Appeal details
Counselvise Citation
[2014] 124 COUNSELVISE.COM (IT) 2454 (ITAT-PUNE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 1 month(s) 28 day(s)
Appellant
Respondent
Appeal Type
Miscellaneous Application
Pronouncement Date
11-08-2014
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
A
Assessment Year
misc
Appeal Filed On
13-06-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI R.K. PANDA, ACCOUNTANT MEMBER M.A. NO.71/PN/2014 ARISING OUT OF ITA NOS. 678 &679/PN2011) (ASST.YEARS: 2002-03 & 2003-04) ITO, WARD-10(3), PUNE .. APPLICANT VS. SMT. USHA GOVIND PANJABI, MARBLE ARCH. CO-OP SOCIETY, FLAT NO.21, 6 TH FLOOR, GANESHKHIND ROAD, PUNE PAN NO.ABKPP6646C .. RESPONDENT ASSESSEE BY : SHRI NILESH KHANDELWAL REVENUE BY : SHRI RAJESH DAMOR DATE OF HEARING : 08-08-2014 DATE OF PRONOUNCEMENT : 11-08-2014 ORDER PER R.K.PANDA, AM : THE ASSESSEE THROUGH THIS MISCELLANEOUS APPLICATION REQUESTS THE TRIBUNAL TO RECALL OR RECTIFY THE ORDER OF THE TRIB UNAL SINCE CERTAIN EVIDENCES BROUGHT ON RECORD WERE NOT CONSIDERED BY THE TRIBUN AL. 2. THE LD. DEPARTMENTAL REPRESENTATIVE DREW THE ATT ENTION OF THE BENCH TO THE CONTENTS OF THE MISCELLANEOUS APPLICATION WH ICH READ AS UNDER : MISCELLANEOUS APPLICATION NO.___/2013 ARISING OUT OF ITA NOS. 678 & 679/PN/2011 DATED 31-10-2012 FOR A.Y. 2002-03 & 200 3-04). WHILE FILING THE APPEAL, THE REVENUE HAD RAISED FOL LOWING THREE GROUNDS OF APPEAL AS UNDER : 1 THE ASSESSEE FILED AN APPEAL BEFORE THE CIT[A] AND THE LD. CIT[A] VIDE ORDER NO. PN/CIT[A]-C/ACIT CEN. CIR.2[1]/616/TR./09 -10 DATED 28/02/2011 UPHELD THE ACTION OF THE AO, EXCEPT THE FACT THAT T HE TRANSACTION OF SHARES OF MEDIA MATRIX LTD. HAS TO BE TREATED AS SHORT TERM CAPI TAL GAIN. 2. THE ASSESSEE FILED APPEAL BEFORE THE HON'BLE ITAT CHALL ENGING THE DECISION OF THE LD. CIT[A]. THE HON'BLE ITAT VIDE T HE IMPUGNED ORDER UNDER CONSIDERATION RESTORED THE ISSUE TO THE FILE OF THE AO FOR DECIDING IT FRESH. 2 THE HON'BLE ITAT, PUNE BENCH A, PUNE, VIDE ITS ORDE R IN ITA NO.678/679/PN/2011 FOR AYS 2002-03 & 2003-04 DATED 31/10/2012, HAS DISMISSED THE APPEAL OF THE REVENUE, IN VIEW OF THE CB DT, NEW DELHI'S INSTRUCTION NO. 3 DATED 09.02.2011 AND AS THE TAX EFF ECT WITH RESPECT OF THE QUANTUM OF THE RELIEF ALLOWED BY THE CIT(A) IS BELOW RS.3 LAKHS . FURTHER, THE HON'BLE ITAT HAS NOT GIVEN ANY DECISION ON THE MERIT OF THE CASE. IT IS CLEAR FROM THE VERDICT HONBLE ITAT THAT WHILE RESTORING THE MATTER TO THE FILE OF THE A.O THE LD. TRIBUNAL HAS ONLY CONSIDERED CERTAIN SPECIFIC ISSUES RELATING TO PURCHASE OF PENNY STOCK AS RELEVANT . THE HON'BLE ITAT HAS NOT DEALT WITH THE INCIDENTAL ISSUE OF SHARE BROKERS STATEM ENT, STOCK EXCHANGES LETTERS AND CIT(A)S FINDINGS. THE A.O. OBSERVED FROM THE MATERIAL SEIZED/IMPOUNDED DURING THE COURSE OF SEARCH OPERATION AND THE EVIDENCES GATHERED FROM THE STOCK EXCHANGE AND BROKERS THAT THE ASSESSEE GROUP HAS SYSTEMATICALLY CREATED DOCUMENTS SO AS TO GIVE THE OTHERWISE FAKE TRANSACTIONS A COLOR OF GEN UINENESS. THE SEIZED MATERIAL ALSO THROWS LIGHT ON THE MODUS OPERANDI ADOPT ED BY THE GROUP TO CREATE FAKE DOCUMENTS/CORRESPONDENCE WHICH ITSELF WAS P ART OF THE PLANNING DIRECTED AT BOOKING OF LONG TERM CAPITAL GAIN. FURT HER, THE A.O. OBSERVED THAT THE ASSESSEE GROUP WAS INDULGED IN CREATION OF DOCUMENTS IN ORDER TO BOOK BOGUS LONG TERM CAPITAL GAINS AND STRUCTURED THE TRANSA CTIONS, INVOLVING PURCHASE AND SALE OF SHARES, BY ROUTING THE SAME THROU GH BANKING CHANNELS AND FORMING