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Income Tax Appellate Tribunal, KOLKATA ‘SMC’ BENCH, KOLKATA
Before: Sri J. Sudhakar Reddy]
Date of concluding the hearing : March 28th, 2019 Date of pronouncing the order : April 26th, 2019 O R D E R Per J. Sudhakar Reddy :-
This appeal filed by the assesse is directed against the order of the ld. Commissioner of Income Tax (Appeals) - 10, Kolkata, (hereinafter the ‘ld. CIT (A)’), passed u/s 250 of the Income Tax Act, 1961 (the ‘Act’), dt. 29/09/2019, for the Assessment Year 2010-11.
The assessee is an individual and deals in shares and derivatives. He filed his return of income originally on 07/10/2011 declaring Nil income for the Assessment Year 2010-11. The Assessing Officer reopened the assessment. The reopened assessment u/s 143(3) r.w.s. 147 of the Act, was completed on 28/12/2017, determining the total income at Rs.34,56,530/- interalia making an addition of Rs.34,56,529/-, to the total income of the assessee on the ground that the assessee resorted to Client Code Modification (CCM). Aggrieved the assessee carried the matter in appeal without success.
Further aggrieved the assessee is before us in appeal.
Assessment Year: 2010-11 Sri Ashok Kumar Sharda 4. Before us the assessee disputed (a) The validity of reopening of assessment and (b) The merits of the additions made u/s 68 & 69C of Act.
We have heard Shri Manish Tiwari, the ld. Counsel appearing on behalf of the assessee and Smt. Ranu Biswas, the ld. D/R, on behalf of the revenue. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- 6. We first take up the issue of validity of the reopening of the assessment. The reasons recorded by the Assessing Officer as provided by the assessee is placed at pages 66 and 67 of the paper book. A perusal of the reasons recorded shows that the reopening was made merely on information received by the Assessing Officer from the DIT (I&CI), Mumbai, vide his letter bearing no. DIT (I&CI) CCM/2014- 2015, dt. 27.02.2015. The Assessing Officer recorded as follows:- “However, it prima facie, appears that the assessee didn’t declare the said profit as his income with the intention to convert his unaccounted income of Rs.34,05,447/-, into accounted one without payment of tax.” 6.1. The case of the assessee is that this amount of Rs.34,05,447/- was declared by it in its profit in its accounts and hence there is no income that has escaped assessment mandating reopening of the assessment u/s 147 of the Act. It was submitted that all the eight specified transactions with M/s. R G Global Shares & Securities Ltd. are already shown under vyapaar khata in the books of the assessee. The objections raised by the assessee to the reopening of assessment before the Assessing Officer, copy of which is at pages 60 to 65 of the order was relied upon. The ld. Counsel for the assessee, relied on the decision of the ITAT Kolkata Bench in the case of M/s. Khaitan Trade Holdings Pvt. Ltd. vs. ITO in Assessment Year 2008-09 order dt. April 13th, 2018 and submitted that the issue is covered in its favour. He vehemently contended that the assessee Assessment Year: 2010-11 Sri Ashok Kumar Sharda has never surrendered any amount before the authorities and it was factually incorrect on the part of the revenue authorities to record as such. 6.2. On merits, he submitted that the issue is covered in favour of the assessee and relied on certain decisions, which we would be referring to as and when necessary.
The ld. D/R, on the other hand, opposed the contentions of the ld. Counsel for the assessee and submitted that it is wrong on the part of the assessee to say that he had no role in this act of client code modification. He submitted that though the stock exchange provides for correction of errors through CCM, this was a clear case of manipulation made by the assessee, in connivance with the stock broker.
In reply, the ld. Counsel for the assessee, submitted that, the broker had committed certain errors and these errors were corrected by him by way of CCM, which act was accepted and validated by the stock exchange. Thus he submitted that the validity of these corrections cannot be doubted. He further reiterated his contention that this is a case of double addition as the assessee had already booked profits on the above transactions in its original return of income and that the Assessing Officer had made an addition of the same amount once again.
