Income Tax Appellate Tribunal - Panji
Rohit Jayantilal Shah, Mumbai vs Ito 14(2)(1)[Now Ito 18(3)(2), Mumbai on 15 September, 2017
आयकर अपीऱीय अधिकरण "C" न्यायपीठ मब
ुं ई में ।
IN THE INCOME TAX APPELLATE TRIBUNAL "C" BENCH, MUMBAI
BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER
AND SHRI RAMIT KOCHAR, ACCOUNTANT MEMBER
आमकय अऩीर सं./I.T.A. No. 866/Mum/2016
(नििाारण वषा / Assessment Year : 2008-09)
Rohit Jay antilal Sh ah , बिाम/ Income Tax O fficer,
381-C, Narottamwadi, 14(2)(1),
v.
Kalbadevi Road, [Now Income Tax O fficer,
Mumbai - 400 002. 18(3)(2),
C-11/610, Pratyaksh Kar
Bhavan,
Bandra Kurl a Co mplex,
Bandra (East) ,
Mumbai - 400 051.
स्थामी रेखा सं./ PAN : AABPS 9529H
(अऩीराथी /Appellant) .. (प्रत्मथी / Respondent)
Assessee by : Shri Dhaval Shah
Revenue by : Shri Rajat Mittal
सन
ु वाई की तायीख / Date of Hearing : 10.07.2017
घोषणा की तायीख /Date of Pronouncement : 15.09.2017
आदे श / O R D E R
PER RAMIT KOCHAR, Accountant Member
This appeal, filed by the assessee, being ITA No. 866/Mum/2016, is directed against the appellate order dated 08.12.2015 passed by learned Commissioner of Income Tax (Appeals)- 29, Mumbai (hereinafter called "the CIT(A)"), for assessment year 2008-09, appellate proceedings before learned CIT(A) has arisen from the assessment order dated 27.12.2013 passed by learned Assessing Officer (hereinafter called "the AO") u/s 143(3) r.w.s. 147 of the Income-tax Act, 1961 (hereinafter called "the Act") .
2 ITA 866/Mum/2016
2. The grounds of appeal raised by the assessee in the memo of appeal filed with the Income-Tax Appellate Tribunal, Mumbai (hereinafter called "the tribunal") read as under:-
"1. The Ld. Commissioner of Income-Tax (Appeals) has erred in law and facts in confirming assessment order passed u/s 143(3) r.w.s. 147 of the Act.
2. The Ld. Commissioner of Income-Tax (Appeals) has erred in law and in facts in not appreciating that the reasons recorded by the Assessing Officer and consequential reopening of the assessment u/s. 147 of the Act is invalid and bad in law.
3. The Ld. Commissioner of Income-tax (Appeals) has erred in law and in facts in confirming the addition made by Assessing Officer by treating the short term capital gains of Rs.14,33,599/- as income under the head 'income from other sources'.
4. The Ld. Commissioner of Income-Tax (Appeals) has erred in law and in facts in confirming the disallowance made by Assessing Officer of purchase cost of shares of Rs. 93,756/- treating the same as unexplained expenditure u/s 69 of the Act under the head income from other sources."
3. At the outset learned counsel for the assessee submitted before the tribunal that the assessee does not wish to press ground no. 1 and 2 raised in the memo of appeal filed with the tribunal challenging legality and validity of reopening of concluded assessment by invoking provisions of Section 147 and it is prayed that said grounds be dismissed as not pressed . The learned DR did not object to dismissal of ground no 1 and 2 raised by the assessee in memo of appeal filed with the tribunal as not being pressed. After hearing both the parties , we direct dismissal of ground no 1 and 2 raised by the assessee in memo of appeal filed with the tribunal challenging legality and validity of reopening proceedings u/s 147 as not being pressed. We order accordingly.
3 ITA 866/Mum/2016
4. The brief facts of the case are that the assessee is an individual and working partner in M/s Alankar Traders engaged in the trading of spectacle frames and allied optical goods. The assessee derived income from business and profession, salary income, capital gain and income from other sources. The assessee filed return of income on 29th September, 2008 which was processed by Revenue u/s 143(1) of the Act. The case of the assessee was reopened u/s 147 of the Act after recording reasons for reopening and notice u/s 148 of the Act dated 26th March, 2012 was issued and served upon the assessee which is within four years from the end of the assessment year. It is pertinent to mention that no assessment was originally framed by Revenue u/s 143(3) of the Act. The reasons for reopening of assessment u/s 147 were recorded by the AO are as under:-
"Information has been received from DDIT (Inv.), Mumbai in respect of beneficiaries of M/s Mahasagar Securities P. Ltd. Group Share Scam. The investigation wing has received information regarding suspicious transaction taking place in the Bank accounts of M/s Mahasagar Securities P. Ltd and its related companies. Search and seizure action u/s 132 of the Income Tax Act 1961 was undertaken in the case of M/s Mahasagar Securities Pvt. Ltd, (now M/s Alag Securities Pvt. Ltd.) by the office of the Dy. Director of income Tax Unit I(4), Mumbai on 25.11.2009. The director of the companies were one Mukesh M Choksi. During the course of search, it was revealed that M/s Mahasagar Securities Pvt. Ltd. and its related group companies (all run by Mukesh Choksi) were engaged in fraudulent billing activities and in the business of providing bogus speculation profit/loss, short term/long term capital gain/loss share application money, commodities profit/1oss on commodity trading and has been continuing this business for many years. The statement of Mr Mukesh Choksi and other details of the modus operandi of the group in respect of various bogus activities including providing the bogus short term capital gain/loss are also received.
4 ITA 866/Mum/2016 From the details of the beneficiaries of the above share seam, it is found that the assessee Shri Rohit J Shah, has taken entries of bogus share transaction billing from these companies, for the year under consideration. According(y, the case was re-opened u/s 147 of the IT Act for accommodation entries of Rs. 93,756/-"
5. Ground No. 3 & 4 deals with the treating of short term capital gains of Rs. 14,33,599/- on sale of shares as income under the head „income from other sources‟ and also the disallowance of purchase cost of shares of Rs. 93,756/- by treating the same as an unexplained expenditure u/s 69 of the Act and bringing to tax the same under the head „income from other sources‟. It was observed by the A.O. that the assessee had shown sale and purchase of shares of various companies through Alliance Intermediaries & Network Pvt. Ltd. The assessee submitted copies of the contract notes issued by M/s Alliance Intermediaries & Network Pvt. Ltd. and had shown short term capital gain of Rs. 15,19,679/- as against total sale of share amounting to Rs. 20,22,125/-. The A.O. observed that that as per the AIR information, the details of purchase of shares during the year are as under:-
S Name of the Client Name of the Sales/purchases Transaction Total No broker/SEBI code scrip of scrip amount Amount Regd No. (Rs) 1 M/s Alliance 3264 M/s Jai Purchase 93756 93756 Intermediaries & Corporation Network Pvt.
Ltd.
