Kedarnath Bansidhar Maheswari, Kolkata V. ITO, WD-37(2), KOLKATA, Kolkata

CO 36/KOL/2015

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 3898 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 10 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 20-06-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2007-2008
• Appeal Filed On: 05-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S ALONG YADEN
• Assessee Lawyers: V N DATTA
• Keywords: Transactions in derivatives; Tax effect
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH A, KOLKATA [BEFORE SHRI P.M. JAGTAP, AM & SHRI A.T. VARKEY, JM] C.O. NO. 36/KOL/2015 (ARISING OUT OF ITA NO. 985/KOL/2015) ASSESSMENT YEAR: 2007-08 KEDARNATH BANSIDHAR MAHESWARI.............................CROSS-OBJECTOR C/O. TAPARIA & CO., 6 TH FLOOR, 28, BLACK BURN LANE, KOLKATA 700 012. [PAN : ADNPM 0137 A] ITO WARD 37(2) KOLKATA............................................................................................RESPONDENT 1 ST FLOOR, 3, GOVT. PLACE (W), KOLKATA 700 001. APPEARANCES BY: SHRI V.N. DATTA, ADVOCATE APPEARING ON BEHALF OF THE ASSESSEE SHRI SALONG YADEN, ADDL. CIT APPEARING ON BEHALF OF THE REVENUE DATE OF CONCLUDING THE HEARING : JUNE 05, 2018 DATE OF PRONOUNCING THE ORDER : JUNE 20, 2018 ORDER PER P.M. JAGTAP, AM THIS CROSS-OBJECTION FILED BY THE ASSESSEE IN RESPECT OF THE APPEAL OF THE REVENUE BEING ITA NO. 985/KOL/2015 WAS INITIALLY DISMISSED BY THE TRIBUNAL ALONG WITH THE APPEAL OF THE REVENUE VIDE ITS ORDER DATED 17.02.2016 AS THE SAID APPEAL OF THE REVENUE INVOLVED A LOW TAX EFFECT. THEREAFTER, THE ASSESSEE FILED A MISCELLANEOUS APPLICATION SEEKING RECALL OF HIS CROSS-OBJECTION AND SINCE THE ISSUES RAISED BY THE ASSESSEE IN HIS CROSS-OBJECTION WERE DISTINCT AND INDEPENDENT OF THE ISSUES RAISED BY THE REVENUE IN ITS APPEAL, THE TRIBUNAL VIDE ITS ORDER DATED 12.09.2015 PASSED IN M.A. NO. 119 OF 2016 RECALLED ITS ORDER DATED 17.02.2016 IN SO FAR AS THE ASSESSEES CROSS-OBJECTION WAS CONCERNED AND DIRECTED THE REGISTRY TO FIX THE CROSS-OBJECTION OF THE ASSESSEE FOR HEARING AND DISPOSAL AFRESH. ACCORDINGLY THE CROSS-OBJECTION OF THE ASSESSEE HAS BEEN HEARD AND THE SAME IS BEING DISPOSED OF NOW. 2 C.O. NO. 36/KOL/2015 KEDARNATH BANSIDHAR MAHESWARI 2. THE SOLITARY ISSUE INVOLVED IN THIS CROSS-OBJECTION OF THE ASSESSEE RELATES TO THE DISALLOWANCE OF HIS CLAIM FOR LOSS ON DERIVATIVE CONTRACT AMOUNTING TO RS. 1,57,072/-. 3. THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL WHO IS ENGAGED IN THE BUSINESS OF SHARES AND SECURITIES. THE RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION WAS FILED BY HIM ON 17.10.2007 DECLARING A TOTAL INCOME OF RS. 2,62,290/-. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE CLAIM OF THE ASSESSEE FOR SHARE TRADING LOSS OF RS. 2,40,916/- WAS EXAMINED BY THE AO. ON SUCH EXAMINATION, HE FOUND THAT THE LOSS OF RS. 57830/- FROM HEM FINALISE PVT. LTD. AND LOSS OF RS. 99,242/- FROM HEM SECURITIES LTD. WAS NOT SUPPORTED BY ANY DOCUMENTARY EVIDENCE. THE ASSESSEE ALSO COULD NOT PRODUCE ANY DOCUMENTARY EVIDENCE TO SUPPORT AND SUBSTANTIATE ITS CLAIM FOR THE SAID LOSS. THE AO ACCORDINGLY DISALLOWED THE CLAIM OF THE ASSESSEE FOR LOSS OF RS. 1,57,072/- IN THE ASSESSMENT COMPLETED U/S 143(3) VIDE AN ORDER DATED 21.12.2009. 