9911796707
TMI Blog2020 (2) TMI 975X X X X Extracts X X X X X X X X Extracts X X X X ..... ounds of appeal: ''1. For that the order of the Learned Commissioner of Income Tax (Appeals) is contrary to law, facts and circumstances of the case and at any rate is opposed to the principles of equity, natural justice and fair play. SPECULATION LOSS ON SHARES: 2. (a) For that the Learned Commissioner of Income Tax (Appeals) erred in treating the loss from sale of Shares as Speculation Loss as per Section 43(5) of Income Tax Act, 1961. Whereas the Assessing Officer had disallowed the trading loss based on information from Investigations wing and treated the same as Penny Stocks. (b) The appellant submits that the order of Assessing Officer in considering the loss as Business loss arising out of penny stocks and order passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant in the form of DEMAT statements, Contract Notes and Bank Statements in his appellate order is contrary. (f) The judicial precedence relied upon by the Learned Commissioner of Income Tax (Appeals) are in the case of companies whereas the appellant is a partnership firm and hence the applicability Section 73 in the case of the appellant does not arise. (g) On the basis of the above facts the order of the Learned Commissioner of Income Tax (Appeals) treating the business loss incurred by the appellant on trading in shares as speculation loss and denying the set off of this loss against other income is not in accordance with law. 3. For these grounds and such other grounds that may be adduced before or during the hearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the companies in which loss was claimed stated to have been indulged in providing bogus accommodation entries in long term capital gains/ loss as per the requirement of the assessee. 4. Being aggrieved, an appeal was preferred before the ld.CIT(A), contending that shares of the companies were not penny stocks for the following reasons. (i) The appellant is a trader in shares and securities in stock markets. (ii) The appellant had purchased and sold shares through Kotak Securities who are members of Bombay Stock Exchange. (iii) The appellant had paid for purchase of shares and received for sale of shares in bank account (iv) The purchase and sale of shares are reflected in the DEMAT account. However, the ld. Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ata. From the perusal of the order of the lower authorities there is nothing on record to say that report of the Director of Investigation Wing, Kolkata was made available to the assessee. Furthermore, the Assessing Officer had not established collusion of the assessee in the alleged fraud. M/s. Kodak Securities Ltd is not one of those banned entities by SEBI. The time gap involved between purchase and sale of shares is more than one year and shares were demated. In the circumstances, the transactions cannot be held as ''not genuine'' merely based on suspicion. Suspicion however, be strong cannot take the place of proof. It is settled position of law that no addition can be made on mere suspicion. Therefore, we are of the considered opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X
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