MASUMA S. TANKIWALA, MUMBAI v. ITO 12(2)(4), MUMBAI

ITA 1867/MUM/2014 | 2004-2005
Pronouncement Date: 27-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 186719914 RSA 2014
Assessee PAN AAAPT7407L
Bench Mumbai
Appeal Number ITA 1867/MUM/2014
Duration Of Justice 8 month(s) 8 day(s)
Appellant MASUMA S. TANKIWALA, MUMBAI
Respondent ITO 12(2)(4), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 27-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted SMC
Tribunal Order Date 27-11-2014
Date Of Final Hearing 06-08-2014
Next Hearing Date 06-08-2014
Assessment Year 2004-2005
Appeal Filed On 19-03-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC MUMBAI . . BEFORE SHRI I P BANSAL JUDICIAL MEMBER ./ITA NO.1867/MUM/2014 ( / ASSESSMENT YEAR:2004-05) MASUMA S TANKIWALA FLAT NO.83 8 TH FLOOR SEA LORD-A 117 CUFFFE PARADE COLABA MUMBAI 400 005 PAN AAAPT7407L VS. THE ITO 1 2 ( 2 )( 4 ) MUMBAI ( ! /APPELLANT) ( '# ! / RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI NEIL PHILIP DATE OF HEARING : 27.11.2014 DATE OF PRONOUNCEME NT :27.11.2014 $ / O R D E R THIS APPEAL IS FILED BY THE ASSESSEE. IT IS DIRECT ED AGAINST THE ORDER PASSED BY THE CIT(A) DATED 11.12.2013 FOR A.Y. 2004-05. 2. THE ASSESSEE IN THE PRESENT APPEAL APART FROM CH ALLENGING THE VALIDITY OR OTHERWISE OF REASSESSMENT PROCEEDINGS HAS ALSO CHAL LENGED THE ADDITION OF RS.1 45 125/- WHICH ACCORDING TO THE DEPARTMENT R EPRESENTS SALE AND PURCHASE OF SHARE WHICH ARE BOGUS IN NATURE. TO BE PRECISE AC CORDING TO THE DEPARTMENT THE ASSESSEE HAS OBTAINED ACCOMMODATION ENTRIES AMOUNTI NG TO RS.1 45 125/- FROM M/S. GOLDSTAR FINVEST PVT. LTD. IN F.Y. 2003-04 AND UPON THE INFORMATION RECEIVED FROM DIT (INVESTIGATION) THE CASE OF THE ASSESSEE WAS R E-OPENED. THE ASSESSEE HAD PURCHASED 1500 SHARES OF BUNIYAD CHEMICALS ON 17/04 /02 FOR A SMALL CONSIDERATION OF RS.1 857/- WHICH WERE SOLD FOR A CONSIDERATION OF RS.1 45 125/-. TAKING CLUE 2 ITA NO.1867/MUM/2014 AY:2004-05 FROM THESE TRANSACTIONS THE AO DOUBTED THE TRANSACT ION ON THE GROUND THAT THE SCRIPT HAD GONE UP 80 TIMES WITHIN A SHORT PERIOD O F ONE AND HALF YEARS WHICH IS QUITE UNUSUAL AND UNBELIEVABLE. THEREFORE THE SAI D AMOUNT WAS ADDED TO THE INCOME OF THE ASSESSEE AND THE ADDITION IS CONFIRME D BY THE CIT(A). AGGRIEVED THE ASSESSEE HAS FILED THIS APPEAL. 3. THE NOTICE OF HEARING WAS ISSUED TO THE ASSESSEE AND THE CASE WAS FIXED FOR HEARING ON 26.11.2014. WHEN NONE APPEARED ON BEHAL F OF THE ASSESSEE THE CASE WAS ADJOURNED TO 27.11.2014 AND THE BENCH CLERK WAS DIRECTED TO INFORM THE AR OF THE ASSESSEE ON PHONE. ACCORDINGLY THE INFORMATIO N WAS GIVEN TO THE LEARNED AR OF THE ASSESSEE WHO DID NOT REPRESENT ON 27.11.2014. ACCORDINGLY I PROCEED TO DECIDE THE APPEAL EXPARTE QUA THE ASSESSEE. 4. THE LEARNED DR RELIED UPON THE ORDERS PASSED BY THE AO AND THE CIT(A). 