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TMI Blog2017 (2) TMI 721X X X X Extracts X X X X X X X X Extracts X X X X ..... Member Appellant By : S/Sh. Ashwani Kumar Aditya Kumar Respondent By : Sh. Sushil Kumar ORDER Per Bhavnesh Saini, JM This appeal by the assessee has been directed against the order of Ld. CIT(A)-2, Ludhiana dated 10.2.2016 for assessment year 2011-12 on the following grounds:- i) That the Learned Commissioner of Income tax (Appeals-ll) Ludhiana has erred in confirming the addition of 4,37,47,870/- under section 68 of the Income Tax Act 1961 as deemed income on account of profit earned on purchase/sale of commodities already shown as Business Income and not assessing the Deemed Income U/S 68 under head Income from Other Sources ignoring the instructions of Income Tax Deptt. on filing of ITR6 and legal as well as factual position of the case and without considering the various judgments on the same issue. ii) That it is prayed that the order of the Learned Commissioner of Income Tax (Appeal) Ludhiana, may kindly be set aside and benefit of set off losses and depreciation may kindly be allowed against the addition so made u/s 68 of the IT Act 1961. 2. We have heard the Ld. Representatives of both the parties and perused the material on record. B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not relatable to any known or any bona fide source; it would necessarily be brought to tax or considered as income of the assessee u/s 68 of the I.T. Act. The Assessing officer, therefore, noted that the income from commodities sales / purchase as shown by the assessee is not relatable to any known or bona fide sources; therefore, the same was brought to tax u/s 68 of the Act. The Assessing officer made addition of ₹ 4,37,47,870/- u/s 68 of the Act. 4. The said addition was challenged before the Ld. CIT(A) and written submissions of the assessee are reproduced in the impugned order in which assessee reiterated the same submissions as were made before the Assessing officer and also explained that complete details and evidences alongwith confirmed copies of account from book of Ludhiana Comfin Services, contract note and bank accounts of Ludhiana Comfin Services Ludhiana were produced before the Assessing officer, therefore, there is no question of not producing of any credible evidence. PAN number of Rakesh Kumar Prop. of M/s Ludhiana Comfin Services was also produced and since he has shifted to foreign country and he is not cooperating with the assessee in furnishing in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces u/s 68 of the I.T. Act. He has relied on the decision of the Hon'ble Supreme Court in the case CIT Vs. D.P. Sahdu Bros. Chembur P. Ltd (2005) 273 ITR (SC) 1, in which it was held as under:- Section 56 provides for the chargeability of income of every kind which has not to be excluded from the total income under the Act, only if it is not chargeable to income-tax under any of the heads specified in section 14, items A to E. Therefore, if the income is included under any one of the heads, it cannot be brought to tax under the residuary provisions of section 56. 6. He has referred to PB-11 which is remand report filed by the Assessing officer in which no adverse interference have been drawn against the assessee on filing the documentary evidence. He has submitted that since Rakesh Kumar, Proprietor of M/s Ludhiana Comfin Services Ludhiana have gone abroad, he could not be produced at the remand proceedings. He has submitted that CIT(A) relied upon his order in the case of Sh Jawahar Lal Prop. M/s Sahi Ram Jawahar Lal, (supra) which have been set aside by the ITAT Chandigarh Bench in the matter of Jawahar Lal Vs. ITO in ITA No. 75/Chd/2012 dated 29.5.2014 and in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of M/s Ludhiana Comfin Services has since shifted to foreign country and the present address is not available with the assessee company, therefore, he could not be produced at the remand proceedings. Copies of the remand report is field at page 11 of the paper book in which on the documentary evidence no adverse inference has been drawn by the Assessing officer. The assessee also submitted before Assessing officer in the remand proceedings that Shri Rakesh Kumar, Proprietor to M/s Ludhiana Comfin Services is Member of K A Securities (P) Ltd with I.D. and PAN number. Thus, the assessee produced sufficient evidence before the authorities below to prove that assessee has genuinely entered into sale and purchase of commodities so as to earn profit. 9. The Assessing officer specifically noted in the assessment order that detailed questionnaire have been issued and assessee furnished information as called for. The Assessing officer also examined the books of account and relevant documents at assessment stage. Therefore, assessee filed the relevant and requisite documentary evidence before the authorities below to prove that assessee genuinely entered into the transaction of sale and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in the case of CIT v Escorts Ltd. in (2011) 338 ITR 435 (Delhi) held that when transactions of purchase and sale of units for many years considered to be genuine in prior and subsequent assessment year - Revision proceeding on ground that transactions pertaining to relevant assessment year were speculative not permissible. It was further held as under:- Where a fundamental aspect of a transaction is found to have permeated through different assessment years and this fundamental aspect has stood uncontested then the Revenue cannot be allowed to change its view taken in earlier assessment years unless it is able to demonstrate a change in circumstances in the subsequent assessment year. Held, that the Commissioner's order did not contain a finding to the effect that the stand taken by the assessee that the units purchased from the Unit Trust of India had actually been physically delivered along with executed transfer deed was false. Without such a finding the allegation that the transactions were speculative could not be sustained. The fundamental nature of the transactions was examined year after year more importantly in the assessment year 1986-87 it was s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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