ACIT (OSD)-1, CR-7, MUMBAI v. RAJKUMAR R. SHOREWALA, MAHARASHTRA

ITA 5508/MUM/2009 | 2001-2002
Pronouncement Date: 31-03-2011 | Result: Dismissed

Appeal Details

RSA Number 550819914 RSA 2009
Assessee PAN AAGPS9750D
Bench Mumbai
Appeal Number ITA 5508/MUM/2009
Duration Of Justice 1 year(s) 5 month(s) 23 day(s)
Appellant ACIT (OSD)-1, CR-7, MUMBAI
Respondent RAJKUMAR R. SHOREWALA, MAHARASHTRA
Appeal Type Income Tax Appeal
Pronouncement Date 31-03-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted D
Tribunal Order Date 31-03-2011
Date Of Final Hearing 20-07-2010
Next Hearing Date 20-07-2010
Assessment Year 2001-2002
Appeal Filed On 07-10-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'D' BENCH MUMBAI BEFORE SHRI N.V. VASUDEVAN JUDICIAL MEMBER AND SHRI B. RAMAKOTAIAH ACCOUNTANT MEMBER ITA NOS. 5508 & 5509/MUM/2009 (ASSESSMENT YEARS: 2001-02 & 2002-03) ACIT (OSD)-I CENTRAL RANGE - 7 MR. RAJKUMAR R. SHO REWALA ROOM NO. 413 4TH FLOOR 59/67 MIRZA STREET GR. FL OOR AAYAKAR BHAVAN M.K. ROAD VS. ZAVERI BAZAR MUMBAI 400003 MUMBAI 400020 PAN - AAGPS 9750 D APPELLANT RESPONDENT CO NOS. 109 & 110/MUM/2010 (ASSESSMENT YEARS: 2001-02 & 2002-03) MR. RAJKUMAR R. SHOREWALA ACIT (OSD)-I CENTRAL RAN GE - 7 59/67 MIRZA STREET GR. FLOOR ROOM NO. 413 4TH FL OOR ZAVERI BAZAR MUMBAI 400003 VS. AAYAKAR BHAVAN M.K. ROAD PAN - AAGPS 9750 D MUMBAI 400020 APPELLANT RESPONDENT APPELLANT BY: DR. B. SENTHIL KUMAR RESPONDENT BY: SHRI SASHI TULSIYAN O R D E R PER B. RAMAKOTAIAH A.M. THESE APPEALS ARE BY THE REVENUE AGAINST THE COMMON ORDER PASSED BY THE CIT(A) CENTRAL V MUMBAI DATED 16.07.2009. THE REVENUE HAS RAISED THE COMMON GROUNDS FOR BOTH THE YEARS EXCEPT THAT THAT THE AMOUNT INVOLVED FOR A.Y. 2001-02 WAS AN AMOUNT OF ` 4 98 070/- AND THE AMOUNT INVOLVED FOR A.Y. 2002-03 WAS AN AMOUNT OF ` 4 01 769/-. THE COS ARE ON THE ISSUE OF JURISDICTION RAISED BY THE ASSESSEE. 2. BRIEFLY STATED THE ASSESSEE HAD FILED RETURNS OF IN COME ON 30.10.2001 AND 24.10.2002 RESPECTIVELY FOR THE ASSESSMENT YEAR S DECLARING INCOMES. PROVISIONS UNDER SECTION 147 WERE INITIATED IN APRI L 2004 BY ISSUING NOTICE ON 4 TH /5 TH APRIL 2004 AND AN ASSESSMENT ORDER UNDER SECTION 1 43(3) R.W.S. 147 WAS PASSED ON 29.03.2006. THE ISSUE FOR REOPENI NG AT THAT POINT OF TIME WAS THAT ASSESSEE HAS CLAIMED CERTAIN SHORT TERM CA PITAL GAINS ON SALE OF SHARES WHICH WERE CONSIDERED BOGUS CONSEQUENT TO TH E SEARCH IN THE CASE OF ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 