Ana Vincom Pvt. Ltd., , Kolkata V. ITO, Ward - 7(1), Kolkata , Kolkata

ITA 1449/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7770 (ITAT-KOLKATA)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-06-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 06-07-2018
• Court: TRIBUNAL

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.1449/KOL/2018 ASSESSMENT YEAR:2012-13 ANA VINCOM PVT. LTD., 8, CAMAC STREET, 15 TH FLOOR, SHAANTI NIKETAN BUILDING, KOLKATA-700017 [ PAN NO.AACCA 5723 F ] / V/S . INCOME TAX OFFICER WARD-7(1), P-7, CHOWRINGHEE SQUARE, AYAKAR BHAWAN, 8 TH FLOOR, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI D.K. PATNI, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 26-06-2019 ITA NO.1660/KOL/2018 ASSESSMENT YEAR:2009-10 SUBHANKAR SARKAR MARSHALL HOUSE, 33/1 N.S.ROAD, ROM NO.245A, DALHOUSIE, KOLKATA-001 [ PAN NO.APLPS 4672 N ] / V/S . INCOME TAX OFFICER WARD-36(4), AYAKAR BHAWAN, POORVA, ROOM NO.815, 110, SHANTIPALLY, E.M. BYEPASS KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI SUSHIL KR. PRANSUKHKA,, FCA /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 24-06-2019 /DATE OF PRONOUNCEMENT 23-07-2019 /O R D E R THESE TWO ASSESSEES APPEAL(S) FOR ASSESSMENT YEAR (S) 2012-13 & 2009-10 ARISE AGAINST THE COMMISSIONER OF INCOME-TAX (APPEA LS)-3 & CIT(A)-10S KOLKATAS SEPARATE ORDERS DATED 08.05.2018 AND 25.05.2018 PAS SED IN CASE NOS. 1837/CIT(A)- ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 2 3/KOL/15-16 AND 563/CIT(A)-10/W-36(4)/2009-10/2016- 17/KOL, INVOLVING PROCEEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961 ; IN SHORT THE ACT. HEARD BOTH THE ASSESSEES AS WELL AS THE DEPARTMENT REITERATING THEIR RESPECTIVE STAND AGAINST AND IN SUPPORT OF THE LOWER AUTHORITI ES ACTION TREATING THE IMPUGNED LOSSES FROM DERIVATIVE TRANSACTIONS ON ACC OUNT OF CLIENT CODE MODIFICATION. 2. LEARNED DEPARTMENTAL REPRESENTATIVE VEHEMENTLY C ONTENDS DURING THE COURSE THAT THE ASSESSEE HAD AVAILED THE IMPUGNED DERIVATI VE LOSS ENTRIES M/S MARIGOLD VANIJYA PVT. LTD., WHOSE DIRECTOR SHRI SACHET SARAF HAD MADE A SEARCH STATEMENT TO THIS EFFECT. I NOTICE IN THESE BACKDROP THAT THIS T RIBUNALS CO-ORDINATE BENCHS DECISION IN ITA NO.1560/KOL/2016 IN ACIT CIR-12(2) VS. M/S TIRUPATI AWAS PVT.LTD. , DECIDED ON 28.03.2018 HAS DELETED THE SIMILAR DISALLOWANCE OF DERIVATIVE LOSS BASED ON THE VERY SEARCH STATEMENT VIDE ITS FOLLOWING DETAILED D ISCUSSION:- 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS A COMPANY ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT & INVESTMENT IN SHARES. THE ASSESSEE FILED ITS RETURN OF INCOME FOR THE A. Y UNDER CONSIDERATION DECLARING TOTAL INCOME OF RS. 10,68,100/- ON 30-01-2015, AND THE SAME WAS PROCESSED U/S. 143(1) OF THE ACT ON 28-01- 2012. 