(230783537/23- 10717) It was observed by the A.O. that the purchase and sale of share transactions were carried out by M/s Alliance Intermediateries & Network Pvt Ltd. . It was observed that search action u/s 132 of the Act was carried out by Revenue on this company M/s Alliance Intermediateries & Network Pvt Ltd. on 25th November, 2009. During the course of search action u/s 132, statements of Shri Mukesh Chokshi, Director of M/s. Alliance Intermediateries and Network 5 ITA 866/Mum/2016 Pvt. Ltd & other group companies were recorded wherein they have categorically stated that they have provided only accommodation (Hawala) entries in respect of long term & short term capital gains and speculation profits to the needy persons on receipt of cash and after charging commission income for providing these bogus accommodation entries. Thus, they have stated that they have only issued bogus bills without executing any genuine sale and purchase of shares transactions. Therefore , the A.O. proposed to treat the alleged purchase of shares transaction amounting to Rs. 93.756/- as unexplained investments u/s 69 of the Act , to be added as the income of the assessee under the head „income from other sources‟. The assessee was showcaused by the AO and asked to explain the same. In response, the assessee stated that it had entered into transaction with stock broker M/s Alliance Intermediateries & Network Pvt. Ltd. and purchased 55 shares of M/s Jai Corporation Ltd. as per contract note dated 15th May, 2007. It was submitted that the assessee had paid the purchase consideration in due course of the transaction to the broker. It was submitted that the assessee had sold the shares within a period of 365 days and claimed short term capital gain u/s 111 A of the Act chargeable at special rate @10%. It was submitted that the assessee had made genuine transactions in shares and correctly recorded the same in his books of accounts as well while computing taxable income while filing return of income.
The A.O. issued notice u/s 133(6) of the Act to the National Stock Exchange of India Ltd.(NSE) and Bombay Stock Exchange Ltd. (BSE) to verify the transactions of purchase and sale of shares. In response, the NSE had informed the AO that date of registration of M/s Alliance Intermediateries & Network P. Ltd. in the capital market segment is October, 12, 2000 and the said registration was cancelled on 19th February, 2004 . The NSE submitted that hence no details are available with it as the said concern M/s Alliance Intermediateries & Network Pvt Ltd. is no more registered with it since 19-02- 6 ITA 866/Mum/2016 2004. Similarly, BSE had stated that M/s Alliance Intermediateries & Network P. Ltd. was neither registered as trading member of the BSE nor registered as sub-broker affiliated to any trading member of the exchange.
Thus, the A.O. observed that the alleged share transaction were not made through the exchange, hence, the entire purchase amount of shares of Rs. 93,756/- was treated by the AO as assessee‟s unexplained investment u/s 69 of the Act and added to the income of the assessee, vide assessment order dated 27-12-2013 passed by the AO u/s 143(3) r.w.s. 147 of the 1961 Act.
Further, the assessee was asked by the AO to produce evidence of purchase/sale of shares i.e. Demat A/c, trading A/c and delivery of shares, payment details. etc. vide notice dated 26-06-2013 issued u/s 142(1) of the Act and in response the assessee filed statement of short term capital gain . The A.O. observed that that all accounting data of the said company M/s Alliance Interrnediateries & Network Pvt Ltd. was impounded by the Income Tax Department in search action carried out in their office premises by DDIT (Inv.) u/s 132(1) on 25th November, 2009. Thus, the A.O. found that the share transaction shown by the assessee through M/s Alliance Intermediateries & Network Pvt Ltd. was bogus and that the assessee had availed the accommodation shares transaction bills of sale & purchase from the above broker at one particular time. Thus the AO observed that the DDIT(Inv.) had found during search operations u/s 132(1) that the assessee is one of the beneficiaries of above share scam.
It was observed by the AO that M/s Alliance Intermediateries & Network Pvt Ltd. was engaged in fraudulent billing activities and providing the accommodation share bills of purchase and sale of shares and the assessee is one of the beneficiaries of obtaining accommodation share bills of purchase and sale of shares. Thus, the A.O. treated the difference between sale and 7 ITA 866/Mum/2016 purchase of shares of M/s Jai Corporation i.e. Rs. 1536509/- (-) Rs. 102911/- = Rs. 14,33,599/- as assessee‟s unexplained income and added back to the income of the assessee under the head „income from other sources‟, vide assessment order dated 27-12-2013 passed by the AO u/s 143(3) r.w.s. 147.
6. Aggrieved by the assessment order dated 27-12-2013 passed by the A.O. u/s 143(3) r.w.s. 147, the assessee carried the matter in appeal before the ld. CIT(A).
7. The assessee, during the course of appellate proceedings before the ld. CIT(A) submitted on merits of the case that the assessee had entered into transaction with stock broker M/s Alliance Intermediaries & Network Pvt. Ltd. and purchased 55 shares of M/s Jai Corp Ltd. on 15th May, 2007 for Rs.93,756/- and in due course made the payment for the said purchase of shares on 03-12-2007 which is almost after 6 and half months after its purchase. The assessee submitted that he sold the shares within a period of one year and computed the income under the head short term capital gain u/s 111A of the Act chargeable at special rate of 10%. The details of date- wise purchase transaction of Jai Corp Limited are as under:-
Description Date Related Remarks
details
Purchase of 15.05.2007 93,756 55 No. of shares
shares
Bonus declared 12.10.2007 1:1 55 bonus shares
allotted. Total
shares 110.
Split of shares 10 paid up 110 shares of 10
to 1 paid paid up split to
up. 1100
Delivery of 05.12.2007 1,100 Copy of demat
shares shares are statement is
transferred attached.
to demat
8 ITA 866/Mum/2016
account of
the
appellant.
The details of sale transaction of Jai Corp Limited is summarized as under:-
Date of Name of Sales Capital Tax
sale broker consideration gain applicable
09.01.2008 Dani Shares 15,36,509 14,33,599 10% under
and Stock STCG u/s
Pvt. Ltd. 111A of the
Act
The assessee claimed that the purchase and sale of shares of Jai Corp Limited were genuine. It was submitted that the purchase of shares of Jai Corp Limited was made through broker M/s Alliance Intermediateries & Network Pvt Ltd. and sale was made through Dani Share and Stock Private Limited. The assessee submitted copy of contract note and purchase bills issued by M/s Alliance Intermediateries & Network Pvt. Ltd. for purchase of 55 shares of Jai Corporation Ltd. by the assessee on 15.5.2007 for Rs.93,756/- which showed order number, trade number and trade time etc. It was submitted that the contract notes reflects the settlement period under which the shares were purchased by the assessee. It was submitted that rate on which the said shares were purchased was the market rate of shares of Jai Corp Limited on the date of purchases as traded on stock exchanges. It was submitted that the share purchase transaction was genuine and backed with proper evidences. It was submitted that the full consideration was not paid by the assessee at the time of purchase on 15-05-2007 and these shares were held by the broker till the full payment was made by the assessee which was confirmed by the broker vide letter dated 29.11.2007 and the assessee had also paid Rs. 9,155/- towards the interest for delayed payment of the shares.The said payment for purchase consideration of Rs.93,756/- having been made only on 3-12-2007 against purchase of shares made on 15-05- 2007. It was submitted by the assessee before learned CIT(A) that the said 9 ITA 866/Mum/2016 company M/s Jai Corp Limited had also declared bonus in the ratio of 1:1 on 12-10-2007 and the assessee was entitled to the bonus of 55 shares . It was submitted that thereafter the face value of paid capital of the shares of Jai Corp Limited was reduced from Rs. 10/- to Re. 1/- by way of stock split and accordingly 1100 shares of Re. 1/- each were issued in lieu of 110 shares of Rs. 10/- each of Jai Corp Limited. It was submitted that the 1100 shares of Jai Corp Limited were transferred to the Demat account of the assessee on 5- 12-2007 which clearly shows that the assessee was registered holder of the 1100 shares of the said company Jai Corp Limited. It was submitted that search action u/s 132(1) was conducted at the premises of Shri Mukesh Chokshi and the AO merely relied upon the searches conducted on Shri Mukesh Chokshi. The assessee submitted that the AO did not provide copy of statement of Sh. Mukesh Choksi nor any evidence is brought on record to prove that the share purchase transaction undertaken by the assessee was bogus and cash was received back by the assessee. Thus, the assessee submitted that the additions were made without any evidences on record and the AO was not justified in treating the purchase transaction of 55 shares of Jai Corp Limited on 15-5-2007 as bogus transaction.