2 THE BROKER WHO HAS DEALT WITH CERTAIN PENNY STOCKS IN ON-MARKET AND OFF- MARKET TRANSACTIONS. THE CLAIM OF SHORT TERM CAPITA L GAINS AND LOSS WERE DISALLOWED BY THE A.O. THE MATTER WAS CONTESTED BEF ORE THE CIT(A) WHEREIN THE CIT(A) VIDE HIS ORDER DATED 26.06.2007 ALLOWED ASSESSEES APPEAL ON ADDITIONS/ DISALLOWANCES MADE. HOWEVER IN THE MEAN TIME ON 28.06.2006 A SEARCH AND SEIZURE OPERATION WAS CONDUCTED IN THE G ROUP CASES OF THE ASSESSEE WHO ARE ALLEGED TO BE BOOKING PROFITS BY M AKING CLAIMS OF BOGUS LONG TERM CAPITAL GAINS AND PURCHASE AND SALE OF SH ARES OF PENNY STOCK COMPANIES. DURING THE SEARCH IT CAME TO LIGHT THAT 1 00 000 SHARES OF M/S. BOLTON PROPERTIES LTD. PURCHASED BY SHRI RAJKUMAR M . SHOREWALA GROUP WAS NOT SOLD AND THAT THE SHARES STILL EXISTED IN T HE RESPECTIVE DEMAT ACCOUNTS OF THE GROUP MEMBERS INCLUDING THE ASSESSE E. SINCE THE SHARES WERE NOT TRANSFERRED THE QUESTION OF BOOKING PROFIT ON ACCOUNT OF LONG TERM CAPITAL GAINS DID NOT ARISE. HOWEVER CONSEQUENT TO THE SEARCH NOTICES UNDER SECTION 153A WERE ISSUED FOR THE IMPUGNED ASSESSMEN T YEARS AND THE A.O. REPEATED THE SAME DISALLOWANCES MADE ORIGINALLY. TH E LEARNED CIT(A) HOWEVER CONSIDERED THE SUBMISSIONS OF THE ASSESSEE ON THE JURISDICTION AS WELL AS VALIDITY OF 153A ASSESSMENTS UPHOLDING THE JURISDICTION WHEREAS ON MERITS HE FOLLOWING HIS PREDECESSORS ORDER EARLIE R DELETED THE ADDITIONS/DISALLOWANCES. THE DEPARTMENT DID NOT FIL E ANY APPEAL AGAINST THE ORDERS OF THE CIT(A) DATED 26.06.2007. HOWEVER THE REVENUE CONTESTED THE ACTION OF THE CIT(A) NOW IN RESPECT OF THE ORDERS PASSED UNDER SECTION 153A. IN THE CROSS OBJECTIONS THE ASSESSEE IS CONTESTING THE JURISDICTIONAL ISSUE WHICH WAS HELD AGAINST THE ASSESSEE. 3. THE FINDINGS OF THE CIT(A) ON THE ISSUE OF MERITS A RE AS UNDER: - 4.3 I HAVE CONSIDERED THE ASSESSMENT ORDERS AND TH E SUBMISSION OF THE APPELLANT. AS I FIND THE APPELLANTS APPEAL ON THE ADDITIONS IN QUESTION MADE IN THE ORIGINAL ASSESSMENTS STANDS AL LOWED BY THE CIT(A) VIDE HIS ORDERS DT. 22.6.2007. AS I NOTE TH E CIT(A) WHILE ALLOWING THESE APPEALS HAS RELIED OH THE DECISION O F THE HON'BLE ITAT IN THE CASE OF MR. MUKESH R. MAROLIA VS. ACIT IN IT A NO. 1201/MUM/2005 FOR A.Y. 2001-02. THE CIT(A) HAS RECO RDED HIS OBSERVATIONS ON THIS ORDER OF THE HON'BLE ITAT IN P ARA 4.3 OF HIS APPELLATE ORDER FOR THE ASSESSMENT YEAR 2001-02 AND IN PARA 3 3 IF HIS ORDER FOR THE ASSESSMENT YEAR 2002-03. I FURTHE R NOTE THAT THE INCOME-TAX DEPARTMENT HAS NOT FILED THE APPEAL AGAI NST THESE ORDERS ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 3 OF THE CIT(A). TO THE EXTENT OF THE FACTS EXISTING BEFORE THE CIT(A) I AGREE WITH HIS RELIANCE ON THE ORDER OF THE HON'BLE ITAT IN THE CASE MR. MUKESH R. MAROLIA VS. ACIT. THE ONLY CHANGE FRO M THE FACTS BEFORE THE CIT(A) IS THE SUBSEQUENT STATEMENT AND A FFIDAVIT OF MR. MUKESH CHOKSI. WITH REGARD TO THESE I FIND THAT TH E APPELLANT HAS POINTED OUT THAT THE PARTIES MENTIONED BY MR. MUKES H CHOKSI IN HIS STATEMENT IN ANSWER TO QUESTION NO. 3 ARE NOT THE P ARTIES WITH WHICH THE APPELLANT HAD MADE DEALINGS. AS MENTIONED BY TH E APPELLANT FOR GIVING ENTRIES THERE WERE THREE COMPANIES AND MR. MUKESH CHOKSI WHO WERE RECEIVING CASH/CHEQUES FROM THE ENTRY SEEK ERS. ON THIS THE APPELLANT HAS MENTIONED THAT HE DID NOT MAKE AN Y PAYMENT TO ANY OF THESE PARTIES. THIS WOULD INDICATE THAT THE APPELLANTS PAYMENTS ARE NOT WITH THE PARTIES WHO HAD RECEIVED PAYMENTS FROM THE ENTRY SEEKERS WHICH WOULD FURTHER INDICATE THA T THE APPELLANT WAS NOT AMONG THE ENTRY SEEKERS. THIS ALSO BRINGS T O LIGHT THE INCONSISTENCY IN THE STATEMENT OF MR. MUKESH CHOKSI . AS MAY BE NOTED DESPITE THE APPELLANT NOT MAKING PAYMENT TO THE ENTITIES MENTIONED BY MR. MUKESH CHOKSI THE APPELLANTS TRA NSACTIONS ARE TERMED AS BOGUS BY HIM. ACCORDINGLY MR. MUKESH CHO KSIS STATEMENT IS FOUND TO BE NOT BORNE OUT BY FACTS IN SO FAR AS THE APPELLANTS TRANSACTIONS IN QUESTION ARE CONCERNED. THIS COUPLE D WITH THE FREQUENT VACILLATING CHANGES IN HIS STATEMENTS WOUL D INDICATE THAT MR. MUKESH CHOKSIS STATEMENT BEFORE THE ASSESSING OFFI CER IS NOT RELIABLE BECAUSE THE SAME MR. MUKESH CHOKSI HAD INI TIALLY STATED THAT THE TRANSACTIONS WERE BOGUS AND HAD THEN AGAIN RETRACTED DURING THE ORIGINAL ASSESSMENT PROCEEDINGS TO HOLD THAT THE TRANSACTIONS WERE GENUINE. IN THIS RESPECT I FIND APPELLANTS RELIANCE ON THE DECISION OF THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF ICT VS. EASTERN COMMERCIAL ENTERPRISES AS APT AND APPRO PRIATE. AS I NOTE IN THIS DECISION THE HON'BLE CALCUTTA HIGH CO URT HAS OBSERVED A MAN INDULGING IN DOUBLE SPEAKING CANNOT BE SAID BY ANY MEANS A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH OCCAS ION HE WAS TRUTHFUL. IN VIEW OF THIS I FIND THAT THE FACTS AND EVIDENCE S BEFORE THE CIT(A) WHEN HE PASSED THE ORDER ON APPELLANTS APPEAL AGAI NST DISALLOWANCES IN THE ORIGINAL