9911796707
TMI Blog2021 (3) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... addition made by AO. Aggrieved with the above order, assessee preferred the appeal before ITAT and ITAT after considering the submission of both the parties set aside the order to the file of AO with the following observations:- "Coming to the issue of genuineness of the loss claimed, it was the assessee's submission that he has given all the details before the AO and the CIT (A). As seen from the written submissions filed before the CIT (A) also the assesses was referring to the various documents placed before the AO in proving the genuineness of the transactions. Neither the AO nor the CIT (A) examined or referred to these documents. Even though general comments were passed that the assessee failed to furnish evidences we fail to understand how these findings are given when the assessee has placed documents supporting the transactions before the AO and CIT (A). Be that as it may, the fact remains that neither the AO nor the CIT (A) examined these documents in its correct perspective but carried away more by the observations of the SEBI and JPC in the group cases which may or may not be relevant in the given set of facts. The learned counsel also referred to the special aud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vailable on record, he sustained the additions with the following observations:- Firstly, it is to be pointed out that the assessee has been totally non co-operative right from the original assessment proceedings. Even during the second round of appellate proceedings the case was posted for hearing on numerous occasions as detailed above, but the assessee kept on taking adjournments for flimsy reasons like "there are certain factual details required in the matter" . What are the factual details in which the assessee had taken time of more than one and a half years is still not known as in the submissions dated 18.12.2017, there is not a single factual detail which has been submitted by the assessee. As could be seen from the submissions, the assessee has merely objected that the disallowance has been made by the Assessing Officer for the reason that the assessee is one of the scam group cases of Shri Ketan V. Parekh and the loss claimed of sale of shares could not be substantiated by the assessee company with supporting evidences. The Learned counsel relied upon three case laws: (d) Jayant Parekh vs DCIT in ITA No 3129/Mum/2017 (Appeal of Revenue dismissed by Bombay High Court) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y can be distinguished on facts. In the case of Shri Jayant N Parekh, relied upon by the assessee the Hon'ble Bombay High Court mentioned "the respondent assessee took the tribunal through the papers containing details of broker wise speculations, profit and loss statement and explained the entries. The representative of the Revenue before the tribunal was unable to controvert the documents and entries explaining the speculation loss." In the instant case the assessee has miserably failed to provide the details at all stages that are before the Assessing Officer, before the CIT (A) and even before the ITAT. If he had explained the entries before the ITAT, the ITAT would not have restored the matter to the Assessing Officer. Similarly, in the case of Panther Fincap & Management services Ltd, relied upon by the assessee the Hon'ble tribunal held that the assessee has successfully explained the transactions by bringing on scrip wise details of profit or loss and also broker wise details of profit and loss for transactions not booked by delivery. As already mentioned, in the instant case the assessee has not done any such effort. Further, the facts of the third case relied up ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unal in their order dated 20th May, 2011; accordingly, the CIT(A) ought not to have upheld the action of the Assessing Officer. The appellants crave leave to add to, alter or amend the aforestated ground of appeal. 5. Before us, Ld. AR brought to our notice the statement of facts filed before Ld. CIT(A) and brought to his knowledge the facts, which are as under:- "1. The Income-tax Appellate Tribunal, J Bench, Mumbai, by their order dated 20th May, 2011 in ITA No. 650/Mum/2008 has set aside the order of the CIT(A) to the files of the Assessing Officer to re-adjudicate according to law. 2. The Assessing Officer has issued a notice dated 27th Sept. 2011 under section 143(2) of the Act, the contents of which are ambiguous and inconsistent with the facts on record inasmuch as the notice is issued to "produce or cause there to produced at the said time any documents, accounts and any other evidence on which you may rely in support of the return filed by you." On enquiring, the Assessing Officer stated to ignore the notice. 3. No further notice has been issued by the Assessing Officer before framing the impugned order to give effect to the aforesaid order of the Tribunal." Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isite evidence". 9. With regard to merits of the case, he brought to our notice page no. 2 of the paper book and submitted that said loss of Rs. 1,08,81,027/- is supported by various documents as referred to in the paper book. All these documents are on the records of the Assessing Officer and the CIT(A). He brought to our notice letter dated March 22, 2005 of the assessee filed during the original assessment proceedings. 