It was submitted that the assessee sold the said shares through Dani Shares and Stock Pvt. Ltd. on 09-01-2008 and the contract notes and payments made by such broker were placed on record by the assessee which shows details of the order number, order time, trade number and trade time etc. which duly establishes that the assessee sold 1100 shares of Jai Corp Limited. The copy of contract notes and the bills for sale of shares issued by the said broker was placed on record both before the AO and the learned CIT(A). It was submitted that said broker Dani Shares and Stock Private Limited has no connection/nexus with Sh. Mukesh Choksi and /or group concerns of Sh Mukesh Choksi. Thus, it was submitted that there was nothing on record which can prove that the sales of shares made by the 10 ITA 866/Mum/2016 assessee were not genuine and the consideration received by the assessee towards the sale of shares was returned back in cash by the assessee. It was submitted that the sale transaction was not disputed by the A.O. and it is not correct to treat the amount of capital gain offered to tax as income from other sources. The assessee relied on the following decisions:-
1. ITO v. Rasila N. Gada in ITA No. 1773/Mum/2010 dated 8.8.2012
2. Pusha M. Shah v. ITO in ITA No. 436/Mum/2013 dated 22.04.2014
3. Mukesh R. Marolia, 6 SOT 247 which was later approved by Hon‟ble Bombay High Court.
4. Sandeep R. Shorewala v. ITO in ITA No. 1619/Mum/2007 dated 14.5.2010.
5. Navjeevan Credit & Holding Limited v. ITO( ITA no. 5422/Mum/2012 dated 27-11-2012)
6. Smt Durgadevi Mundra v. ITO ( ITA no. 1175/Mum/2012 dated 01-06-
2012) The ld. CIT(A) considered the submission of the assessee and observed that the facts in the case of the assessee are different than the facts in the case laws relied upon by the assessee. The learned CIT(A) observed that the assessee had purchased 55 shares of Jai Corporation on 15th May, 2007 through M/s Alliance Intermediaries and Network P. Ltd. The learned CIT(A) observed that the date wise purchase transaction details submitted by the assessee was as under:
Description Date Related Remarks
details
Purchase of 15.05.2007 93,756 55 No. of shares
shares
Bonus declared 12.10.2007 1:1 55 bonus shares
allotted. Total
shares 110.
11 ITA 866/Mum/2016
Split of shares 10 paid up 110 shares of 10
to 1 paid paid up split to
up. 1100
Delivery of 05.12.2007 1,100 Copy of demat
shares shares are statement is
transferred attached.
to demat
account of
the
appellant.
The contract note issued by M/s Alliance Intermediaries and Network P. Ltd. dated 15.5.2007 which contained the details of the contract note No., trade number and order number etc. were submitted. The ld. CIT (A) observed that the payment for the purchase was made by the assessee on 3rd December, 2007 and the shares have been transferred to the assessee‟s demat account on 5th December, 2007 and the shares were sold by the assessee through Dani Share & Stock Private Ltd. on 9th January, 2008. The learned CIT(A) observed that the A.O. had made enquiries with NSE & BSE wherein NSE have categorically stated that the registration of M/s Alliance Intermediaries and Network P. Ltd. was cancelled on 19th February, 2004 and no details of share transactions carried on by the assessee through M/s Alliance Intermediateries & Network Pvt Ltd. was available on record , while the said M/s Alliance Intermediaries and Network P. Ltd. was never registered as trading member/sub-broker with BSE. Thus, the learned CIT(A) observed that NSE has stated that there was no question of doing any business in NSE by M/s Alliance Intermediaries and Network P. Ltd. on 15th May, 2007. The learned CIT(A) thus observed that the contract note submitted by the assessee from M/s Alliance Intermediaries and Network P. Ltd. was bogus and there is no evidence that the assessee had purchased said 55 shares of Jai Corp Limited on 15-05-2007. The learned CIT(A) observed that even if it is assumed without admitting that the assessee had purchased the shares of 12 ITA 866/Mum/2016 Jai Corp Limited on 15th May, 2007 then why the payment was made on 03rd December 2007 which is against the principle of preponderance of human probabilities and why the said company M/s Alliance Intermediaries and Network P. Ltd. kept silent for so long without asking for payment. The learned CIT(A) observed that these facts assumed importance because of intervening events as the assessee purchased 55 shares of Jai Corp Limited on 15.5.2007 and bonus of 1:1 was declared on 12.10.2007 and later the shares were split from Rs. 10/- paid up to Re. 1/- subsequently. 1100 shares of Jai Corp Limited were delivered to the assessee‟s demat account on 5th December, 2007 which were later sold by the assessee on 9th January, 2008 for a consideration of Rs. 15,36,509/-. The learned CIT(A) observed that the evidence for sale of shares on 09-01-2008 through Dani Shares and Stock Private Limited submitted by the assessee is not disputed but the ld. CIT (A) doubted the contract note/purchase bill dated 15-05-2007 issued by M/s Alliance Intermediateries and Network P. Ltd. for purchase of 55 shares of Jai Corp Limited which in the opinion of learned CIT(A) could not be relied upon. The learned CIT(A) observed that in order to get the benefit of short term capital gains on sale of 1100 shares , the assessee has tried to show the purchase of 55 shares of Jai Corp Limited in the month of May 2007 for a minimum consideration of Rs. 93,756/- wherein prices increased substantially later and the assessee could sell 1100 shares ( after bonus 1:1 and stock split 10:1) for consideration of Rs. 15,36,509/- .