ASSESSMENTS REMAIN TH E ONLY RELEVANT AND CREDIBLE FACTS AND EVIDENCES IN THE CASE AND I FIND NO REASON TO MAKE DEPARTURE FROM THE DECISION TAKEN BY THE CIT(A ) IN THE APPELLATE ORDERS ON THE ORIGINAL ASSESSMENTS AS THE APPELLATE ORDERS ON THE ORIGINAL ASSESSMENTS ARE BASED ON THESE FACTS AND E VIDENCES. THE ADDITIONS ARE ACCORDINGLY DELETED. THE GROUND OF AP PEAL IS ALLOWED. HE ALLOWED THE ADDITION FOR A.Y. 2002-03 ALSO FOR T HE SAME REASON. 4. THE LEARNED D.R. REFERRED THE SEQUENCE OF EVENTS AN D SUBMITTED THAT THAT ALLEGATION WAS THAT THE ASSESSEE HAS INDULGED IN HAWALA TRANSACTIONS FOR PURCHASE OF LONG TERM AS WELL AS SHORT TERM CAP ITAL GAINS AND CONSEQUENT TO SEARCH THE ASSESSMENTS WERE COMPLETED. EVENTHOU GH THE SAID BROKER SHRI MUKESH CHOKSI HAS GIVEN AN AFFIDAVIT IN THE OR IGINAL ASSESSMENT ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 4 PROCEEDINGS ABOUT THE GENUINENESS OF THE TRANSACTIO NS ON ENQUIRY HAS GIVEN A REVISED AFFIDAVIT ADMITTING THE TRANSACTIONS AND MODUS OPERANDI OF TAKING CASH AND BOOKING CAPITAL GAINS BY ISSUING ACCOMMODA TION ENTRIES. REFERRING TO THE PROVISIONS OF SECTION 153A IT WAS THE SUBMIS SION OF THE LEARNED D.R. THAT THE A.O. HAS ONLY ONE OPTION OF ASSESSING OR R EASSESSING THE TOTAL INCOME AND THE ISSUE OF BRINGING TO TAX UNDISCLOSED INCOME USED EARLIER IN THE PROCEEDINGS UNDER SECTION 158BC WERE NOT APPLIC ABLE. THEREFORE THE A.O. IS WELL WITHIN HIS RIGHTS TO REASSESS THE INCO ME CONSEQUENT TO THE SEARCH AND SINCE THE SEARCH RESULTED IN ENQUIRING A BOUT THE ACCOMMODATION ENTRIES THE STATEMENT OF MR. CHOKSI SUBSEQUENTLY TA KEN IN THE REASSESSMENT PROCEEDINGS ON WHICH THE ASSESSEE HAS NOT CHOSEN TO CROSS EXAMINE IS TO BE CONSIDERED AS VALID. HE RELIED ON THE PRINCIPLES ES TABLISHED BY THE HON'BLE SUPREME COURT IN THE CASE OF MEHTA PARIKH & CO. VS. CIT 30 ITR 181 TO SUBMIT THAT THE PERSON WHO GAVE AFFIDAVIT WAS NOT C ROSS EXAMINED DOES NOT OPEN TO CHALLENGE THE CORRECTNESS OF THE STATEMENT MADE IN THE AFFIDAVIT. HE FURTHER RELIED ON THE PRINCIPLES ESTABLISHED BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF GLASS LINES EQUIPMENTS CO. LTD . VS. CIT 253 ITR 454 THAT SINCE THE ASSESSEE CHOOSE TO CROSS EXAMINE THE DEPONENT WITH REFERENCE TO THE STATEMENT MADE IN THE AFFIDAVIT HE CANNOT CH ALLENGE THE CORRECTNESS OF THE STATEMENT MADE BY THE DEPONENT IN THE AFFIDAVIT . THEREFORE IT WAS HIS SUBMISSION THAT THE CIT(A) WRONGLY DISALLOWED THE A DDITIONS SO MADE. 5. IN REPLY THE LEARNED A.R. SUBMITTED THAT THE CIT(A) WHEN PASSING ORDER UNDER SECTION 143(3) R.W.S. 147 HAS DELETED THE ADD ITIONS ON MERITS AND HE HAS NOT RELIED UPON THE STATEMENT OF MR. CHOKSY WHO AFFIRMED AT THAT TIME BY WAY OF AN AFFIDAVIT THAT THE TRANSACTIONS WERE G ENUINE. IT WAS HIS SUBMISSION THAT THE ISSUES WERE ALREADY CONSIDERED AND DECIDED IN THE REOPENED PROCEEDINGS UNDER SECTION 147 AND AT THE T IME OF SEARCH ON 28.06.2006 THE ORDERS BEFORE THE CIT(A) WERE PENDIN G WHO PASSED THE ORDERS ONLY ON 26.06.2007. FOR THE ENTIRE ONE YEAR THE RE VENUE DID NOT SUBMIT ANY OF THE FINDINGS OF THE SEARCH BEFORE THE CIT(A) AND THE CIT(A) DELETED THE ADDITIONS ON ITS MERITS. EVEN DURING THE SEARCH NOT HING INCRIMINATING WAS FOUND BY THE SEARCH PARTY AND THE ISSUE FOR CONDUCT ING THE SEARCH WAS SUPPOSED TO BE BOGUS/ HAWALA CAPITAL GAINS IN THE S ALE OF BOLTON PROPERTIES ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 5 SHARES WHICH WERE FOUND TO BE NOT TRANSACTED AND AV AILABLE IN THE DEMAT ACCOUNTS OF THE RESPECTIVE PARTIES AND SO THE ISSUE OF LONG TERM CAPITAL GAINS WERE NOT CONSIDERED AT ALL. HE REFERRED TO TH E ORDERS PASSED BY THE A.O. EARLIER AND THE ISSUES CONTESTED NOW TO SUBMIT THAT CONSEQUENT TO THE ORDERS OF THE CIT(A) DATED 26.06.2007 THE ISSUES WE RE CRYSTALLISED AS THE REVENUE HAS NOT PREFERRED ANY APPEAL AT THAT POINT OF TIME AND SO AGITATING THE SAME AT PRESENT DOES NOT ARISE. HE FURTHER SUBM ITTED THAT EVEN OTHERWISE THE STATEMENTS ARE TO BE CONSIDERED THE P RINCIPLES ESTABLISHED BY THE HON'BLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. EASTERN COMMERCIAL ENTERPRISES 210 ITR 103 WILL EQUALLY APPLICABLE AS SHRI MUKESH CHOKSI CHANGED HIS STATEMENTS TO SUIT HIS CONVENIENCE AT V ARIOUS POINT OF TIME. AT THE TIME OF SEARCH IN HIS CASE HE STATED THAT MANY OF THE TRANSACTIONS ARE BOGUS WHEREAS SUBSEQUENTLY HE CONFIRMED THAT THE TR ANSACTIONS OF THE ASSESSEE ARE GENUINE BY WAY OF AN AFFIDAVIT. THERE IS NO REASON OR EVIDENCE TO RETRACT FROM THE ABOVE AFFIDAVIT AND GIVE ANOTHE R STATEMENT AGAIN REAFFIRMING THAT THE TRANSACTIONS ARE BOGUS. THIS C ONDUCT OF THE SAID PARTY CANNOT BE RELIED UPON AND REFERRED TO THE OBSERVATI ONS OF THE HON'BLE CALCUTTA HIGH COURT STATING THAT A MAN INDULGING IN DOUBLE SPEAK CANNOT BE STATED BY ANY MEANS A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH OCCASION HE WAS TRUTHFUL. IT WAS HIS SUBMISSI ON THAT SINCE NO EVIDENCE WAS FOUND IN THE