ADARSH KUMAR GOEL, J. - (1.) THIS order will dispose of IT Appeal Nos. 147 and 158 of 2010 as both relate to same assessee and questions raised are inter-connected.
(2.) IT Appeal No. 147 of 2010 has been preferred by the Revenue under S. 260A of the IT Act, 1961 (for short "the Act") against the order dt. 25th May, 2009 of the Tribunal, Delhi Bench 'F', Delhi in ITA No. 3550/Del/2008 for the asst. yr. 2000-01 raising following substantial questions of law : "(i) Whether on the facts and in the circumstances of the case, the findings recorded by the learned Tribunal are perverse and contrary to the evidence available on record as the assessee had failed to discharge the onus to prove the genuineness of transactions of sale of shares shown by him ? (ii) Whether, on the facts and in the circumstances of the case, the findings recorded by the learned CIT (A) as confirmed by the learned Tribunal are perverse insofar as the assessee was required to furnish evidence of genuineness of sale transactions of shares such as evidence regarding genuineness of rate and sale transactions, market quotations, comparable market rates and evidence but the assessee had not furnished any such evidence except copies of contract notices of brokers ?" It Appeal No. 158 of 2010 has been preferred by the Revenue against the order dt. 25th May, 2009 of the Tribunal, Delhi Bench 'F', Delhi in ItA No. 92/Del/2008 for the block period 1st April, 1990 to 3rd Aug., 2000 raising following substantial questions of law : "(i) Whether on the facts and in the circumstances of the case, the findings recorded by the learned Tribunal are perverse and contrary to the evidence available on record insofar as the AO had initiated the proceedings under S. 158BD of the It Act, 1961 after recording requisite satisfaction (Annex. A) for the purpose of initiating proceedings under S. 158BD of the It Act, 1961 in the case of the assessee ? (ii) Whether on the facts and in the circumstances of the case, the learned Tribunal was right in law in holding that the notice under S. 158BD of the It Act, 1961 is bad in law and the order is liable to be annulled as the notice under S. 158BD in the case of the assessee has been issued much after the completion of the assessment in the case of Manoj Aggarwal or M/s Friends Portfolio (P) Ltd., being the person through whom the assessee has dealt purchase and sale of shares ?"
(3.) REASSESSMENT proceedings were initiated against the assessee on account of information received during block assessment of M/s Friends Portfolio (P) Ltd. on whom search operation had been conducted on 3rd Aug., 2000. From the material found during the search, it was noticed that Manoj Aggarwal was the controller of M/s Friends Portfolio (P) Ltd. who was engaged in giving bogus accommodation entries through network of mediators spread all over India. It was found that the assessee had received accommodation entries in the form of a cheque for Rs. 16 lacs in lieu of cash paid to Manoj Aggarwal. In addition thereto, the assessee had shown receipt of consideration for sale of shares through M/s Aggarwal Stock Broker and M/s JRD Stock Brokers in respect of sale of shares of M/s B.S. Holdings & Credit (P) Ltd. The said receipt was claimed to be income from long-term capital gain which was invested in construction of house and declared to be exempt under S. 54F and some amount was declared to have been deposited in ICICI Bonds and was claimed to be exempt under S. 54EA. By way of reassessment addition of Rs. 13,82,375 was made to the declared income as income from undisclosed sources on substantive basis with the following findings : "During the course of instant proceedings also, the assessee was required to furnish evidences of genuineness of sale transaction of shares but the assessee has not furnished any such evidence. Only copies of contract notes of brokers have been filed. The assessee has failed to furnish any other independent evidence regarding genuineness of rate and sale transactions, market quotations, comparable market rates and evidences etc. From the facts of law case, it is evident that the transactions of sale of shares shown by the assessee are not genuine and that the assessee has introduced his own money in the name and style of shares. Therefore, after considering all the facts and figures of the case, it is held that alleged sale proceeding of shares i.e., Rs. 29,44,120 is chargeable to tax as 'income of assessee' from undisclosed sources and the assessee is not entitled for any exemption or deduction under S. 54 of the IT Act in respect of these receipts. Out of Rs. 29,44,120 an amount of Rs. 15,61,745 has already been charged to tax as undisclosed income of the assessee for block period. The remaining receipts of Rs. 13,82,375 is assessed to tax as income of the assessee from undisclosed sources for the year under consideration on substantive basis." ;