5. AFTER HEARING THE LEARNED DR AND AFTER PERUSING THE MATERIAL PLACED ON MY RECORD I AM OF THE OPINION THAT THE FACTS OF THE P RESENT CASE ARE SIMILAR TO THE EARLIER APPEAL DECIDED BY THE TRIBUNAL ON SIMILAR F ACTS IN THE CASE OF SHRI ANANTRAI B SHAH VS. ITO VIDE ORDER DATED 14.12.2012 IN ITA NO .1842/MUM/2012 FOR A.Y 2003- 04 COPY OF WHICH HAS BEEN PLACED ON THE RECORD AND WAS ALSO AVAILABLE WITH THE LEARNED DR. IN THE SAID CASE SIMILAR ADDITION OF R S.1 76 037/- WAS MADE ON ACCOUNT OF ALLEGED SALE OF SHARES OF M/S. BUNIYAD CHEMICALS LIMITED THROUGH GOLDSTAR FINVEST PVT. LTD. AND THE ADDITION WAS DELETED BY THE TRIB UNAL WITH THE FOLLOWING OBSERVATIONS :- 7. AFTER CONSIDERING THE SUBMISSION AND PERUSING T HE MATERIAL ON RECORD I FOUND THAT THE ASSESSEE HAS DISCHARGED HI S ONUS BY FILING COMPLETE DETAILS IE. PURCHASE OF SHARES SHARE CERT IFICATE DEMAT ACCOUNT CONFIRMATION FROM BUNIYAD CHEMICALS LIMITE D OF WHOSE SHARES WERE PURCHASED. CONSIDERATION WAS PAID THROUGH ACCO UNT PAYEE CHEQUE THEREFORE THERE IS NO MATERIAL AGAINST THE ASSESSEE FROM WHICH IT CAN BE SAID THAT THE TRANSACTION ENTERED B Y THE ASSESSEE WAS NOT GENUINE. IT IS FURTHER NOTICED THAT IN CASE OF KATARIA KETAN ISHWARLAL (SUPRA) THE ADDITIONS WERE MADE ON THE BASIS OF ST ATEMENT OF SHRI MUKESH CHOKSHI. THE TRIBUNAL BY NOTING THAT MR. CHO KSHI HAS ISSUED A GENERAL STATEMENT AND IT CANNOT BE APPLIED IN EACH AND EVERY CASE THERE WAS NO DIRECT EVIDENCE AGAINST THAT ASSESSEE. ACCORDINGLY THE AMOUNT OF ADDITION MADE IN THAT CASE WAS DELETED BY THE TRIBUNAL. 3 ITA NO.1867/MUM/2014 AY:2004-05 HERE FACTS ARE SIMILAR. NEITHER THE STATEMENT OF MU KESH CHOKSHI WAS PROVIDED TO THE ASSESSEE NOR THERE WAS ANY CROSS EX AMINATION OF MUKESH CHOKSHI WHEREAS CONTRARY TO THAT THE ASSESS EE HAS FILED ALL THE DETAILS REQUIRED FOR PROVIDING FOR PURCHASE OF SHAR ES WERE GENUINE. IT IS NOT A CASE OF THE DEPARTMENT WHATEVER THE CONSIDER ATION WAS PAID BY THE ASSESSEE THROUGH CHEQUE FOR PURCHASING OF SHARE S HAVE COME BACK TO THE ASSESSEE UNDER THE GARB OF BOGUS PURCHASES A S THERE IS NO EVIDENCE AGAINST THE ASSESSEE. KEEPING IN MIND ALL THESE FACTS AND CIRCUMSTANCES OF THE CASE I HOLD THAT THE ADDITION MADE AND SUSTAINED ON ACCOUNT OF PURCHASE OF SHARES ONLY ON THE BASIS OF STATEMENT OF MUKESH CHOKSHI WAS NOT JUSTIFIED. THEREFORE THE S AME IS DELETED. 5. IN THIS VIEW OF THE SITUATION RESPECTFULLY FOLL OWING THE AFOREMENTIONED ORDER OF THE TRIBUNAL I DELETE THE ADDITION. 6. SO FAR AS IT RELATES TO THE VALIDITY OR OTHERWIS E OF REASSESSMENT PROCEEDINGS SINCE I HAVE DELETED THE ADDITION THE SAID GROUND H AS BECOME ACADEMIC THEREFORE NEED NOT BE ADJUDICATED. 7. ACCORDINGLY THE APPEAL FILED BY THE ASSESSEE IS ALLOWED IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH DAY OF NOVEMBER 2014. SD/- (I P BANSAL) JUDICIAL MEMBER MUMBAI DT : 27 TH NOVEMBER 2014 SA COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE C.I.T CONCERNED 4. THE CIT (A)-CONCERNED 5. THE DR SMC BENCH MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI