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TMI Blog2021 (3) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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, AO should have discussed in his order before sustaining the disallowance. He has not discussed any merits of the case based on the information submitted by the assessee in the original assessment proceedings. AO simply completed the proceedings blaming the assessee without taking cognizance of the earlier direction from ITAT. Even the Ld. CIT(A) dismissed the appeal filed by the assessee blaming the non-appearance of the assessee and its submission. The Ld. CIT(A) also not verified the genuineness of the documents filed by the assessee in the original assessment proceedings.we are inclined to accept the submission of Ld. AR. Accordingly, the grounds raised by the assessee are allowed. - I.T.A. No. 1461/Mum/2018 - - - Dated:- 26-3-2021 - Shri S. Rifaur Rahman, AM And Shri Pavan Kumar Gadale, JM For the Appellant : Shri Rajiv Khandelwal, AR For the Respondent : Shri P. Daniel, DR ORDER PER S. RIFAUR RAHMAN (ACCOUNTANT MEMBER): The present appeal has been filed by the assessee against th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pects which the SEBI and JPC commented about transactions in the group cases. Since the facts of each case are different, one cannot take generalized opinion in disallowing the losses which might have occurred in the trades undertaken by the assessee company. Without given any conclusions about the various transactions undertaken by the assessee, we are of the opinion that the issue requires re-examination by the AO and for this matter the AO has to examine assessee's transactions to determine whether the loss claimed are genuine or not. Even the quantum of loss suffered by the assessee requires examination as stated above. For these reasons we set aside the orders of the AO and CIT (A) to that extent and restore the issue back to the file of the AO. The assessee should be given proper opportunity for explaining the transactions and the claim of loss. It is not out of place to mention that the losses are to be considered as speculative loss as the assessee itself has offered speculation loss in view of the Explanation to section 73. The issue is restored back to the file of the AO for fresh consideration after due examination of the facts. Assessee's grounds are considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, the CIT (A) may once again call for remand report from the Assessing Officer. However, going by the track record of the assessee where he has not complied either before the Assessing Officer or before the CIT (A), it is not considered necessary to remand the matter once again to the Assessing Officer. The directions of the Hon'ble ITAT, as could be seen from the order are that the Assessing Officer had to examine whether the transactions are delivered based or not, whether the transactions had occurred in SEBI or off-market transactions and finally whether the losses claimed are genuine or not keeping in view the fund flow and other aspects which the SEBI and JPC commented upon. In order to enable the Assessing Officer to examine the above issue the assessee had to provide the basic information. However, it is seen from the documents furnished by the assessee that it had furnished only some sale bills issued by Rupal Investments and some purchase bills issued by M.D. Doshi. The scrip wise contract notes are not available. The details of the purchase and sale of a particular scrip evidencing the loss is not available on record. In view of the incomplete details submitted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns were held as non genuine. In the present^ case in spite of numerous opportunities given to the assessee, the assessee has not substantiated the losses made with requisite evidences. In all the three cases relied upon by the assessee, the assessee's could prove the losses but in the instant case the appellant has miserably failed to prove the losses. Filing of a few sales invoices and a few purchase invoices will not amount to proving the genuineness of loss. All the efforts made by the department to examine and verify the losses claimed, have gone in vain in view of the non co-operative attitude of the assessee. In the light of the above facts and circumstances the disallowance of loss of ₹ 1,08,81,027/- made by the Assessing Officer is upheld. This ground of appeal is DISMISSED. 4. Aggrieved with the above order, assessee preferred the appeal before us by raising the following grounds of appeal as under:- The Commissioner of Income-tax (Appeals) - 49, Mumbai (hereinafter referred to as the CIT(A)) erred in confirming the action of the Assistant Commissioner of Income-tax, Central Circle - 40, Mumbai, (hereinafter referred to as the Assessing Officer) in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, we would like to inform you that we on behalf of our above named clients attended the office of the Assessing Officer on various occasions; however, due to lack of time or his non-availability, the proceedings could not be commenced and no order sheet was signed and hence, his observation that we did not attend. Further, as mentioned by the Assessing Officer himself in the first paragraph on page no 3 of the report, all details are there on his records filed during the course of first innings of the assessment proceedings, there is no reason for our clients to not attend the proceedings. Further, we would like to inform you that all the papers and documents filed with you are on the records of the Assessing Officer which as mentioned above, he also admits in the first paragraph of the page no 3 of the remand report and hence, we request you to consider the same per the directions of the Tribunal, in their order dated 20.5.2011. If you consider it necessary, under the circumstances, you may once again call for a remand report from the Assessing Officer and we assure you that we will attend and get the same concluded. 