The ld. CIT(A) relied on the decision of the Hon‟ble Apex Court in the case of Sumati Dayal v. CIT (1995) 214 ITR 801 (SC) & in the case of Durga Prasad More, 82 ITR 540. Thus, it was observed by the ld. CIT(A) that the transactions for purchase of 55 shares of Jai Corp Limited on 15-05-2007 were bogus. The case laws relied upon by the assessee were distinguished by learned CIT(A) to be entirely different from the present case. Thus, the ld. CIT(A) treated the purchase amount of shares of Rs. 93,756/- as assessee‟s 13 ITA 866/Mum/2016 unexplained investment u/s 69 of the Act and the differential amount of sale and purchase of Rs. 14,33,599/- with respect to the bogus share transaction was held to be income from other sources and in nut-shell the assessment order of the AO was upheld by learned CIT(A) vide appellate orders dated 08- 12-2015.
8. Aggrieved by the appellate order dated 08-12-2015 passed by the ld. CIT(A), the assessee filed an appeal before the tribunal.
9. It is submitted by learned counsel for the assessee that additions have been made based on information received from DDIT (Inv.),Mumbai in respect of beneficiaries of M/s Mahasagar Securities P. Ltd., and group share scam. A search action u/s 132(1) was carried out at the premises of Mahasagar Securities P. Ltd. and statement of Shri Mukesh Chokshi, Director of M/s Alliance Intermediaries & Network P. Ltd. was recorded wherein he admitted that he only provided bogus accommodation entries for sale and purchase of shares etc.. It was submitted that cross examination of the said Mr Mukesh Choksi was not provided to the assessee. Remand report was called by learned CIT(A) from the A.O. whereby the A.O. contended that these are bogus transactions. The A.O. had made enquiries with BSE and NSE whereby they have informed that M/s Alliance Intermediaries & Network P. Ltd. is not a registered broker/sub-broker with NSE and BSE and no details of this transaction was captured by these stock exchanges. It is submitted that the assessee has duly submitted all the documents w.r.t. purchase of 55 shares of Jai Corp Limited on 15-05-2007 from M/s Alliance Intermediateries and Network P. Ltd. , vide paper book page 3 & 4. It was submitted that the full consideration was not paid by the assessee to M/s Alliance Intermediateries and Network P. Ltd. at the time of purchase on 15-05-2007 and these shares were held by the broker M/s Alliance Intermediateries and Network P. Ltd. till the full payment was made by the assessee on 03-12-2007 , which was 14 ITA 866/Mum/2016 confirmed by the broker vide letter dated 29.11.2007 that the payment is still due as on 29-11-2007 and the said broker has also charged interest of Rs. 9,155/- for delayed payment of the purchase consideration of these shares (page 5/pb). The purchases were made by the assessee on 15.5.2007 while the payments were made on 03-12-2007. The ld. counsel invited our attention to paper book page No. 3 to 7 whereby the letter dated 29-11-2007 from M/s Alliance Intermediateries & Network P. Ltd. along with contract notes/purchase bills/statement of account are placed. The ld. counsel also invited our attention to paper book page No. 8 to 10 wherein documents pertaining to the sales of 1100 shares of Jai Corp Limited made through M/s Dani Share & Stock P. Ltd. is placed. Copies of bank statements of the assessee is also placed vide paper book page 11 to evidence payment of Rs. 93,756/- being made through banking channel to M/s Alliance Intermediateries & Network Pvt Ltd. on 03-12-2007 is placed. The payments of Rs. 93,755.95 have been made on 3-12-2007 for this purchase of 55 shares of Jai Corp Limited which was purchased on 15.5.2007. It is submitted that Demat accounts of the assessee was also furnished which is placed at paper book page 47 , wherein 1100 shares of Jai Corp Limited(Bonus was declared in the ratio of 1:1 and stock split in the ratio of 10:1 by said company Jai Corp Limited subsequent to purchase on 15-05- 2007) were duly received and credited on 5.12.2007 although the shares were purchased on 15.5.2007.
10. The ld. D.R. submitted that no objection has been raised by the assessee against the reopening of assessment u/s 147 as the assessee conceded to dismiss ground no 1 and 2 and the said issue challenging legality and validity of reopening of the assessment u/s 147 has now reached finality wherein it is to be held that reopening of assessment u/s 147 was valid. Now, the issue is to be decided on merits of the case . The ld. D.R. drew our attention to the remand report submitted by the A.O. and the reply submitted 15 ITA 866/Mum/2016 by the assessee. It was submitted that no cross examination of Mr Mukesh Choksi was asked by the assessee before the authorities below. It was submitted that M/s Alliance Intermediateries and Network P. Ltd. is not registered with any stock exchange in India and purchase transaction for purchase of 55 shares of Jai Corp Limited on 15-05-2007 was a bogus and sham transaction to introduce assessee‟s undisclosed income into the banking system by paying tax at special rate of 10%.
11. In the rejoinder, the ld. counsel for the assessee drew our attention to case law paper book page No. 48 5o 58 wherein the decision of the Tribunal in the case of Shri Deepak V Doshi v. ITO in ITA No. 3553/Mum/2015 for A.Y. 2006-07 dated 27.10.2016 is placed and he relied on the said decision of the tribunal. The ld. counsel also invited our attention to and relied on the tribunal order in the case of Deepak Ashok Agarwal v. ITO in ITA No. 6163/M/2014 for A.Y. 2006-07 dated 24.08.2016 (case law paper book page 59 to 66) and to the decision of the tribunal in the case of Shri Sunil Prakash v. ACIT for A.Y. 2005-06 dated 08.03.2017 in ITA no. 6494/Mum/2014(case law paper book/page 67-73).He also relied upon decision of the tribunal in the case of Ramachandran Bagrodia HUF v. ITO in ITA no. 4539/Mum/2014 dated 04-12-2014 for AY 2005-06(page 74-78/case law paper book)
12. We have considered rival contentions and also perused the material available on record including case laws cited before us. We have observed that the assessee is an individual and working partner in M/s Alankar Traders engaged in trading business of spectacle frames and allied optical goods. The assessee has derived income from business and profession, salary income, capital gain and income from other sources. We have observed that the assessee‟s case was reopened by the AO u/s 147 of the Act within four years from the end of assessment year and also no scrutiny assessment was originally framed by Revenue u/s 143(3) of the 1961 Act. Notice u/s 148 of 16 ITA 866/Mum/2016 the Act was issued by the AO to the assessee on 26.03.2012 i.e. within four years from the end of the assessment year. The Reopening of the assessment u/s 147 was done by the AO based on the information received from DDIT (Inv.),Mumbai in respect of beneficiaries of M/s Mahasagar Securities P. Ltd., group share scam. The assessee is stated to be beneficiary of the said accommodation entries for capital gains provided by said group. The assessee has conceded to the validity of reopening of assessment u/s 147 of the 1961 Act. Thus, we will be confining our discussions on merits of the case. A search action was carried out u/s 132 of the Act at the premises of Mahasagar Securities P. Ltd. and group concerns of Mr Mukesh Choksi , including M/s Alliance Intermediaries & Network P. Ltd who was also searched by Revenue u/s 132(1). Statement of Shri Mukesh Chokshi, Director of M/s Alliance Intermediaries & Network P. Ltd. was recorded by the Revenue wherein he stated that they were engaged in fraudulent billing activities of providing bogus speculation profits/loss, short term/long term capital gain/loss, share application money, commodities profit/loss on commodity trading etc. for several years and earning commission income in lieu of providing these bogus accommodation entries. The assessee is also stated to be one of the beneficiaries of the bogus accommodation entries of purchase of 55 shares of Jai Corp Limited on 15-05-2007 for Rs. 93,755.95 through Alliance Intermediateries & Network P. Ltd which is group concern of Mr Mukesh Choksi and which concern was also subjected to search by Revenue u/s 132(1).The