We have heard rival contentions. On careful consideration of the facts and circumstances of the case, perusal of the papers on record, orders of the authorities below as well as case law cited, we hold as follows:- We find from an examination of the vyapaar khata, that the assessee had included the profits from the said specific transactions with M/s R K Global Shares & Securities Ltd. in its books of accounts. While objecting to the reopening of assessments, the assessee has specifically stated before the Assessing Officer that these amounts have been accounted as income by the assessee. It is not the case of the revenue that the assessee has not included these amounts in his profits. Under these circumstances the reasons recorded for reopening of assessments would be erroneous, as there is no income that has escaped assessment, in this case. When Assessment Year: 2010-11 Sri Ashok Kumar Sharda the assessee had already included the profits on these eight transactions as its income, the question of re-opening the assessments to make an addition is factually erroneous. Thus, for this sole reason, we hold that the reopening is bad in law.
8.1. Even otherwise, this Bench of the Tribunal in the case of M/s. Khaitan Trade Holdings Pvt. Ltd. (supra) from para 4 onwards held as follows:-
“4. After hearing rival contentions, I find that the assessee has provided documentary evidence by way of contract notes, bank statements evidencing cheque payments for all these transactions, payment of security transactions tax before the Assessing Officer. The National Stock Exchange has confirmed that these transactions have taken place in the exchange and in the name of the assessee. The issue that has to be adjudicated, is whether, when CCM is done to correct errors, it can be inferred that manipulation has been done by the assessee. 4.1. The Kolkata ‘A’ Bench of the Tribunal, in the case of M/s. Ratnabali Commodities vs. The Income Tax Officer, Ward-12(3), Kolkata, in Assessment Year 2008-09, order dt. 30/08/2017, wherein at para 5 & 6, it has been held as follows:- “5. Heard rival submissions and perused the material available on record. We find that the issue in hand is squarely covered in favour of assessee by the said order dt. 16-06-17 in assessee's own case in ITA No. 191/Kol/2015 for the A.Y 2009-10, wherein the assessee has claimed loss of Rs. 19,76,538/-. The AO treating the same as bogus added the same to the total income of the assessee only on the ground that the broker has modified the name and code of assessee. We find that this Tribunal vide its said order dt. 16-06-17 in assessee's own case for the A.Y 2009-10 held that modifications are permitted by NSE and such modification carried out within the prescribed time limit provided by NSE. Relevant portion of finding of such order is reproduced herein below:- 7. We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncements cited and placed reliance upon. The issue before us revolves for the amount of loss claimed by assessee for ~ 19,76,538/- which was treated by the Authorities Below as bogus mainly due to the modification carried out in the name and code of the assessee by the broker. The director of the assessee-company and the director of the broker company listed with NSE are same person. The impugned loss was treated as bogus due to several reasons such as it was incurred at the fag-end of the year, to reduce the taxable profit earned by assessee during the year and similar kind of loss was also disallowed in the immediate preceding year. 7.1 From the foregoing discussion, we find that indeed the client's code and name were modified in respect of transactions claimed by assessee. However, on perusal of record. we find that the impugned transactions were carried out through banking channel and all the supporting evidence such as contract Assessment Year: 2010-11 Sri Ashok Kumar Sharda note, payment of STT were filed at the time of assessment proceedings. We also find that Ld. CIT(A) confirmed the order of AO on the basis of his guess- work as evident from his appellate order which is reproduced below:- "there is a possibility that the modifications might have been made to accommodate the appellant as the broker of the appellant was a sister concern. " Further the Id. CIT -A has observed in his order as under:- "Even though apparently it has not been established that the such modification had been done in violation of rules and regulations prescribed by SEBI and the AO had proceeded on suspicion, however at the same time it also cannot be concluded either the loss would not be attributable 10 these "modifications". On perusal of the order. we find that Ld. CIT(A) has confirmed the order of AO on his own