Income Tax Appellate Tribunal - Mumbai
Arvind M. Kariya, Mumbai vs Assessee on 17 February, 2016
आयकर अपीऱीय अधिकरण, मुंबई न्यायपीठ 'ए', मुंबई ।
IN THE INCOME TAX APPELLATE TRIBUNAL "A", BENCH
MUMBAI
BEFORE SHRI R.C.SHARMA, AM & SHRI PAWAN SINGH, JM
आमकय अऩीर सं./ITA No.7024/Mum/2010
(नििाारण वषा / Assessment Year :2004-05)
Shri Arvind M. Kariya, Vs. ACIT, Central Circle -12,
A-402, Jay Apartment, M.K.Road,
Nehru Road, Santacruz(East), Mumbai-400020
Mumbai-400055
स्थामी रेखा सं ./ जीआइआय सं ./ PAN/GIR No. : AAEPK 0468 L
(अऩीराथी /Appellant) .. (प्रत्मथी / Respondent)
ननधाारयती की ओर से /Assessee by : Shri B.V.Jhaveri
याजस्व की ओर से /Revenue by : Shri V.V.Narsimhacharya
सुनवाई की तायीख / Date of Hearing : 23/12/2015
घोषणा की तायीख/Date of Pronouncement 17/ 02/2016
आदे श / O R D E R
PER PAWAN SINGH, JM:
1. Earlier, the issue involved in the present appeal was decided by the Tribunal vide order dated 30-1-2013, and the appeal of the assessee was dismissed, wherein the assessee filed miscellaneous application, vide MA No.139/M/2013,for recalling of order dated 30/01/103, but the same was dismissed vide order dated 18-10-2013. Aggrieved by the order in MA, the assessee preferred Writ Petition before the Hon'ble jurisdictional High Court and the Hon'ble High Court vide order dated 24-6-2014 passed in Writ Petition No.126 of 2014, directed this Tribunal to recall order dated 30-1-2013 and further directed for rehearing of the appeal, the Hon'ble High court has given the following direction.
"8. The limited area of examination in the present proceedings is not as Mr. Chhotaray tried to emphasis the conduct of the petitioner or the fact that they had not filed 2 ITA No.7024/10 appeal from the order dated 30-1-2013 but have preferred only an application for rectification. The application for rectification was filed less than four months from the order dated 30.1.2013 which is being sought to be rectified. Thus, there was no delay and the rectification application was well within time to file an appeal under Section 260A of the Act to the High Court. The Tribunal being a final fact finding authority, the application for rectification, according to us, was an appropriate measure. Even if one accepts the observations of the Tribunal in the impugned order dated 18.10.2013 that the order dated 20.10.2010 of the Tribunal in regular assessment proceedings is incapable of being implemented in view of Section 153(2A) of the Act. This by itself would not eradicate the finding of fact by the Tribunal in its order dated 20.10.2010. On merit of its application, the Tribunal may come to finding that in view of certain further facts available in the search and seizure appeal, the findings in order dated 20.10.2010 of the Tribunal may not apply to the present appeal. However, the order of the Tribunal dated 20.10.2010 in regular assessment proceedings cannot be shut out at the threshold. Thus, the order dated 20.10.2010 of the Tribunal certainly does merit consideration by the Tribunal while deciding the appeal of the petitioner in the proceedings resulting from the search and seizure for the assessment year 2004-05 itself.
9. In the above view of the matter, we set aside the order of the Tribunal dated 18.10.2013 and direct the tribunal to recall its order dated 30.01.2013 and thereafter fix the appeal for final hearing. It is made clear that we have not opined on the merits of the controversy. All the contentions of the revenue and the petitioner are left open to be urged before the Tribunal. The Tribunal shall decide the matter without being influenced, in any manner, by any observations made by us in this order.
10. Accordingly, petition allowed. No order as to costs."
2. As per the direction of Ho'nble High Court, the present appeal is fixed for rehearing before us and respectfully following the direction of High Court, we first of all direct to recall the order dated 31/01/2013 passed in the present appeal.
