TaxTMI 
TaxTMI 
2016 (3) TMI 925
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.... impugned order by inviting our attention to the factual finding recorded in the assessment order as well as in the impugned order. 2.1. We have considered the rival submissions and perused the material available on record. Before coming to any conclusion, we are reproducing hereunder the relevant finding recorded in the impugned order for ready reference:- "3.2 Facts of the case and submission of the Ld. A.R. have been considered carefully. There is no dispute considering the facts that sum of Rs. 31,110/- constitutes the sum of Rs. 2,28,188j- assessed as speculation income and further payment dt.28.03.2007 by cheque Rs. 2,492/-. Therefore, the AO is directed to delete the addition of Rs. 31,110/- made separately in the assessment order. 3.2.1 There is also no dispute of facts that all the transactions are from M/s. Alliance Intermediaries Net work Ltd which a Mukesh Chokshi group concern. In the case of Shri Mukesh Chokshi group concerns including M/s. Alliance Intermediaries -Network Ltd. ITAT in the following appellate orders have already held that Shri Mukesh Chokshi and all his associates have not done any genuine business of stock broking or dealing in shares. All thes....
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....been shown as income and has been accepted by the ITAT. 3.3.3 The assessee is also one beneficiary of accommodation entry provided by Shri Mukesh Chokshi and his Associates. The entity used in this case is M/s. Alliance Intermediaries Network Ltd. Therefore, the speculative income and the Short term capital gains both are shown by the assessee without any underlying genuine transactions. The sum of Rs. 2,492/- shown as paid to Mukesh Chokshi is also a fictitious payment since it is only an accommodation entry and also made after a gap of about 9 months since the purchase of 2800 shares of Crazy Infotech is shown and after receipt of the cheque for the sale of shares of Crazy Infotech Ltd. 3.4 Therefore, considering the facts of the case in totality it is hereby held that sum of Rs.l,97,078/- is rightly assessed by the AO Income from other sources. AO is directed to modify the assessment by assessing sale proceeds of shares of Crazy Infotech Ltd. of Rs. 2,28,188/- as income of the assessee under the head Income from other sources. Accordingly, total income is to be determined as - (i) Speculation income shown Rs.1,77,634/- (ii) Interest income as shown Rs. 73,120/- (iii....
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....twork Pvt. Ltd. is the group concern of one Shri Mukesh Chokshi. The Chokshi group had been providing bogus accommodation entries to the beneficiary. Some of the decisions have already been quoted by the ld. Commissioner of Income Tax (Appeals). During hearing, before us, the assessee has not confronted the observation made in the impugned order. In fact, Mr. Mukesh Chokshi was not doing genuine share transaction and was merely providing bogus entries and showing bogus long term/short term capital gains. It is also noted that identically, in the following cases, order dated 16/11/2015:- * Manish C. Jogani, (HUF) vs ITO (ITA N0.7344/Mum/2014) * Sandeep C.Jogani (HUF)vs ITO (ITA No.7345/Mum/2014) * Girish C. Jogani (HUF) vs ITO (ITA No.7346/Mum/2014) and * Champaklal D. Jogani (HUF) vs ITO (ITA No.7347/Mum/2014) Identically, the deposition made by Shri Mukesh Chokshi was discussed in detail along with the cases of Rinku Shah (ITA No.4311/Mum/2014), M/s Gold Star Finvest P. Ltd. (ITA No.4625/Mum/2005) and 5000/Mum/2005) order dated 28/03/2008, Richmond Securities Pvt. Ltd. (subsequently known as Mahasagar Securities Pvt. Ltd. and now known as Alag Securities (ITA No.4624/Mum/....
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....principally toward showing that the burden of proof, which is on the assessee, has been discharged, and that in the facts and circumstances of the case the credits are unproved. The same does not impugn the assessee/s case in any manner, even whose name does not appear in the statements of Shri Mukesh Choksi being relied upon. At this stage, on being asked by the Bench if the assessee had been supplied the copies of the said statements, he would reply in the negative. The ld. Departmental Representative (DR) would, on the other hand, submit that when the very person whose companies issued the relevant bills and contract notes, i.e., on the basis of which the truth of the transactions is being claimed, admits to the same being bogus, i.e., not representing actual transactions, how would it matter if the assessee's name is not specifically stated in the said statements? The assessee's plea of having been not supplied the copy of the said statements could not be countenanced in-as-much as there is nothing on record to show that the same were ever applied for. The assessee has not brought on record anything to rebut the Revenue's reliance on the said statements, which impinge directly ....
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....rther, the transactions were admittedly not carried out through the stock exchange, as again clarified by the National Stock Exchange (refer para 2.4.3 of the impugned order). What value, then, the said bills/contract notes, issued by such companies, which could not have acted as brokers or sub-brokers? The contract notes are, in terms of the law/procedure, even otherwise required to be time stamped, also bearing the unique identification number (UIN) (and which bears reference to his PAN) of the client, while in the present case there is considerable doubt if the transactions are market transactions, i.e., through the market/exchange. The assessee's plea for cross examination is, again, misconceived. In-asmuch as the assessee relies on the evidences furnished by Sh. Mukesh Choksi or his companies, i.e., in the form of bills, contract notes, etc., he (Mr. Mukesh Choksi) is his witness. The said reliance however gets put paid in view of his subsequent statements, which may even be substantiated and corroborated by the evidences/materials found in search. The credibility of the bills and contract notes is even otherwise in serious doubt, with the transactions being not market transac....
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.... the obtaining legal framework, relying on abundant case law, which has not been rebutted, the facts have not been similarly collated & analyzed, with a view to determine the issue at large, which is principally factual, i.e., if the transactions are satisfactorily proved, toward satisfactorily explaining the impugned credit/s as to their nature and source, by the assesse. And which would also require providing him opportunity to explain the different aspects of the transactions. Several questions arise, in the matter, and which would require being suitably addressed. Whether the shares under reference were purchased from the market, or are off market transactions. What is the basis of the purchase price in the case of the latter? Who is the seller/s, from whom therefore the delivery would flow, and to whom the payment/s would be made? Is there any contemporaneous evidence to exhibit the purchase (as well as the rate), which is crucial also from the point of view that it is only where the holding period is for a minimum of 12 months that the gain arising on the transfer of the shares qualifies to be a LTCG. Like-wise, for the sale. Is the sale supported by market quote/s? What is t....
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....te itself casts a burden of proof on the assessee to satisfactorily explain the nature and source of a credit. The issue, which is purely in the realm of a factual matter, is thus whether the assessee has been able to satisfactorily prove the impugned credit, i.e., as would satisfy a man of normal prudence, acting reasonably, as where with regard to his own affairs. In other words, is the assessing authority, in being not satisfied with the assessee's explanation, backed of-course by the materials relied upon, acting reasonably. Being, of-course, where and to the extent required/relevant, duly informed of the applicable law/procedure. The law in the matter is again well settled, and toward which some binding decisions may be cited: A. Govinda Rajulu Mudaliar v. CIT (1958) 34 ITR 807 (SC) Sreelekha Banerjee & Othrs. v. CIT (1963) 49 ITR 112 (SC) Kalekhan Mohammed Hanif v. CIT (1963) 50 ITR 1(SC) CIT v. Durga Prasad More (supra) CIT v. Biju Patnaik (1986) 160 ITR 674 (SC) Sumati Dayal vs. CIT [1995] 214 ITR 801 (SC) CIT vs. P. Mohanakala &Others (2007) 291 ITR 278 (SC) Then, again, whether the Securities Transaction Tax (STT) has been paid on the purchase and ....