5. A SEARCH & SEIZURE OPERATION WAS CONDUCTED IN TH E OFFICE OF SACHET SARAF & OTHERS U/S. 132 OF THE ACT ON 22-03-2013, WHEREIN A STATEMENT OF SH RI SACHET SARAF, DIRECTOR OF M/S. MARIGOLD VANIJYA P.LTD WAS TAKEN. HE STATED THAT M/S. MARIGO LD VANIJYA P.LTD IS A BROKER OF CURRENCY DERIVATIVES LISTED WITH MCX STOCK EXCHANGE. A NOTIC E U/S. 148 OF THE ACT WAS ISSUED THE ASSESSEE. IN RESPONSE, THE ASSESSEE REQUESTED TO TR EAT THE RETURN ORIGINALLY FILED ON 08-08-11, AS A RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S. 14 8 OF THE ACT. THE AO FURTHER ISSUED NOTICES U/S. 143(2) AND 142(1) OF THE ACT AND IN RESPONSE T O WHICH, THE AR OF THE ASSESSEE APPEARED. FOR VERIFICATION OF TRANSACTION NOTICE U/S. 133(6) OF THE ACT WAS ISSUED TO MCX, MUMBAI AND ASSESSEE WAS ALSO ASKED TO CLARIFY THE ALLEGED LOSS OF RS. 43,90,251/-. IT FAILED TO DO SO. THEREFORE, AO ADDED BACK THE SUM OF RS.43,90,251/-A S UNEXPLAINED LOSS BY HIS ORDER DT. 31- 03-2015 PASSED U/S. 147/143(3). 6. THE ASSESSEE CHALLENGED THE ABOVE ORDER OF AO BE FORE THE CIT-A AND CONTENDED THAT THE SAID TRANSACTION WAS ONLINE THROUGH MCX STOCK EXCHA NGE BY ITS BROKER, M/S. MARIGOLD VANIJYA PVT. LTD, IS A REGISTERED ITA NO. 15601K01L 2016 MEMBER OF MC X STOCK EXCHANGE LIMITED. THE CLAIM OF LOSS WAS DULY REFLECTED IN TH E AUDITED FINANCIAL STATEMENT AS WELL AS IN THE RETURN OF INCOME BY APPLYING THE PROVISIONS OF SECTION 43(5)( D) OF THE ACT. THE ASSESSEE COMPANY IS REGISTERED WITH THE SAID BROKER AND COMP LIED WITH ALL KYC NORMS. THE ASSESSEE HAS BEEN ALLOTTED CLIENT (CODE) NO. CKOI05 FOR TRAD ING PURPOSE IN CURRENCY DERIVATIVES IN THE SEGMENT OF EXCHANGE. THE MCX STOCK EXCHANGE IS A NO TIFIED/ LISTED STOCK EXCHANGE UNDER THE INCOME TAX ACT. THE ASSESSEE HAS BEEN ISSUED VA LID CONTRACT NOTES IN RESPECT OF ON LINE TRADE, WHEREIN, ORDER NUMBER, TRADE NUMBER, TRADE T IME ETC. ARE PROPERLY MENTIONED AS PRESCRIBED BY CONCERNED AUTHORITIES/STOCK EXCHANGE. THE ASSESSEE MADE THE PAYMENTS TO ABOVE SAID REGISTERED/LISTED BROKER FOR THE SAID TR ANSACTION BY WAY OF ACCOUNT PAYEE CHEQUES. THE ASSESSEE SUBMITTED ALL THE DETAILS RELATING TO CONTRACT NOTES AND LEDGER COPIES OF ASSESSEE IN THE BOOKS OF SAID BROKER. APART FROM ABOVE, THE ASSESSEE ALSO SUBMITTED AN AFFIDAVIT OF MR. ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 3 SACHET SARAF, DIRECTOR OF M/S. MARIGOLD VANIJYA PVT . LTD ADMITTING THAT ALL THE FOREIGN CURRENCY TRANSACTIONS DONE BY ASSESSEE ARE BONA FID E, GENUINE AND RECORDED BY SAID MCX STOCK EXCHANGE REFERRING TO THE STATEMENT GIVEN BY SHRI SACHET SARAF DURING THE COURSE OF SEARCH & SEIZURE OPERATION, IT WAS SUBMITTED THAT T HERE NO DIRECT CONNECTION WITH THE ASSESSEE. 7. THE CIT-A CONSIDERING THE ABOVE SUBMISSIONS OF A SSESSEE WAS SATISFIED THAT THE ASSESSEE SUBMITTED ALL THE REQUIRED DETAILS IN SUPPORT OF IT S TRANSACTION/CLAIM. THE CIT-A HELD THAT THE AO DID NOT PLACE ON RECORD ANY COGENT AND FACTUAL O R PALPABLE MATERIAL/EVIDENCE IN SUPPORT OF HIS VIEW AND THEREFORE, DELETED THE SAID ADDITION M ADE BY THE AO BY OBSERVING AS UNDER:- 4.2 I HAVE CONSIDERED THE SUBMISSION OF THE AR OF T HE APPELLANT AS WELL AS THE CASE LAWS REFERRED TO IN HIS SUBMISSION. I FIND THAT THE APPELLANT HAS INCURRED LOSS OF RS. 43,90,251/- ON ACCOUNT OF DEALING IN FOREIGN EXCHAN GE DERIVATIVES. THE ASSESSMENT IN ITA NO. 1560/KOL/2016 THE INSTANT CASE WAS REOPENED BY THE AO BASED ON INFORMATION RECEIVED BY THE AO OF MARIGOLD VANIJYA (P) LTD. MR. SHRI SACHET SARAFT, ONE OF THE DIRECTORS OF MARIGOLD VANIJYA (P) LTD DU RING THE COURSE OF SEARCH & SEIZURE OPERATION U/S. 132 OF THE ACT, HAD DEPOSED BEFORE THE CONCERNED DD IT THAT THE COMPANY WAS ENGAGED IN THE BUSINESS OF PROVIDIN G ACCOMMODATION OF LOSSES AND PROFITS TO THE BENEFICIARIES AS AND WHEN DESIRED. T HE APPELLANT IN THE INSTANT CASE BEING AN ALLEGED BENEFICIARY WAS ISSUED NOTICE U/S, 148 OF THE ACT. IN COURSE OF THE REASSESSMENT PROCEEDINGS, THE APPELLANT FURNISHED A LL THE REQUISITE DOCUMENTS IN SUPPORT OF TRANSACTIONS ENTERED INTO BY IT IN RESPE CT OF FOREIGN EXCHANGE DERIVATIVES. ON THIS SCORE, I FIND THAT NO ENQUIRY, WHATSOEVER, HAS BEEN CONDUCTED BY THE AD WITH EITHER THE BROKER OR THE MCX STOCK EXCHANGE TO VERI FY THE GENUINENESS OF THE TRANSACTIONS ENTERED INTO BY THE APPELLANT. NO CONV INCING MATERIAL, EXCEPT FOR THE STATEMENT OF MR. SACHET SARAF, HAS BEEN RELIED UPON BY THE AO IN MAKING THE IMPUGNED ADDITION. IT HAS BEEN BROUGHT TO MY NOTICE THAT EVEN THE STATEMENT OF MR. SACHET SARAF WAS RETRACTED AT A LATER POINT OF TIME (SUPRA). THIS FACT HAS NOT BEEN CONTROVERTED BY THE AO IN ANY MANNER. IT IS TRITE L AW THAT ADDITIONS CANNOT BE MADE, BASED MERELY ON THE STATEMENT OF A THIRD PARTY, IN THE ABSENCE OF ANY CORROBORATIVE MATERIAL EVIDENCE. THERE MUST BE COGENT AND PALPABL E MATERIAL EVIDENCE MATERIAL EVIDENCES ON RECORD FOR ANY JUSTIFIABLE ACTION IN T HE MATTER. I FIND THAT THE AO HAS NOT DONE JUSTICE IN THE MATTER IN THIS RESPECT FOR WHIC H THE IMPUGNED ADDITION CANNOT STAND THE TEST OF