Commissioner Of Income Tax, Udaipur v. Kan Singh Rathore

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHANAT JODHPUR JUDGMENT D.B. INCOME TAX APPEAL NO.192/2014 Commissioner of Income Tax, Udaipur Vs.Kan Singh Rathore DATE OF ORDER :: 03.12.2014 PRESENT HON'BLE MR. JUSTICE GOVIND MATHURHON'BLE MR. JUSTICE PRAKASH GUPTA Mr. KK Bissa, for the appellant BY THE COURT: ... This appeal is preferred to question correctness of the orderdated 3.4.2014 passed by learned Income Tax Appellate Tribunal,Jodhpur Bench, Jodhpur affirming order dated 25.2.2013 passed bythe Commissioner of Income Tax (Appeals), Udaipur. The facts necessary to be noticed for adjudication of thisappeal are that an assessment order as per provisions of Sub-Section (3) of Section 143 of the Income Tax Act, 1961 was passedby the Deputy Commissioner of Income Tax, Chittorgarh on30.12.2010. The Assessing Authority treated the transaction of theassessee with Unitech as bogus. Suffice to mention that the sharesof Unitech were purchased by the assessee through MahasagarSecurities Private Limited, Mumbai. The finding of bogus transactionby the assessee was given by relying upon the statement made by Shri Mukesh Choksi, Director of Mahasagar Securities PrivateLimited during the course of a search at the business premises ofMahasagar Securities Private Limited. The Commissioner of IncomeTax while setting aside the finding given by the Assessing Authorityheld that whatever transaction took place, was genuine and inaccordance with the norms of SEBI. It was also held that thestatement given by Mr. Mukesh Choksi could have not been readagainst the assessee being unconfronted. The appeal preferred bythe Revenue giving challenge to the order passed by Commissionerof Income Tax (Appeals), Udaipur also came to be dismissed by thejudgment impugned. The learned Income Tax Appellate Tribunal after examiningthe arguments advanced and also the record arrived at theconclusion that the purchase of share was recorded in demataccounts maintained with M/s.Angel Broking Limited and thetransaction was genuine one, therefore, it could not have beendiscarded as bogus. The Tribunal further held that the perceptionwith regard to bogus transaction is erroneous being based on theunconfronted statement of Mr. Mukesh Choksi. We do not find any wrong with the judgment impugned. It is not in dispute that the Assessing Officer treated thetransaction bogus solely by relying upon the statement of Mr.Mukesh Choksi, who remained unconfronted, though, was called for Sanjay as per Section 133(6) of the Income Tax Act, 1961. In response, itwas communicated to the Assessing Officer that no adequateassistance could be given as the entire record of MahasagarSecurities was earlier impounded and was in custody of Income TaxDepartment. In these circumstances, Shri Mukesh Choksi was notconfronted by the assessee. In absence of it, the statement of ShriMukesh Choksi could have not been used against the assessee. The other question with regard to business loss ofRs.4,24,557/- is also a purely question of fact and that does notconstitute any substantial question of law. The appeal is dismissed accordingly. , J. , J.