AI Drafter 
TaxTMI 
TaxTMI 
2017 (10) TMI 1413
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.... Ltd. vs DCIT (ITA Nos.5018 to 5022 and 5059/Mum/2010, challenging the confirmation of addition of Rs. 69,07,803/- made by assessment u/s 153A of the Act on the ground that no incriminating material was found or seized during the course of search reflecting undisclosed income. It was also pleaded that no notice u/s 143(2) of the Act was ever served upon/given to the assessee within the stipulated period. The Bench asked the Ld. DR whether any notice u/s 143(2) of the Act was given to the assessee. The Ld. DR after going through the record fairly admitted that no notice u/s 143(2) was given to the assessee, as is apparent from the assessment order. Considering the decision of the Special Bench (supra) and the decision in the case of NTPC Ltd.(supra) from Hon'ble Apex Court, we admit the legal ground raised by the assessee. Assessee has also filed written submissions, copy given to the Ld. DR and such submissions are kept on record. 2. The assessee, before us, has strongly contended that no notice u/s 143(2) of the Act was ever served upon the assessee. This factual matrix was fairly accepted by the Ld. DR, therefore, in the light of this admission, we shall examine the legali....
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....ned assessment year had become final as the period prescribed for issuance of notice u/s 143(2) had already expired. The relevant extract of the provision of section 153A of the Act is reproduced hereunder for ready reference and analysis:- "153A. Assessment in case of search or requisition. (1) Notwithstanding anything contained in section 139, section 147, section 148, section 149, section 151 and section 153, in the case of a person where a search is initiated under section 132 or books of account, other documents or any assets are requisitioned under section 132A after the 31st day of May, 2003, the Assessing Officer shall- (a) issue notice to such person requiring him to furnish within such period, as may be specified in the notice, the return of income in respect of each assessment year falling within six assessment years ; (b) assess or reassess the total income of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted or requisition is made : Provided that the Assessing Officer shall assess or reassess the total income in respect of each assessment year falli....
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....3) of the Income Tax Act, 1961 No order 4. Order passed u/s 143(2) of the Income Tax Act, 1961 for framing assessment u./s 143(3) of the Income Tax Act, 1961 (twelve months from the end of the month in which the return is furnished 31/08/2006 5. Status of Assessment date of search Concluded/Not Pending 2.3. From the above chart given it is clear that the assessee filed the original return on 12/08/2005, therefore, on the date of search i.e. on 18/01/2007 time limit for issue of notice u/s. 143(2) of the Act had expired. Therefore, there was no assessment pending in the case of assessee for the year under consideration on date of search and in such a case there was no question of abatement. Thus, Assessing Officer can make the addition only on the basis of incriminating material found during the course of search. In case of assessee there was no such incriminating material or evidence found during the course of search in order to support of the addition and the alleged addition was merely based upon the statement of one of the directors of M/s. DPS Shares and Securities Pvt. Ltd. from whom purchase transactions were made. However, there was no incriminating m....
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....All Cargo Global Logistics Ltd. (supra), has held that the provisions of section 153A come in to operation i f a search or requisition is initiated after 31.05.2003 and on satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income for six years immediately preceding the year search. The Special Bench further held that in case assessment has abated, the AO retains the original jurisdiction as well as jurisdiction under section 153A for which assessment shall be made for each assessment year separately. Thus in case where assessment has abated the AO can make addition in the assessment, even if no incriminating material has been found But in other case the Special Bench held that the assessment under section 153A can be made on the basis of incriminating material which in the context of relevant provisions means books of account and other document found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the assessment had been completed under summary scheme under section 143(1) and time li....
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....of the IT Act and the power that is conferred there under. When Revenue argued before the Division Bench that the power under section 153A can be invoked and exercised even in cases where the second proviso to sub-section (1) is not applicable that the Division Bench was required to express a specific opinion. The provision deals with those cases where assessment or reassessment, if any, relating to the assessment years falling within the period of six assessment years referred to in sub-section (1) of section 153A were pending. If they were pending on the date of the initiation of the search under section 132 or making of requisition under section 132A, as the case may be, they abate. It is only pending proceedings that would abate and not where there are orders made of assessment or reassessment and which are in force on the date of initiation of the search or making of the requisition. As that specific argument was canvassed and dealt with by the Division Bench and that is how it was called upon to interpret section 153A of the IT Act, then, each of the above conclusions rendered by the Division Bench would bind us. 30. Even otherwise, we agree with the Division Bench w....
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....f shares of Database Finance Ltd and Rs. 1,74,375/- on account of unexplained expenses relating to long term capital gain on sale of shares and Database Finance Ltd in the order passed u/s 153A even in the absence of incriminating material found as a result of search." (II) Identically, the Tribunal relying upon the decision/s, in the case of Shri Govind Agarwal v ACTT in ITA No 3389/M/2011 dated 10.01.2014 (1TAT, Mumbai) has held as under: "6. During the proceedings before us, Shri Devendra Mehta, Id Counsel for the assessee raised the above mentioned grounds and questioning the additions and the validity of the assessment u/s 153A of the Act. In this regard, Ld Counsel for the assessee submitted various arguments before us, which are common to the ones already mentioned in detail and adjudicated by us in connection with the appeals filed in the case of Shri Govind Agarwal vs. ACTT vide ITA Nos.3389/M/2011 (AY: 2002-2003) and ITA No. 3390/M/2011 (AY: 2004-2005) vide order dated 10.01.2014. For the sake of completeness of this order, relevant portions of the said order of the Tribunal (supra) are reproduced here under: .......... 17. Rajasthan High Court judgme....
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....IT in ITA No 4174 to 41771Mum/2013 the Hon'ble ITAT Mumbai Bench (Page Nos 296-305 of the Paper Book-II) held as under: "19. In the case before us, search took place on the new management and admittedly no document as such was found which indicated that there was certain income belonging to the assessee, which had not been disclosed to the department in the impugned assessment years. Since the search was on the new management, the assessee company became the person other then the person searched. In these circumstances, issue of notice u/s 153C and assessment to be framed under this provision is imperative, as the provision is non obstante. In these circumstances, the following have to be taken into consideration are a) whether there is any incriminating material, indicating income not declared before the revenue authorities and b) whether the assessment in any assessment years or any assessment year in which notice u/s 153C is pending. If the answer to both these questions are in the negative then the assessment to be framed shall be as per the ratio laid down in the case of Special Bench decision in the All Cargo and Delhi High Court in the case of ....