COURSE OF SEARCH THE A.O. WAS NOT CORRECT IN REAGITATING THE CONCLUDED ISSUE AND MAKING AN ADDIT ION AGAIN. HE ALSO QUESTIONED INVOKING SECTION 69C IN TREATING THE SHO RT TERM CAPITAL LOSS AND SUBMITTED THAT PROVISIONS OF SECTION 69C ARE APPLIC ABLE WHERE THE ASSESSEE HAS NOT INCURRED ANY EXPENDITURE AND HE OFFERED NO EXPLANATION ABOUT THE SOURCE OF SUCH EXPENDITURE OR PART THEREOF WHICH IS NOT THE CASE HERE AS THE ASSESSEE HAS OFFERED SHORT TERM CAPITAL GAINS/LOSS IN RESPECTIVE YEARS AND THE DISALLOWANCE ON WHICH CANNOT BE CONSIDERED UNDE R SECTION 69C. HE RELIED ON VARIOUS CASE LAWS FOR THE PROPOSITION THA T ITEMS OF REGULAR ASSESSMENT CANNOT BE ADDED IN THE PROCEEDINGS UNDER SECTION 153C WHEN NO INCRIMINATING DOCUMENTS WERE FOUND. HE RELIED ON THE DECISIONS IN THE CASES OF LMJ INTERNATIONAL LTD. VS. DCIT 119 TTJ (K OL) 214 AND GURUPRERNA ENTERPRISES VS. ACIT ITA NOS. 255 256 & 257/MUM/20 10 TO SUBMIT THAT ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 6 THE ISSUES DECIDED IN THE ASSESSMENT CANNOT BE RECO NSIDERED AND REAGITATED IN UNLESS THERE IS FRESH MATERIAL FOUND DURING THE COURSE OF SEARCH IN RELATION TO SUCH POINTS. HE ALSO SUBMITTED THE ORDE RS OF THE ITAT IN GROUP CONCERNS WHERE THE REVENUE HAS CONTESTED THE ORIGIN AL ORDERS WHICH WERE CONFIRMED BY THE HON'BLE HIGH COURT OF JUDICATURE A T BOMBAY IN THE CASE OF CIT VS. SANDEEP SHOREWALA HUF WHICH IN TURN WAS AL SO AFFIRMED BY THE SUPREME COURT DISMISSING THE SPECIAL LEAVE PETITION AFTER ADMITTING IT IN CIT VS. SANDEEP SHOREWALA CO NO. 18429 OF 2010 DATE D 10.12.2010 . 6. WE HAVE CONSIDERED THE ISSUE. AS EXAMINED FROM THE ORDERS OF THE A.O. PASSED ORIGINALLY UNDER SECTION 143(3) R.W.S. 147 DATED 29.03.2006 THE ISSUES CONSIDERED IN THAT ORDER WERE THE SAME WHICH ARE CONSIDERED IN THE ORDERS UNDER SECTION 143(3) R.W.S. 153A. IT IS ALSO ON RECORD THAT THERE IS NO INCRIMINATING MATERIAL FOUND AND SEIZED IN THE SEAR CH REGARDING THESE ASPECTS ON 28.06.2006. AT THAT POINT OF TIME THE AP PEALS BEFORE THE CIT(A) WERE PENDING AND THE REVENUE HAS NOT MADE OUT ANY E FFORT TO SUPPORT THE ISSUES BEFORE THE CIT(A). THE CIT(A)S ORDER DATED 28.06.2007 GIVING RELIEF TO THE ASSESSEE ON THE DISALLOWANCES MADE/ADDITIONS MA DE IN ORIGINAL ORDERS HAS NOT BEEN CONTESTED IN APPEAL. THUS THOSE ORDERS BECAME FINAL. IN VIEW OF THE COORDINATE BENCH DECISION RELIED UPON IT WAS H ELD THAT WHEN THE ISSUES DECIDED IN ASSESSMENT CANNOT BE RECONSIDERED AND RE AGITATED