2014 (1) TMI 84 - AT - Income Tax

Disallowance of losses incurred in trading in Commodities Futures - Held that - A person transacting through a registered broker cannot have any excess to the terminal of the registered broker with the exchange be it stock exchange or commodity exchange - The allegations of the Revenue authorities that the assessee has modified the client code does not have any basis - The transactions of the assessee are supported by various contract notes - No material evidence has been brought on record to defy these transactions by any denial from the exchange authorities nor there is any evidence on record to show that the broker RSBL has denied to have entered into these transactions on behalf of the assessee - The entire additions have been made on surmises and conjectures which are not permissible - Decided in favour of assessee.

Summary

Issues:
1. Disallowance of losses in trading in Commodities Futures treated as not genuine.
2. Allegations of modifying client code to book losses.
3. Justification of disallowance of loss by lower authorities.
4. Allegations of engaging in business only to book losses.
5. Levying of interest under sections 234B and 234C.
6. Initiation of penalty proceedings under section 271(1)(c) of the Act.

Issue 1: Disallowance of losses in trading in Commodities Futures treated as not genuine.
The assessee appealed against the confirmation of the addition of Rs. 2,53,33,000/- to their income by the Ld. CIT(A) for A.Y. 2006-07. The AO had disallowed losses incurred in trading in Commodities Futures, treating the transactions as not genuine. The assessee, a trader and speculator in shares, securities, derivatives, and commodities Futures, filed a return declaring income at Rs. 39,95,520/-. A search action revealed data on trade modifications and client code changes, leading to scrutiny assessment proceedings. The AO concluded that the assessee purchased losses by manipulating commodity prices, resulting in a loss of Rs. 2,88,55,000/-. The Ld. CIT(A) upheld the disallowance but reduced it to Rs. 2,53,33,000/- due to the additional income offered during survey proceedings.

Issue 2: Allegations of modifying client code to book losses.
The assessee contended that all transactions were legitimate, conducted through an authorized broker on a recognized exchange. The Ld. CIT(A) found the assessee modified client codes to set off losses against profits. However, the Tribunal noted that the assessee could not have modified client codes as transactions were executed by the broker. The partner's statement offering additional income was not conclusive evidence of bogus transactions. The Tribunal emphasized that transactions were supported by contract notes and bank statements, dismissing the Revenue's allegations of a colorable device.

Issue 3: Justification of disallowance of loss by lower authorities.
The Tribunal found the Revenue's conclusions based on surmises and conjectures, lacking solid evidence. The partner's statement did not prove client code modifications, and paying margin money to the broker indicated genuine transactions. The Tribunal highlighted that the Revenue ignored key evidence supporting the transactions and upheld the assessee's contentions, directing deletion of the disallowance of Rs. 2,53,33,000/-.

Issue 4: Allegations of engaging in business only to book losses.
The Revenue argued that the assessee entered the commodity market in March 2006 solely to book losses, ceasing trading afterward. However, the Tribunal found the timing and nature of business decisions within the assessee's discretion. The Tribunal emphasized that conducting transactions through a recognized exchange with proper documentation supported the genuineness of the trades, dismissing the Revenue's claims of fabricated losses.

Issue 5: Levying of interest under sections 234B and 234C.
The Tribunal directed the AO to charge interest under sections 234B and 234C as per legal provisions, considering it mandatory and consequential.

Issue 6: Initiation of penalty proceedings under section 271(1)(c) of the Act.
The Tribunal dismissed the ground related to penalty proceedings as premature, indicating that penalty considerations were not yet ripe for adjudication.

In conclusion, the Tribunal partly allowed the appeal, deleting the disallowance of Rs. 2,53,33,000/- while directing the levy of interest under sections 234B and 234C. The initiation of penalty proceedings under section 271(1)(c) was deemed premature and dismissed.