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TMI Blog2016 (8) TMI 1304X X X X Extracts X X X X X X X X Extracts X X X X ..... al or evidence which could corroborate or conclusively prove the facts stated by Shri Mukesh Choksi. Moreover, it is uncontroverted fact that the statement recorded of Shri Mukesh Choksi, under section 131 and other adverse materials claimed to be in the possession of the Department, which were utilised for treating the share transactions of the assessee as sham / bogus was never confronted to the assessee nor the assessee was supplied with those materials. The assessee was not allowed the opportunity to cross examination Shri Mukesh Choksi, to test the veracity of statement made by him under section 131 of the Act. Though, the assessee raised this issue before the learned Commissioner (Appeals), but the learned Commissioner (Appeals) has n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der the head 'income from undisclosed sources' in so far as the entire consideration for purchase of shares of ₹ 8,34,273.41, was paid to the broker by account payee cheque. 3. The learned Commissioner of Income Tax (Appeals) erred in assessing the capital gains of ₹ 12,16,456.49 as income from undisclosed sources." 2. Brief facts are, the assessee is an individual. She filed her return of income for the impugned assessment year on 7th July 2006, declaring loss of ₹ 13,44,110, which included short term capital gain on sale of shares amounting to ₹ 12,40,841. As observed by the Assessing Officer, a search and seizure operation was carried out in case of Mahasagar Securities Pvt. Ltd. and Alliance Intermedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Assessing Officer also treated the purchase value of shares as bogus and sham transaction and added back the amount as income from undisclosed sources. Accordingly, he completed the assessment. 3. Assessee challenged the assessment order by preferring an appeal before the learned Commissioner (Appeals) who also confirmed the assessment made by the Assessing Officer. 4. Learned Authorised Representative submitted before us that in the return of income, the assessee has provided all material relating to share transaction, therefore, there was no tangible material before the Assessing Officer for forming belief that income has escaped assessment. Learned Authorised Representative submitted, the investment in shares having been made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... presentative relied upon the following decisions:- i) Shri Chandrakant G. Patel v/s ITO, ITA no.2705/Mum./2004 dated 25.5.2016; ii) Smt. Rasila N. Gada v/s ITO, ITA no.2802/Mum./2014, dated 31.5.2016; iii) DCIT v/s Vinay Kumar Agarwal, ITA no.153/Hyd./2015, dated 4.9.2015; iv) Smita Patil v/s ACIT, [2015] 55 taxmann.com 346 (Pune.); v) Mr. Sandeep R. Shorewala v/s ITO, ITA no.1610/Mum./2007, etc., dated 14.5.2010' vi) Anil Nandkishore Goyal v/s ACIT, ITA no.1256/PN./2012, etc., dated 19.4.2013; vii) CIT v/s Smt. Jamnadevi Agarwal, [2010] 328 ITR 656 (Bom.). 5. Learned Departmental Representative relying upon the order of the learned Commissioner (Appeals) and the Assessing Officer submitted, when the directors of the company ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove the facts stated by Shri Mukesh Choksi. Moreover, it is uncontroverted fact that the statement recorded of Shri Mukesh Choksi, under section 131 and other adverse materials claimed to be in the possession of the Department, which were utilised for treating the share transactions of the assessee as sham / bogus was never confronted to the assessee nor the assessee was supplied with those materials. Further, the assessee was not allowed the opportunity to cross examination Shri Mukesh Choksi, to test the veracity of statement made by him under section 131 of the Act. Though, the assessee raised this issue before the learned Commissioner (Appeals), but the learned Commissioner (Appeals) has neither properly considered nor appreciated th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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