DCIT, CIR-6(1), KOLKATA, KOLKATA vs. M/S DRP TRADING & INVESTMENTS PVT. LTD., KOLKATA

ORDER Per M.Balaganesh, AM

2.1. The brief facts of this issue is that the assessee is a Non-Banking Finance Company (NBFC) and had filed its return of income for the Asst Year 2012-13 on 25.9.2012

2 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 declaring total income of Rs 52,01,417/-. In the said return, the assessee had voluntarily disallowed a sum of Rs 87,766/- u/s 14A of the Act. There was a search and seizure operation u/s 132 of the Act followed by survey u/s 133A of the Act carried out on 6.9.2011 and on subsequent dates in the case of Lumino Group. The main business of the assessee group is Manufacturing of Cables, Conductors, Wire etc and Contract work for Rural Electrification Turnkey Infrastructure Project. During the course of search operation, some of the documents seized were belonging to the assessee. As a result, notice u/s 153C of the Act was issued to the assessee company for the earlier years prior to the year of search. For the year of search, notice u/s 143(2) and 142(1) of the Act was issued and served on the assessee within the prescribed time. The ld AO observed that the assessee had earned exempt income of Rs 1,59,609/- and had disallowed only a sum of Rs 87,766/- u/s 14A of the Act which is not in accordance with the computation method prescribed under Rule 8D of the Rules. The assessee vide its submissions dated 13.3.2014 offered a sum of Rs 10,02,187/- under Rule 8D of the Rules. The ld AO however recomputed the disallowance u/s 14A of the Act read with Rule 8D of the Rules as under:-

Under Rule 8D(2)(i) - Rs 2,41,998/- Under Rule 8D(2)(iii) - Rs 8,00,302/- -------------------- Rs 10,42,300/- Since assessee had voluntarily disallowed a sum of Rs 87,766/- in the return , the ld AO disallowed the remaining amount i.e Rs 9,54,534/- ( 10,42,300 – 87,766) u/s 14A of the Act read with Rule 8D of the Rules in the assessment.

2.2. The ld CITA in principally agreed with the application of Rule 8D of the Rules for disallowance u/s 14A of the Act. He however, directed the ld AO to compute the disallowance by taking into account only dividend bearing investments while computing 2

3 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 disallowance under Rule 8D(2)(iii) of the Rules in the light of the decision of this tribunal in the case of REI Agro Ltd vs DCIT reported in 144 ITD 141 (Kolkata Trib). With regard to disallowance under Rule 8D(2)(i) of the Rules, the assessee gave the workings of disallowance at Rs 1,57,976/-. The ld CITA observed that assessee has made investments in shares and securities and at the same time, it is involved in trading of shares and securities also. Therefore, proportionate disallowance of direct expense is to be made based on the turnover related to the business of the assessee. He directed the ld AO accordingly. Aggrieved, the revenue is in appeal before us on the following grounds:- 1. Whether on the facts and circumstances of the case, the Ld. CIT(A) erred in law in deleting the disallowance u/s 14A of the I.T. Act, 1961.

2. Whether on the facts and circumstances of the case, the Ld. CIT(A) erred in ignoring the clarification made by the CBDT through Circular No.-5/2014 and thereby deleted the disallowance u/s 14A of the I.T. Act, 1961.

2.3. We have heard the rival submissions. We find that in the facts and circumstances of the case, the assessee had given workings under Rule 8D(2)(i) of the Rules at Rs 1,57,976/- . We find that the ld CITA had given direction to the ld AO to make proportionate disallowance of direct expenses based on the turnover in trading and investment activity in shares and securities of the assessee. We do not find any infirmity in the said direction of the ld CITA. Hence there cannot be any grievance for the revenue in this regard. With regard to disallowance under Rule 8D(2)(iii), the ld CITA had rightly directed the ld AO to include only dividend bearing investments in tune with the decision of this tribunal supra. We do not find any infirmity in the said direction of the ld CITA. Accordingly, the Grounds 1 & 2 raised by the revenue are dismissed.

