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TMI Blog1991 (10) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... TR 78 (SC). He has also filed a paper book containing 9 pages alongwith a certificate that the paper book contains documents which were filed and on record before the lower authorities. He has also filed copies of orders of this Tribunal rendered in identical cases which are from pages 10 to 37 of the paper book. Submitting further the appellant's counsel emphasised that the shares in three companies were purchased by direct allotment in the regular course of its business and all the payments for share allotment are through account payee cheques. In respect of sales of shares also the same were through Registered Stock and share brokers of Calcutta and are supported by the contract notes, memos of confirmation, etc. The shares of the compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment proceedings. Appellant's counsel, therefore, very strenuously urges that the loss in shares is genuine and should not be doubted, and ought to have been allowed. 3. On the other hand, the learned Departmental Representative, Sri S.C. Sen, has strongly relied on the orders of the authorities below and has also filed copies of this Tribunal's orders in ITO No. 1537(Cal)of 1988 in the case of M/s Kay Vee Arc Ltd., in ITA No. 1224 (Cal) of 1986 in the case of Silver Trdg. & Services Ltd., and in the ITA No. 28(Cal)/1988 in the case of Shri Rajib Kumar Agarwal wherein this Tribunal has not allowed losses in share dealings of those assessee. It is further contended by Shri Sen that the assessee has not sustained by proper documentary evide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is appeal in the said paper book. On verification of ITO's records it is found that those papers which are now filed before us in the paper book are part of the record of the ITO and, therefore, the lower authorities are not correct in saying that no evidence was filed at the assessment stage entitling the appellant for allowances of loss. 5. It is noticed from the assessment order that the ITO had disallowed the loss being influenced and carried away by sham transaction indulged in by some fictitious companies and other assessee, without giving any specific details or particulars to that effect. We are also not convinced by the observation of the ITO that by sham transactions in she dealings resulting in loss many assessee are converting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the place of proof. As the appellant was not successful in persuading the share brokers to appear before the ITO with their account books and registers the ITO drew an adverse inference and disallowed the loss. There may be variety of reasons, particularly in income-tax matters, where witnesses do not yield to the request and persuasion of assessee and do not appear before the IT authorities to support the case of the assessee. Evidently in income-tax law the assessee has no power or authority to compel persons to appear before the IT authorities and, therefore, he is helpless to obey and comply with the directions of the ITO in this regard. But when the assessee makes request to the ITO to invoke the powers vested in him under s. 131 o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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