assessee is thus stated to have purchased 55 shares of Jai Corp Limited for Rs. 93,756/- from M/s Alliance Intermediateries & Network P. Ltd. on 15th May, 2007 which was stated to be bogus accommodation entry provided by M/s Alliance Intermediaries & Network P. Ltd to the assessee and incidentally no payment for purchase consideration has been made by the assessee till the end of November, 2007 which payment of Rs. 93,756/- was finally made by the assessee on 03-12-2007 through banking channel which is almost more than six months from the date of 17 ITA 866/Mum/2016 purchase of said shares which is against the rigorous rules of settlement and clearing of pay-in/pay-out of shares and payments followed by stock exchanges and is against the normal conduct of operations carried on in the share market. The shares of Jai Corp Limited were delivered to the assessee only on 05-12-2007 in assessee‟s demat account as the assessee made the payments for purchase of the said shares on 03-12-2007 , as against purchase of shares of Jai Corp Limited made by the assessee on 15-05-2007 . The assessee was stated to have purchased 55 shares of Jai Corp Limited on 15-05-2007 and later on the said company Jai Corp Limited came out with Bonus shares in the ratio of 1:1 in on 12th October 2007 and further there was stock split in the ratio of 10:1 , wherein one share of Rs 10/- face value was split into 10 shares of Rs 1/- face value. Thus, the assessee so called purchase of 55 shares of Jai Corp Limited of 10 each on 15-05-2007 for Rs. 93,756/- became 1100 shares of Jai Corp Limited of face value of Rs 1 each , which stood credited to demat account of the assessee on 05-12-2007 i.e. almost more than six months after its purchase by the assessee which is against the normal course of conduct of operations of share business in stock exchanges which business is closely regulated, monitored and controlled by SEBI and stock exchanges. It is pertinent to mention that in the intervening period from the date of purchase on 15-05-2007 to the date of making payment for the said shares, the price of Jai Corp Limited increased substantially many fold to ten times from a price of Rs 1886/-(FV Rs 10/- per share) per share of face value of Rs 10/- on 15-05-2007(date of purchase of shares by the assessee) to price of Rs. 1033/- per share of Face Value of Rs 1/- per share on 03-12-2007 ( date of making payment for purchase made on 15-05-2007) which if adjusted to intervening bonus in the ratio of 1:1 and further stock split in the ratio of 10:1 translates to price of Rs. 20660/- per share of Face Value of Rs. 10/- per share) which is more than ten time the price of share on 15-05-2007. It is incomprehensible that the said broker did not auction the shares in the intervening period from 15-05-2007 to 03-12- 18 ITA 866/Mum/2016 2007 to recover the unpaid price of the shares and allowed the benefit to the assessee despite being no payments made by the assessee towards the purchase consideration of shares. This itself leads to irresistible conclusion that shares of Jai Corp Limited was chosen because there was huge appreciation of shares of Jai Corp Limited to the tune of almost of more than 10 times in the short span of six months which made it easier to induct undisclosed income of the assessee into the bank by paying commission to Mr. Mukesh Choksi group for arranging bogus contract notes / purchase bills dating back to May 2007 when share price was almost 1/10 of the price at the end of November 2007 , and also paying tax on STCG at special rate@10% u/s 111A as against normal rate of 30% , which had three fold advantage (a) induction and conversion of undisclosed income of the assessee into white money (b) advantage of low cost by way of commission to Mr Mukesh Choksi group and low tax on STCG@10% as against normal tax@30% (c) going out of rigours of penalty provisions as stipulated under the 1961 Act. The said 1100 shares of Jai Corp Limited were finally sold by the assessee through M/s Dani Shares and Stock Private Limited on 09-01-2008 for Rs. 15,36,509/- . The assessee has submitted copies of contract notes and bills w.r.t. purchase and sale of shares. There is no dispute between rival parties so far as sale of 1100 shares of Jai Corp Limited on 09-01-2008 through Dani Shares and Stock Private Limited which is accepted by both the parties. The dispute has arisen w.r.t. genuineness of purchase of 55 shares of Jai Corp Limited for Rs.93,756/- on 15-05-2007 through M/s Alliance Intermediateries and Network P. Ltd. which is a company controlled by aforesaid Mr Mukesh Choksi and which grew to 1100 shares because of bonus shares and stock split in the intervening period from the date of purchase on 15-05-2007 to date of credit to assessee‟s demat account on 05- 12-2007 and also appreciated significantly in the intervening period as we have seen above. Incidentally both purchase and sale of shares of Jai Corp Limited by the assessee fell into the previous year relevant to the subject 19 ITA 866/Mum/2016 assessment year and is under adjudication before us, thus there is no such existing finding of fact recorded by Revenue in preceding years that the purchases belonged to earlier years which was accepted by Revenue to be genuine in preceding years . The A.O. in order to verify genuineness of the transactions for purchase of shares issued notices u/s 133(6) of the Act to NSE/BSE to verify the genuineness of the share transactions conducted by M/s Alliance Intermediateries & Network P. Ltd. on behalf of the assessee , which enquiry revealed that said concern M/s Alliance Intermediateries and Network P. Ltd. is not registered with BSE and NSE on the relevant date i.e. 15-05-2007 when purchase transaction for purchase of 55 shares of Jai Corp Limited was executed. The registration as sub-broker with NSE which was held by M/s Alliance Intermediateries and Network P. Ltd. as an affiliate to ISE Securities and Services Limited ( promoted by Inter Connected Stock Exchange of India Limited) w.e.f. 12-10-2000 was also cancelled by the NSE long back on 19-02-2004. Keeping in view factual matrix of the case and based on enquiries made by authorities below , on the touchstone of preponderance of human probabilities both the authorities below have reached concurrent finding of facts that the share purchase transaction of 55 shares of Jai Corp Limited on 15-05-2007 entered into by the assessee through M/s Alliance Intermediateries & Network P. Ltd was bogus and sham transaction which was brought into picture to claim short term capital gain which is subjected to special rate of tax u/s 111A @10% (enhanced to 15% from AY 2009-10) as against normal rate of taxation @30% and used as a devise to introduce undisclosed income in to the books of account of the assessee under the garb of STCG by paying tax at special rate @10% . The ld. counsel for the assessee is trying to justify the transactions for purchase of shares to be genuine transaction by relying on contract notes/purchase bills issued by Alliance Intermediateries & Network P. Ltd.. We have observed that the assessee has stated to have made purchases of 55 shares of Jai Corp Limited on 15th May, 2007 from M/s Alliance Intermediateries & Network P. 20 ITA 866/Mum/2016 Ltd. , whereas the sub-broker‟s registration of Alliance Intermediateries & Network P. Ltd has already been cancelled by NSE long back on 19-02-2004 which was confirmed by the NSE vide letter dated 16-09-2013 which is placed in paper book/page 40 . The NSE has confirmed that Alliance Intermediateries & Network P. Ltd was registered with NSE as sub-broker affiliated to ISE Securities and Services Private Limited ( promoted by Inter Connected Stock Exchange of India Limited) till 19-02-2004 when its registration was cancelled by NSE. The impugned transaction took place on 15-05-2007 which is much after cancellation of registration as sub-broker of Alliance Intermediateries & Network P. Ltd on 19-02-2004. The said Alliance Intermediateries & Network P. Ltd was never registered with BSE. Thus, no such transaction for purchase of 55 shares of Jai Corp Limited by the assessee which was captured by any Stock Exchange to have taken place on behalf of the assessee on 15-05-2007. The so called feeble claim of the