TMI Blog2022 (5) TMI 1261X X X X Extracts X X X X X X X X Extracts X X X X ..... against the order of learned CIT(A) dated 28.10.2019 pertains to A.Y. 2007-08. 2. The grounds of appeal read as under : 1. In the facts and circumstances of the case the learned CIT (Appeals) erred in confirming the action of the learned assessing officer in re-opening the assessment under section 147 by issuing notice under section 148 of the Income Tax Act, 1961 which is without application of mind because the statement dated 03.02.2010 provided by the learned assessing officer to your appellant based on which the reasons were recorded and notice under section 148 was issued does not mention anything about transaction in Shares. 2. In the facts and circumstances of the case the learned CIT (Appeals) erred in not considering t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing officer in making an addition of Rs.14.6S4/- being 0.5% of the amount of Rs.29,36,793/- on account of the alleged commission on the alleged bogus transaction. 7. In the facts and circumstances of the case the learned CIT (Appeals) erred in confirming the action of the learned assessing officer in relying on the statement of Shri Mukesh Chokshi as recorded on 03.02.2010 and subsequent confirmation letter dated 14.02.2014 submitted by Shri Mukesh Chokshi instead of personally being, present for Cross Examination and not insisting on personal presence thus cleverly denying the opportunity to cross examine Shri Mukesh Chokshi based on whose statement the case was reopened and addition have been made which is against the principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bove order the assessee is in appeal before the ITAT. 7. I have heard both the parties and perused the record. I find that learned CIT(A) has correctly relied upon the case laws and upheld the reopening. I may gainfully refer to the decision of Hon'ble Gujarat High Court in the case of Khatu Shyam Processors (P) Ltd. (supra), which is exactly on same subject and the same read as under :- The Hon'ble High Court of Gujarat has held in the case of Khatu Shyam Processors (P.) Ltd.[(94 taxmann.com 429(Gujarat) (2018)] that where the AO on the basis of information supplied by the Investigation Wing of the Department, initiated reassessment proceedings on ground that a company provided accommodation entries to the assessee, in form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erits of the case is concerned the facts in this regard are as under :- The assessee has sold the aforementioned shares through M/s Alliance Intermediateries Network Pvt. Ltd. Enquiries conducted with the NSE during the course of appellate proceedings reveled that M/s Alliance lntermediateries Network Pvt. Ltd. is a registered sub-broker (INS230783537) affiliated to M/s ISE Securities Services Ltd. (TM code: 10777), a registered trading member of the Exchange. The date of registration of M/s Alliance lntermediateries Network Pvt Ltd in the Capital Market segment is October 12,2000. The registration was cancelled on February 19, 2004. Thus, the contract notes for sale are not reliable. The Assessing Officer noted that enquiries w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6, Mr. Vijay Bhagwandas Shah (Proprietor of M/s Vijay Bhagwandas Co. - clg. No. 77) expired on 10th June, 2006. Further, Further, Mr. Vishal Vijay Shah Son of Vijay Bhagwandas Shah is a trading member of the Exchange only as per notice dt 15.11.2006, which is after the date of sale on 02.06.06, 05.06.06 and 06.07.06. Therefore, the claim that the sales were made during the period June 2006 and July 2006 through M/s Vijay Bhagwandas Co. is baseless. 10. Upon assessee s appeal learned CIT(A) held as under :- 5.4.4. During appellate proceedings, a notice for enhancement dt 14.10,2019 was issued wherein it was proposed to enhance the addition made by the AO. The Ld. AO had made an addition of Rs. 29,36,793/-, on account of bogus pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Alliance Intermediateries Network Pvt. Ltd. and M/s Vijay Bhagwandas Co. is held to be an accommodation entry. The Hon'ble Supreme Court in the case of Sumati Dayal ( 214 ITR 801 SC ) and Durga Prasad More ((1971) 82 ITR 540 SC ) has held that the apparent must be considered real until it is shown that there are reasons to believe that the apparent is not real and that the taxing authorities are entitled to look into the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. Reliance is further placed on the decisions cited in para 5 supra. In this case, the surrounding circumstances, as detailed above, establish that the sale is not real. The entire sale t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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