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2016 (11) TMI 364 - AT - Income TaxReopening of assessment - income from undisclosed sources - Held that - We are of the opinion that the AO was justified in issuing the reassessment notice. He had sufficient material, at the time of issuing the notice u/s. 148 of the Act, that certain portion of income had not suffer taxation. We are of the opinion that the order of the FAA does not suffer from any legal infirmity. Therefore, confirming the same we decide the first effective ground of appeal against the assessee. Ingenuine capital gain - addition made as income from undisclosed sources - Held that - Tax liability can be decided considering the surrounding circumstances and logical inferences based on certain facts. One is required to arrive at the conclusion on the basis of human probability. Human probability cannot be ignored for persons like share-broker not to charge money for the shares sold for months together. Alliance, a company controlled by MC, would not leave the sale price unrealised. It was upon the appellant to discharge the onus which heavily lay on him and he miserably failed. In the case under consideration, it was proved that the apparent is not real. Genuineness of the transaction was examined, not only taking into consideration the documents, but considering the surrounding circumstances were also considered. In our opinion, these aspects were of significance and importance, when the genuineness of the transaction in question was an issue. We find that in the case of Shamim M Bharvani(supra), in almost identical circumstances, the Tribunal has upheld the addition made by the AO. Therefore, we hold that the order of the FAA does not suffer from any legal or factual infirmity. Upholding the same, we decide the second effective ground against the assessee.
Issues Involved:
1. Reopening of assessment under Section 148 of the Income Tax Act. 2. Addition of income from undisclosed sources. Issue-Wise Detailed Analysis: 1. Reopening of Assessment under Section 148 of the Income Tax Act: The assessee challenged the reopening of the assessment on several grounds, including the lack of sufficient and relevant material to justify the action and the reliance on statements from the Mahasagar Securities Group. The assessee argued that the AO did not consider their objections and wrongly treated capital gains as undisclosed income. The First Appellate Authority (FAA) upheld the reopening, noting that the AO had specific information suggesting the assessee obtained bogus capital gain entries and that the return was initially processed mechanically without scrutiny. The FAA found that the AO had material reasons to believe that taxable income had escaped assessment, thereby justifying the reopening. The Tribunal reviewed the rival submissions and material on record, concluding that the AO was justified in reopening the assessment. The Tribunal emphasized that the AO had cause or justification to believe that income had escaped assessment, supported by the information received from the investigation into Mukesh Choksi and related entities. The Tribunal referenced the Supreme Court decisions in "Kelvinator of India Ltd." and "Rajesh Jhaveri Stockbrokers Private Ltd.," affirming that the reopening was valid even if the initial return was processed under Section 143(1) without scrutiny. The Tribunal confirmed that the AO had sufficient material to issue the reassessment notice, thus deciding the issue against the assessee. 2. Addition of Income from Undisclosed Sources: The AO added ?33.98 lakhs as income from undisclosed sources, rejecting the assessee's claim of genuine capital gains from share transactions. The AO's investigation revealed that the transactions were not genuine and were accommodation entries from companies controlled by Mukesh Choksi. The AO noted that the assessee failed to provide necessary confirmations and evidence of genuine transactions. The FAA upheld the AO's decision, agreeing that the assessee had introduced unaccounted money under the guise of capital gains. The FAA referenced the statements of Mukesh Choksi, who admitted to providing fraudulent billing activities and accommodation entries. The FAA concluded that the transactions were not genuine and the assessee failed to discharge the burden of proof. The Tribunal reviewed the submissions and evidence, agreeing with the AO and FAA that the transactions were fabricated to avoid tax. The Tribunal emphasized the importance of considering surrounding circumstances and human probabilities in tax proceedings. The Tribunal found that the assessee failed to provide credible evidence of genuine share purchases and payments, and Mukesh Choksi's statements further corroborated the non-genuine nature of the transactions. The Tribunal upheld the addition of ?33.98 lakhs as undisclosed income, finding no legal or factual infirmity in the FAA's order. Conclusion: The appeal filed by the assessee was dismissed, with the Tribunal upholding both the reopening of the assessment and the addition of income from undisclosed sources. The Tribunal emphasized the sufficiency of material and reasons for the AO's actions, and the failure of the assessee to prove the genuineness of the transactions.
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