learned counsel for the assessee during the course of hearing before us that Alliance Intermediateries & Network P. Ltd is member of Inter Connected Stock Exchange of India Limited and the said transactions were carried out through Inter Connected Stock Exchange of India Limited does not hold any water as the said exchange has very limited companies listed on it and is mainly operating through company promoted by it namely ISE Securities and Services Limited which is trading member of larger stock exchanges namely NSE and BSE , as permitted by SEBI, and the said Alliance Intermediateries & Network P. Ltd incidentally was sub-broker registered with SEBI affiliated to ISE Securities and Services Limited which registration of the said Alliance Intermediateries & Network P. Ltd as sub-broker also stood cancelled on 19- 02-2004 by the NSE. In any case , there is no evidence on record which could prove that the transaction for purchase of 55 shares of Jai Corp Limited on 15-05-2007 by the assessee was genuine transaction routed through any stock exchange including Inter Connected Stock Exchange of India Limited, which is further supported by statement of Mr Mukesh Choksi that he and 21 ITA 866/Mum/2016 his group concern indulged in providing only bogus accommodation entries, inter-alia, towards giving bogus short term capital gains etc in lieu of commission income , of which the assessee was also one of the beneficiaries. It is also not brought on record by the assessee that the said M/s Alliance Intermediaries & Network P. Ltd was holding 55 shares of Jai Corp Limited in brokers demat account on brokers client pool account from 15-05-2007 onwards till finally it was credited to the assessee‟s demat account on 05-12- 2007. There is no such evidences on record to prove inward movement of 55 shares of Jai Corp Limited into the brokers client pool account maintained by M/s Alliance Intermediaries & Network P. Ltd and further credit of said shares on allotment of bonus shares and stock split which happened in the intervening period from the date of purchase of shares till payment made by the assessee for the said shares . Thus, there is no evidence on record that M/s Alliance Intermediaries & Network P. Ltd continued to hold shares of Jai Corp Limited physically or electronically in brokers client pool account and received bonus and stock split on assessee‟s behalf in the said client pool account maintained by the said M/s Alliance Intermediaries & Network P. Ltd. To make the matter worse the assessee has also not made any payment for purchase of such shares which were purchased on 15-05-2007 through M/s Alliance Intermediaries & Network P. Ltd , till 3.12.2007 which is almost more than six month after the purchase of shares which is against the normal conduct of operations of share business in stock exchange wherein rigorous provisions of clearing and pay-in and pay-out of stocks and payments are stipulated by SEBI, stock exchanges such as auction, penalties etc. In such situation , onus and burden is on the assessee to prove why the course of action which is against normal course of conduct of activities of share transactions business in stock market is adopted by the assessee and burden become more onerous more-so the prices of Jai Corp Limited rose more than 10 times in short period of six months and M/s Alliance Intermediaries & Network P. Ltd continued to hold shares without demanding payment or 22 ITA 866/Mum/2016 going for auction route as prescribed by stock exchanges for defaults in making payments by clients. The assessee claimed that M/s Alliance Intermediateries & Network P. Ltd charged interest of Rs. 9,155/- for said delayed payment of purchase consideration by showing debit in their statement of account and letter dated 29-11-2007 of the said concern M/s Alliance Intermediaries & Network P. Ltd is placed in paper book/page 5 and 6 , but incidentally assessee made payment of purchase consideration of Rs. 93,755.95 on 29-11-2007 wherein cheque got cleared from bank on 03-12- 2007 but no such payment of interest of Rs 9,155/ was made by the assessee and it is reflected as an outstanding on statement of account issued by said Alliance Intermediateries & Network P. Ltd as on 31-03-2008. No evidence is placed on record to prove that the assessee did made this payment of interest to Alliance Intermediateries & Network P. Ltd . Shri Mukesh Chokshi vide his statement recorded in course of search operations u/s 132 conducted on his group concerns, admitted that he and his concerns were engaged in fraudulent billing activities which were in nature of accommodation entries and in the business of providing bogus speculation profits/loss, short term/long term capital gain/loss etc. Incidentally , the Tribunal in the group cases of Mr Mukesh Choksi concerns had held and given a finding of fact that these entities/persons were engaged in providing bogus accommodation entries . Few of the said orders of the tribunal are listed below :
a) Goldstar Finvest Private Limited v. ACIT in ITA no. 2699/Mum/2013 for AY 2004-05 vide orders dated 30.11.2015
b) Mihir Agencies Private Limited v. DCIT in ITA no. 695/Mum/2015 vide orders dated 27-07-2016( also Mukesh Choksi v. DCIT in ITA no. 996/Mum/2015 vide same consolidated order dated 30.11.2015)
c) Alliance Intermediateries and Network Private Limited v. ACIT in ITA no. 2700-2702/Mum/2013 vide common order dated 24-02-2016 for AY 2005-06 to 2007-08 23 ITA 866/Mum/2016
d) Goldstar Finvest Private Limited v. DCIT in ITA No. 6114-
6120/Mum/2012 vide common order dated 01-06-2016 for AY 2004-05 to 2010-11
e) Mihir Agencies Private Limited v. DCIT in ITA no. 6435- 6441/Mum/2012 vide common order dated 06-01-2016 for AY 2004-05 to 2010-11 These finding recorded by tribunal in the cases of group concern of Mr Mukesh Choksi including Alliance Intermediateries and Network Private Limited through whom the assessee allegedly purchased 55 shares of Jai Corp Limited on 15-5-2007 , wherein tribunal has held that these entities were merely providing bogus accommodation entries, strengthens the Revenue case that this alleged share purchase transaction entered into by the assessee on 15-5-2007 with Alliance Intermediateries and Network Private Limited was merely an accommodation entry wherein bogus bill of purchase/contract note for purchase of 55 shares of Jai Corp Limited was obtained by the assessee. The assessee infact did not purchase the said 55 shares of Jai Corp Limited on 15-5-2007 for Rs. 93,756/- as the said entry was merely a camouflaged transaction to introduce undisclosed income of the assessee from undeclared sources as STCG in the books of accounts of the assessee, wherein the assessee actually bought 1100 shares of Jai Corp Limited in and around 29-11-2007 at the then prevailing rates for which consideration was paid in cash by the assessee out of his undisclosed sources of income, while accommodation bills by way of purchase bills/contract notes dated 15-5-2007 was obtained through Alliance Intermediateries and Network Private Limited. The date 29-11-2007 becomes relevant as the assessee was issued letter by Alliance Intermediateries and Network Private Limited on 29- 11-2007 that payments for alleged purchases of 55 shares of Jai Corp Limited on 15-05-2007 was pending and then the assessee made the payment of Rs. 93,756/- immediately on that date through cheque which got encashed 24 ITA 866/Mum/2016 on 03-12-2007 and immediately thereafter 1100 shares of Jai Corp Limited of FV Rs 1/- each stood transferred and credited to the assessee‟s demat account on 05-12-2007. Thus, all the action took place from 29-11-2007 to 05-12-2007 wherein the cash money exchanged hands for buying 1100 shares of FV Rs 1 each of Jai Corp Limited at the then prevailing market rates of which details are concealed by the assessee for which consideration stood paid in cash, while on records it is shown that purchases were made of 55 shares of Jai Corp Limited of FV Rs 10 each on 15-5-2007 for Rs. 93.756/- and thereafter the assessee got bonus shares in the ratio of 1:1 and stock split in the ratio of 10:1 , wherein the assessee‟s holding increased to 1100 shares of Jai Corp Limited of FV of Rs.1 each as against 55 shares of Jai Corp Limited of FV Rs 10 each.
