2015 (7) TMI 1315 - AT - Income Tax

Reopening of assessment u/s. 148 - assessee has set off the losses arising in Future & Option business against the profit earned in share trading activity - contention of the assessee is that he had not transacted Gaur Seeds F&O which is wrongly mentioned by the AO - HELD THAT - There is no whisper in the assessment order passed u/s.143(3) (original assessment proceedings) of the above referred Annexure. This goes to demonstrate that the AO had not examined this aspect. Therefore, there is no infirmity into re-opening of the assessment when the assessee himself has shown to have transacted in Guar future. Moreover, there is no material placed on record suggesting that the auditor clarified it to be typographical error, coupled with the fact that CIT(A) had given a finding on fact that no evidence is furnished in support of the transportation and storage of the Guar seeds. The assessee has stated that the delivery of Guar seeds were taken, however, no evidence is furnished to rebut the finding of CIT(A). In the light of above discussion Ground Nos.1 & 2 of the Assessee s appeal are dismissed.

Summary

Issues:
1. Validity of reopening assessment u/s.148 of the Income Tax Act.
2. Treatment of Guar Seeds business as speculative and disallowance of losses.

Issue 1: Validity of reopening assessment u/s.148 of the Income Tax Act:
The appellant challenged the reopening of assessment u/s.148, arguing that the business in Guar Seeds was not speculative and was not done through Multi Commodity Exchange (MCX). The appellant contended that all details of purchases/sales were filed and accepted as a trading business in the original assessment. The AO treated the transaction as speculative, leading to disallowance of losses. The appellant argued that the AO's reasons for reopening were based on wrong premises and a change of opinion. The appellant cited case laws to support their position. The Sr.DR supported the AO's decision, stating that the assessee failed to provide evidence regarding the nature of Guar Seeds transactions. The Tribunal found that the AO had not examined the details of Guar Seeds transactions in the original assessment. As the assessee had shown transactions in Guar future, the Tribunal upheld the reopening of the assessment, dismissing the appeal against it.

Issue 2: Treatment of Guar Seeds business as speculative and disallowance of losses:
The AO treated the transactions of Guar Seeds and sales of shares as speculative, resulting in disallowance of losses. The appellant argued that Guar Seeds transactions were not speculative and were on a delivery basis, not F&O. The AO's remand report confirmed the purchase and delivery of Guar Seeds. However, the Tribunal noted that no evidence was provided to support the transportation and storage of Guar Seeds, as pointed out by the ld.CIT(A). The Tribunal found that the appellant had not rebutted the ld.CIT(A)'s findings and dismissed the appeal against the disallowance of losses. The Tribunal upheld the AO's decision regarding the treatment of Guar Seeds transactions as speculative.

In conclusion, the Appellate Tribunal ITAT Ahmedabad upheld the validity of reopening the assessment u/s.148 and the treatment of Guar Seeds transactions as speculative, resulting in the disallowance of losses. The appeal by the assessee was dismissed, and the order was pronounced on July 17, 2015, in Ahmedabad.