10. Further, he submitted that it can be seen that major losses incurred by the assessee viz. the transactions referred to at Sr nos 33, 24, 13 and 8 in the table on page no 2 of the paper book have been dealt with individually by the assessee. He brought to our notice fact sheet submitted under cover of letter dated 23rd November, 2020 of R.S Khandelwal & Associates, Chartered Accountants. He submitted, it is on facts, erroneous to state that the assessees have not filed any documentary evidences to prove the genuineness of the transactions. 11. He submitted that similar transactions under absolutely similar circumstances have been held to be genuine by the Hon‟ble Tribunal, Mumbai in the case of following group companies of the assessees:- (a) Jayant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the same to be carried forward. 15. He submitted that it would not be out of place to mention that for the purchase of the respective scrips, the assessee have received the delivery of the shares in their demat account and that these shares have been pledged with the banks to obtain secured loans. On the assessee's inability to repay the loans, the banks have invoked the pledge in subsequent year and sold the shares in the open market on the Stock Exchange through their brokers, contract note-cum-bills are available in the paper book. He brought to our notice fact sheet. He submitted that the shares have been sold by the bankers, by invoking the pledge, these are clear evidence for genuineness of the transactions; bankers being third party evidence. 16. He further submitted that it would not be out of place to mention that the aforesaid loss of Rs. 1,08,81,027 claimed by the assessee has not been set-off against any income till date - similar was the case for income-tax assessment year 2001-02 and he brought to our notice first para at page no 9 of the ITAT order. For the sake of clarity, it is reproduced below:- "Hence in any case, the speculation loss claimed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case. 20. Considered the rival submissions and material placed on record. We notice from the record that in the first round of appeal, Co-ordinate Bench had noted that "as seen from the written submission before the CIT(A) also the assessee was referring to various documents placed before AO in proving the genuineness of the transactions. Neither the AO nor the CIT(A) examined or referred to these documents. Be that as it may, the fact remains that neither the AO nor CIT(A) examined these documents in its correct perspective, but carried away mere by the observations of SEBI and JPC in the group cases." With the above observation, the case was remitted back to AO. But in the second round also, we notice that AO has given notices to assessee and called for information once again. AO observe that assessee has not substantiated the genuineness of the transaction and accordingly, he sustained the disallowance of loss. The Co-ordinate Bench has clearly observed that all the relevant information was submitted by the assessee, AO should have referred those information which was already available on record. If there is any short coming or any documents, which is not proper, A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E to get the trades confirmed to adjudicate on the genuineness of the transactions. However , as the BSE had not responded till that date, the ld AO adjourned the hearing to 16.12.2011. On 16.12.2011, the ld AO informed the authorized representative that no response was received from the BSE to the queries raised by the ld AO. After this, no further hearing was granted to the assessee and finally the assessment was framed on 28.12.2011 by the ld AO. .............................. 6.4. We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Nirma Ltd (enclosed in page 37 of paper book) along with copies of correspondence for purchase of warrants from Nirav Trust and copies of ledger account showing payment to Nirav Trust (pages 38 to 42 of paper book) together with copies of bills and contract notes (pages 43 to 55 of paper book) ; copies of demat statement (page 56 of paper book) ; confirmation from Classic Credit Ltd (person to whom shares were sold in off market) (enclosed in pages 57 to 58 of paper book) ; copies of trade files of NSE (pages 59 to 61 of paper book) and copy of price list from the stock exchange (page 62 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... book) along with copies of bills and contract notes (page 73 of paper book) and copy of price list from the stock exchange (page 74 of paper book). No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine. 6.4.4. We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Penta Four Soft Ltd (enclosed in page 75 of paper book) along with copies of bills and contract notes (pages 76 to 80 of paper book) ; copies of demat statement (pages 81 to 84 of paper book) ; copy of trade file of NSE (page 85 of paper book) and copy of price list from the stock exchange (page 86 of paper book). No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. All these documents conclusively prove that the transaction carried out by the assessee is genuine. 6.4.5. We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Ramco Systems Ltd (enclosed in page 87 of paper book) along with copies of bill ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
