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TMI Blog2018 (4) TMI 310X X X X Extracts X X X X X X X X Extracts X X X X ..... y of being heard to the assessee. - Appeal of the assessee is allowed for statistical purposes - I.T.A. No. 3062/Del/2017 - - - Dated:- 30-1-2018 - Shri N.K. Saini, Accountant Member Appellant by: Sh. Sandeep Sapra, Advocate Respondent by: Sh. Atiq Ahmed, Sr. DR ORDER N.K. SAINI, A.M: This is an appeal by the assessee against the order dated 20.3.2017 of the CIT(A)-14, New Delhi. Following grounds have been raised in this appeal:- i. That the provisions of section 147/148 I.T. Act are not applicable to the facts of Appellant s case and therefore the impugned assessment order deserves to be quashed / annulled. ii. That the Ld. CIT(A) has erred on facts and under the law in sustaining the addition of ₹ 5,66,023/- (7,17,400 minus 1,51,377) on account of profit derived from trading through Multi commodity exchange. At any rate, the addition as sustained is very excessive. iii. Without prejudice to above grounds, the impugned assessment order deserves to be set aside to the file of the AO because the Assessee was unable to produce Sh. Raman Kumar Grover either during the course of assessment proceedings, appellate proceedings or during th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ₹ 5,26,023/-. It was also submitted that she did not understand as to how and on what basis this profit of ₹ 7,17,400/- was arrived at. The AO, however, did not find merit in the submissions of the assessee and made the additions of ₹ 7,17,400/- by observing in para 4.3 of the assessment order dated 24.3.2015 as under:- 4.3 I have considered the submissions of the assessee and have also gone through the report received from Multi Commodity exchange wherein the name of the assessee is clearly written indicating the Client ID No, DLA1001 against the name of the assessee. Information called u/s 133(6) contains detailed information such as trade No. trade date, time, symbol, buy and sale, trade priced, traded value, client ID. The overall result of transactions adjusting loss and profit from different transactions is profit of ₹ 7,17,400/- .Under these circumstances, the contention of the assessee that the assessee did not understand as to on what basis the profit of ₹ 717400/- has been arrived at, is not maintainable. In the AIR filed in the case of assessee, the transaction totaling to ₹ 11,18,09,195/- are also reflected in the name of the ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf of the appellant it appears that he also entered his own transactions in the same folio with MCX quoting appellant's PAN about which she had absolutely no knowledge nor she received any amount or profit of the transactions done by that person of his own without her authority. As the appellant has already refused before Assessing Officer that the transactions do not belong to her the onus is on the department to prove that such transactions belong to the appellant. (iii) The appellant did not enter into any transaction nor signed any Purchase or Sale Agreement for the transactions shown in AIR/CIB except transactions on which commission of ₹ 151377/- was earned. A copy of affidavit filed before Id. A.O. confirming the commission of ₹ 151377/- only and denying other transactions is enclosed as App. C. (iv) Letter of Raman Kumar Grover are enclosed as App - D to Dl 1 showing commission earned from MCX and Bank Statement evidencing the same is enclosed as App. E to (v) Mr. Raman Kumar Grover has been declared as defaulter as is clear from photocopy of notice given by MCX in the newspaper enclosed as App.- F Mr. Raman Kumar Grover is behind bars or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n income which is very reasonable and it is requested that the same may kindly be allowed. 5. The learned CIT(A) forwarded the aforesaid submissions of the assessee to the Assessing Officer and asked the comments of the AO who submitted that the documents furnished by the assessee only confirmed that she had MCX transactions on MCX and that the exchange had confirmed quantum of income earned by the assessee. He also stated that the assessee had not furnished any concrete evidence to negate the report of the MCX, though oral denial was made. The learned CIT(A) asked the comments of the assessee on the remand report of the Assessing Officer. The comments of the assessee have been summarised by the learned CIT(A) at page 12 of the impugned order as under:- (a) The Id. A.O. only relied upon AIR/CIB transactions which alone cannot be the basis of additions sustainable in law as was held in various decided cases. (b) The appellant filed an affidavit before A.O. refuting that transaction amounting to ₹ 11.18 crores as given in AIR/CIB were not entered into by her and facts given in such affidavit could not be rebuted by the Id. A.O. (c) Whereas the appellant pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f MCX of India should have been called u/s 131 to record statement and obtain documentary evidence of remitting commission u/s 133(6) which has not been done. 4. The appellant filed covering letters issued by Mr. Raman Kumar Grover showing commission earned by the appellant which could not be refuted by the Id. A.O. nor the Id. A.O. could produce any other documentary evidence vide which income could have been sent. Thus in appellant's humble submission there is no basis with the Id. A.O. to make the above addition of ₹ 717400/- and hence the above addition may kindly be deleted. 7. The learned CIT(A) after considering the submissions of the assessee sustained the addition of ₹ 5,66,023/- by observing as under:- I have considered the submissions of the appellant as well as the findings of the Ld. AO and judicial pronouncements of higher appellate authorities and the Hon ble Courts relied upon by the Ld. AR in my opinion the Ld. AO is justified in making addition of trading income in MCX as he had sufficient material with him to form his reason to belief that income on account of MCX Transactions had escaped assessment. Subsequently, enquiries conduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovar Garden, New Delhi, the commission earned from Raman Kumar Grover amounting to ₹ 1,51,377/- was credited. Our attention was also drawn towards page no. 49 of the assessee s paper book which is a copy of a certificate issued by Shri. Raman Kumar Grover who certified that the assessee earned commission of ₹ 1,51,377/- for the year ended on 31.3.2010 and that she was neither entitled to any commission or profit from MCX. The assessee also requested to admit the aforesaid document as additional evidence under Rule 29 of the Income Tax (AT) Rules, 1963. In his rival submissions, the learned DR supported the orders of the authorities below. 11. I have considered the submissions of both the parties and carefully gone through the material available on the record. In the present case, it appears that the assessee was not the member of the exchange MCX rather she was acting through Shri. Raman Kumar Grover who was member of Multi Commodity Exchange of India Limited (MCX) and later on he was declared as defaulter. 12. The assessee also furnished a certificate issued by Raman Kumar Grover, copy of which is placed at page no. 49 of the assessee s paper book in the said le ..... 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