4 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 3. The next issue to be decided in this appeal is as to whether the ld CITA was justified in deleting the loss claimed from commodity trading in the sum of Rs 41,55,088/- in the facts and circumstances of the case.

3.1. The brief facts of this issue is that the assessee claimed loss on account of commodity trading to the tune of Rs 41,55,088/- in the return of income. The method of arriving at this loss figure was produced by the assessee before the ld AO together with the supporting documents thereon which was not disputed by the ld AO. But the ld AO alleged that the assessee had taken bogus loss through Shri Saraf, one of the broker of MCX. Shri Saraf registers the name of the assessee company by taking Know Your Customer (KYC) details. Shri Saraf buys currency through M/s Marigold Vanijya Pvt Ltd for the assessee. But, in this loss transaction of Rs 41,55,088/-, no margin money was taken by the broker from the assessee. The ld AO observed that it is mandatory and compulsory as per MCX rules that the broker is supposed to charge margin money. As no margin money was charged, it is quite clear that the loss suffered by the assessee is a bogus loss which is intentionally entered by the assessee just to cover up the profit. The assessee was asked to show the evidences of margin money vide this office letter dated 7.11.2013. The assessee submitted the contract notes, etc but no evidence of margin money was provided. Further the assessee submitted an affidavit before notary public signed by the Director of M/s Marigold Vanijya Pvt Ltd on 25.3.2014 in which he has claimed the transaction to be a genuine one. The ld AO did not accept the said affidavit. However, no reason was adduced by the ld AO for not accepting the same. Accordingly he treated the loss of Rs 41,55,088/- as bogus loss and disallowed the same in the assessment.

3.2. It was argued that the only reason of treating the loss on commodity trading to be bogus was that the margin money was not charged by the broker on the transactions. The ld AO had not disputed the genuinity of any documents submitted before him. It 4

5 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 was submitted that all the transactions with regard to commodity trading were entered through banking channels, valid contract notes were drawn in favour of the assessee and all the relevant details and documents were filed as requisitioned by the ld AO in the course of assessment proceedings. The ld AO also verified the documents submitted by the assessee. It was submitted that if the margin money is not charged by the broker, then the transactions canot be regarded as bogus. Further it was argued that client cannot be held responsible for any default by the broker. In this regard, the assessee placed reliance on the decision of the Hon’ble Bombay High Court in the case of Bonanza Commodities Brokers Pvt Ltd vs Mrs Roshanara Bhinder in Arbitration Petition No. 195 of 2015 dated 16.4.2015 wherein it was held that the mandate of collection of margin money as per the bye laws of MCX is only discretionary in nature and the transaction entered into by the client cannot be considered as illegal. The relevant portion of the said judgement is reproduced hereunder:- “Mr. Narula, Learned Counsel for the petitioner placed reliance on the judgment of this Court in case of Uttam Chand Garg vs. Anand Rathi Shares Brokers Limited & Ors. In Arbitration Petition No. 950 of 2011 and in particular paragraph (5) and would submit that even if there was a non-compliance with the requirement of collecting margin by a trading member from the clients it would not invalidate the trades admittedly executed at the instance of the constituents. He submits that merely because the petitioner had shown some leverage to the respondent, the same would not make the transaction illegal. He submits that clause 8.6.6 of the bye-law (8) which provides that clearing member may close out an open position of a constituent member when the call for further margin or any other payment due is not complied with is not mandatory but is directory. He submits that since the responded had already made payment of Rs. 20 lacs, the petitioner did not close out the transaction Kvm ARBP195.15 earlier.”