PART OF THE CHAIN OF BROKERS/OTHERS. THE ASSESSEE FAILED TO EXPLAIN THE EVIDENCE AND REBUT THE SAME. IN VIEW OF THE ABOVE, THE A.O. CONCLUDED THAT TRANSACTIONS INVOLVING PURCHASE AND SAL E OF SHARES ARE SHAM AND THE LONG TERM CAPITAL GAIN REFLECTED IN THE RET URNS IS NOT GENUINE. THE LD. TRIBUNAL ACCEPTED THE SALE ARE GENUINE AND H AS RESTORED THE ISSUE MAINLY RELATING TO PURCHASE TO THE FILE OF THE A.O. FOR DECIDING THE ISSUE AFRESH IN THE LIGHT OF ITS OBSERVATIONS AND IN ACCORDANCE WIT H LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. IT HAS GIVEN A DIRECTION TO GIVE OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE WITH EVIDENCE TO HIS SATISFACTION THAT THE ASSESSEE HAS IN FACT SENT THE CONSOLIDATED SHARE S CERTIFICATE TO THE RESPECTIVE COMPANIES FOR SPLITTING AND THE DISTINCTIVE NUMBER OF SUCH SPITTED SHARES CERTIFICATES WHICH HAS GONE TO THE D-MAT ACCOUNT AND SUBSEQUENTLY SOLD ARE SAME. THE ISSUE OF COMMISSION IS ALSO RESTORED TO T HE FILE OF THE A.O. WITH THE DIRECTION THAT IF THE DIRECTION RELATING T O PURCHASE AND SPLITTING ETC. ARE FOUND TO BE RESULTING INTO THE CREDITING OF SHARE S IN D-MAT ACCOUNT THEN LONG TERM CAPITAL GAIN HAS TO BE ACCEPTED. THE HON'B LE ITAT IGNORED THE OTHER EVIDENCES BROUGHT ON RECORD BY A.O. SHOWING THE FICTI TIOUS NATURE OF THE WHOLE TRANSACTION IN GIVING THE ABOVE DECISION. THE LD. TRIBUNAL HAS FAILED TO CONSIDER THE MATERIAL FACTS AND DOCUMENTARY EVIDENCES BROUGHT ON RECORD BY THE A.O DURING THE CO URSE OF ASSESSMENT AND THE FINDING OF THE CIT[A] WHILE DECIDING THE ISSUE. HENCE, THIS IS NOT A FIT CASE WHERE RE-EXAMINATION IS WARRANTED. THEREFORE A MISCEL LANEOUS APPLICATION IS FILED TO HONBLE ITAT . IN THE OTHER GROUP CASES, APP EAL TO HIGH COURT HAVE ALREADY BEEN FILED ON THIS GROUND AS THE TAX EFFECT I NVOLVED IS MORE THAN THE THRESHOLD LIMIT FOR FILING OF APPEAL. THE APPLICATION IS SUBMITTED IN TRIPLICATE. PLACE : PUNE SD/- DATE : 10-06-2013 (M.S.AMDEKAR) INCOME TAX OFFICER, WARD-10(3), PUNE 3 3. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES. IT WAS BROUGHT TO OUR NOTICE THAT THE APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE TRIBUNAL HAS BEEN DISMISSED BY THE HON BLE HIGH COURT. IT WAS FURTHER STATED BY THE LD. COUNSEL FOR THE ASSESSEE THAT AFTER THE TRIBUNAL SET ASIDE THE MATTER TO FILE OF THE ASSESSING OFFICER, THE ASSESSING OFFICER IN THE ASSESSMENT COMPLETED SUBSEQUENT TO THE ORDER OF THE TRIBUNAL HAS MADE THE ADDITION AGAIN AND NO RELIEF HAS BEEN GRANTED. NO APPARENT MISTAKE IN THE ORDER OF THE TRIBUNAL WAS BROUGHT TO OUR NOTICE BY EITHER SIDE. THE REVENUE BY FILING THIS MISCELLANEOUS APPLICATION IS INDIREC TLY TRYING TO CONVINCE THE BENCH TO RECTIFY THE ORDER OF THE TRIBUNAL WHICH AM OUNTS TO REVIEW OF ITS OWN ORDER BY THE TRIBUNAL, WHICH IS NOT PERMISSIBLE IN LAW. IN ABSENCE OF ANY MISTAKE APPARENT IN THE ORDER OF THE TRIBUNAL B EING POINTED OUT BY THE REVENUE THE MISCELLANEOUS APPLICATION IN OUR OPINIO N IS NOT MAINTAINABLE AND DESERVES TO BE DISMISSED. WE ACCORDINGLY DISMI SS THE MISCELLANEOUS APPLICATION FILED BY THE REVENUE. PRONOUNCED IN THE OPEN COURT ON 11-08-2014. SD/- SD/- (SHAILENDRA KUMAR YADAV) (R.K. PANDA) JUDICIAL MEMBER ACCOUN TANT MEMBER PUNE DATED : 11 TH AUGUST, 2014. SATISH COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE 2. DEPARTMENT 3. CIT(A) CENTRAL, PUNE 4. CIT CENTRAL, PUNE 5. THE D.R, A PUNE BENCH 6. GUARD FILE BY ORDER // TRUE COPY // SENIOR PRIVATE SECR ETARY, ITAT, PUNE BENCHES, PUNE
