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TMI Blog2022 (5) TMI 1625X X X X Extracts X X X X X X X X Extracts X X X X ..... ed for statistical purposes. X X X X Extracts X X X X X X X X Extracts X X X X ..... ssary to be considered is the true nature of the transaction. The Hon'ble Apex Court has held so in the case of Satluj Cotton Mills vs. CIT, 44 ITR 362. 25. In the present case of the appellant, SEBI which is the watchdog of all security -related transactions conducted on the floor of the stock exchanges in the country as well as the transactions conducted off market, has also established the nature of transaction carried out by the appellant was sham transaction which was further strengthened by the findings of the Investigation Wing of the Income Tax Department. The documents, papers and the other evidences maintained and created by the appellant to substantiate her claim was a well thought and predetermined attempt to give a colour of genuineness to the impugned transaction. 26. Therefore, in view of the above discussed facts and circumstances of the case and considering the finding arrived at by the AO, I do hold that the impugned transaction was sham transaction. The ratio of the decisions in the case of Sumati Dayal vs. CIT, 214 ITR 801; Durga Prasad More vs. CIT, 182 ITR 540 and CIT vs. P. Mohanakala (2007), 161 Taxman 169, further strengthens the conclusion that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made available to the Ld. AR now, for the first time. We note that compliance of provisions of section 142(3) is a mandatory statutory requirement in completing the assessment proceedings failing which may vitiate the entire assessment itself since this sub-section uses the word 'shall'. 13. Per contra, the Ld. Counsel referred to another decision of Co-ordinate Bench, ITAT Bangalore in ITA No. 650/Bang/2019 for A.Y. 2015-16 in the case of Shri Suresh J. Kothari (HUF) v. ITO, Ward 2(2)(1), Bengaluru, dated 31.07.2019 which in turn has followed the directions issued in the case of Chandra Devi Kothari (supra) by Hon'ble High Court of Karnataka. Relevant portion of the said order of co-ordiante Bench of ITAT Bangalore is reproduced herein below for the sake of clarity and ease of reference: "3. The learned Authorised Representative submitted that an identical issue was considered by the SMC bench of Bangalore Tribunal in assessee's brother case named Sri Vinod Kothari (HUF) in ITA No.698/Bang/2019 and the Tribunal, vide its order dt.03.7.2019, has restored the issue to the file of Assessing Officer for examining it afresh as per directions issued by Hon'ble Karnataka Hig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is called for at this stage regarding the merits of the addition." ITA No.650/Bang/2019 As the facts prevailing In the instant case is identical nature, following the aforesaid decision of the Tribunal, we set aside the order passed by the learned CIT (Appeals) and restore all the issues to the file of Assessing Officer with similar directions mentioned in ITAT Order (supra) for examining them afresh. 6. In the result, appeal of the assessee is treated as allowed for statistical purposes." 14. Considering the uncontroverted factual position accepted by the Ld. Sr. DR on the material made available to the assessee vis-à-vis provisions of section 142(3) of the Act which casts a mandatory statutory procedural compliance requirement on the Ld. AO in completing the assessment proceedings which otherwise may vitiate the assessment itself, it necessitates us to remand back the present case to the Assessing Officer for its appropriate adjudication by respectfully considering the observation made by the Hon'ble Madras High Court in Para 27 in the case of Mrs. Manish D. Jain (HUF) (supra) on the availability of material to the assessee. Further, respectfully following t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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