3. The brief facts of the case are that the assessee is an individual belonging to Kariya Group of cases and has disclosed income under the head salary, investment and income from house property etc, while filing the return of income for AY 2004-05, on 30/10/2007, and after scrutiny the order under section 143(3) was passed on 27/12/2006. In the assessment order u/s 143(3) addition of Rs.45,55,979/- u/s 68 was made in respect of sale 3 ITA No.7024/10 proceed of shares of M/s Shalimar Agro Product. Against the said addition appeal was filed by assessee and the same was allowed by CIT(A), vide order dated 09/06/2008. The revenue filed appeal against the order dated 09/06/2008 before ITAT which was registered vide ITA No.5670/M/2008, wherein the assessee filed cross objection Vide CO No. 180/M/2009 , the appeal of the revenue and the Cross Objections of the assessee were disposed off vide order dated 20/10/2010, with the following direction:
"We have considered the rival contention and the relevant record. The assessee purchased the shares in question through M/s Shreenidhi Stock and broking, the firm in which the assessee was a partner. The AO doubted the transaction of the purchase on the ground that the assessee has not produced one Sh. Bhagwan Solanki from whom the share were purchased. Secondly no payment was made by the assessee for purchasing the share in question. Since the assessee is a partner in the firm, the sale purchased consideration was adjusted only by way of book entry which is shown in the final account of the firm. Though the assessee has shown the transaction in its balance sheet ending on 31.03.2002. however, no deed of transfer or any record was produced by the assessee to show the actual date of purchased note which is issued by the broking firm in which the assessee is partner. The AO issued summons to the M/s Shalimar Agro Ltd for furnishing of Annual Return or showing the transfer of shares in the name of assessee. The AO had also sought other information from the company but no response was received from that company. The Ld. AR of the assessee vehemently contended that the summon served and in response, the company issued letter dated 30.04.2002 confirming the transfer of the share in the name of the assessee. We note that the alleged transfer is off market and in absence of other evidence, it is necessary to establish the genuineness of the transaction and thus the concerned company should furnish the necessary record for verification. As it is evident from the order dated 30.04.2002 issued by the company that the share were transferred in the name of assessee but the veracity of the said order has not been examined by the AO because the AO wanted some more information and record from the company which was not produced. Prima facie it appears that the share were transferred in the name of assessee on 30/04/2002 and the transaction of purchased took place during the year 2002-03 relevant to the assessment year 2003-04. However the relevant record was not made available before the AO to verify the veracity of the said letter dated 30/04/2002 of confirmation. Therefore , even if it is presumed that the share were purchased during the year 2002-03 the actual date of transaction has to be established specifically when the assessee has purchased the share through the firm in which he is partner and did not make any payment. The person from whom the shares were purchased was also not produced. Even no entry except showing the transaction in the final account has produced to establish the actual date of purchase of shares. Accordingly the matter require proper verification and 4 ITA No.7024/10 examination with respect to the actual date of purchase so that the nature of the capital gain (short or long term) can be computed. Accordingly , we remit the issue of capital gain arising out of the purchase and sale of shares of M/s Shalimar Agro Ltd to the record of AO. The issue of exemption u/s 54F is consequential one, therefore, the same is also require to be decided as per the outcome of the issue of capital gain. Accordingly, we set aside the order of CIT(A) and restore this issue to the record of the AO for verification and examination."
4. There was a search and seizure action in the cases of Kariya Group of cases on 18/07/2007, and the residence of the assessee at A-402, Jay Apartment, Nehru Road, Santacruz (E), Mumbai- 400055 and at the office premises at 103, Nisharg Apartment, Besant Road, Vile Parle(E), Mumbai-400056, were also covered. During the course of said search and seizure action, documents relating to purchase and sale of shares of M/s Shalimar Agro Products Ltd. and M/s G-Tech Info Training Ltd. were found. The statement of the assessee was recorded u/s.132(4) and assessee offered capital gain.
5. Thereafter the AO made/ passed the order of assessment u/s.143(3) r.w.s.153A of the Act, on 30-12-2008, wherein the Long Term Capital Gains shown by the assessee on sale of shares of M/s Shalimar Agro Products Ltd and M/s G-Tech Info Training ltd. aggregating to Rs.55,54,250/- (i.e. Rs.39,54,635/- + Rs15,99,615/- ) were added as income from the artificial long term capital gains. The AO also added 5% of Rs.55,54,250/- i.e Rs.2,77,712/- as unexplained money in the income of assessee.
6. Being dissatisfied with the assessment order passed by the Assessing Officer, the assessee preferred appeal before the CIT(A), however, the CIT(A) confirmed the additions so made by the AO. Now, the assessee is in further appeal before ITAT and raised the following grounds of appeal:
"1. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming sale consideration of Rs.55,54,250/-, claimed as giving rise to long term capital gains, as unexplained cash credit.
2. On the facts and in the circumstances of the case and in law, the learned Commissioner of Income Tax (Appeals) erred in confirming the addition of Rs.2,77,713/- being 5% of the sale consideration of Rs.55,54,250/- as unexplained expenditure u/s.69C on account of commission/service charges payable to the broker.
