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2015 (3) TMI 1112 - ITAT MUMBAI

2015 (3) TMI 1112 - ITAT MUMBAI - TMI - Addition u/s 68 - CIT(A) deleted the addition - Held that:- Since the facts are similar to the earlier year and since assessee has furnished copy of the sale bills of the sale of Talent Infoway Ltd, and bank statements including purchase contract notes and other details on the basis of which CIT(A) held the transactions as genuine, we do not see any reason to interfere with the order of the CIT (A). Since AO also relied on the findings in the case of asses .....

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evenue and they are directed against two separate orders passed by Ld. CIT(A)-21 Mumbai dated 30/01/2014 for assessment year 2007-08 and 2008-09. Grounds of appeal in both the appeals are identical except difference in figure. Grounds of appeal for A.Y 2007-08 are reproduced below: 1. On the facts and circumstances of the case and in law, the Id. CIT(A) erred in deleting addition of ₹ 10,00,000/- made under section 68 of I T Act in respect of share application money without appreciating th .....

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ure in grounds of appeal for A.Y 2008-09 is a sum of ₹ 5,00,000/-. These appeals were argued together by both the parties and for the sake of convenience both these appeals are disposed of by a single order. 3. The assessee is engaged in the business of financial services. It received share capital subscription of ₹ 10,00,000/- from M/s. Talent Infoway Ltd. & M/s.Buniyad Chemicals Ltd. in respect of A.Y 2007-08 and ₹ 5,00,000/- from M/s. Alpha Chemie Trade Agencies Pvt. Ltd .....

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notices under section 148 to the assessee and added aforementioned amount in respective years under section 68 of the IT Act. 3.1 The main contention raised by the assessee to agitate aforementioned addition in an appeal field before Ld. CIT(A) were as under: (i) The share application form is the confirmation of the share applicant. The share allotment in compliance of Companies Act 1956 in Form No.2 is factually evident of the share capital. (ii) Funds of the share capital subscription are thro .....

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in any of the statement of Mr. Mukesh C. Choksi Group recorded by the IT Department. 3.1 Thus, it was submitted that addition could not be made under section 68 of the Act. To substantiate above contentions following evidences were also referred. - Memorandum and Article of Association. - Copy of ROC Form No.2 (alongwith details of Share application and share Allotment) - Copy of Audited Balance Sheet full set. - Copy of the Confirmation letter. - Copy of PAN Card and - Copy of IT acknowledgemen .....

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tion and his order should be set aside and that of AO be restored. 5. On the other hand, it was submitted by Ld. AR that assessee has submitted the copies of various statements recorded by the Department of Mr. Mukesh C. Choksi, which are dated 25/11/2009, 11/12/2009, 3/2/2010, 14/05/2010 and 16/3/2012 and are submitted from pages 135 to 169 of the paper book and as per submissions made by the assessee before AO assessee s name was not appearing in any of the statement and such contention of the .....

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Chemicals Ltd., which include resolution, confirmation form, balance sheet copy, PAN Card and Memorandum of Aassociation and Article of Association of shareholder companies and these submissions were made before AO vide letter dated 5/3/2013 and 7/3/2013, copies of which are placed at pages 205 to 209 and 210 and 213 of the paper book. It was further submitted that in similar type of cases ITAT Mumbai has been taking a consistent view that no addition was called for. Reliance was placed on foll .....

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. Shashi K. Lahoti vs ITO (supra) are also filed to substantiate that in similar cases addition has been deleted by the Tribunal. 5.1 Without prejudice it was submitted that tax effect in both the cases is lower than ₹ 4.00 lacs and according to latest Circular issued by CBDT vide Instruction No.5/2014 [F No. 279/MISC.142/2007-ITJ(PT)] dated 10/07/2014 and in view of the decision of Hon ble Bombay High Court in the case of CIT vs. Smt. Vijaya Kavekar (2013 30 taxmann.com 412) the instructi .....

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ered as bogus. However, it was the contention of the assessee that in none of the statement recorded by the Department the name of the assessee exist. Such contention of the assessee has not been found to be incorrect. To further support, the assessee has filed copy of its bank account to contend that there are no cash deposits or withdrawals. However, Department has not accepted all these evidences and made the addition. Ld. CIT(A) after appreciating the evidences submitted by the assessee and .....

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rakumar Toshniwal (supra) - In the said case addition of ₹ 26,73,536/- was made in respect of sale of shares of M/s. Talent Infobay Ltd. and the same was treated as bogus transaction. The Tribunal deleted the addition with the following observations: 4. At the outset it was submitted that the similar issue was agitated in assessment year 2005-06 in the husband s case on the basis of which the learned CIT (A) also examined the issue and deleted the addition. In the order of the ITAT in ITA .....

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n the floor of ASEL was Shri Mukesh Chokshi. c) Mr. Mukesh Chokshi had stated that the sale proceeds have been paid to the assessee through the funds provided by the assessee. 12. As regards point (a) above, we find that the issue is covered by the decision of the Tribunal in the case of Mukesh R. Marolia wherein it has been held that off market transaction is not a unlawful activity and there is no relevance in seeking details of share transaction from stock exchange when the sale was not on st .....

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om the Registrar of companies as to whether the shares have been transferred and the names of the shareholders in whose names shares have been transferred. The decision of the Tribunal in the case of Rajinidevi A. Chowdhary has also been upheld by the jurisdictional High Court as taken note of by this Tribunal in the case of Shri Pinakin L. Shah [cited supra], to which one of us i.e. the Judicial Member, is a party. In these facts and circumstances of the case, we do not see any reason to interf .....

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6 and the learned CIT (A) also deleted the addition based on the same, we do not see any reason to interfere with the order of the CIT (A). Accordingly the Revenue grounds are dismissed. 6. In the result appeal filed by the Revenue is dismissed. (ii) In the case of Smt. Jyoti D. Shah vs. ITO an addition of ₹ 13,13,256/- was made in respect of sale of shares of M/s. Buniyad Chemicals Ltd. as the same belong to concerns of Mr. Mukesh C. Choksi and the said addition was deleted by the Tribuna .....

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arned AR also placed reliance in the case of Shri Anantrai B Shah vs. ITO 21(1)(1), Mumbai vide IT Appeal No. 1842 of 2012, order dated 14/12/2012, wherein it was held that Shri Mukesh Choksi has issued a general statement, however the statement was not provided by the assessee, therefore a general statement given by Mukesh Choksi cannot by applied to each and every case. The additions made were deleted as there was no direct evidence against the assessee. Neither the statement of Mukesh Choksi .....

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