4. AGAINST THE ORDER PASSED BY THE AO UNDER SECTION 143(3), AN APPEAL WAS PREFERRED BY THE ASSESSEE BEFORE THE LD. CIT(A) CHALLENGING INTER ALIA THE ACTION OF THE AO IN DISALLOWING HIS SHARE TRADING LOSS OF RS. 1,57,072/- AND SINCE THE SUBMISSION MADE BY THE ASSESSEE IN SUPPORT OF HIS CASE ON THIS ISSUE WAS NOT FOUND ACCEPTABLE BY THE LD. CIT(A), THE LATER CONFIRMED THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF ASSESSEES CLAIM FOR SHARE TRADING LOSS OF RS. 1,57,072/- FOR THE FOLLOWING REASONS GIVEN IN HIS IMPUGNED ORDER: THE AR CLAIMED THAT THE FIRST FIGURE IS ON ACCOUNT OF LOSS ON F&O SEGMENT AND THE SECOND REPRESENTS LOSS ON TRADING IN PHYSICAL SHARES. HOWEVER THE AR WAS UNABLE TO FILE THE DETAILS OF COMPUTATION OF LOSS. THE AR FILED A COMPUTERIZED SHEET OF TRANSACTION OSTENSIBLY FROM M/S. HEM SECURITIES 3 C.O. NO. 36/KOL/2015 KEDARNATH BANSIDHAR MAHESWARI LTD. WHERE THE OPENING FIGURE AS ON 01.04.2006 IS DECLARED AT RS. 57,830/47P BUT THE AR WAS UNABLE TO PRODUCE ANY BILLS OR BOOKS OF ACCOUNT FOR VERIFICATION. UNDER THE CIRCUMSTANCES IT IS NOT POSSIBLE TO ASCERTAIN THE LOSS SUFFERED, IF ANY. THE AR WAS UNABLE TO EXPLAIN THE CLAIM ANY FURTHER AND THERE IS NO FURTHER DETAILS OR EXPLANATION OFFERED IN THE WRITTEN SUBMISSION ALSO. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE HAS FILED THIS CROSS-OBJECTION BEFORE THE TRIBUNAL. 5. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IT IS OBSERVED THAT THE CLAIM OF THE ASSESSEE FOR THE LOSS IN QUESTION AMOUNTING TO RS. 1,57,072/- WAS DISALLOWED BY THE AUTHORITIES BELOW FOR THE FAILURE OF THE ASSESSEE TO PRODUCE THE RELEVANT DOCUMENTARY EVIDENCE TO SUPPORT AND SUBSTANTIATE THE SAME. AT THE TIME OF HEARING BEFORE THE TRIBUNAL ALSO, THE LEARNED COUNSEL FOR THE ASSESSEE HAS NOT BEEN ABLE TO PRODUCE SUCH DOCUMENTARY EVIDENCE IN SUPPORT OF THE ASSESSEES CLAIM FOR LOSS AND HAS SIMPLY REITERATED THE SUBMISSION MADE BEFORE THE LD. CIT(A). WE, THEREFORE, FIND NO JUSTIFIABLE REASON TO INTERFERE WITH THE IMPUGNED ORDER OF THE LD. CIT(A)CONFIRMING THE DISALLOWANCE MADE BY THE AO ON ACCOUNT OF ASSESSEES CLAIM FOR LOSS IN QUESTION AND UPHOLDING THE SAME, WE DISMISS THIS CROSS-OBJECTION FILED BY THE ASSESSEE. 6. IN THE RESULT, THE CROSS-OBJECTION FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20 TH JUNE, 2018. SD/- SD/- (A.T. VARKEY) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20/06/2018 BISWAJIT, SR. PS 4 C.O. NO. 36/KOL/2015 KEDARNATH BANSIDHAR MAHESWARI COPY OF ORDER FORWARDED TO: 1. KEDARNATH BANSIDHAR MAHESWARI, C/O. TAPARIA & CO., 28, BLACK BURN LANE, 6 TH FLOOR, KOLKATA 700 012. 2. ITO, WARD 37(2), 1 ST FLOOR, 3, GOVT. PLACE (W), KOLKATA 700 001. 3. THE CIT(A) 4. THE CIT 5. DR TRUE COPY, BY ORDER, SR. P.S. / H.O.O. ITAT, KOLKATA