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.... income originally assessed and finalized. However, it has to be added here that proceedings under section 153A are linked to the search having been initiated on the person, not with the documents found and seized, The documents so found and seized, may become useful to the AG for making an assessment of total income under section 153A read with 143(3) ". (V) Similar view was taken by the Tribunal in the case of Neeta Doshi & Manisha Doshi in ITA No 439 and 441/[If12010 (Page No. 355-371 of the Paper book-H) dated 30/11/2015. Identically, the Tribunal in the case of Zeenat P. Sanghavi vs DCIT in ITA No. 8026/Mum/2010 (Page No. 372-393 of the Paper Book-II) vide its order dated 19/12/2014 and also in the case of Jignesh P. Shah vs DCIT in ITA No 1553 & 3173/M/2010, vide order dated 13/02/2015. (Page No 394-405 of the Paper Book-I1) took similar view. The Hon'ble Calcutta High Court in LMJ International Ltd. Vs. DCIT (2008) 119 TTJ (Kol) 214 (Page No 406-418 of the Paper Book- I1): Held that where nothing incriminating is found in the course of search relating to any assessment years, the assessments for such years cannot be disturbed; items of regular assessment cannot be add....
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....tained artiflcial capital gain by manipulating share transactions. However, during this Search, no incriminating document, paper, evidence etc. were found or seized so as to prove or establish the said allegation. On receipts of notices u/s. 153A, the assessee filed his Returns and the Ld. A.O. completed his assessments u/s. I 53A r.w.s 143(3) on 24.12.08 by a consolidated Asstt. Order for Asstt. Years 2001-02 to 2007- 08, wherein addition was made on account of sale proceeds of shares u/s.68 of I.T. Act. 6. It was argued by Ld. A.R. that the entire assessment for all the years under appeal passed under section 153A in the assessee's case is ultravires the provisions of the said section. The Ld. A.R. submitted that a bare perusal of section 153A makes it clear that it applies to a person in whose case a search is initiated u/s 132 of the Act, or whose books of account, other documents or any assets are requisitioned u/s 132A after 31.05.2003. Section 153A provides that where a search is initiated u/s 132 the Assessing Officer shall "assess or reassess the total income of six assessment years immediately preceding the assessment year" relevant to the previous year in which ....
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....se of search." 8. The Ld. A.R. further relied on the decision of Jurisdictional High Court of Bombay in the above case vide its order dated 21.04.15 wherein court has approved the order of ITAT Special Bench and has held as under: "29. We are not in agreement with Mr. Pinto that these observations are made in passing or that they are not binding on us because the essential controversy before the Bench was somewhat different. He urges that was only in relation to the legality and validity of the order of the Commissioner under section 263 of the IT Act. Had that been the case, the Division Bench was not required to trace out the history of section 153A of the IT Act and the power that is conferred thereunder. When the Revenue argued before the Division Bench that the power under sect ion 153A can he invoked and exercised even in cases where the second proviso to sub-sect ion (1) is not applicable that the Division Bench was required to express a specific opinion. The provision deals with those cases where assessment or reassessment, if any relating to the assessment years falling within the period of six assessment years referred to in subsection (1) of sect ion 15....
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....n the decision of ITAT Bombay in the case of Shri gurinder Singh Bawa Vs. DCIT, 28 Taxmann.com 328, wherein it was held that the provisions of section 153A come into operation if a search or requisition is initialed after 31.05.2003 and on satisfaction of this condition, the AO is under obligation to issue notice to the person requiring him to furnish the return of income for six years immediately preceding the year search. In case assessment has abated, the AO retains the original jurisdiction as well as jurisdiction under section 153A for which assessment shall be made for each assessment year separately. Thus in case where assessment has abated the AO can make addition in the assessment, even if no incriminating material has been found. But in other case the assessment under section 153A can be made on the basis of incriminating material which in the context of relevant provisions means book of account and other document found in the course of search but not produced in the course of original assessment and undisclosed income or property disclosed during the course of search. In the present case, the assessment had been completed under summary scheme under section 143(1) and tim....
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....he Tribunal was held to be not right in deleting the additions. Reliance was also placed on the decision of Hon'ble Supreme Court in the case of Mukundray K. Shah 290 ITR 433 wherein it was held that the diary seized during the search was revealing that company in which assessee had substantial interest and which had accumulated profits, advanced monies to closely related partnership firms in which also assessee was a partner which amounts were withdrawn by assessee and utilized for purchase of RBI Bonds, it was held that amount was advanced for the benefit of the assessee by using the two forms as conduces and the said amount was rightly assessed as deemed dividend in the hands of the assessee in block assessment. 13. Reliance was also placed on the decision of the ITAT Delhi Bench in case of Rubber Enterprises Pvt. Ltd. 88 ITD 95 wherein it was held that onus of proof that commission paid was genuine, the assessee should miserably failed to demonstrate that services were rendered to it and failed to discharge onus, therefore not entitled to deduction to commission paid. Reliance was also placed on the decision of Rajesh Jhaveri Stock Brokers Pvt. Ltd. in support of the p....
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....ch the time limit for issue of notice u/s 143(2) had expired and as such no proceeding could be initiated for the said year which implies that the said assessment was not pending on the date of search. Now, applying the principle of law laid down by the ITAT Special Bench in the case of All Cargo Global Logistic Ltd. (supra), 137 ITD 287, which was confirmed by the Hon'ble Bombay High Court vide its order dated 21-4-2015, to the facts of the instant case, we can reach to the conclusion that no assessment was pending and since no incriminating material was found during the course of search, the additions so made were not justified. Our view is also supported by the decision of coordinate bench (Bombay) in case of Shri Gurinder Singh Bawa (supra), Pruthvi Industries (supra), V.R.Machine Tools Pvt. Ltd. (supra) and in the case of Zeenat P. Sanghavi (supra), as discussed above. 16. In view of above discussion, since no incriminating material was found during the course of search, the addition made under section 153A, when the assessment was not pending, was not justified. 17. As we have decided the legal issue in favour of the assessee, we are not going into merits of....