UNLESS THERE IS SOME FRESH MATERIAL FOUND DURING THE COURSE OF SEAR CH IN RELATION TO SUCH POINTS. THE LEARNED D.R. TRIED TO MAKE OUT A CASE T HAT CONSEQUENT TO THE SEARCH ENQUIRES WERE CONDUCTED WITH MR. MUKESH CHOK SHI AND HIS STATEMENTS WERE THE BASIS FOR MAKING THE ADDITIONS. WE ARE AFRAID THAT THIS LINE OF ARGUMENT CANNOT BE ACCEPTED AS THE SEARCH D ID NOT RESULT IN ANY INCRIMINATING MATERIAL WITH REFERENCE TO THE GENUIN ENESS OR OTHERWISE OF THE TRANSACTIONS UNDERTAKEN BY THE ASSESSEE. AS STATED BY THE CIT(A) IN HIS ORDER THE SEARCH WAS CONDUCTED IN ORDER TO ENQUIRE THE LONG TERM CAPITAL GAINS AND SALE OF CERTAIN SHARES BEING INDULGED BY THE ASSESSEE GROUP AND THE SEARCH RESULTED IN IDENTIFYING THAT THE TRANSAC TIONS HAVE NOT BEEN UNDERTAKEN AT ALL AS THE SAID SHARES WERE AVAILABLE IN THE DEMAT ACCOUNTS OF THE PERSONS IN THE GROUP INCLUDING THAT OF THE ASS ESSEE. THERE IS ALSO NO INCRIMINATING MATERIAL FOR THE ALLEGATION OF CASH B EING GIVEN AND SALE OF ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 7 SHARES OBTAINING BY WAY OF ACCOMMODATION ENTRIES WI TH THE BROKING COMPANIES OF SHRI MUKESH CHOKSI. UNDER THESE CIRCUM STANCES WE ARE OF THE OPINION THAT THE A.O. HAS WRONGLY CONSIDERED TH E SAME ISSUES AGAIN IN THE ORDER UNDER SECTION 143(3) R.W.S. 153A. ON MERI TS THE CIT(A) ALREADY DELETED THE ADDITIONS AND THE REVENUE HAS NOT CONTE STED. EVEN IN THE CASE WHERE IT WAS CONTESTED IN OTHER ASSESSEES IN THE GR OUP THE ITAT AFFIRMED THESE ORDERS OF THE CIT(A). THEREFORE THERE IS NO I SSUE ON MERITS. 7. MUCH WAS STATED ABOUT THE STATEMENT OF SHRI MUKESH CHOKSI PARTICULARLY AS EXTRACTED BY THE A.O. IN PARA 9 OF HIS ORDER UNDER SECTION 153A. AS SEEN FROM THAT STATEMENT NO BASIS WAS GIVE N BY SHRI CHOKSI IN WITHDRAWING THE EARLIER STATEMENT ALREADY GIVEN AND IN PARA 9.1 THE A.O. EXTRACTED THE FRESH AFFIDAVIT DATED 04.12.2008 IN W HICH VIDE PARA 4 OF THE AFFIDAVIT SHRI MUKESH CHOKSI STATED THAT THE TRANSA CTION ON BEHALF OF SHRI RAJKUMAR R. SHOREWALA ARE ACCOMMODATION ENTRIES AND NO SUCH TRANSACTIONS ARE CARRIED OUT THROUGH ANY STOCK EXCH ANGE. HOWEVER HE TREATED THE STATEMENT DATED 27.02.2006 AS WITHDRAWN AND NEW AFFIDAVIT WAS EXECUTED. IN BOTH THE AFFIDAVITS HE HAS SOLEMNLY AF FIRMED ABOUT THE CONTENTS THEREIN. AS RIGHTLY DECIDED BY THE HON'BLE CALCUTTA HIGH COURT THERE IS NO TRUTH IN THE STATEMENT GIVEN BY SHRI MUKESH CHOKSI AS HE HAS GIVEN DIFFERENT STATEMENTS AT DIFFERENT POINT OF TIME TO