The assessee has relied upon following case laws which in our considered view are distinguishable on facts:
a) Sh Deepak V Doshi v. ITO in ITA no. 3553/Mum/2015- The facts of this case are distinguishable as the tax-payer in the said case ordered for 2000 shares of Aptech Limited while the broker purchased 10000 shares of Aptech Limited and therefore , the taxpayer expressed its inability to pay for said shares due to paucity of funds and hence the broker kept the share in client pool account and the tax-payer made the payment for said shares after 9 months.
Thus, the tax-payer duly explained the delay in making payment for shares and consequent delay in receipt of shares in demat account which was accepted by tribunal. While in the instant case before us, no explanation has been made by the assessee as to delay of more than six months in making payment for purchase of shares . Secondly, no enquiry was made by Revenue with NSE/BSE to verify the authenticity of purchase transactions in the case of Deepak V 25 ITA 866/Mum/2016 Doshi , while in the instant case before us the AO made enquiries with NSE/BSE which proved that the said Alliance Intermediateries & Network P. Ltd was not registered with NSE/BSE during relevant point of time when purchase transactions was purported to have been entered on 15-05-2007 thus proving those contract notes/purchase bills to be bogus.Thus, the above case relied upon by the assessee is distinguishable on facts and cannot be relied upon based on factual matrix of the instant appeal before us.
b) Deepika Ashok Agarwal v. ITO in ITA no. 6163/Mum/2014- Again in this case no enquiry was made by Revenue with NSE/BSE to prove that contract notes/purchase bills were bogus. The tax-payer submitted all details while the additions were made by Revenue solely on the basis of statement of Mr Mukesh Choksi , copy of which was not provided to the assessee nor Mr Mukesh Choksi was offered for cross examination by Revenue, while the assessee asked for cross examination before Revenue authorities. While in the instant case before us , the AO made enquiries with NSE/BSE which proved that the said Alliance Intermediateries & Network P. Ltd was not registered with NSE/BSE during relevant point of time when purchase transactions was purported to have been entered on 15- 05-2007 thus proving those contract notes/purchase bills to be bogus. In the instant case before us, no explanation has been made by the assessee as to delay of more than six months in making payment for purchase of shares .Thus, the above case relied upon by the assessee is distinguishable on facts and cannot be relied upon based on factual matrix of the instant appeal before us.
c) Sh Sunil Parekh v. ACIT in ITA no. 5494/Mum/2014- The fact situation in this case of Sunil Parekh are almost similarly placed as 26 ITA 866/Mum/2016 in the case of Deepika Ashok Agarwal (supra) which we distinguished above and same reasons for distinguishing this case shall apply and are not repeated for sake of brevity.
d) Ramchandra Ashish Bagrodia HUF in ITA no. 4539 and 4540/Mum/2014- it is a single member decision of Mumbai- tribunal. The Hon‟ble Judicial Member held in this case that Revenue has not made proper enquiry with NSE/BSE while the said Alliance Intermediaries and Network Private Limited is member of Inter Connected Stock Exchange of India Limited and a sub-broker of ISE Securities Limited and no enquiry is made with Alliance Intermediaries and Network Private Limited which should have been made by the authorities below and keeping in view smallness of matter the additions were deleted. While in the instant case before us, the AO made proper enquiries with NSE/BSE which clearly revealed that the assessee was not trading member/sub-broker with NSE/BSE at relevant time i.e. 15-05-2007. The enquiry revealed that the assessee was registered with NSE as sub-broker w.e.f. 12- 10-2000 till 19-02-2004 as affiliate of ISE Securities and Services Limited( company promoted by Inter Connected Stock Exchange of India Limited) and no such contention is taken by the assessee that the assessee undertook transaction through Inter Connected Stock Exchange of India Limited before authorities below but a feeble attempt is made by learned counsel for the assessee to make this point before us based on this decision in the case of Ramachandra Ashish Bagrodia(supra) without any evidence on record. Rather , the said exchange namely Inter Connected Stock Exchange of India Limited has very limited securities listed on it and it mainly operates through larger exchanges namely NSE and BSE as permitted by SEBI and thus company namely ISE Securities and Services Limited 27 ITA 866/Mum/2016 is promoted by said exchange namely Inter Connected Stock Exchange of India Limited , which company i.e. ISE Securities and Services Limited is trading member of NSE/BSE. The said M/s Alliance Intermediaries and Network Private Limited was registered with NSE as sub-broker from 12-10-2000 to 19-2-2004 as an affiliate of ISE Securities and Services Limited and registration of M/s Alliance Intermediaries & Network P. Ltd was cancelled by NSE on 19-02-2004. Thus, the above case relied upon by the assessee is distinguishable on facts and cannot be relied upon based on factual matrix of the instant appeal before us.