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....143(3) of the Act, by passing consolidated order for Assessment Year 2001-02 to 2007-08, on 24/12/2008, determining the total income of the assessee at different figures making the following additions:- Grounds A.Y. 2005-06 A.Y. 2006-07 Addition on account of alleged bogus long term capital gains on sale of shares of Robinson Impex Ltd. Rs.65,78,860/- Rs.15,23,130/- Addition on account of alleged expenditure incurred from undisclosed source towards purchasing commission towards purchasing the shares Rs. 3,28,943/- Rs.76,156/- Total additions Rs.69,07,803/- Rs.15,99,286/- 3.2. Against the aforesaid decisions, the assessee filed appeal before the First Appellate Authority, wherein, the additions were confirmed as unexplained cash credit u/s 68 of the Act and the addition of Rs. 65,78,860/- (Assessment Year 2005-06) and Rs. 15,23,130/- (Assessment Year 2006-07) on account of alleged bogus long term capital gains on the sale of shares of Robinson Impex Pvt. Ltd., it is noted that the assessee challenged the additions before the Ld. First Appellate Authority under different section, whereas, the Ld. Assessing Officer made addition of the afor....
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....in lot of 100 shares. The details of physical share certificate of 50000 shares (giving the certificate numbers, distinctive numbers, folio numbers and number of shares along with sample copy of one certificate of 100 shares is available at pages 130 to 131.10 is available at paper book). The ld. counsel explained that, thereafter, the assessee applied for consolidation of all the small certificate of 100 shares each into one jumbo certificate of 50000 shares, which was received from the company, which is bearing distinctive numbers 1293001 to 1343000, certificate no.75084, folio number T 82 and the correspondence letter from the company are available at pages 132 to 133 of the paper book. It was also asked by the Bench from the ld. counsel for the assessee whether all these documents were made available to the ld. Assessing Officer/Ld. Commissioner of Income Tax (Appeal). It was specifically explained that these documents were very much made available before both the authorities. It was also explained that the assessee had D-mat account with Oriental Bank of Commerce (formerly Global Trust Bank) with client ID No.80055254 in which these shares were dematerialized on 21/09/2004 for....
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.... 1,000 2,16,580 27.05.2005 Pruthvi Brokers & Shareholders Pvt. Ltd. 2,000 4,37,180 01.06.2005 Pruthvi Brokers & Shareholders Pvt. Ltd 3,000 6,53,340 06.06.2005 Pruthvi Brokers & Shareholders Pvt. Ltd. 1,000 2,16,030 Total 7,000 10,640 7000 15,23,130 Long Term Capital Gain 15,12,490 3.3. M/s Pruthvi Brokers and Shares Holdings Pvt. Ltd. is listed on Bombay Stock Exchange (BSE) under scrip code no 532154. The broker is assessed to income tax having PAN-AABCP3901B, SEBI registration No.INB011059830, clearing no.529, Service Tax No.AABCP3901BST001. Copies of sale bills issued by the broker are available at pages 138.1 to 138.15 (Assessment Year 2005-06) and 138.18 to 138.21 (Assessment Year 2006-07). The ledger copy in the paper books of Pruthvi Brokers and Shares Holdings Pvt. Ltd and confirmation of sale from the broker are available at pages 138.16 to 138.17 (Assessment Year 2005-06) and 138.22 to 138.25 (Assessment Year 2006-07) of the paper book. The pool account of M/s Pruthvi Brokers and Shares Holdings Pvt. Ltd. h....
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....der). II. The assessee has not been able to prove from whom it has purchased the shares of M/s Robinson Worldwide. (Para 10.2.1 of the Assessment Order). III. The assessee has not been able to prove from whom it has received physical delivery of shares of M/s Robinson Worldwide in light of the statement of M/s DPS Share & Securities Pvt Ltd (Para 10.2.2 of the Assessment Order). IV. It has not been able to prove with documentary evidence the actual date on which it has received physical delivery of shares since the de-mat delivery of shares has been received near about the date of sale of shares (Para 10.2.3 of the Assessment Order) V. The plea of the assessee that around 4-5 years back it was not mandatory to conduct transactions on the BSE is an afterthought. Moreover the assessee has not filed any documentary evidences to prove whether it had received any such permission from BSE for off market transactions (Para 10.2.4 of the Assessment Order) VI. Enquiries were conducted by issuing notice u/s 133(6) of the Act with the purchase broker. (parts 9 of the Assessment Order). No inquiry was however made in the case of sales broke....
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....otal income, conclusion drawn in the impugned order, material available on record, assertions made by the ld. respective counsel, if kept in juxtaposition and analyzed, now question arises whether the sale proceeds of shares of Robinson Worlwide Ltd. can be treated as unexplained cash credit u/s 68 of the Act for the years under consideration, it seems that the whole addition was made by the Assessing Officer and confirmed by the Ld. Commissioner of Income Tax (Appeal) is based upon the statement of the Directors of M/s DPS Shares & Securities Pvt. Ltd., the Ld. Assessing Officer has also considered the statement of Shri Sujat C. Shah u/s 131 of the Act dated 18/01/2007 (page-19 of the assessment order), which is reproduced hereunder for analysis:- "Q. 1. Please identify yourself Please also confirm that an oath has been administered on you and the consequences of giving a false statement is explained to you. Ans. I am Sujal Chandrakant Shah, S/o. Mr. Chandrakant K. Shah. I confirm that an oath has been administered on me and the consequences of giving a false statement has been explained to me. Q. 2 What are your sources of income? ANs: Stock Br....
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....on the BSE floor. Q. 11 Whether the shares were listed on the BSE? Ans. These shares were not traded on the floor on BSE, as these shares were not listed on BSE. In the year 2003-04 and 2004-05 (F. Y), this companies were not listed in BSE. But the said companies were listed in BSE in 2005-06. I want to further clariji that when we issued the purchase bill at that time, the company was not listed in BSE." Q. 12 Please state, the name of the companies, for which you have issued bogus bills, as per the requirement of Shri Niaresh Saboo and Shri Naresh Jain or any other person. Ans. We have issued the bogus bills on the instructions of Mr. Naresh Jain and Naresh Saboo in only one company, which is M/s. Robinson Worldwide Ltd. Apart from this, I have issued some bills in M/s. Fasttract Entertainment Ltd. as per the directions from Mr. Sirish C. Shah, having address at Meghdoot Apt., Fourth Floor, Marine Drive, Mumbai. Q. 13 What is the quantum of shares of M/s. Robinson Worldwide Ltd and Ws. Fasttract Entertainment around 8-10 lac shares. Ans. As this matter is old, I don't exactly remember the quantum, but as per my memory, in ....
