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TMI Blog2019 (1) TMI 583X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the assessee was not regular trader in the derivative market because the AO himself during the course of search has found that assessee is actively engaged in derivative trading and ₹ 4,02,02,600/- was assessed to tax from the derivative trading for AY 2013-14 (previous assessment year) . When the assessee claimed the loss in this assessment year the AO has taken an about-turn and did not accept the same, which action of the AO cannot be countenanced. We note that the AO’s allegation that the SEBI has suspended the broker through whom the assessee had transacted the derivative business is not correct. AO has not given a copy of the broker’s statement/adverse material to the assessee, so the statement of the broker which is adv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... - - - Dated:- 30-11-2018 - Shri A. T. Varkey, JM And Dr. A. L. Saini, AM For the Appellant : Shri Robin Choudhury, Addl. CIT, Sr. DR For the Respondent : Shri M. D. Shah, AR ORDER PER SHRI A.T.VARKEY, JM This appeal preferred by the revenue is against the order of the Ld. CIT(A)-20, Kolkata dated 07.06.2017 for AY 2014-15. 2. The main grievance of the revenue is against the action of the Ld. CIT(A) in deleting the disallowance of loss claimed by the assessee on account of derivative trading to the tune of ₹ 3,49,14,478/-. 3. Brief facts of the case are that the AO noticed that a search and seizure operation u/s. 132 of the Income-tax Act, 1961 (hereinafter referred to as the Act ) was conducted at t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es suspicion and according to AO, the broker informed him that this was due to the premeditated trading by that fellow only. Therefore, he disallowed the claim of assessee in respect to loss in derivative and added the same to the total income of the assessee. Aggrieved, assessee preferred an appeal before the Ld. CIT(A), who was pleased to delete the same. Aggrieved, revenue is in appeal before us. 4. We have heard rival submissions and gone through the facts and circumstances of the case. We note that there was a search action on the assessee s premise on 11.04.2013 (AY 14-15 which is the relevant assessment year under consideration before us). During the course of search, it was found by the search party that the assessee was engaged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the AO s allegation that the SEBI has suspended the broker through whom the assessee had transacted the derivative business is not correct. We note that the broker of the assessee through whom assessee did derivative trading was M/s. EXPRO Securities which broker has not been suspended by SEBI or any other authorities. We also note that the assessee had prayed for the copy of the statement of the purported broker s statement which the AO had heavily relied upon for drawing adverse inference against the assessee s claim of loss suffered during derivative transactions. However, we note that the AO has not given a copy of the broker s statement/adverse material to the assessee, so the statement of the broker which is adverse against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vs. Cheminvest Ltd. (2015) 378 ITR 33 (Del.), wherein it has held that sec. 14A envisages that there should be actual receipt of income which is not includible in total income and the said section will not apply where there is no exempt income received or receivable during the relevant year. Since Ld. DR could not controvert the fact that assessee was not in receipt of any exempt income, we do not find any infirmity in the order of the Ld. CIT(A) who has relied upon the order of Hon ble Delhi High Court in Cheminvest Ltd., supra to give relief to the assessee. Therefore, the action of the Ld. CIT(A) does not require any interference from our part and this ground of appeal of revenue is dismissed. 7. In the result, the appeal of the reven ..... X X X X Extracts X X X X X X X X Extracts X X X X
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