TaxTMI 
TaxTMI 
2018 (9) TMI 1159
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....ations of the SEBI in the final order would have been considered, the issue relating to the disputed addition made by the Assessing Officer could have been decided in a different manner i.e., in favour of the Department. Thus, he submitted, the appeal order passed by the Tribunal may be recalled and the appeal may be heard and decided afresh after considering the final report of the SEBI. 3. The learned Authorised Representative vehemently opposing the contention of the Departmental Authorities submitted that the Tribunal having decided the issues raised before it on the basis of facts and material available on record, only because the final order of the SEBI was not brought to the notice of the Tribunal, the appeal order cannot be considered to be erroneous as per section 254(2) of the Act. He submitted, the order passed by the SEBI if was available and in the knowledge of the Department it should have been referred to at the time of hearing of appeal before the Tribunal. He submitted, since the final order of the SEBI now relied upon by the Department was never brought to the notice of the Tribunal it cannot be said that by non- consideration of the said order of the SEBI ther....
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....averments made in the misc. application filed by the Income Tax Officer, Ward-15(2)(1), Mumbai, who happens to be the Assessing Officer, are as under:- "This Miscellaneous Application Arising out of ITAT, „I‟ Bench, Mumbai‟s order ITA no.6165/Mum./2014 dtd. 29.04.2016 in which the Hon‟ble ITAT has dismissed Revenue appeal. It seems that there is a mistake in the order of Hon‟ble ITAT. The facts of the case are narrated in the Authorization memo issued by the Pr Commissioner Of Income Tax - 15, Mumbai. In view of the above, it is prayed that, in the interest of justice, the Hon‟ble ITAT may kindly recall its order dated 29th April 2016 under section 254(2) of the Act and hear the appeal afresh and pass appropriate order for ensuring that proper investigation is carried out and correct facts are brought on record." 5. As could be seen from the averments made in the misc. application, they are general in nature and the Assessing Officer has not referred to any specific mistake or error appearing in the order dated 29th April 2016, passed by the Tribunal. Interestingly, the Assessing Officer, in turn, has referred to the....
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....ibers are identifiable and transactions are through banking channel. What the Assessing Officer has doubted is the creditworthiness and genuineness, that too, primarily relying upon the interim order of the SEBI. Accordingly, he has added them back under section 68 of the Act. The assessee challenged the addition before the learned Commissioner (Appeals). In course of hearing of appeal before the first appellate authority the assessee made submissions and furnished documentary evidences to prove the genuineness of the unsecured loans and share capital investment and creditworthiness of the parties. The learned Commissioner (Appeals) after taking note of the submissions made by the assessee and the evidences filed before him including affidavits of the lenders and their income tax returns, forwarded them to the Assessing Officer for making necessary enquiry to ascertain the genuineness of the transactions. In pursuance to the directions of the learned Commissioner (Appeals) the Assessing Officer examined the documentary evidences and found the unsecured loans to be genuine, hence, made no adverse comment in his report. As regards receipt of share application money, the Assessing Off....
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....eal? The learned Departmental Representative has failed to demonstrate how it would have helped the cause of the department. As could be seen, the seven subscribers who have invested in assessee's shares are the following:- Sr. No. Name of Subscriber Name of the Authorised Signatory / Director 1. Lexus Infotech Ltd. Rose Parabidri 2. Real Gold Trading Pvt. Ltd. Shobha Verma 3. Javda Indian Impex Ltd. Ramesh M. Javda 4. Kush Industan Entertainment Ltd. Ramesh M. Javda 5. Yash V. Jewels Ltd. Uma Jayant Kansara 6. Vanguard Jewels Ltd. Uma Jayant Kansara 7. Alka Diamond Industries Ltd. Gopal M. Javda 7. These seven entities appeared in the list of 230 entities mentioned in the interim order of SEBI referred to in the assessment order. Aforesaid list of 230 entities was downsized to 217 as appearing in Table-A of final order dated 31.03.2015 of SEBI. However, assessee's seven subscribers also appear in this list of 217 entities. It will be interesting to note the observations of the SEBI with regard to these entities in the final order, which are as under:- "11. Since these suspicious banking transact....
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....ies have undergone various periods of prohibition since April 23, 2009 (ranging from two-and a-half to more than five years) I am of the view that the prohibition against these 217 entities listed in Table A of para 5 above, need not continue. 16. Accordingly, I, in exercise of the powers conferred upon me under Section 19 of the Securities and Exchange Board of India Act, 1992 read with Sections 11, 11B and 11(4) thereof, do hereby dispose of the proceedings against the 217 entities mentioned in Table A without any further orders." 8. Thus, as could be seen from the aforesaid observations of SEBI, nothing serious was found against these entities, except, raising some doubt with regard to the transaction in their bank accounts, hence, prohibition order against them was discontinued. Thus, the final order of SEBI in no manner will be helpful to the department to prove that funds received by the assessee through unsecured loan and share subscription is non genuine or the subscribers have no creditworthiness. Apart from relying upon the final order of SEBI the department has failed to bring any material through independent enquiry to establish that the transactions are not....