surmise and conjecture which is not permissible in the eyes of law. Ld. DR has also not-brought anything on record contrary to the advance arguments placed by Ld. AR for the assessee as well as no defects of whatsoever has been pointed out in the documents produced by assessee in support of its impugned loss. We also find whatever modifications were carried out by the broker they were carried out within the time permitted by the NSE for the purpose of modification. Thus, we are of the view that the order of Authorities Below is based on surmise and conjecture and same is not based on tangible material to treat the impugned loss as bogus loss. 7.2 Moreover, we also find that the details furnished by the assessee in respect of transactions giving rise to the loss were exactly matching with the details furnished by the NSE. In none of the case. Authorities Below have brought on record where any mismatch -is found between the books of the assessee and the confirmation received from NSE. Had there been any manipulation in the impugned loss then it could have been revealed from the confirmation received from NSE. Therefore, the modifications in the client's name and code cannot justify the impugned loss as bogus. Thus, we conclude that the impugned addition has been made by the Authorities Below on the basis of surmise and conjecture which is not permissible in the eyes of law as held by the Hon'ble Supreme Court in the case of Lalchand Bhagat Ambica Ram vs. CIT Bihar and Orissa (1959) 159 ITR 289 (SC). Therefore, we hold that the impugned loss cannot be subject-matter of addition on the basis of suspicion. In this regard we also rely in the case of CIT vs. Kundan Investment Ltd. reported in 263 ITR 626 (Cal) where Hon'ble jurisdictional High Court has held:- "The Tribunal had found that all relevant documents relating to contract notes, bills, the quoted price and other materials were produced The transactions were made through cheques. All the shares related to the reputed companies and were quoted shares in the stock exchanges and were purchased and sold at the prevalent quoted market rates, which was verified from the statement of the slack exchanges. On these basis, the Tribunal found that the CIT(A) had proceeded on the basis of suspicion that there might be some ingenuinity in the transactions. On the basis of the materials produced, the Tribunal came to a finding of fact, which does not seem to be perverse. Whether the shares could be sold immediately on the date of purchase or not was a question of business expedience. Whether the decision was' correct or Assessment Year: 2010-11 Sri Ashok Kumar Sharda 'wrong cannot the question, which can he a subject-matter of decision in such a case. In order to find out whether the transaction is genuine or in genuine it is neither the expedience nor correctness of' the decision nor the business expertise of the person to be considered. It is to be considered on the basis of the materials that there was no such transaction and that these share transactions were paper transactions. The suffering of loss, could not be a factor for such purpose.' Having regard to the facts and circumstances of the case, the view taken by the Tribunal allowing share loss cannot be said to be erroneous or perverse.- CIT vs. Emerald Commercial Ltd & Anr (2001) 171 CTR (Cal) 193: (2001) 250 ITR 539 (Cal), CIT vs. Dhawan Investment & Trading Co. Ltd (1999) 238 ITR 486 (Cal) and CIT vs. Currency Investment Co. Ltd (2000) 158 CTR (Cal) 361: (2000) 241 ITR 494 (Cal) relied on. Respectfully following the same, we hold that the impugned loss claimed by assessee is genuine loss in the above facts and circumstances of the case and therefore eligible for deduction. Accordingly, AO is directed. This ground of assessee's appeal is allowed."
In view of above, we find that the CIT-A was not justified in confirming the impugned addition/disallowance of loss on account transactions in derivatives to the extent of Rs. 5,46,885/-. Accordingly, the same is liable to be deleted. The ground raised
by the assessee is allowed.
5. Respectfully following the propositions of law laid down by the Co- ordinate Bench of the Tribunal, and in view of the evidence on record, I deleted this disallowance and allow this appeal of the assessee. In the result, appeal of the assessee is allowed.” 6. 8.2. Similar is the decision of the Kolkata ‘A’ Bench of the Tribunal in he case of ITO vs. Amrabathi Investra Pvt. Ltd. in Assessment Year 2009- 10, order dt. 03/05/2017.
9. Consistent with the view taken therein, we delete the addition made in the case on hand and allow this ground of the assessee.
In the result, appeal of the assessee is allowed.
Kolkata, the 26th day of April, 2019.