7. He submitted that Ld. CIT(A) had noted t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ITA Nos 7278/Mum/2007, 193/Mum/2008 and 369/Mum/2008 - refer page nos 108 to 123 of the letter of RSK (c) Saimangal Investrade Ltd vs DCIT in ITA No 4229/Mum/2007 - refer page nos 124 to 139 of the letter of RSK 12. He further submitted that the aforesaid orders of the Tribunal cannot be brushed aside and the impugned disallowance of loss in share trading activity cannot be sustained only for the reason that the assessee is one of the scam group cases of ShriKetanV.Parekh. 13. He further submitted that all the papers and documents are on the records of the Assessing Officer which as mentioned above, he also admits in the first paragraph of the page no 3 of the remand report. He submitted that it is imperative to mention that the Assessing Officer or the CIT(A) did not point out any deficiency or defects in the various details and documents filed by the assessee. Therefore, he contended that it cannot be said that assessee have not been able to substantiate the aforesaid loss of ₹ 1,08,81,027/-. 14. Ld. AR rely on the order of the Tribunal dated 19.06.2019 in their own case for income-tax assessment year 2001-02 in ITA No. 590/Mum/2014. He submitted that simil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7/- is genuine and is supported by various details and documents and hence, the impugned disallowance made by the Assessing Officer and confirmed by the CIT(A) ought to be deleted. 18. On the other hand, Ld. DR submitted that Ld. AR heavily relied on the decision of Hon‟ble ITAT in the previous assessment year and every assessment year is separate and has to be adjudicated based on the merits of each assessment year. He brought to our notice the impugned assessment order in which assessee has attended only once and assessee has also not appeared before Ld. CIT(A) even though Ld. CIT(A) has given several opportunities. He brought to our notice page 3 of the order of Ld. CIT(A) and submitted that even before AO, assessee has not submitted information required to prove the genuineness of loss claimed by the assessee. Since assessee has not filed any information before lower authorities and now assessee claims that all the information were already submitted before the tax authorities should not be entertained. Further, he brought to our notice page-7 of Ld. CIT(A) order and submitted that assessee has not co-operated to prove the genuineness and further submitted that all the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... TAT. 21. Even the Ld. CIT(A) dismissed the appeal filed by the assessee blaming the non-appearance of the assessee and its submission. The Ld. CIT(A) also not verified the genuineness of the documents filed by the assessee in the original assessment proceedings. 22. We notice from the record that in the similar situation and facts, the Coordinate Bench has considered and adjudicated as below:- 6.2. We find that what is required to be examined is the genuinity of such net speculation loss of ₹ 4,84,12,423/-. We find that the ld AO was directed by this tribunal to examine the various documentary evidences submitted by the assessee justifying the loss on sale of shares of various scrips, which had been summarily ignored by the ld AO in the second round. We find that the ld AO had made only general observations and remarks about the assessee being impleaded by other regulatory bodies ignoring the various documentary evidences available before him. As this is an old appeal, there is no point in giving another chance to the ld AO by sending it back to him, with the consent of both the parties before us, we decided to adjudicate the genuinity of the loss by exami ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh this circular was issued in the context of determination of date of transfer and holding period for the purpose of computing the period for capital gains, the analody drawn thereon could be utilized to the facts of the instant case. It is not in dispute that the assessee had traded in shares of Nirma Ltd in off-market but the same was subsequently followed by delivery of shares and transfer deeds. The sale of shares is made following First In First Out (FIFO) basis and it is pertinent to note herein that the opening balance of shares held by the assessee were never doubted by the revenue. No deficiencies whatsoever were brought out by the ld DR before us with regard to these documentary evidences. Hence the share transactions in respect of Nirma Ltd is to be considered as genuine and assessee had made profit in respect of this off-market transaction. 6.4.1. We find that the assessee had also submitted the statement giving details of purchase and sale of shares of Visual Soft Ltd (enclosed in page 63 of paper book) along with copies of bills and contract notes (pages 64 to 67 of paper book) ; copies of demat statement (page 68 of paper book) and copy of price list from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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