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TMI Blog2016 (9) TMI 801X X X X Extracts X X X X X X X X Extracts X X X X ..... out examining the statement, no opinion can be formed. This is evident from the fact that the assessee himself raised this ground before the ld. CIT(A). In the entirety of facts and circumstances, it is satisfied that the relevant facts, surrounding circumstances, human conducts etc., as stipulated by Hon’ble Supreme Court in the case of Sumati Dayal vs. CIT, reported in (1995 (3) TMI 3 - SUPREME Court ), have not been followed while awarding the relief by ld. CIT(A). Since the assessee has credited the amount of sale in its books of account which may represent the allegedly bogus sales consideration floated from entity which is floated by the said group, the case may fall within the parameters of Section 68 also. In view of these facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... curities Ltd and its related group of companies. M/s. Mahasagar Securities Ltd group was actively engaged in providing bogus short term and long term capital gains, share application money, profit/loss on commodities trading etc. under the tutelage of one Shri Mukesh Chokshi. Assessments were reopened and the assessee was asked to explain the sale amounting to ₹ 45,51,369/- of Gwalior Tanks Vessels Ltd which was found to be a briefcase company. The Assessing Officer, after examining the issue, held that the said transaction was bogus transaction and made the addition of the sale amount, by following observations:- As already mentioned above M/s. Mahasagar Group of Companies which includes gold star Finvest Pvt. Ltd. has been en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that these were bogus transactions and were accommodation in nature. Therefore entire amount of ₹ 45,51,396/- is assessed under unexplained investment as per 69 of the IT Act. 4. Aggrieved, the assessee preferred first appeal challenging validity of reopening and merits of the addition. 5. The ld. CIT(A) upheld the validity of reopening; however, deleted the addition on merits, by following observations:- 3.4.2 Evidences available on record further reveals that these shares were purchased in F.Y. 1993-94 for a total consideration of ₹ 9,90,000/-. These shares were sold in the year 2003-04. There are evidences on record that these shares were duly transferred m the name of the appellant. Even bonus shares on these sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w of these facts, I am of the considered view that transactions vide which LTCG of ₹ 35,61,396/- had accrued to the appellant are genuine transactions and these cannot be stated as managed transactions. 6. Aggrieved, the Revenue prefers this appeal. 7. Ld. DR contends that the alleged shares of Gwalior Tanks Vessels Ltd were found to be of a brief-case company used by the said M/s. Mahasagar Securities Ltd group as a tool in their widespread accommodation entries/hawala racket. Ld. CIT(A) has co-terminus power of assessment including power to enhance and what has not done can be done by ld. CIT(A). If the Assessing Officer had applied Section 69 wrongly/by mistake, the ld. CIT(A) could have corrected the same inasmuch as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hed as invalid and void-ab-initio. With this ground before the ld. CIT(A), it was desirable that the requested opportunity of cross-examination of the Director of M/s. Mahasagar Securities Ltd group, as mentioned in assessment order should have been given to the assessee. Instead of acceding to the request of the assessee of cross-examination, the ld. CIT(A) jumped into the conclusion based on assumptions and without appreciating the ground raised. Any economic violations, human conducts, surrounding circumstances and preponderance of possibilities should be necessarily examined. Therefore, the order of ld. CIT(A) may be reversed. 8. The ld. Counsel, on the other hand, contends that the shares in question were held since 1993-94. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the allegedly bogus sales consideration floated from entity which is floated by the said group, the case may fall within the parameters of Section 68 also. In view of these facts and circumstances, I am inclined to set aside the matter back to the file of ld. Assessing Officer to reexamine the issue, call for the record of M/s. Mahasagar Securities Ltd and alongwith the assessee an opportunity of cross-examination the material which the Assessing Officer proposes against the assessee. Accordingly, the appeal of the Revenue is allowed for statistical purposes. 10. In the result, Revenue s appeal is allowed for statistical purposes and assessee s Cross-objection is dismissed. Order pronounced in the Court on 1st August, 2016 at Ahmeda ..... X X X X Extracts X X X X X X X X Extracts X X X X
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