TMI Blog2021 (6) TMI 734X X X X Extracts X X X X X X X X Extracts X X X X ..... before the AO - assessee vehemently argued that the reasons recorded are not valid as there was not sufficient material and specific information against the assessee and strongly relied upon the decision of Tribunal in Pratik Suryakant Shah [ 2017 (2) TMI 463 - ITAT AHMEDABAD] wherein Tribunal has not given finding on validity of reopening rather the assessee was granted relief on merit, so we will consider the said decision at the time of discussion on merit. Revenue relied on the decision in Aaspas Multimedia Ltd [ 2017 (6) TMI 557 - GUJARAT HIGH COURT] wherein held that where the reopening (reassessment) was made on the basis of information received from Pr.DIT (Investigation), and that the assessee was one of the beneficiaries of accommodation entries by way of share application provided by third party, the reopening was justified. Hon ble Supreme Court in Raymond Woollen Mills Ltd., [ 1997 (12) TMI 12 - SUPREME COURT] held that at the time of reopening prima facie material on the basis of which Department could reopen the case is sufficient. Further, sufficiency or correctness of the material is not a thing to be considered at that stage. Considering the decision H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peals) has erred in law in confirming the disallowance of ₹ 12,37,886/-. 2. Brief facts of the case are that the assessee is an individual and alleged to engage in the job work of diamonds. The assessee filed Return of Income for A.Y. 2007-08 on 29.10.2017 declaring income of ₹ 3,62,840/-. Initially, the Return of Income was processed under section 143(1) of the Act and was accepted. Subsequently, the case of assessee was reopened under section 147 of the Act. Notice under section 148 of the Act was issued to the assessee on 26.03.2014, which was served on 29.03.2014. In response to notice under section 148 of the Act, the assessee replied on 09.04.2014 stating therein that original return filed on 29.10.2007 may be treated as Return of Income in response to notice under section 148 of the Act. The Assessing Officer (AO) recorded that reasons recorded were provided to the assessee on 29.05.2014. The assessee raised objection against the reopening vide letter dated 30.06.2014 again reopened. Objection of assessee was disposed of by speaking order on 23.09.2014. 3. The AO in the reasons recorded that information was received from Chief Commissioner of Income tax ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of details furnished by assessee and on the basis of information CCIT (Investigation) Mumbai, treated the sale consideration as ₹ 24,80,975/- as unaccounted income of assessee. In the assessment order, dated 31.02.2015 passed under section 144 r.w.w 147 of the Act. 4. On appeal before the ld. CIT(A), the assessee challenged the validity of reopening as well as addition of ₹ 24,80,975/-. The ld.CIT(A) upheld the validity of reopening. However, on merit, the ld.CIT(A) held that the ld.AO erroneously added ₹ 24,80,975/- as the assessee furnished the evidence of actual receipt of ₹ 12,37,886/-, thus, the ld.CIT(A) granted partial relief to the assessee and upheld the addition to the extent of ₹ 12,37,886/-. Further aggrieved, the assessee has filed present appeal before this Tribunal. 5. We have heard the submission of ld. Authorised Representative (AR) of the assessee and ld. Sr. Departmental Representative (Sr.DR) for the Revenue and have gone through the orders of the authorities below. Ground No.1 relates to validity of reopening under section 148 of the Act. The ld.AR of the assessee submits that AO reopened the case of assessee under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rough the orders of lower authorities. We have also deliberated on the various case laws cited by both the parties during the hearing of the case. We find that after reopening under section 147 of the Act, notice under section 148 of the Act dated 26.03.2014 was duly served upon the assessee on 29.03.2014. In response to notice under section 148 of the Act, the assessee filed her reply stating therein that return filed originally on 29310.2007 may be treated as return in response to notice under section 148 of the Act. The assessee demanded reasons recorded. The reasons recorded were provided to the assessee on 29.05.2014. The assessee raised certain objections on 30.06.2014. The objection of assessee were disposed of in a speaking order on 23.09.2014. All these facts are not disputed by the ld.AR of the Assessee. We further find that after disposing of objection, the ld.AO proceeded to complete the reassessment. The AO noted that despite repeated notices, the assessee neither furnished complete details not attended the proceedings before the AO. The ld.AR of the assessee vehemently argued that the reasons recorded are not valid as there was not sufficient material and specific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. As per information of CCIT( Investigation), the assessee is beneficiary of ₹ 24,80,975/-. No transaction of such huge amount was ever transacted by assessee. The assessee maintains all the books of accounts as recorded in the transaction in due course of her business. There is nothing out of books. The assessee claim capital gain of ₹ 11,93,337/- against the sale value of shares at ₹ 12,37,886/- after deducting the cost of acquisition of₹ 44,549/-. Though the ld. CIT(A) accepted the transaction of ₹ 12,37,886/-, however, the ld.CIT(A) upheld the addition of remaining amount. The ld.AR submits that the transactions of assessee are genuine and the Long Term Capital Gain cannot be treated as in genuine. The investment of the assessee was not doubted by the revenue. To support his submission, the ld.AR relied upon the decision of Hon Gujarat High Court in CIT Vs Ramniwas Ramjivan Kasat [2017] 82 taxmann.con 458 (Gujarat), decision of Tribunal in ACIT Vs. El Dorado Biotech (P) Ltd.,[2021] 123 taxmann.com 265 (Ahmedabad Tri), Pratik Suryakant Shah Vs ITO [2017] 77 taxmann.com 260 (Ahd- Tri), Mumbai Tribunal in Sunil Prakash Vs ACIT (ITA No.6494/Mum/2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see. The ld AR for the assessee vehemently relied on the decision of Ahmadabad Tribunal in Pratik Suryakant Shah Vs ITO (supra), wherein the coordinate bench while considering the similar issue held that where assessee purchased shares of a company through stock exchange and transferred it to Demat account and later on sold it from said Demat account, such transaction could not be taken as bogus merely on basis of statement of stock broker so as to deny LTCG exemption. It was also held that Mukesh Choksi may be providing accommodation entry to various persons but the facts of this case suggest that transaction in that case were genuine and no adverse interference were called for. Further Mumbai Tribunal in Sunil Parekh Vs ITO (supra) on similar set of fact that when the transaction were made through the stock exchange and the shares were transferred through Demat account there was no justification to tax the entire sale proceed to treat the transaction at the hand of the assessee. It was also observed by the coordinate bench that in the statement of Mukesh Chokshi had not stated that entire transaction undertaken by his group are not genuine. Now adverting to the facts of this case ..... X X X X Extracts X X X X X X X X Extracts X X X X
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