2018 (2) TMI 1877 - AT - Income Tax

Validity of Assessment Reopening & Additions Upheld by ITAT

Ritu Sanjay Mantry Versus ITO-24 (3) (4), Mumbai

The ITAT upheld the validity of reopening the assessment under Section 148 and the additions made by the AO, including the disallowance of alleged bogus ... Addition u/s 68 - bogus Income from share transactions - HELD THAT:- CIT (Appeals) has given a finding that dealing in shares by the assessee in the above script has to be taken as dealing in penny stock which was in the form of accommodation entries and hence the entire sale consideration of this scrip has to be treated as unexplained cash credit within the meaning of section 68. The facts of the case indicate that the assessee has claimed to have purchased share from Cable Corporation of India Ltd. through Mahasagar Securities Pvt. Ltd. and Alliance Intermediateries & Network Pvt. Ltd. These intermediateries are companies operated by Shri Mukesh Choksi and are involved in providing bogus entries. On enquiry, the AO has found that for the said company Cable Corporation of India Ltd., Link Intime India Pvt. Ltd. is the registered authority. The Assessing Officer asked for information u/s. 133(6) of the Act vide letter dated 25.2.2015 from Link Intime India Pvt. Ltd. regarding the genuineness of the transaction. The said Link Intime India Pvt. Ltd. vide letter dated 27.2.2015 stated that the assessee (shareholder) is not holding any shares in DEMAT account in the above mentioned company. In these factual backgrounds, the above transaction of the assessee has been held to be bogus accommodation transaction. The above factual scenario clearly indicates that the assessee has indulged in bogus transaction to show his undisclosed income in the garb of long term capital gain. The shares of unknown company in an off market deal has jumped manifold without any apparent reason. There is no economic and financial basis for the astronomical appreciation involved in the short span of time. See SANJAY BIMALCHAND JAIN L/H SHANTIDEVI BIMALCHAND JAIN VERSUS THE PR. COMMISSIONER OF INCOME TAX-I, NAGPUR & ANOTHER [2017 (5) TMI 983 - BOMBAY HIGH COURT] - Decided against assessee. Issues Involved:1. Validity of reopening the completed assessment under Section 148.2. Disallowance of alleged bogus share transaction amounting to Rs. 10,39,289.3. Addition under Section 69C of Rs. 20,786 for alleged unaccounted commission paid on bogus share transactions.Issue-wise Detailed Analysis:1. Validity of Reopening the Completed Assessment:The case's brief facts reveal that the assessee filed a return of income on 30th March 2009, declaring a total income of Rs. 2,71,805, which was processed under Section 143(1). Subsequently, the Assessing Officer (AO) received information from DGIT(C&IB), New Delhi, about the assessee taking an accommodation entry from M/s. Magasagar Securities Pvt. Ltd., amounting to Rs. 10,32,289. Consequently, a notice under Section 148 was issued on 28th March 2014. The assessment was completed under Section 147 r.w.s. 143(3), adding Rs. 10,39,289 for bogus share transactions and Rs. 20,786 for commission paid to the broker.The Commissioner of Income Tax (Appeals) upheld the reopening, stating that the information received provided a reasonable belief of income concealment. The AO's belief was based on tangible material, and the sufficiency of reasons for reopening could not be questioned at the preliminary stage. The ITAT confirmed that the AO had tangible and cogent material indicating the assessee's involvement in manipulated accommodation entries, justifying the reopening based on the precedent set by the Supreme Court in CIT(A) Vs. Rajesh Jhaveri Stock Brokers P. Ltd.2. Disallowance of Alleged Bogus Share Transaction:The AO's investigation revealed that the assessee claimed to have purchased shares from Cable Corporation of India Ltd. through Mahasagar Securities Pvt. Ltd. and Alliance Intermediaries & Network Pvt. Ltd. However, Link Intime India Pvt. Ltd., the registrar authority, confirmed that the assessee did not hold any shares under the specified DEMAT account. The AO concluded that the transactions were colorable devices using forged and fabricated bills to evade tax, leading to the addition of Rs. 10,39,289 as bogus share transactions.The Commissioner of Income Tax (Appeals) upheld the AO's action, noting the involvement of the Mahasagar Securities Pvt. Ltd. group in issuing bogus bills for providing short-term capital gains/losses. The appellate authority concluded that the entire sale consideration of the scrip should be treated as unexplained cash credit under Section 68, given the dubious nature of the transactions.3. Addition under Section 69C for Unaccounted Commission:The AO estimated a 2% commission on the bogus share transactions, amounting to Rs. 20,786, and added it under Section 69C. The Commissioner of Income Tax (Appeals) upheld this addition, aligning with the findings of bogus transactions and the estimation of commission for obtaining accommodation entries.Conclusion:The ITAT dismissed the assessee's appeal, confirming the validity of reopening the assessment and the additions made by the AO. The Tribunal found that the assessee indulged in bogus transactions to show undisclosed income as long-term capital gain. It referred to the jurisdictional High Court's decision in Sanjay Bimalchand Jain vs. Pr. CIT, which dealt with similar facts and upheld the disallowance of such transactions. The ITAT concluded that the orders of the lower authorities were justified and supported by legal precedents, leading to the dismissal of the appeal.