TMI Blog2017 (3) TMI 969X X X X Extracts X X X X X X X X Extracts X X X X ..... ntant Member . The above captioned four appeals by different assessees have been preferred against separate orders of ld. Commissioner of Income Tax(A)-5, Ahmedabad. Since the grounds raised in all these appeals are common, the issues are similar and the assessees are of the same group, these were heard together and are being disposed of by this common order for the sake of convenience. 2. The common grievance in all these appeals is relating to reopening of assessment u/s 147 of the Income-tax Act, 1961 (in short the Act) and another common issue is about long term capital gain from sale of shares treated as undisclosed income of the assessee thereby denying exemption u/s 10(38) of the Act. 3. For the sake of consideration, we take up the case of Shri Vaishal Suryakant Shah in ITA No.1499/Ahd/2016 wherein following grounds have been raised :- : 1. The part of impugned order is contrary to the evidence and material on record, contrary to the principles of law and binding judgments of the Court, contrary to the relevant provisions of the Act and deserves to be quashed and set aside. 2. The learned CIT(A) has grievously erred confirming the invocation of the provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curities made by the above named assessee through group companies belonging to Shri Mukesh M. Chokshi which was known as Mahasagar Securities Ltd., which is totally unverifiable transaction as the controlling person namely Shri Mukesh M. Chokshi himself admitted in his statement recorded. On deep scrutinized to the data/details received in this office it is ascertain that the assessee namely Vaishal Shah was also involved for taking unverifiable/bogus beneficial entries from the group companies belongs to Shri Mukesh Chokshi during the F. Y,2006-07 the assessee's total transaction involved of ₹ 3,51,540/ - for taking unverifiable/bogus entries by showing purchase and sale of share and securities. As the information received without PAN hence assessee has whether filed return of income for A,y.2007-08 or not is not accessible. Accordingly, all the transactions made by the assessee are unverifiable and also not ascertained that the assessee said transactions whether reflected in his return of income or not. Hence, same transactions also should be r equired for detailed verification from various aspects for genuineness of the said transactions as per the information su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee has not furnished any supporting evidences for purchase and sale of shares, such as nature and source of payment, payment receipts, the name and address of the party to whom payment was made for purchase of shares, copy of bills/invoices, copy of transfer forms, any details regarding any application made for demat of such shares, etc. e) There is no reason to disbelieve the statement of Shri Mukesh R. Chokshi that he was engaged in fraudulent billing activities in the business of providing bogus speculation profit/loss, short term/long term capital gain/loss etc and the relevant findings of the DDIT(Inv), Mumbai in this regard that no company other than M/s.Richmond Securities pvt. Ltd. has traded thought our exchange. Thus, the transactions which have not been carried out though the stock / exchange are illegal and fraudulent and are not eligible for claim of exempt u/s. 10(38) of the IT Act. Thus, as stated above, there is no reason to give an opportunity to the assessee to crossexamine Shri Mukesh R. Chokshi and the materials found from the third party i.e. books, etc. Therefore, I do not agree with the opinion of the assessee and reject the request of the assessee. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see had purchased 3000 shares of Telant Info Ltd from M/s. Mahasagar Securities Pvt Ltd on April 2004. The consideration was paid and the payment of consideration is not in dispute. The shares of Telant Info Ltd were listed in the Bombay Stock Exchange at that point of time. The shares so purchased were sold through M/s. Alliance Intermediateries Network Pvt Ltd and the consideration was received by cheque. It would be pertinent to mention here that though the shares were purchased in physical form, the same were sent to the company with share application form and the shares were transferred by the company in the name of the purchaser. Thereafter, the shares were transferred in the demat account, from where they were sold. It is not the case of the Revenue that the consideration paid by the assessee at the time of purchase of shares was received back in cash, nor it is the case of the Revenue that the sale consideration received by the assessee was returned back in cash. It is also not the case of the Revenue that the shares in question are still lying with the assessee, nor it is the case of the Revenue that the amounts received by the assessee on sale of the shares is more than ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose dealers and what extraction the appellant wanted from them. As mentioned above, the appellant had contested the truthfulness of the statements of these two witnesses and wanted to discredit their testimony for which purpose it wanted to avail the opportunity of cross-examination. That apart, the Adjudicating Authority simply relied upon the price list as maintained at the depot to determine the price for the purpose of levy of excise duty. Whether the goods were, in fact, sold to the said dealers/witnesses at the price which is mentioned in the price list itself could be the subject matter of cross-examination. Therefore, it was not for the Adjudicating Authority to presuppose as to what could be the subject matter of the cross-examination and make the remarks as mentioned above. We may also point out that on an earlier occasion when the matter came before this Court in Civil Appeal No. 2216 of 2000, order dated 17.03.2005 was passed remitting the case back to the Tribunal with the directions to decide the appeal on merits giving its reasons for accepting or rejecting the submissions. In view the above, we are of the opinion that if the testimony of these two witnesses is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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