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TMI Blog2018 (4) TMI 425X X X X Extracts X X X X X X X X Extracts X X X X ..... re justified in assessing the amount of ₹ 468.35 lakhs as unexplained cash credit. AO has assessed the same separately without specifying any head of income. The same may be assessed as income from other sources and the provisions of the Act may be applied accordingly. Not allowing claim of trading loss - Held that:- When the assessee could not prove the claim of receipt of funds under portfolio investment scheme; when the funds were treated as unexplained cash credits and when the assessee has carried on share trading transactions in his own name, in our view, there should not be any bar in allowing the loss in his hands, simply for the reason that the assessee has transferred the said loss to the account of creditors. It is well ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not justified in confirming the disallowance so made by the Assessing Officer. Accordingly, we set aside the order passed by the learned CIT(A) on this issue and direct the Assessing Officer to allow the claim of the assessee. - I.T.A. No. 4230/Mum/2013 - - - Dated:- 10-1-2018 - Shri B.R. Baskaran (AM) And Ramlal Negi (JM) Assessee by : Shri Vijay Mehta Shri Anuj Kisnadwala Department by : Ms. S. Padmaja ORDER Per B.R. Baskaran ( AM ) The appeal filed by the assessee is directed against the order dated 11.3.2013 passed by the learned CIT(A)-36, Mumbai and it relates to A.Y. 2008-09. The assessee is aggrieved by the decision of the learned CIT(A) in confirming the following additions made by the Assessing Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o investments. In this manner, the loan accounts were squared up. However, the assessee could not furnish name and address and other details of the persons who had given money to him for portfolio investments. Accordingly, the Assessing Officer assessed the loan amount of ₹ 460.35 lakhs as unexplained credit u/s. 68 of the Act. 5. In the alternative, the assessee claimed that the loss of ₹ 468.35 lakhs transferred to loan creditors should be allowed in his hands. Since the assessee himself has transferred the loss to the third parties; since he could not furnish the basis on which losses were transferred to the loan account and since the assessee could not produce any of such parties, the Assessing Officer rejected the above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Departmental Representative strongly supported the orders passed by the tax authorities. 9. We have heard the rival contentions on this issue and perused the record. Admittedly the assessee could not furnish any details relating to loan amount of ₹ 468.35 lakhs taken by him. There should not be any dispute that initial burden of proof is placed upon the assessee u/s. 68 of the Act i.e. the assessee is required to prove three main ingredients namely identity of creditors, creditworthiness of the creditors and genuineness of the transaction. Admittedly the assessee, in the instant case, has failed to discharge the initial burden of proof placed upon him u/s. 68 of the Act. In our view, the requirement of proving cash credits would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nciples of law that there is no estoppels against law, meaning thereby, merely because the assessee itself has transferred a portion of loss to the account of the third party, the same would not disentitled the assessee to claim correct amount of loss before the tax authorities. Accordingly, we are of the view that the loss incurred by the assessee has to be allowed in his hands. Accordingly, we direct the Assessing Officer to allow loss of ₹ 468.35 lakhs, which was transferred to the account of the third parties, in the hands of the assessee. 11. The next issue relates to the disallowance of loss on trading of shares of ₹ 377.74 lakhs. The Assessing Officer noticed that the assessee has claimed a sum of ₹ 377.74 lakhs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out by Mrs. J.S. Sardesai and Mr. Ashok Kapoor in their respective accounts. The only link is that the assessee has claimed to have advanced to these two persons. The Assessing Officer has also recorded that the contract notes and bills stand in the name of respective persons and not in the name of the assessee. Under these set of facts, we are of the view that the Assessing Officer as well as Ld CIT(A) was justified in rejecting the claim of the assessee. Accordingly, we uphold the order passed by the learned CIT(A) on this issue. 15. The last issue relates to the disallowance of loss on future and options. Before the Assessing Officer, the assessee produced contract notes and ledger account of respect brokers to substantiate the claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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