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....ent in the shares, as mentioned earlier, in earlier paras of this order is also explained by the assessee. Under these circumstances, it is an accepted principle of law that documentary evidence has to give precedence over the oral statement unless and until it is corroborated with documentary evidence. The whole case of the Revenue is based upon the statements, which is not corroborated with facts. Thus, we are of the view that addition cannot be sustained merely on the basis of statement ignoring the documentary evidences brought on record by the assessee. Our view finds support from the decision from Hon'ble jurisdictional High Court in the case of CIT vs Shri Om Prakash Jain ITXA no 1242 of 2008 (Born) where in the Hon'ble Bombay High Court has held as under (Page Nos 428-431 of the Paper Book -II). The relevant portion from the aforesaid order is reproduced hereunder:- 6. On behalf of the assessee, the learned counsel submits that when there was documentary evidence available, it was open to the learned Tribunal to come to the conclusion that the statement of the assessee which was retracted were given under duress or coercion. It is further submitted that in ....
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....g payments from realization of sales - Such paper cannot be ignored - There is no material with the AO to arrive at the figure of peak investment - Said paper falsifies the statement given at the time of search - No addition can be made merely on the basis of statement which is fully proved to be incorrect Thus there was no justification for making any addition on estimate basis." 3.10. If the aforesaid judicial pronouncements are kept in juxtaposition with the facts of the present appeal and analyzed, It is to be noted that both the directors of the broker, M/s. DPS Shares & Securities have stated that the alleged accommodation entries have been issued by them on the instructions of third persons, Shri Naresh Saboo and Slui Shirish C. Shah. These statements are general in nature and no reference has been made to the assessee at all. Further, in his statement, Shri Pratik C. Shah has stated that he had not charged any service tax on the said transactions and has not paid service tax to the government. This shows that the broker, M/s. DPS Shares 8z Securities is an interested party and therefore no reliance can be placed on their statement. At this juncture, it would also be rele....
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....t transferred in assessee's name on 14.06.2003. The said fact can be ascertained from the letter received by the assessee from MIs. Robinson Worldwide Trade Limited. The shares of the assessee were consolidated and the assessee was issued Jumbo share certificate. Thereafter, the said shares were dematerialized to de-mat account of the assessee held with Oriental Bank of Commerce (formerly known as Global Trust Bank). Such de-mated shares were sold through M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd. as can be seen from the sale bills submitted by the assessee. Further, the payments for the sale of said shares have been received by the assessee through account payee cheques. The Assessing Officer has further relied on the so-called cross-examination conducted in the case of the assessee. First and foremost, it is submitted by the assessee that directors of the broker, M/s. DPS Shares & Securities Pvt. Ltd. have nowhere specifically stated in their respective statements that they have issued accommodation entries to the assessee. There is no live link between the statement and the assessee. They have simply stated that they issued accommodation entries on instructions of certai....
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....420/Mum/2010 (Page No. 419-427 of the Paperbook-II) dated 03/02/2016. It is worth mentioning that the Assessing Officer as well as the Ld. CIT(A) has not doubted the sales made by the assessee through d-mat account. It is a fundamental principle that there cannot be a sale without a purchase. Therefore, the fact of purchase made by the assessee cannot be doubted as the same has ultimately been resulted in conversion of shares in electronic form and credit of the same in the D- mat account. Once the shares are credited to the D-mat Account sales are effected through the stock exchange. The Assessing Officer has not brought out anything to remotely suggest that the sales made by the assessee are not genuine. In such a situation, reliance can be placed on the judgement of Hon 'Me Jharkhand High Court in the case of CIT vs. Arun Kumar Agarwal (HUF) & Others in Tax Appeal No. 4 of 2011 dated 13.07.2012 (Page No. 499-508 of the Paperbook-II) wherein the Hon'ble High Court held as under: "10. We have considered the submissions of the learned counsel for the parties and we are of the considered opinion that the learned Assessing Officer was much influenced by the enquiry r....
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....1,45,06,054/- and in the annexure showing the details of investment in MIs Robinson Worldwide Trade Ltd shares have been included at 15500 shares amounting to Rs. 26810.54. This purchase has to be treated as accepted because this balance sheet was filed in A. Y 2004-05 and no adverse inference has been taken in that year. These documents are available at pages 24 to 26 of the paper book The assessee had also filed the contract note for sale and purchase of shares generating speculating profit filed at pages 36 & 37 of the paper book. The contract note for purchase of 15500 shares of M/s Robinson Worldwide Trade Ltd from M/s. DPS Shares & Securities Pvt. Ltd has been filed at page-38 of the paper book and the particulars read as under: " The above particulars would not indicate that it was a bogus transaction. In any case, assessee has no need to know whether the transaction was bogus or not because even invoice has been issued by M/s. DPS Shares & Securities Pvt. Ltd for purchase of these shares, copy of which is placed at page 39 of the paper book and delivery was also given which is at page 40 of the paper book Later on assessee filed an application for transfer of these....
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.... assessed under the head capital gains." 3.15. In another case, the Mumbai Bench of the Tribunal, Late Smt. Kanchanben J. Shah vs. ITO, the ITA No. 6544/Mum/2011 dated 18/02/2016, (Page No 527- 540 of the Paperbook-II) has held as under: "4. Aggrieved by the orders dated 16. 08.201] of the CIT(A), the assessee filed appeal with the Tribunal. The Ld. Counsel for the assessee reiterated the submissions as made before the authorities below which are not repeated for sake of brevity. The Ld. Counsel for the assessee stated before us that the 10000 shares of Robinson Impex (India) Limited was purchased on 04-04-2003 vide physical delivery from DPS Shares and Securities Private Limited who are SEBI approved registered broker with BSE which are duly evidenced by contract notes issued by the said broker which is placed at page 29-30 paper bookfiled before the Tribunal. The id. Counsel stated before us said shares were transferred in favour of the assessee on 30-04-2003 vide share certificate issued by the company which is placed at page 30 of the paper book filed with the Tribunal. The Id. Counsel stated before us that payment of the said 10000 shares of Robinson Impex (India) ....