SUIT TO HIS CONVENIENCE. A MAN INDULGING IN DOUBLE SPEAK CANNOT BE STATED BY A NY MEANS A TRUTHFUL MAN AT ANY STAGE AND NO COURT CAN DECIDE ON WHICH O CCASION HE WAS TRUTHFUL. IT IS ALSO NOTICED THAT THE STATEMENT GIV EN TO THE A.O. AND THE REPLY TO QUESTION NO. 3 EXTRACTED IN PAGE 19 OF THE ORDER MR. CHOKSI STATES THE FOLLOWING: THE CONTRACT NOTE WITH REGARD TO PURCHASE AND SALE OF SHARES ETC. ISSUED BY THE FOLLOWING COMPANIES OF MY GROUP TO VA RIOUS ENTRY SEEKERS DURING THE A.Y. 2001-02 TO 2007-08 WERE ONLY ON PAP ER AND THERE WAS NO ACTUAL TRANSACTION . AS SEEN FROM THE ABOVE SHRI CHOKSI STATED THAT T HE TRANSACTIONS FROM A.Y. 2001-02 TO AY 2007-08 WERE P APER TRANSACTIONS. IT IS SEEN THAT SRI CHOKSI WAS SEARCHED IN 2001 ITSELF. IF AT THERE WERE ANY PAPER TRANSACTIONS THAT CAN BE ONLY UPTO THAT DATE BUT S HRI MUKESH CHOKSI INCLUDES ALL ASSESSMENT YEARS UPTO 2007-08. IT CAN NOT BE VISUALISED THAT SRI CHOKSI INDULGED IN SIMILAR TRANSACTIONS EVEN AFTER HE WAS SEARCHED AND HIS ITA NOS. 5508&5509/MUM/2009 CO NOS. 109 & 110/MUM/2010 MR. RAJKUMAR R. SHOREWALA 8 MODUS OPERANDI WAS IDENTIFIED. THEREFORE IN OUR OP INION THERE IS NO BASIS FOR THE STATEMENT GIVEN NOW AND THE REVENUE ALSO CO ULD NOT BRING ON RECORD ANY INFORMATION IN SUPPORT OF THE CONTENTIONS MADE BY THE SAID SHRI MUKESH CHOKSI NEITHER THE CASH DEPOSITS IN THE RES PECTIVE ACCOUNTS NOR CHEQUE PARTICULARS STATED TO HAVE BEEN ACCOMMODATIO N ENTRIES HAVE EXAMINED OR BROUGHT ON RECORD. IN THESE CIRCUMSTANC ES IT CAN ONLY BE STATED THAT THERE IS NO TRUTH IN THE STATEMENT GIVEN BY SH RI MUKESH CHOKSI. 8. SINCE THE ISSUE WAS ALREADY DECIDED IN FAVOUR OF TH E ASSESSEE BY THE ORDERS OF THE CIT(A) DATED 26.06.2007 WE CONFIRM T HE FINDINGS OF THE CIT(A) EXTRACTED ABOVE AND DISMISS REVENUES APPEALS. 9. AS FAR AS THE CROSS OBJECTIONS ARE CONCERNED THESE ARE ON THE ISSUES OF JURISDICTION UNDER SECTION 153A WHICH WERE NOT PRES SED IN THE COURSE ARGUMENTS. ACCORDINGLY THE CROSS OBJECTIONS ARE DIS MISSED AS WITHDRAWN. 10. IN THE RESULT APPEALS OF THE REVENUE AND CROSS OBJ ECTIONS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MARCH 2011. SD/- SD/- (N.V. VASUDEVAN) (B. RAMAKOTAIAH) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED: 31 ST MARCH 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CENTRAL V MUMBAI 4. THE CIT CENTRAL II MUMBAI CITY 5. THE DR D BENCH ITAT MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT MUMBAI BENCHES MUMBAI N.P.