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TMI Blog2023 (6) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... act that the search action was not undertaken on the appellant but was undertaken on his employer shri Krishan khadaria vide search warrant dt. 13.06.2014 and, therefore, notice to the appellant, if at all, could have been issued u/s. 153C of the Act. 2. The ld. CIT(A) further did not appreciate that the subsequent search warrant dt. 06.08.2014 issued in the name of the appellant, with the limited purpose to search content of the bank locker, was illegal as the said bank locker did not stand in the name of the appellant but stood in the name of the appellant's father Shri Omprakash Agrawal. 3. The Ld. CIT(A) erred in confirming the addition of Rs.23,95,024/- in respect of gain on sale of shares of Luminaire Technologies Ltd. as non-genuine long term capital gain. 3.i. In doing so, the ld. CIT(A) did not appreciate that the overwhelming evidence placed in the course of assessment proceedings remained to be dislodged and he erred in confirming the addition merely based on wild guess, rumor and gossip. 4. The ld.CIT(A) erred in confirming the addition of Rs. 1,43,701/- being alleged commission paid for availing alleged bogus long-term capital gain as unexplained expenditure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount in cash. Therefore, the assessee was asked to show why the entire capital gain of Rs. 23.95 lakhs should not be treated as bogus. 09. Assessee submitted he has applied for the shares of Paridhi properties Ltd on 30/3/2011 issuing a cheque from his axis bank account on 30/3/2011 of Rs. 75,000/-. The source of the above sum is the transfer of short-term deposit of Rs. 45,000 and Rs. 30,000 withdrawn. As per order of the honourable High Court dated 27 July 2012, the above company was amalgamated with luminaire technologies Ltd. Therefore, assessee received 75,000 equity shares of this company in physical form. The same are sent for dematerialization on 24/1/2014 with progressive share brokers private limited. Assessee also submitted his Demat holding to show that he is holding 18 other companies share. The above shares were sold in three trenches on 12/2/2014 (25,000), 13/2/2014 (12,380) and on 14/2/2014 (37,620) shares at Bombay stock exchange Ltd through his broker. He also submitted that time and date stamp contract notes. The share broker through the payout of stock exchange made on 14/2/2014 and 18/2/2014 that is credited in his bank account with axis bank Ltd. It was there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proved to be used for providing bogus long-term capital gain to various beneficiaries. The contents of the messages and statement of Mr Rajesh Agrawal (assessee) in this regard clearly proved that the manipulative trading in shares of certain listed scrip is being done by the assessee on the instruction of Mr Kishen khaderia. During the course of post search enquiries on 6/8/2014, the statement of Mr Kishen Khaderia was recorded who denied to have given any instructions for such transaction. Assessee could not show any valid explanation. As the mobile pertained to the assessee, he miserably failed to discharge any onus. 012. Consequently assessment order under section 143 (3) read with section 153A of the act was passed on 22/12/2016 wherein the total income of the assessee was determined at Rs. 15,980,750/-. 013. The assessee preferred an appeal before the learned CIT - A. Before the learned CIT - A, the assessee challenged that AO should not have issued any notice under section 153A of the act as search warrant dated 13/6/2014 was not in the name of the assessee but was in the name of his employer Mr Kishen Khaderia . Though assessee admitted that subsequent search warrant dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the name of his employer as per panchanama dated 13/6/2014. During the search only one key of bank locker in the name of Father of the assessee was found and seized. The said bank locker was opened and as per panchnama dated 6/8/2014 nothing was found from the same. It was the contention that as the search warrant as per authorization dated 12/6/2014 as per panchnama dated 13/6/2014 was in the name of employer of the assessee and search warrant dated 28/7/2014 per panchanama dated 6/8/2014 was issued to search locker of the assessee's father and therefore it is clear that the search under section 132 of the act was not initiated on the appellant and therefore notice issued under section 153A of the act is without jurisdiction. He relied upon the decision of the honourable Allahabad High Court in case of Tapasya projects Ltd versus ACIT. He further relied upon the decision of the coordinate bench in case of ACIT versus K G Finvest private limited in ITA number 6759/Del/2013 dated 28/4/2017. 015. The learned authorized representative further challenged that the long-term capital gain has been earned by the assessee for which the assessee has proved the genuineness of the transac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the assessee the search only should not have been merely initiated but conducted. The tribunal is required to verify whether the jurisdictional facts exist before notice can be issued under section 158BC. In the present case, we find that search warrant is issued in the name of the assessee while opening the locker. The keys of the locker were found from the residential premises of the assessee during the course of search on Mr. Kishan Khaderia at residence of the assessee. Therefore we find that the search was initiated as well as conducted on the assessee and therefore it is mandatory to issue notice under section 153A of the act on the assessee. We find no infirmity in the order of the learned CIT - A in upholding the same. 018. With respect to the second ground of appeal about the addition of long-term capital gain held to be non genuine, it is a Cardinal principle that it is the duty of the assessee to prove the identity, creditworthiness and genuineness of the transaction if any sum is found credited in the books of the accounts of the assessee. The initial onus lies on the assessee to prov the nature and source of such credit. In the present case we find that assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned AO against the order of The Commissioner Of Income Tax (Appeals) - 52, Mumbai dated 16/12/2019 for assessment year 2015 - 16 raising following grounds:- "1. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 10,71,00,000/- for A.Y. 2015-16 in the case of the assessee? 2. Whether on the facts and circumstances of the case and in law, the Ld.CIT(A) erred in deleting the addition of Rs. 10,71,00,000/- for A.Y. 2015-16 in the case of the assessee and holding that the addition, for an amount of Rs. 5,97,50,000/- is required to be added in the hands of shri Krishan Khadaria without giving an opportunity to the Assessing Officer?" 022. Assessee has filed his return of income on 20/8/2016 declaring a total income of Rs. 825,050/-. The return of income was picked up for scrutiny. The return contained income from salary as well as interest income under the head income from other sources. 023. The learned assessing officer based on the mobile phone of the assessee found that unaccounted cash involved in those short messages is to the tune of Rs. 1071 Lacs. The AO was of the view that assessee was actively involved ..... X X X X Extracts X X X X X X X X Extracts X X X X
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