9911796707
TMI Blog2013 (8) TMI 703X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. Hence the assessee was liable for capital gain." 4. The assessee is a Company Secretary. He was engaged in the business of share brokerage in the name of M/s Aasheesh Goel & Co., a proprietorship concern having its office at 410, Essel House, 10, Asaf Ali Road, New Delhi. He is also Managing Director of Aasheesh Securities Ltd., which was member of Delhi Stock Exchange, and a Director in Aasheesh Capital Services Pvt. Ltd. (a company registered with SEBI as sub-broker). 5. A search in the case of Sri S.K. Jain of Delhi revealed that he was involved in the activity of giving 'hawala' entries of long term and short term capital gain/ loss, loan, share application money etc. to various parties of Delhi and outside Delhi with the help of mediators, who were Chartered Accountants/ share-brokers. The seized evidence also revealed that Shri Anil Kumar Goel, the assessee had entered into an agreement with Sri S.K. Jain for the purpose of billing of bogus share transactions amounting to Rs.25 to Rs.27.5 crores during the period July 1999 to June, 2000. 6. A search was carried out in case of Aasheesh Securities Ltd. and Shri Anil Kumar Goel, the assessee on 15.12.1999 at the business p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncesheets of M/s Aasheesh Securities Ltd. regularly filed by the assessee on the basis of regular books of accounts was not kept hidden from the department. The transfer of shares was disclosed in the balance sheet of the company. He made addition on the basis of information already given in the balance sheet of the company and not on the basis of any incriminating material or evidence found during the course of search conducted against the assessee. The findings on the question of law as to whether any incriminating material was received or there was material or information obtained during the search, which would be basis of assessment, paragraph 11.1 to 11.3 of the order of ITAT are quoted as below:- "11.1 In the assessment order, the A.O. has stated that the transfer of membership of Delhi Stock Exchange is revealed only on cross-verification from the balance sheet of Aasheesh Securities Ltd. The assessee's membership in Stock Exchange was corporatised in the name of Aasheesh Securities Ltd. in the financial year 1995-96. The balance sheet of Aasheesh Securities Ltd. for the financial year 1995-96 was filed along with the return of income for A.Y. 1996-97 already filed before t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sment made under Section 158BC of the Act, and as such the addition is deleted from the block assessment." 12. The A.O. held while verifying source of investment made by assessee in shares of Aasheesh Securities that it had acquired 5 lacs shares of Rs.10/- each pursuant to contract for consideration other than cash. The assessee submitted that he was holding membership and the membership was transferred to the company under the scheme of corporatisation. Capital gains of corporation by membership of stock exchange being added was not liable to be taxed. In regular returns filed by the assessee no mention was made of transfer of membership of DSC. It was revealed only on cross-verification from the balance sheet of Aasheesh Security Ltd.. The A.O. thus found that the assessee had not declared the transaction in his return and since the company is distinct and separate entity, the disclosure of information in the balance sheet of the company would not amount to disclosure by the assessee. 13. Shri Dhananjay Awasthi, learned counsel for the department submits that although balance sheet of assessee as well as M/s Aasheesh Security Ltd. disclosed transfer of shares, it was only on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the relevant assessment years, which were reduced from 10 years to 6 years immediately preceding the assessment year relating to the previous year in which search was conducted by the revenue. 19. In Chandra Prakash Agrawal v. Assistant Commissioner of Income Tax & Ors., (2006) 287 ITR 172 (All.) this Court discussed the issue and held that Chapter XIV-B inserted w.e.f. July 1st, 1995 introduced a new scheme of assessment of undisclosed income, determined as a result of search, which has assessed separately as the income of designated period consisting of 10 previous years now reduced to 6 previous years by the Finance Act, 2001 w.e.f. June 1st, 2001. This Chapter provides for special procedure for assessment of the block period in respect of the undisclosed income, as a result of search conducted under Section 132 or requisition made under Section 132A of the Act. Section 158BA opening with non-obstante clause mandates A.O. to assess the undisclosed income, where search has been initiated after June 30th, 1995 under Section 132 or books of accounts, or other documents or assets are requisitioned under Section 132A of the Act. The total undisclosed income relating to block perio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute that in the present case no search under Section 132 has been conducted by the Income Tax Department. The search, if any, was conducted on 7/8.6.2001 by the Central Excise Department. The Income Tax department had sent a requisition on 27.3.2002 under Section 132A of the Act requisitioning the books of account and other documents seized by the Central Excise Department. The record of the proceeding dated 18.4.2002 show that the requisition was not fully executed as all the books of account and other documents had not been delivered to the Requisitioning Authority. We have already referred to the scheme of Section 132A of the Act and have come to the conclusion that it deals with the power and procedure for requisitioning the books of account etc. and would be complete only when the requisitioned books of account and other documents have been delivered. Sub-section (1) of Section 158BA of the Act uses the words "are requisitioned". The word "requisition" is not one of art and does not connote the same state of things in every particular case and in its various meanings are determinable in specific instance by other facts. Thus, one of the meanings which can be assigned to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra). 22. In the present case though the assessee has not challenged the findings recorded by ITAT, we do not find any error in the findings recorded by the ITAT that no incriminating material or evidence was found during the course of search conducted against the assessee. The enquiry made by the A.O. on the source of investment for finding out capital gains in the hands of the assessee were on the basis of cross-reference made to the balance sheet of M/s Aasheesh Securities Ltd. 23. Even if the assessee had not disclosed the source for acquiring the membership of the Stock Exchange by corporatisation of his membership of Stock Exchange, the relevant information regarding the transfer of the membership by allotment of shares of M/s Aasheesh Securities Ltd. was provided in the balance sheet. We may observe here that when the transaction is recorded in the balance sheet of the assessee as well as M/s Aasheesh Securities Ltd., the cross-reference itself would not amount to finding any new material or evidence, which could have been relied upon for reassessing the assessee for capital gains. 24. The question as framed and further question, which has been considered by us namely as ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