Based on the aforesaid observations of the Hon’ble Bombay High Court, the assessee submitted that two inferences could be drawn. Firstly, that merely in the absence of margin money, transactions does not become void / illegal and the same should not be wrapped into the nomenclature of ‘bogus transaction’. Secondly, that charging of margin money is directory in nature. It was also submitted that the FMC vide letter dated 14.3.2014 addressed to MCX, had brought to the notice of the MCX regarding short / non collection of margin money by the member –brokers from their clients. 5

6 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 However, the genuineness of the transactions from which margin money was short / not collected were not challenged rather their legality was not the subject matter of dispute. From the said letter, it is well inferred that short/ non collection of margin is not an alienary thing and this has happened to several other transactions as well. It was submitted that their genuineness / legality has never been challenged by any authority. It was also submitted that a duly sworn affidavit was also furnished by the broker M/s Marigold Vanijya Pvt Ltd stating that such transactions were genuine and routed through proper channels. But the ld AO had outrightly rejected the affidavit without assigning any reasons for such rejection. It was further submitted that in case the ld AO had any doubts on the genuineness of the subject mentioned transaction, he could have made independent enquiries u/s 133(6) or u/s 131 of the Act seeking personal appearance of the Director of the Broker Company or he could have asked for relevant details /documents. Further , he could have also enquired or could have deputed Inspector of Income Tax to verify from the regulatory body. But the ld AO did not try to verify the genuineness of the transactions. Finally it was stated that the assessee had a cordial relation with the broker and hence full responsibility of managing portfolio was assigned to the broker M/s Marigold Vanijya Pvt Ltd. The assessee was not aware of such irregularity of the broker company as entire dealing was done by the broker on behalf of the assessee. Assessee’s sole motive was optimum profit from such commodity trading and no interference was made by the assessee on day to day activities / transactions.

3.3. The ld CITA deleted the addition by making the following observations :- “8. I have considered the finding of the AO in the assessment order and the written submission filed by the AR. From various judicial pronouncements cited above it is clear that charging of margin money is rather directory in nature and not compulsory or necessarily essential. Therefore, disallowance of the loss on commodity trading by the AO simply because margin money was not charged is not acceptable. Accordingly, assessee’s appeal on ground no. 3 is allowed.”

4. Whether on the facts and circumstances of the case, the Ld. CIT(A) erred in allowing the said claimed loss of Rs. 41,55,088/- when the assessee had neither produced before the AO nor before the Ld. CIT(A) any evidence in support of the deposit which had been claimed as exempted by the broker.

3.5. We have heard the rival submissions. We find that the entire transactions were routed through regular and proper banking channels duly supported by contract notes , relevant copy of bank statements evidencing payments made to the broker M/s Marigold Vanijya Pvt Ltd and payments received by the assessee. These documents were not disbelieved or disputed by the ld AO. The only point in which the transaction was treated as bogus was due to non-collection of margin money by the broker from the assessee. We find that the ld CITA had placed reliance on the decision of the Hon’ble Bombay High Court in the case referred to supra wherein it was held that the clause mentioning the collection of margin money and other requirements as per the bye laws of MCX are only discretionary and directory in nature and not mandatory in nature. We find that this decision was rendered in the context of Arbitration Proceedings between two parties and cannot act as a direct evidence in income tax proceedings. Hence the same does not come to the rescue of the assessee in the facts of the instant case. Admittedly, the assessee is not an interested party with either the Director or the broker company M/s Marigold Vanijya Pvt Ltd. In such a scenario, it is quite unusual that the said broker had carried out commodity trading transactions for and on behalf of the assessee without collecting any margin money. We find that the Director of broker company M/s Marigold Vanijya Pvt Ltd had filed a sworn affidavit before the ld AO which had been rejected without assigning any reasons in the assessment order. We find that the ld AO had not verified the transactions by summoning the broker u/s 131 of 7

8 M/s DRP Trading & Investments Pvt. Ltd. A.Yr.2012-13 the Act or obtaining information from them. Hence the order of the ld AO suffers from various deficiencies. However, in the interest of justice, we deem it fit and appropriate, to remand this issue to the file of the ld AO, to decide this issue afresh in accordance with law. The assessee is also at liberty to file fresh evidences in support of its transactions before the ld AO. Accordingly, the Grounds 3 & 4 raised by the revenue are allowed for statistical purposes.

Order pronounced in the Court on 08.11.2017