Reference is drawn to a recent decision of Hon‟ble Supreme Court in the case of Binoy Viswam v. UOI reported in (2017) 82 taxmann.com 211(SC) , wherein Lordships have held in no uncertain terms that menace of the black money which is deep rooted in the economy need to be tackled by taking multiple actions at the same time, by holding as under :
"99. Unearthing black money or checking money laundering is to be achieved to whatever extent possible. Various measures can be taken in this behalf. If one of the measures is introduction of Aadhaar into the tax regime, it cannot be denounced only because of the reason that the purpose would not be achieved fully. Such kind of menace, which is deep rooted, needs to be tackled by taking multiple actions and those actions may be initiated at the same time. It is the combined effect of these actions which may yield results and each individual action considered in isolation may not be sufficient. Therefore, rationality of a particular measure cannot be challenged on the ground that it has no nexus with the objective to be achieved. Of course, there is a definite objective. For this purpose alone, individual measure cannot be ridiculed. We have already taken note of the recommendations of SIT on black money headed by Justice M.B. Shah. We have also reproduced the measures suggested by the committee headed by Chairman, CBDT on 'Measures to tackle black money in India and Abroad'. They have, in no uncertain terms, suggested that one
28 ITA 866/Mum/2016 singular proof of identity of a person for entering into finance/business transactions etc may go a long way in curbing this foul practice."
Under these circumstances keeping in view entire factual matrix of the case as outlined above on the touchstone of preponderance of human probabilities and based on evidences on record, the contention of the assessee that purchase transaction entered into by the assessee on 15-05-2007 for purchase of 55 shares of Jai Corp Limited of FV Rs 10 each for Rs. 93,756/- through Alliance Intermediateries & Network P. Ltd was a genuine transaction cannot be accepted and is hereby rejected. As such, this transactions for purchase of 55 shares of Jai Corp Limited on 15-05-2007 through Alliance Intermediateries & Network P. Ltd is held to be sham and bogus transaction which was entered into by the assessee for the sole purpose and objective of introducing its undisclosed income from undisclosed sources in the books of accounts of the assessee under the garb of STCG by paying tax at special rate of 10% as provided u/s 111A instead of paying normal tax @ 30% through arranging bogus accommodation bills/contract notes dated 15-05-2007 from M/s Alliance Intermediaries & Network P. Ltd . The selection of scrip of Jai Corp Limited was made because the share had appreciated significantly 10 times in short span of six months during 15-05-2007 to 03-12-2007 which also speaks volume about selection of said scrip as it facilitated in easy induction of undisclosed income of the assessee as short term capital gains on sale of shares at lower rate of tax@10% instead of normal rate of tax@30%. The learned counsel for the assessee has contended that since no cross examination of Mr Mukesh Choksi is provided and Revenue is relying on the incriminating statement of Mr Mukesh Choksi, hence no additions is sustainable in the eyes of law. We are afraid that we do not agree with the above said contention of the assessee. The right of cross examination is not absolute. The assessee has to first discharge its primary onus cast under law and if the same stood duly discharged which is not rebutted by authorities, 29 ITA 866/Mum/2016 but despite that then also the authorities proceed to put assessee to prejudice solely relying on the basis of incriminating statement recorded of third party at the back of the assessee, then certainly the right to cross examination the said third party whose incriminating statement recorded at the back of the assessee is relied upon by authorities to prejudice the assessee will become absolute. The assessee in the instant case has not discharged its primary onus. The contract notes and purchase bills dated 15-05-2007 issued by Alliance Intermediateries & Network P. Ltd have turned to be bogus bills on the enquiry made by the AO with NSE and BSE , as the said sub-broker turned out to be not registered with any trading member of NSE and BSE at the relevant period. The assessee could not give satisfactory replies as to its conduct of not having made payment of Rs.93,756/- for purchase of 55 shares of Jai Corp Limited on 15-05-2007 and the reasons for making payment after more than six months which is against normal conduct of stock exchange regulatory measures concerning settlements , pay-out and pay-in of stocks and payments. The activities of share transactions in the case of listed shares is highly regulated activity which is controlled, monitored and regulated by SEBI and stock exchanges. . The assessee could not explain why the said intermediary Alliance Intermediateries & Network P. Ltd did not demanded the payment in the intervening period from 15-05-2007 till 29-11- 2007 and why they did not resorted to prescribed modes of auction , penalty etc as stipulated by stock exchanges in case of defaulting clients such as auction , penalties etc. The assessee did not brought on record what happened to the delivery of shares which was purchased on 15-05-2007 and no evidence is brought on record that Alliance Intermediateries & Network P. Ltd was holding the said shares physically/electronically from 15-05-2007 to 05-12-2007 in brokers client pool account on behalf of the assessee. It is also claimed that the said Alliance Intermediateries & Network P. Ltd charged interest of Rs.9,155/- from the assessee for delayed payment but the assessee did not made payment for the interest of Rs.9,155/- while payment for 30 ITA 866/Mum/2016 purchase consideration of Rs.93,755.95 was made on 03-12-2007 , as the statement of account issued by Alliance Intermediateries & Network P. Ltd shows interest of Rs. 9,155/- recoverable from assessee as on 31-03-2008 (page 6/pb). There is no evidence on record which proves that the assessee did made payment of said interest to Alliance Intermediateries & Network P. Ltd. Thus, even if we eschew the statement of Mr Mukesh Choksi , then also primary onus as cast upon the assessee did not stood discharged by the assessee. The Revenue rebutted the claims of the assessee but the assessee could not rebut the incriminating material brought on record by the Revenue which is obtained as a result of an enquiry, as detailed above. Since the assessee is asking the tribunal to accept a course which is not a normal course of conduct prevailing on the stock exchanges for dealing in securities, the onus is heavy on the assessee to prove why he deviated from the normal course of conduct while dealing in securities which the assessee in the instant case failed to discharge. In any case now it is settled by tribunal in the cases of Mr. Mukesh Choksi that he and his group concerns had indulged in providing accommodation entries wherein some of the orders of the tribunal are detailed in preceding para‟s . We concur with learned CIT(A) reliance upon decision of Hon‟ble Apex Court in the case of Sumati Dyal(Supra) and Durga Prasad More(supra) , keeping in view factual matrix of the case and evidence on record as is emerging from records. Thus, we have no hesitation in confirming the appellate orders of learned CIT(A) which we affirm/confirm. The assessee fails in this appeal and appeal of the assessee stood dismissed. We order accordingly.
13.In the result, appeal of the assessee in ITA No. 866/Mum/2016 for A.Y. 2008-09 is dismissed.
31 ITA 866/Mum/2016 Order pronounced in the open court on 15.09.2017 September, 2017. आदे श की घोषणा खर ु े न्मामारम भें ददनांकः 15.09.2017 को की गई ।
Sd/- Sd/-
(SAKTIJIT DEY) (RAMIT KOCHAR)
JUDICIAL MEMBER ACCOUNTANT MEMBER
भंफ
ु ई Mumbai; ददनांक Dated 15.09.2017
[
व.नन.स./ R.K., Ex. Sr. PS
आदे श की प्रनिलऱपप अग्रेपषि/Copy of the Order forwarded to :
1. अऩीराथी / The Appellant
2. प्रत्मथी / The Respondent.
3. आमकय आमुक्त(अऩीर) / The CIT(A)- concerned, Mumbai
4. आमकय आमुक्त / CIT- Concerned, Mumbai
5. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai "C" Bench
6. गार्ड पाईर / Guard file.
आदे शािसार/ BY ORDER, सत्मावऩत प्रनत //True Copy// उप/सहायक पुंजीकार (Dy./Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुंफई / ITAT, Mumbai