSEE HAD INDULGED IN A DUBIOUS SHARE TRANSACTION MEANT TO ACCOUNT FOR TH E UNDISCLOSED INCOME IN THE GARB OF LONG TERM CAPITAL GAIN. WHILE SO OBSERVING, THE AUTHORITIES HELD THAT THE ASSESSEE HAD NOT TENDERED COGENT EVIDENCE TO EXPLAIN AS TO HOW THE SHARES IN AN UNKNOWN COMPANY WORTH RS.5/HAD JUMPED TO RS.485/IN NO TIME. THE IN COME TAX APPELLATE TRIBUNAL HELD THAT THE FANTASTIC SALE PRICE WAS NOT AT ALL POSSIBLE AS THERE WAS NO ECONOMIC OR FINANCIAL BASIS AS TO HOW A RITU SANJAY MANTRY 12 SHARE WORTH RS.5/OF A LITTLE KNOWN COMPANY WOULD JUMP FROM RS.5/TO RS.485/. THE FINDINGS RECORDED BY THE AUTHORIT IES ARE PURE FINDINGS OF FACTS BASED ON A PROPER APPRECIATION OF THE MATERIAL ON RECORD. WHILE RECORDING THE SAID FINDINGS, THE AUTHORITIES HAVE FOLLOWED THE TESTS LAID DOWN BY THE HONBLE SUPREME COURT AND THIS COURT IN SEVERAL DECISIONS. THE FINDINGS DO NOT GIVE RISE TO ANY SUBSTANTIAL QUESTION OF LAW. THE JUDGMENTS REPORTED IN (2012) 20 TAXMAN.COM 529 (BOMBAY) (CIT VERSUS JAMNADEVI AGRAWAL), (1957) 31 ITR 294 (BOMBAY) (PURANMAL RADHAKISHAN VERSUS CIT), (1970) 77 ITR 253 (SC) (RAJA BAHADUR VERSUS CIT) AND (2015) 235 TAXMAN 1 (BOM) (CIT VERSUS SMT.DATTA M. SHAH) AND RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE ARE DISTINGUISHABLE ON FACTS AND CANNOT BE APPLIED TO THE CASE IN HAND. 18. FROM THE ABOVE, I FIND THAT IDENTICAL ISSUE HAS BEEN DECIDED BY THE HON'BLE JURISDICTIONAL HIGH COURT AGAINST THE ASSESSEE. FURTHERMORE, THE PLETHORA OF JUDGEMENTS REFERRED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN HIS ORDER ALSO SUPPORTS THE CASE OF THE ASSESSEE. ACCORDINGLY, I DO NOT FIND ANY INFIRMITY IN THE O RDERS OF THE AUTHORITY BELOW. ACCORDINGLY, I UPHOLD THE SAME. 19. IN THE RESULT, THIS APPEAL FILED BY THE ASSESSEE STANDS DISMISSED. 5 . ON CAREFUL CONSIDERATION, I FIND THAT THE ORDER OF THE TRIBUNAL DOES NOT SUFFER FROM ANY MISTAKE APPARENT FROM RECORD, AS SUBMITTED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THE LEARNED COUNSEL IS SEEKING A REVIEW OF THE ORDER WHICH IS NOT PERMISSIBLE UNDER SECTION 254(2) OF THE ACT. THE LEARNED COUNSEL FOR THE ASSESSEE, INTER ALIA, FINDS FAULT WITH THE ORDER PASSED BY THE TRIBUNAL RELYING UPON THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT ON THE ISSUE. I ALSO FIND THAT THE NON CONSIDERATION OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT CAN GIVE RISE TO THE APPARENT MISTAKE IN THE RITU SANJAY MANTRY 13 ORDER PASSED BY THE TRIBU NAL, AS HELD BY THE HON'BLE SUPREME COURT IN ACIT V/S S AURASHTRA KUTCH STOCK EXCHANGE LTD., [2008] 305 ITR 227 (SC) . IT IS NOT THE OTHER WAY AROUND THAT THE CONSIDERATION FOR HON'BLE JURISDICTIONAL HIGH COURTS DECISION CAN GIVE RISE TO A MISTAKE APPARENT FROM RECORD, WHEN THERE IS NO CASE THAT THE SAME IS NOT APPLICABLE ON THE FACTS OF THE PRESENT CASE. CONSEQUENTLY, I HOLD THAT THE PRESENT MISC. APPLI CATION IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. 6 . IN THE RESULT, MISC. APPLICATION STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 04.04.2019 / - SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER MUMBAI, DATED : 04.04.2019 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . T RUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY ) ITAT, MUMBAI