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TMI Blog2015 (5) TMI 270X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee with respect to the alleged loss of ₹ 56,99,495/- reproduced hereinabove, we see no reason to interfere with the same. No substantial question of law - Decided against assessee. - TAX APPEAL NO. 256 of 2015 - - - Dated:- 20-4-2015 - MR. M.R. SHAH, J. FOR THE APPELLANT : MR KETAN H SHAH, ADVOCATE JUDGMENT (PER : HONOURABLE MR.JUSTICE M.R. SHAH) [1.0] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Income Tax Appellate Tribunal, B Bench, Ahmedabad (hereinafter referred to as the Tribunal ) dated 06/02/2015 in ITA No.1897/Ahd/2011 for the Assessment Year 2008-09, the appellant-assessee has preferred the present Tax Appeal with the following proposed substantial questions of law; (A) Whether on the facts and in the circumstances of the case the learned Tribunal was right in law in not appreciating the fact that the appellant has discharged the onus regarding the actual loss incurred in F O transaction worth ₹ 56,99,495/-? (B) Whether on the facts and in the circumstances of the case the learned Tribunal was right in law in making addition of peak credit and also gross profit on cash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 000/- under Section 69A of the Act, the assessee preferred appeal before the learned CIT(A). [2.2] Before the learned CIT(A) the assessee also submitted, without prejudice, that the Assessing Officer ought to have simultaneously allowed the loss of ₹ 56,99,495/- arising out of the share transactions routed through the bank account. The assessee also furnished relevant proof in support of the loss incurred by him. The learned CIT(A) dismissed the said appeal sustaining the addition of ₹ 37,75,000/- to the income of the assessee under Section 69A of the Act. The learned CIT(A) did not agree with the submission on behalf of the assessee with respect to the alleged claim of loss amounting to ₹ 56,99,495/-. [2.3] Feeling aggrieved and dissatisfied with the order passed by the learned CIT(A), the assessee preferred appeal before the learned Tribunal and by the impugned judgment and order the learned Tribunal has partly allowed the said appeal deleting the addition to the extent of ₹ 23,55,080.12 by treating ₹ 14,19,919.98.99 as income of the assessee in respect of the unaccounted bank account. The learned Tribunal has confirmed the order passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 37,75,000/- on various dates and, therefore, the assessee was called upon to show cause as to why the cash deposit of ₹ 37,75,000/- should not be added to the total income as unexplained money under Section 69A of the Act. The assessee submitted the explanation. However, the Assessing Officer was not convinced with the explanation and, therefore, made the addition of ₹ 37,75,000/- under Section 69A of the Act. At this stage, it is required to be noted that the assessee never claimed the loss of ₹ 56,99,495/- at the time of assessment. Before the learned CIT(A) the assessee challenged the addition of ₹ 37,75,000/- made under Section 69A of the Act and also submitted that the Assessing Officer ought to have allowed the loss of ₹ 56,99,495/- arising out of the said bank account wherein cash was deposited. The same came to be negatived by the learned CIT(A) in detail by observing as under; The submissions of appellant and reasons advanced by A.O. in the assessment order has been considered. It is seen that appellant has miserably failed in pointing out any defect in the action of A.O. whereby he has added a sum of ₹ 37,75,000/- u/s.69 of the I.T. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have filed Tax Audit Report u/s.44AB of the Act. Then only genuineness of the transaction could have been ascertained. viii. The appellant has not prepared accounts as to from whom shares purchased to whom sold and what is the closing stock. In the absence of such basic documents, A.O. cannot be expected to fish out evidence from sea. In view of the above and the position of law in this regard, it is unequivocally held that A.O. was perfectly justified in ignoring the alleged claim of loss amounting to ₹ 56,99,495/-. Thus, ground No.III is dismissed. [4.1] However, on further appeal to the learned Tribunal considering the peak deposits in the unaccounted bank account of ₹ 12,31,169.88, on the basis of the reasonable estimate, the learned Tribunal has directed to treat the same as business income of the assessee and estimated the assessee s profit from such business at the rate of 5% of ₹ 37,75,000/-, which comes to ₹ 1,88,750/-. By the impugned judgment and order the learned Tribunal has sustained the addition to the extent of ₹ 14,19,919.88 as the income of the assessee in respect of the bank account in question and consequently deleted the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on certain undisclosed deposits and, therefore, even considering the profit at the rate of 5% of ₹ 37,75,000/- when the learned Tribunal has confirmed the addition to the extent of ₹ 14,19,919/- (Rs.12,31,169.88 + ₹ 1,88,750/-) as income of the assessee in respect of the unaccounted bank account in question, it cannot be said that there is any error committed by the learned Tribunal, which calls for the interference of this Court. Now so far as the contention on behalf of the appellant with respect to the alleged claim of the assessee with respect to the loss of ₹ 56,99,495/- is concerned, as rightly observed by the learned CIT(A), as such the assessee failed to justify the said loss. Before the learned Assessing Officer there was no whisper by the assessee as to how he has arrived at the alleged loss of ₹ 56,99,495/-. Thus, as such, the assessee miserably failed to establish the genuineness of the said transactions regarding the alleged loss. Under the circumstances, for the reasons assigned by the learned CIT(A) with respect to the claim of the assessee with respect to the alleged loss of ₹ 56,99,495/- reproduced hereinabove, we see no reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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