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2015 (4) TMI 539 - AT - Income TaxSuppression of profit - client code modification by the brokers in a large number of commodity transactions - CIT(A) deleted the addition - Held that - All transactions at the Commodities Exchanges have been duly accounted in the books of account maintained by the concerned parties. Such profits/loss has been duly accounted whenever the transactions have been closed. Thus, whatever profits have been generated or accounting of actual trade, have been offered and brought to the charge of tax in the cases of concerned assessees. These findings of fact recorded by the ld. CIT(A) has not been controverted by the Revenue at the time of hearing before us. When the transaction has been duly accounted for and the profit/loss has accrued to the concerned parties in whose names transactions have been closed, there cannot be any basis or justification for considering those profit/loss in the case of the assessee on the basis of mere presumption or suspicion. It is not the case of the Revenue that such alleged profit has actually been received by the assessee. In view of the totality of the above facts, we do not find any justification to interfere with the order of the CIT(A) in this regard and the same is sustained - Decided against revenue. Addition in respect of the income disclosed by the assessee at the time of search - Held that - In the case of Kailashben Manharlal Chokshi (2008 (9) TMI 525 - GUJARAT HIGH COURT), it was noticed that when during the course of assessment proceedings the assessee has given the proper explanation for investment in various properties, the addition cannot be made on the basis of statement made at odd hours. Similarly, in the case of Ratan Corporation (2005 (3) TMI 748 - GUJARAT HIGH COURT), reiterated that when the statement made during the course of search has been retracted, then it is duty of the Assessing Officer to make further inquiries. Similar view is expressed by their Lordships of Hon ble Jurisdictional High Court in the case of Radhe Associates (2013 (8) TMI 247 - GUJARAT HIGH COURT), wherein the Assessing Officer has made the addition by mentioning that there were clinching documentary evidences with respect to receipt of on-money. However, these clinching documentary evidences were not specified. In the case under appeal before us also, we find that the officer recording the statement of Shri Nayan Thakkar has mentioned that various defects and discrepancies have been observed from the papers and documents seized from the assessee s premises. However, any defects or discrepancies were not specified. - Decided against revenue.
Issues Involved:
1. Deletion of addition on account of suppression of profit via client code modification. 2. Acceptance of the view that the disclosure at the time of search had no basis. 3. Justification of invoking the provisions of Section 145(3) of the Act. 4. Whether the CIT(A) should have upheld the order of the A.O. 5. Addition in respect of income disclosed by the assessee at the time of search. Detailed Analysis: 1. Deletion of Addition on Account of Suppression of Profit via Client Code Modification: The Revenue's appeal contended that the CIT(A) erred in deleting the addition of Rs. 2,87,75,583 made for suppression of profit through client code modification. The Assessing Officer (AO) inferred that the modifications were done with malafide intentions to transfer profit/loss among clients, which the CIT(A) refuted, stating that the additions had no reference to any seized material and were based on post-search enquiries. The CIT(A) found that the client code modifications constituted only 0.94% of the total trades, within the permissible limit of 1% set by the MCX, and were done to rectify genuine punching errors. The Tribunal upheld the CIT(A)'s findings, noting that the AO's assumptions were hypothetical and not supported by evidence. The Tribunal concluded that there was no basis for the AO's presumption of malafide intention as the modifications were done intra-day and were accounted for in the books of the concerned parties. 2. Acceptance of the View that the Disclosure at the Time of Search Had No Basis: The Revenue argued that the CIT(A) should have sustained the addition for the income disclosed during the search. The CIT(A) found that the disclosure of Rs. 12 crores by Shri Nayan Thakkar was based on incorrect facts conveyed by the authorized officer, who mentioned non-existent discrepancies in seized documents. The Tribunal agreed with the CIT(A), noting that the statement was recorded at midnight, which undermined its credibility. The Tribunal also observed that no discrepancies were found in the seized documents, and the AO did not specify any defects or discrepancies in the assessment order. The Tribunal upheld the CIT(A)'s decision, relying on jurisdictional High Court rulings that statements made under duress or at odd hours without corroborative evidence could not form the basis for additions. 3. Justification of Invoking the Provisions of Section 145(3) of the Act: The AO invoked Section 145(3) of the Act, which the CIT(A) countered by stating that the additions were not based on any seized material but on assumptions and post-search enquiries. The Tribunal upheld the CIT(A)'s view, noting that the client code modifications were within permissible limits and were done to rectify genuine errors. The Tribunal found no justification for the AO's invocation of Section 145(3), as the transactions were duly accounted for and there was no evidence of malafide intention. 4. Whether the CIT(A) Should Have Upheld the Order of the A.O.: The Revenue contended that the CIT(A) should have upheld the AO's order. The Tribunal, however, found that the AO's additions were based on assumptions and hypothetical scenarios without concrete evidence. The Tribunal upheld the CIT(A)'s findings, noting that the client code modifications were minimal and within permissible limits, and the transactions were duly accounted for in the books of the concerned parties. 5. Addition in Respect of Income Disclosed by the Assessee at the Time of Search: The Revenue argued that the CIT(A) should have sustained the addition for the income disclosed during the search. The CIT(A) found that the disclosure was based on incorrect facts conveyed by the authorized officer. The Tribunal upheld the CIT(A)'s decision, noting that the statement was recorded at midnight and no discrepancies were found in the seized documents. The Tribunal relied on jurisdictional High Court rulings that statements made under duress or at odd hours without corroborative evidence could not form the basis for additions. Conclusion: The Tribunal dismissed all the appeals filed by the Revenue and upheld the orders of the CIT(A), finding no merit in the Revenue's grounds of appeal. The Tribunal concluded that the client code modifications were minimal and within permissible limits, and the transactions were duly accounted for in the books of the concerned parties. The Tribunal also found that the disclosure made during the search was based on incorrect facts and could not form the basis for additions.
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