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....a) Limited has been accepted to be income assessable under the head 'long term capital gain'. The Ld. Counsel has also filed a tabulation showing similarity of facts between the case of the assessee and that of Jagdish H Shah(supra). The tabulation furnished by the assessee depicts the similarity in scrip involved, assessment year involved, the broker involved, enquiries by the AO from BSE , etc. . Apart there-from, it has also been pointed out that the same AO as well as the same CIT(A) have rendered the decisions on the same dates in the case of Jagdish H Shah(supra) as well as the assessee. Under these circumstances, it has been pointed out that the impugned orders of the lower authorities are unsustainable and that income from sale of the shares of Robinson Impex (India) Limited be accepted as long term capital gain as returned by the assessee. The reliance is also placed on the similar case on identical facts in the case of Nikunj J Shah v. ITO in ITA no. 6545/Mum/2011 whereby Mumbai Tribunal vide orders dated 31/07/2015 has accepted the income from sale of shares of Robinson Impex (India) Limited as income assessable under the head long term capital gain as returned. ....
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....ated as sham merely/or some discrepancies or adverse report by the SEBI It is found that the A0 has not brought out any material to establish the final outcome of the enquiry initiated by SEBI and specific shares purchased by the assessee in course of making investment. Therefore, it is not possible to take any adverse view on the basis of mere suspicion that SEBI had initiated some action and found the brokers violating the rules of SEBI The CIT(A) is further correct in holding that notwithstanding the observations of the AO that the purchases and sales of shares were made with reference to penny stocks which were purchased at a nominal price and sold at a very high price, since all the sale transactions were made through stock exchanges there is hardly any scopes for price manipulation, it is all the more so, since the assessee has paid STT. Even with regard to the observation of the assessing officer that the assessee before purchasing the shares the assessees did not take into account the financial standing of the companies, the CIT(A) was correct is observing that the share market is generally sentiment driven and the assessees cannot remain static. Even the absence of experie....
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....sessee had maintained that the transactions entered by him were genuine. Thus, the mere statement is not enough to fasten liability upon the assessee when the assessee is denying allegation contained in the statement and there is no corroboration of the statement, whereas, the stand of the assessee is corroborated with documentary evidence, which has not been disapproved by the Revenue, because, in the present case, every transaction of purchase and sale of shares of M/s. Robinson Impex Ltd has been duly accounted, documented and supported by documentary evidences. Further, the search action in the case of the ass essee has also not resulted in discovery of any evidence whatsoever to prove that the impugned transactions were not genuine. Thus, apart from an uncorroborated statement of third party, the Department has no evidence to dislodge the claim of the assessee. 3.18. It is also noted that the impugned additions were confirmed by the Ld. Commissioner of Income Tax (Appeal) on the following grounds. (i) The assessee was allegedly part of some penny stock scam involving booking of bogus capital gains detected by the Investigation Wing. (ii) The director of M/....
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....e adequate substitute for tangible evidence. The observation made by the Ld. Commissioner of Income Tax (Appeal), while affirming the additions is reproduced hereunder:- "It is held that section 68 is squarely applicable in this case and since the appellant neither satisfactorily explained the purchases of penny stock nor the sales thereof the nature and source of the income credited to the books of account remain not properly explained. Therefore the alleged capital gain of Rs. 65,78,860/- is chargeable to tax u/s 68 of the Act. Whereas the Ld. Assessing Officer has charged such sum of Rs. 65,78,860/- as unexplained money in possession of the appellant, the same is confirmed as unexplained cash credit u/s 68 of the Act." 3.20. The above observation with respect to capital gain is factually incorrect, because, it is the sum total of sale proceeds received on sale of 50,000 shares of Robinson Impex (India) Ltd. The long term capital gains claimed by the assessee is Rs. 65,13,500/- for A.Y. 2005-06 and Rs. 15,12,490 for A.Y. 2006-07. Thus, the Ld. CIT(A) has treated the sale proceeds received on sale of shares of Robinson as unexplained cash credit u/s 68 of the Income-ta....
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....lar income tax assessee with a regular source of income and a distinct PAN No. AABCP390113, its creditworthiness as a share broker is well established. Further, the payments for sale proceeds being made by M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd through regular banking channels, the pool account of M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd in Oriental Bank of Commerce (pages 141 to 152 for A.Y. 2005-06 and pages 167 to 171 for A. F. 2006-07 of the Paper Book) showing the impugned sale on behalf of the appellant and copy of Trade files received by M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd from the BSE (Copy enclosed at pages 153 to 166 for A. F. 2005-06 and pages 172 to 175 for A. Y. 2006-07 of the Paper Book) showing sale of Robinson shares all go to prove the capacity of M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd to conduct the sale transactions on behalf of the appellant.. Further, the ledger copy of the appellant in the books of M/s. Pruthvi Brokers (pages 138.16 to 138.17 for A. Y. 2005-06 and pages 138.22 to 138.25 for A. Y. 2006- 07 of the Paper Book) also proves its capacity to conduct the impugned share transactions on behalf of the assessee. Thus, the capa....
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....r strong it may be. 3.25. So far as the genuineness of purchase of 50,000 shares of M/s. Robinson Impex Ltd in A.Y. 2004-05 is concerned, we have already dealt with this issue in earlier paras of this order. The time limit for passing intimation u/s 143(1) of the Act was 31/03/2006 and for issuing notice u/s 143(2) of the Act was 31/08/2005 for making regular assessment. Thus the Assessing Officer had neither issued any notice u/s 143(2) of Act nor made any intimation uls 143(1) of the Act. Therefore, it is established that the concerned Assessing Officer accepted the purchase of 50,000 shares of M/s. Robinson Impex Ltd during the said year against disclosed sources. However, this shows that Assessing Officer duly accepted the genuineness of purchase of 50,000 shares of M/s. Robinson Worldwide Trade Ltd by the appellant during F.Y. 2003-04 (relevant to A.Y. 2004-05) against explained sources. Further, even after the search operation u/s 132 of the Act assessment u/s 153A of the Act for A.Y. 2004-05 was completed by the AO on 24/12/2008 at the returned figure thus accepting the purchase of 50,000 shares of Robinson against sale proceeds of PAN Packaging. Copy of the said order u/....
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.... Further it might be possible in the case of the assessee, the brokers may not have carried out my transaction through the stock exchange and it were off market transactions and intimation for which was not given to the stock exchange by the broker. But this is not sufficient to conclude that the transaction of purchase of shares was done by the assessee with the said brokers were not genuine transaction as no incriminating document or evidence indicating any doubtfulness in the bona-fides of the share transaction were found in the course of search." 3.27. It is noteworthy that on the date of purchase of shares of M/s. Robinson Impex India Ltd. the said shares were not listed in the BSE. This also explains the obvious reason behind the impugned purchase transactions being off-market. However, subsequently, on being listed, the sales of the said shares were carried out through the BSE and the BSE confirmed the sale transactions of the said shares of M/s. Robinson Impex Ltd under its client code No. D003. Even otherwise, it is pertinent to note here that the purported statement of Shri Pratik C. Shah, director of M/s. DPS Shares & Securities Pvt. Ltd., being the sole so-called evi....