7. We have heard the AR For the assessee and DR for revenue and perused the material available on record. Ld. AR of the assessee 5 ITA No.7024/10 contended that that the purchase of shares of M/s. Shalimar Agro Ltd and M/s. G. Tech Info Training ltd. are fully supported by contract notes. The sales transactions have been routed through demat account of the assessee. Therefore, the presumption of the lower authorities that the entire transaction of purchase of shares is bogus is without any basis. Ld. AR further submitted that just because the purchase transactions have been done "off market"
and the delivery of shares have been taken in physical form cannot justify the allegation that the purchases are bogus or have been backdated. It was also the contention of ld. AR that the AO never confronted the assessee with the denial of the broker Shri Sanjay R. Shah who stated that he has not entered into any transaction with the assessee or his family members. Further ld. AR pointed out that the entire sale transaction of shares of these two companies have been done through BSE, therefore, there should not be any doubt in relation to the sale consideration resulted from the sale of shares of these two companies. He further submitted that since the entire purchase and sale of shares are fully supported by necessary documents/evidences, therefore, the additions made by the AO and confirmed by the CIT(A) deserves to be deleted. During the course of hearing, ld. AR placed some documents, which are permitted to be taken on record, regarding assessment framed in case of Mr. Paresh M. Kariya (HUF) u/s. 143(3) r.w.s.153C of the Act and statement of Mr. Paresh M. Karia recorded on 30-3-2007 along with statement of assessee recorded on 31-3-2007. Ld. AR contended that the case of Mr. Paresh M. Karia(HUF) is similar to the present facts of the case and the additions made in case of Mr. Paresh M. Karia(HUF) has been deleted by the Tribunal vide order dated 13- 5-2015, passed in ITA No.7023/Mum/2010. Therefore, being on identical issue decided by the Tribunal in the aforesaid case, the assessee's case may be considered and additions so made by the AO should be deleted.
8. On contrary, ld. DR for the revenue argued that the transaction of the share were managed by through the accommodation entry and the same has been proved that the statement made by the assessee during the search. More over the person / broker has also deposed against the assessee that accommodation entry was provided to the assessee.
9. We have also gone through the order dated 24.6.2014, passed by the Hon'ble High Court in Writ Petition No.126 of 2014, thereby 6 ITA No.7024/10 setting aside the order dated 30. 01.2013 and directed to hear the appeal afresh.
10.In order to proper appreciation of the fact of the present case, we may refer that the Tribunal vide its order dated 20-10-2010, passed in ITA No.5670/Mum/2008, accepted the contention of the assessee made in the original assessment proceedings. The assessee has received the money on sale of shares as the said sale of shares is at the Stock Exchange, which fact is not in dispute. The Tribunal has sent the matter back to the file of AO to ascertain the date of purchase, so as to decide as to whether the assessee has earned short term capital gain or long term capital gain. In the present proceedings, out of the two scripts, for one scrip, the Tribunal has already sent the matter to the AO and, the Hon'ble High Court in para 8 of its order has held finding of the Tribunal's order dated 20/10/2010 in regular assessment proceeding would have direct relevance/ bearing on the Tribunal deciding the appeal arising from the assessment under section 143(3) and 153 A of the Act for the same assessment year and thus directed to recall the order of the Tribunal dated 30th January, 2013 and directed to rehear the appeal.
11. The department has not challenged the order of the Tribunal dated 20-10-2010, passed in ITA No.5670/Mum/2008 before the High Court, the said order has become final,with regard to order under section 143(3) wherein the issue was restored to the AO. It may be noted that the assessee could not prove the purchases of penny stock shares of M/s Shalimar Agro Ltd. and M/s G.Tech Info Training Ltd., however, ld.AR of the assessee submitted before us that the entire purchase and sale of shares are fully supported by necessary documents/evidences.
12. Therefore, we also dim it appropriate to restore the issue to the file of AO to avoid the conflicting assessment order in respect of same AY and direct the AO to verify and examine the actual date of purchase in both the cases and thereby to determine the short term capital gains or long term capital gains, or it may be added in income of the assessee u/s 68 on the basis of the alleged incriminating material found during the search as the case may be, and pass fresh assessment order after giving opportunity of being heard to the assessee and decide the same in accordance with law.
13. The assessee is directed to produce all the documents as may be required by the Assessing Officer. Thus, we allow this appeal of the assessee for statistical purposes only. We order accordingly.
7 ITA No.7024/1014. In the result, appeal of assessee is allowed for statistical purposes.
Order pronounced in the open court on this 17/02/2016.
Sd/- Sd/-
(R.C.SHARMA) (PAWAN SINGH)
ऱेखा सदस्य/ ACCOUNTANT MEMBER न्यानयक सदस्य / JUDICIAL MEMBER
भफ
ंु ई Mumbai; ददनांक Dated 17 /02/2016
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), Mumbai.
4. आमकय आमक् ु त / CIT
5. ववबागीम प्रनतननधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai
6. गार्ा पाईर / Guard file. आदे शािसार/ BY ORDER, सत्मावऩत प्रनत //True Copy// उप/सहायक पुंजीकार (Asstt. Registrar) आयकर अपीऱीय अधिकरण, भुंफई / ITAT, Mumbai