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TMI Blog2020 (6) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... held to be a bogus transaction - delivery taken by arhtias in the capacity of agent of the assessee is to be construed as actual delivery taken by the assessee, the transaction therefore cannot be treated as speculative also - Accordingly, we hold that the assessee be allowed its claim of loss of commodity transaction . Decided in favour of assessee. - ITA No.450/Chd/2019 - - - Dated:- 21-5-2020 - Shri Sanjay Garg, Judicial Member And Smt. Annapurna Gupta, Accountant Member For the Assessee : Shri Sudhira Sehgal For the Revenue : Shri Arvind Sudarshan, JCIT DR ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: The above appeal has been preferred by the assessee against the order of the Commissioner of Income Tax (Appeals)- 5, Ludhiana [(in short referred to as CIT(A) ] dated 22.02.2019, relating to assessment year 2015-16, passed u/s 250(6)) of the Income Tax Act, 1961 (hereinafter referred to as Act . 2. The assessee has raised the following grounds: 1. That the order of Ld. CIT (A) as well as Income Tax Officer is against law and facts. 2 That the Ld Commissioner of Income Tax (Appeals), Hisar as well as Ld Income Tax Officer was grossly ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ses by drawing subjective, premeditated and preconceived inferences therefore the same is not sustainable. 10. That the Ld Commissioner of Income Tax (Appeals) have grossly erred in applying the judgment of Hon ble Supreme Court in case of Davenport Co. Pvt. Ltd. Vs. CIT, West BENGAL, whereas facts of this case is entirely different from as that of assessee case. 11. That the appellant craves leave for any addition, deletion or amendment in the grounds of appeal on or before the disposal of the same. 3. The learned counsel for the assessee stated that the solitary issue involved in the present appeal relates to disallowance of claim of loss from commodity stock trading amounting to ₹ 2,06,39,101/-. At the outset itself, the learned counsel for the assessee stated that identical issue has already been dealt with by the ITAT in the case of Smt.Anju Sharma Vs. ITO, Ward-I in ITA No.451/Chd/2019 vide their order dated 6.11.2019, allowing the assessee s appeal. Copy of the order was placed before us. Ld. counsel for the assessee contended that the facts and the issue involved in the case of Smt.Anju Sharma(supra) were identical to that in the present case. D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... estation. That the AO had treated the transactions as bogus and manipulated by the assessee to avoid the levy of capital gains tax. The learned counsel for the assessee thereafter took us through the findings of the ITAT allowing the claim of the assessee, at para 8 of the order as under: 8. We have considered rival submissions and gone through the recent carefully. According to the Assessing Officer, the assessee has sold office space in Gurgaon for ₹ 2.00 crores which has given rise to long term capital gain of ₹ 78,83,716/-. Therefore, the assessee has a motive to reduce tax liability by adopting certain strategy. He investigated the claim of the assessee about loss in wheat trading with this angle. The question before us is , whether the assessing officer to able to bring sufficient evidence demonstrating the fact that version put forth by the assessee was false and she has not carried out any alleged trading in wheat. Let us evaluate the evidence submitted by the assessee as well as investigation carried out by the assessing Officer.A perusal of para No 3 of the assessment order extracted (Supra) would indicate that the assessee has given specific details ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d there after compute the income of the assessee. 4. Referring to the same the learned counsel for the assessee pointed that the ITAT on evaluating the evidences before it as well as the investigation carried out by the AO, had noted that the assessee had given specific details of purchase and sale of wheat alongwith necessary documentary evidences of bills, vouchers and detail of transfer of amount through RTGS, total commission brokerage etc. That the ITAT further noted that the AO made no enquiries from the pucca Arhtias or entities from whom wheat was purchased but merely suspected the transaction with no basis at all. The ITAT held that suspicion, however strong, cannot be the sole basis for rejecting the claim of the assessee and accordingly allowed the appeal of the assessee. The learned counsel for the assessee further pointed out from the order of the ITAT that the Ld.CIT(A) had held in that case that even if the claim of the assessee was genuine, the transaction in commodity stock was a speculative transaction with no actual delivery of goods and, therefore, also the loss incurred on account of the same was not allowable as per statute. The learned counsel for the as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by M/s Singhal Traders. 29-31 10. Copy of Confirmed Ledger Accounts, Consignment Purchase and Consignment sale documents as issued by M/s Chhavi Sales Corporation. 32-34 5. The learned counsel for the assessee contended that in view of the evidence filed by the assessee regarding its transaction of purchase sale of commodity stock evidencing the loss incurred in the same and the Revenue having no basis for disallowing the claim except suspicion, the facts of the present case were identical to that case of Anju Sharma(supra) and accordingly the issue in the present case stood squarely covered in favour of the assessee by the aforesaid order. The learned counsel for the assessee accordingly pleaded that the appeal of the assessee be allowed. 6. The Ld.DR though vehemently relied upon the order of the AO but was unable to upset the factual contention of the learned counsel for the assessee, nor the Ld.DR was able to draw our attention to any distinguishing facts in the present case from that in the case of Anju Sharma(supra). 7. Having heard both the parties and having gone through ..... X X X X Extracts X X X X X X X X Extracts X X X X
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