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....d explained before the Ld. Assessing Officer that on sales of Robinson shares the delivery was given to the pool account of the said MIs. Pruthvi Brokers & Shareholdings Pvt. Ltd. and from this pool account the impugned shares of Robinson were delivered to the Bombay Stock Exchange, The BSE had confirmed the sale transactions of the said Robinson scrip" 3.28. Thus, the Assessing Officer as well as the Ld. CIT(A) have indirectly accepted that the amount of Rs. 65,78,860/- credited in the bank account of the appellant represented the sale proceeds of shares of Robinson through identified source. Accordingly, there was no doubt regarding the nature and source of the said amount, consequently, no addition was called for u/s 68 of the Act, for A.Y. 2005-06 and A.Y. 2006-07. As such, even if for argument's sake, it is assumed without accepting that the purchase of 50,000 shares of Robinson on 04/04/2003 for Rs. 76,052/- against sale proceeds of PAN Packaging shares remained unexplained, the said aspect pertained to A.Y. 2004- 05 and had nothing to do with the assessment for A.Y. 2005-06 and A.Y. 2006-07. The undisputed sale of 50,000 shares of Robinson for Rs. 65,78,860/- and Rs. ....
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..... Khambatta Securities Ltd. It is strange that the AO has made the addition under section 68 of the Act treating the entire sale proceeds of the 'said shares' received by the assessee through regular banking channels from stock broker registered with SEB1, M/s. Khambatta Securities Ltd, which facts have been confirmed by the said stock broker. In our considered view, in these factual circumstances, the assessee has discharged the onus required under section 68 of the Act as she has established the identity of the payer, source of funds received on sale of the same shares and the genuineness of the transaction. 3.4.3 The addition under section 68 of the Act in the case on hand, it appears, has been made only because the AO presumed the purchases of the 'said shares' of M/s. Shukun Constructions Ltd. were not made on the date as disclosed by the assessee, but was backdated and an arranged transaction, and not because there was any irregularity in the sale of the said shares. We find from the material on record that the purchases of the said shares were duly disclosed under the head investment in the audited Balance Sheet as on 31.03.2004 relevant to A. Y 2004....
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....redits - Addition - Validity - Long term capital gain from sale of shares of company 'A' - Company listed on Delhi Stock Exchange - No material brought on record by the AO to show that assessee had surreptitiously introduced his unaccounted money in guise of sale proceeds - Sale proceeds could not be added under s. 68." The coordinate Bench of the Tribunal in the case of ACIT Vs. Claridges Investment & Finance (P) Ltd. (2007) 18 SOT 390 (Mumbai) (Pages 644-706 of the Paper Book-11) held as under: "Business Income - Business Loss - Assessee a share broker had share transactions with three Kolkata based brokers - Assessee 's transactions are supported by movement of shares as reflected in demat account, movement of money as reflected in bank account, entries in the books of account of assessee, prevalent market quotations of CSE, contract notes and delivery bills issued by Kolkata brokers and their statements in response to enquiries made by the AO and assessee had shown net profit of Rs. 16.18 crores - The conclusions of the AO that "these transactions were shown only in order to generate loss or profit and were not genuine share transactions" could not be re....
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.... circumstances, the ass essee has discharge its onus to prove the identity and the creditworthiness of the creditors and also that the loan transactions are genuine. In the absence of any material to disbelieve the evidence filed by the assessee, no case of addition for unexplained credits is made out by the Revenue and hence the addition is deleted." In the light of the foregoing discussion and the judicial pronouncements, mentioned hereinabove, we find that the purchase and sale of shares outside the floor of stock exchange is not an unlawful activity meaning thereby off market transactions are not illegal unless and until contrary material is brought on record. The assessee in the present appeal, got the shares de-mated on the Bombay Stock Exchange and the sale proceeds were received through banking channel, therefore, so far as, purchase of share is concerned (off market transaction), the details cannot be provided by the Stock Exchange and such stock Exchange can merely provide the details of sale. Therefore, there was no relevance in seeking the details of purchase transactions which were entered into between the parties outside the floor of the stock exchange. Therefore, ....
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....le proceeds of the shares and utilized for the purchase of flat at Colaba, remained unexplained. The sale proceeds of shares accounted by the assessee has been treated by the assessing authority as unexplained money. The sale proceeds of shares was Rs. 1,41,08,484. In the above circumstances, the said amount has been added by the assessing authority under section 69 of the Income-tax Act, 1961. Further as a consequence of the above finding, the Assessing Officer declined the claim of deduction made by the assessee under section 54E. In effect, the amount invested by the assessee in the purchase of residential flat at Colaba, Mumbai has been treated by the assessing authority as unexplained investment and further perpetuated by the refusal to grant deduction claimed by the assessee under section 54E, which ofcourse is only an inevitable consequence. There were another two credits in the bank statement of the assessee's minor son which totalled to Rs. 6,61,063. The Assessing Officer has added this amount also as unexplained investment under section 69. Another deposit of Rs. 2 lakhs was in the account of assessee's minor daughter. According to the assessee, the said amount wa....
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....fferent companies through account payee cheques, the details of which were made available to the revenue authorities with evidence and also reflected in the return of income. 3. That the revenue authorities further erred in not having allowed deduction under section 54F in spite of the fact that out of the sale proceeds of shares amounting to Rs. 1,41,08,484 and office premises of Rs. 2,32,358, investment towards purchase of a flat was made and hence, in terms of section 54F of the Act, the assessee was entitled to deduction under that section. 4. That the revenue authorities acted capriciously in having disbelieved the source for purchase of shares out of long-term capital gains and agricultural income and wrongly invoked the provisions of section 69 of the Act ignoring the explanation and details of year-wise income from agriculture which was used for purchase of shares and in support of which cash book was filed before them and hence, the allegation of non-genuine transaction is baseless. 5. That the Assessing Officer and the Ld. CIT(A) grossly erred in having ignored the confirmations of brokers/sub-brokers/their assistant in respect of share transact....
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....ses were made through M/s. Rushab Investments, Radha Ashok and Anil Securities. The purchases were made during the period from February to August 1999 i.e., during the previous year periods relevant to the assessment years 1999-2000 and 2000-01. All the 2,14,600 shares were sold by the assessee during the period April 2000 to February 2001, which is the previous year relevant to the assessment year under appeal. The shares were sold through M/s. Richmond Securities Pvt. Ltd., and M/s. Scorpio Management. The assessing authority made enquiries regarding the bona fides of the purchase and sale of those shares. He had issued notice and summons to the concerned parties to explain the nature of transactions they had with the assessee. The Assessing Officer has discussed the details of the enquiries conducted by him in a detailed manner in the assessment order. As a result of the enquiries, Assessing Officer sought to disbelieve the purchase of shares recorded by the assessee for the following reasons : (I)That Radha Ashok, the Broker has informed that he never sold any shares to the assessee. (II)That Sandeep D. Shah, proprietor of Rushab Investments stated in his stat....
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.... "But the most important point is the veracity of the transactions conducted by the appellant. The off-market transactions are not recognized transactions, particularly when all the shares transacted are quoted shares. When the share transaction is not through Stock Exchange, greater responsibility is there with the appellant and more particularly when it is not conducted through a registered broker. If such off-market transactions are recognized, then what is the necessity of conducting transactions through Stock Exchange ? What is the need of the regulatory authority like SEBI. On appreciation of the evidence collected by the Assessing Officer, both the purchase and sales claimed to have been made by the appellant are found to be non-genuine. Hence, the addition made by the Assessing Officer on this account under section 69 of the Act is quite justified. It is, therefore, confirmed." 7.2 Regarding the next addition of Rs. 6,61,063, it was made under section 69 as unaccounted investment against the credits reflected in the bank account of the assessee's minor son, Master Pratik. In the course of assessment proceedings, the Assessing Officer has noticed that the as....
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....ubmitted that as far as the share transactions are concerned, not only the department collected positive evidences in the course of survey, in support of the accounts of the assessee regarding purchase and sale of shares, but also to be noted that no incriminating document or evidence indicating any doubtfulness in the bona fides of the share transactions were found in the course of survey. It is the case of the learned counsel that survey was done by the department without any prior notice and almost surprisingly and therefore, what was found in the course of survey should be accepted on its face value. 8.4 That the assessee had submitted number of evidences before the assessing authority to prove the genuineness of the share transactions. The assessing authority had relied on the negative replies received from Bombay Stock Exchange, the National Stock Exchange and the Interconnected Stock Exchange of India to reject the explanations of the assessee without recognizaing the basic fact that those share transactions were off-market transactions and obviously there would be no records regarding those transactions with those stock exchanges. The assessing authority was making....
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....91 to 2001-02. The learned counsel invited our attention to the cash on hand available with the assessee for various year endings detailed in the paper book. 8.7 The learned counsel submitted that the Assessing Officer has erred in appreciating the statements given by Shri Satish Mandovara. Shri Satish Mandovara is the proprietor of M/s. Rushab Investments which is different from the other Rushab Investments referred to by the Assessing Officer. As the proprietor of M/s. Rushab Investments he has been filing returns of income. It was also stated by him that he got shares of the concerned companies transferred in the name of the assessee. The learned counsel further submitted that the above evidence proved beyond any reasonable doubt that the assessee had actually purchased and sold shares. 8.8 In fact, denial of Shri Sandeep D. Shah any transaction with the assessee, the learned counsel submitted that he had categorically stated that as Proprietor of M/s. Rushab Investments, the business was discon- tinued with effect from 1997, whereas, in fact the impugned shares were purchased by the assessee from M/s. Rushab Investments during the accounting years 1998-99 and ....
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....ich conveniently supported assessee's investment in the purchase of flat at Colaba. 9.1 The learned Commissioner submitted that the above transactions were very incredible and that incredibility is further compounded by the fact that the entire transactions were made outside Stock Exchange. They were all off-market transactions. When all the above facts are read together, it is, to be clearly seen that the assessee has made up a story regarding the purchase and sale of shares so as to make out a case of non-existing capital gains. 9.2 He stated that the off-market transactions as stated by the assessee was not proper. Radha Ashok, the Broker has confirmed in his statement before the assessing authority that he never sold any shares to the assessee. Shri Sandeep D. Shah, Proprietor of M/s. Rushab Investments made a similar statement before the assessing authority. Bills of Ami Securities were forged and unused bank bills were utilized by the assessee to give a true picture of transactions. The broker has been expelled from the Stock Exchange much before transactions took place. In the above circumstances, it is, to be seen that the assessee has failed to establ....
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....f income for the assessment years 1999-2000 and 2000-01. Therefore, it is seen that as a prima facie evidence, the purchases of shares have been contemporaneously entered into the books of account of the assessee. 10.2 The assessee has been declaring agricultural income in his returns of income for the assessment years from 1990-91 to 2001- 02. The total agricultural income returned by the assessee up to the assessment year 1999-2000 was at Rs. 7,57,883. The amount invested in the purchase of shares as on 31-3-1999 was Rs. 4,48,160. The cash available with the assessee by way of agricultural income was much higher than the investment made by the assessee in the purchase of shares as on 31-3-1999. After making the investments in the shares, the assessee had a surplus cash balance of Rs. 3,09,000 as on 1-4-1999. Thereafter, the assessee has further returned an agricultural income of Rs. 66,000 for the assessment year 2000-01. The amount invested in the purchase of shares in the year ending on 31-3-2000 was Rs. 2,57,020. Again the assessee had a cash balance thereof of Rs. 1,18,771. Therefore, it is, very clear that the investment made by the assessee in shares during the pre....
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....o pick and choose the statements given by various parties. While accepting and rejecting such statements given by the parties, the Assessing Officer has made a mistake of accepting irrelevant statements and rejecting relevant statements. During the relevant period in which the assessee transacted in shares, persons like Radha Ashok and Sandeep D. Shah were not carrying on their business of brokers as in the manner they carried on the business in the past. Even their Stock Exchange Memberships were cancelled. It was Shri Satish Mandovara who was carrying on the business mainly for and on behalf of Shri Mangesh Chokshi, Director of M/s. Richmond Securities Pvt. Ltd. Those two persons have categorically admitted before the assessing authority that they had dealings with the assessee in respect of the share transactions. They have confirmed the transactions stated by the assessee that he had with them. These positive statements made before the assessing authority supported the case of the assessee. There is no force in the action of the assessing authority in relying on the negative statements of the other parties whose role during the relevant period was either irrelevant or insignifi....
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.... was a survey carried out by the department in the business premises of the assessee. In the course of survey, contract notes for sale of shares, copies of bills thereof, photocopies of share certificates etc., were found. The purchase and sale of shares were also found recorded in the books of account. The department has no case that the survey was a staged enactment. A survey is always unexpected. So, it is not possible to presume that the assessee had collected certain fabricated documents and kept at his business premises so as to hoodwink the survey party to lead them to believe that the assessee had entered into share transactions. Atleast such an inference is not possible in law. The department has no defence against the forcible argument of the learned counsel that the survey conducted by the department has out and out upheld the contention of the assessee that he had purchased and sold shares. We find that this solitary evidence collected in the course of survey is sufficient to endorse the bona fides of the share transactions made by the assessee. 10.9 Therefore, in short on the basis of the internal evidences available with the assessee and the fact that the sal....
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....esh R. Marolia) (ITA No.456 of 2007) order dated 07/09/2011 by observing that the sale of said shares was through two brokers namely Richmond Securities Pvt. Ltd. and M/s Scorpio Management Consultant Pvt. Ltd. cannot be disputed because the fact that the assessee received the amount is not in dispute. It was neither the case of the Revenue that the shares in question were still lying with the assessee nor it was the case of the Revenue that the amount received by the assessee on sale of shares was more than what was declared by the assessee. It is also noted that the ratio laid down by the Tribunal in the case of Green Infra Ltd. vs. ITO (2013) 38 taxmann.com 253 (Mum) wherein the assessee collected share premium on allotment of shares of face value of Rs. 10/- each at a premium of Rs. 490/- per share. The assessee credited the said amount in the Balance Sheet under the head 'Share Premium Account' by claiming that it was a capital receipt not exigible to tax. The learned Assessing Officer taxed the share premium under section 56(1) r.w.s. 68 of the Act as income from other sources. The question before the Bench was since the entire transaction relating to allotment of shares was ....
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....pital, genuineness of the transaction and the capacity of the subscriber to the share capital. It found that the identity of the subscribers was confirmed by virtue of the Assessing Officer issuing a notices under Section 133(6) of the Act to them. Further, it holds that the Revenue itself makes no grievance of the identity of the subscribers. So far as the genuineness of the transaction of share subscriber is concerned, it concludes as the entire transaction is recorded in the Books of Accounts and reflected in the financial statements of the assessee since the subscription was done through the banking channels as evidenced by bank statements which were examined by the Tribunal. With regard to the capacity of the subscribers the impugned order records a finding that 98% of the shares is held by IDFC Private Equity FundII which is a Fund Manager of IDFC Ltd. Moreover, the contributions in IDFC Private Equity Fund-II are all by public sector undertakings. (c) Mr.Chhotaray the learned counsel for the Revenue states that the impugned order itself holds that share premium of Rs. 490/ per share defies all commercial prudence. Therefore it has to be considered to be cash credit.....
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....l was satisfied. This judicial pronouncement further supports the case of the assessee. Thus, considering the various judicial pronouncements and the factual matrix, discussed hereinabove, following the ratio laid down therein the appeal of the assessee, on merit also, deserves to be allowed. 4. So far as, the addition of Rs. 3,28,943/- on account of payment of commission by the assessee for obtaining accommodation entry in respect of sale of shares through share broker (Assessment Year 2005-06) and identically Rs. 76,156/- for Assessment Year 2006-07, on account of alleged commission paid toward purchase of Long Term Capital Gains, is concerned, on the broad reasoning contained in the earlier paras of this order, while disposing off the alleged addition made u/s 68 of the Act, we find that the Ld. Assessing Officer added these impugned amounts, being 5% of Rs. 65,78,860/- (Assessment Year 2005-06) and Rs. 15,23,130/- (Assessment Year 2006-07) as unexplained money in possession of the assessee as commission (remuneration). As per the Ld. Assessing Officer the assessee must have paid these impugned amounts for engineering Long Term Capital gains on sale of shares of M/s Robinson ....
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....thvi Brokers & Shareholdings P. Ltd. The said sale of shares for Rs. 65,78,860/- of A.Y. 2005-06 and Rs. 15,23,130 for A.Y. 2006-07 through M/s. Pruthvi Brokers & Shareholdings Pvt. Ltd have not been successfully disputed either by the Assessing Officer or the Ld. CIT(A). Thus, the question of payment of 5% of the sale proceeds during A.Y. 2005-06 and A.Y. 2006-07 by way of alleged undisclosed remuneration does not arise. The Assessing Officer has only disputed the purchase of shares for Rs. 76,052/- against sale of shares proceeds of PAN Packaging during A.Y. 2004-05 on the basis of statement of director of M/s. DPS Shares & Securities Pvt. Ltd. which, as explained earlier, has no relevance for disproving the sale transactions conducted through M/s. Pruthvi Brokers & Shareholdings P. Ltd during A.Y. 2005-06 and A.Y.2006- 07. Further, the alleged statement of Shri Pratik Shah, being the sole so-called evidence relied upon by the Assessing Officer, also does not, in any manner hint at any such payment of unaccounted remuneration of 5% on sale proceeds by the assessee. The ratio laid down in S.F. Wadia-vs-ITO (19-ITD-306) that the burden of proving that the assessee has incurred any ....
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....his appeal of the Revenue has remained for academic interest only. Even otherwise, when the quantum on the basis of which penalty was imposed u/s 271(1)(c) of the Act remains no more remained in existence, therefore, we are of the view that penalty imposed u/s 271(1)(c) will not survive. Our view find support from the decision in K.C. Builders vs ACIT (2004) 265 ITR 562 (SC) and the ratio laid down in CIT vs S.P. Viz, 176 ITR 76 (Patna). Even otherwise, when the quantum addition is deleted, there remains no basis at all for levying the penalty for concealment or furnishing inaccurate particulars. The penalty cannot stand on its legs when addition on the basis of which the penalty was imposed remains no more in existence, thus, the appeals of the Revenue are dismissed. Finally, the appeals of the assessee are allowed and that of the Revenue are dismissed. This Order was pronounced in the open court in the presence of ld. representatives from both sides at the conclusion of the hearing on 13/09/2017. ============= Document 1 Particulars Evidence of purchase of Robinson Impex (India) Ltd. Evidence of source of purchase/ mode payment ....