APPEAL. I FIND THAT THE APPELLANT HAS DISCHARGED ITS INITIAL ONUS BY FURNISHING ALL THE REQUISITE DETAILS IN RESPECT OF FOREIGN EXCHANGE LOSS INCURRED BY IT. IT IS NOT THE CASE OF THE AO THAT THE APPELLANT HAS FA ILED TO FURNISH DOCUMENTARY EVIDENCES IN SUPPORT OF THE SAID FOREIGN CURRENCY L OSS. THUS, CONSIDERING THE ENTIRE FACTS AND CIRCUMSTANCES OF THE ISSUE AT HAND IN THE BACKDROP OF THE VARIOUS CASE LAWS CITED IN THE SUBMISSION SUPRA AND IN THE ABSENCE OF ANY COGENT FINDING OR CORROBORATIVE MATERIALS BROUGHT ON RECORD BY THE AO TO SUBSTANTIATE HIS STAND IN SUBVERTING THE SUBMISSION OF THE APPELLANT ON THE I MPUGNED MATTER AT THE ASSESSMENT STAGE. I DO NOT FIND ANY MERIT IN THE ACTION OF THE AO IN MAKING THE IMPUGNED DISALLOWANCE OF RS.43,90,251/- AS UNEXPLAINED LOSS WITH REGARD TO THE SAID TRANSACTIONS. IN VIEW OF THE FOREGOING, I FIND THAT THE ADDITION MADE ON THIS COUNT IS NOT SUSTAINABLE AT THE APPELLATE STAGE WHICH IS NOW DIRECTED TO BE DELETED. THE AO IS DIRECTED ACCORDINGLY. ' 8. BEFORE US THE ID. DR SUBMITS THAT THE ASSESSEE F AILED TO PRODUCE ANY EVIDENCE GATHERED BY THE AO IN RE-ASSESSMENT PROCEEDINGS. MCX STOCK EXCH ANGE DID NOT FURNISH FULL DETAILS IN RESPECT OF SAID TRANSACTION OF ASSESSEE IN RESPONSE TO NOTICE ISSUED U/S. 133(6) OF THE ACT. THUS THE AO HAS RIGHTLY ADDED THE SAID AMOUNT TO THE TOT AL INCOME OF ASSESSEE. THE CIT-A BASING ON SUBMISSIONS OF ASSESSEE HAS GIVEN RELIEF TO ASSE SSEE WITHOUT CALLING REMAND REPORT OF AO IN ADMITTING ADDITIONAL EVIDENCE. THUS, THE CIT-A H AS ERRED IN ACCEPTING WRONG CONTENTION OF ASSESSEE. HE ALSO VIOLATED THE PROVISIONS OF RULE 4 6A IN ADMITTING THE SAME. THE CIT-A HAS ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 4 ALSO FAILED TO GIVE AN OPPORTUNITY TO AO FOR VERIFI CATION OF THE DETAILS AS SUBMITTED BY THE ASSESSEE. IN VIEW OF ABOVE, HE PRAYED TO ALLOW THE GROUNDS OF APPEAL OF THE REVENUE. 9. ON THE OTHER HAND, THE LD. AR SUBMITS THAT THERE WAS NO NEW SUBMISSION/EVIDENCE BEFORE THE CIT-A AS ALLEGEDLY ARGUED BY THE ID.DR. ITA NO. 1560/K0L/2016 THE CIT-A ONLY CONSIDERED THO SE DETAILS WHICH WERE AVAILABLE BEFORE THE AO. IN RESPONSE TO NOTICES ISSUED U/S. 1 43(2) AND 142(1) OF THE ACT, THE ASSESSEE PRODUCED ALL THE DETAILS BEFORE THE AO IN SUPPORT O F THE CONTENTION AND CLAIM. IN RESPONSE TO NOTICE ISSUED U/S. 133(6) OF THE ACT, SAID MCX STOC K EXCHANGE, MUMBAI PROVIDED ALL THE DETAILS REGARDING THE SAID TRANSACTIONS. THE AO AFT ER EXAMINING THE SAME, HAS HIGH HANDEDLY HELD THAT THE CLAIM OF ASSESSEE IS BOGUS AND THEREF ORE, ADDED THE IMPUGNED AMOUNT, WHICH IS NOT AT ALL JUSTIFIED. THE ID.AR OF THE ASSESSEE SUP PORTED THE ORDER OF THE CIT-A AND PRAYED TO DISMISS THE GROUNDS RAISED BY THE REVENUE IN THE AP PEAL. 10. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIA L ON RECORD. WE FIND THAT THE AO ISSUED NOTICE U/S. 133(6) OF THE ACT TO MCX STOCK EXCHANGE , MUMBAI. ADMITTEDLY THE SAID STOCK EXCHANGE COMPLIED WITH THE NOTICE ISSUED BY THE AO ALONG WITH SUPPLYING VARIOUS DETAILS IN RESPECT OF SAID TRANSACTION. ACCORDING TO AO, IT IS INCOMPLETE DETAILS. HOWEVER, THE CIT-A NOTED IN HIS ORDER THAT THE AO FAILED TO VERIFY THE GENUINENESS OF TRANSACTION WITH THAT OF BROKER OF MCX STOCK EXCHANGE. IT IS ALSO OBSERVED T HAT THE CIT-A FOUND SATISFIED THAT THE ASSESSEE FILED ALL THE REQUIRED DETAILS AND DOCUMEN TS IN SUPPORT OF THE TRANSACTIONS ENTERED INTO BY IT IN RESPECT OF FOREIGN EXCHANGE DERIVATIVES. WE FIND THAT THE AO MADE THE ADDITION ONLY ON THE BASIS OF STATEMENT RECORDED DURING THE SEARC H & SEIZURE OPERATION IN THE PREMISES OF THE SAID SHRI SACHET SARAF, DIRECTOR OF .M/S MARIGOLD V ANIJYA P.LTD . THE SAID STATEMENT OF MR. SARAF WAS RETRACTED AT LATER POINT OF TIME. THE CIT -A FOUND SATISFIED THAT THERE WAS NO CORROBORATIVE EVIDENCE WHICH SUPPORTS THE VIEW OF T HE AO THAT THE SAID TRANSACTION WAS UNEXPLAINED. THEREFORE, WE FIND NO ADDITIONAL EVID ENCE, WHICH WAS FILED BEFORE THE CIT-A, BUT NOT BEFORE THE AO. THE CIT-A DELETED THE ITA NO. 1560/K0L/2016 SAID ADDITION ONLY ON THE BASIS OF MATERIAL/EVIDENCE AVAILABLE ON RECORD, WHICH WERE VERY MUCH BEFORE THE AO IN THE RE-ASSESSMENT PROCEEDINGS. THE CASE LAWS AS REL IED ON BY THE ASSESSEE BEFORE THE CIT-A WERE RELEVANT AND APPLICABLE TO THE PRESENT FACTS O F THE CASE. THE CIT-A HAS DISCUSSED THE EACH CASE LAW THOROUGHLY. THUS, THE CIT-A WAS JUSTI FIED IN DELETING THE ADDITION MADE BY THE AO ON THIS ISSUE. THE GROUNDS RAISED BY THE REVENUE IN THE APPEAL ARE DISMISSED. 3. I ADOPT THE ABOVE EXTRACTED REASONING MUTATIS MUTANDIS TO DELETE THE IMPUGNED CURRENCY DERIVATIVE LOSS OF 31,80,537/-. THE REVENUES ARGUMENT IN SUPPORT THER EOF ARE REJECTED. 4. NEXT COMES THE LATTER ASSESSEES CASE SEEKING TO DELETE DERIVATIVE LOSSES DISALLOWANCE OF 5,18,040/- STATED TO BE OF CLIENT CODE MODIFICATION . I NOTICE HEREIN AS WELL THAT THIS TRIBUNALS YET ANOTHER DECISION IN M/S VIVEK BHAIA VS. ITO WARD-36(4) , KOLKATA IN ITA NO.2295/KOL/2018 DECIDED ON 15/.05.2019 HAS DELETED THE IDENTICAL DISALLOWANCE ON THE BASIS OF CORRESPONDING DETAILS SUPPORTIVE EVIDENCE AS FOLLOWS:- 2. IT TRANSPIRES AT THE OUTSET THAT THE ASSESSEES TWO SUBSTANTIVE GROUNDS IN THE INSTANT APPEAL CHALLENGE VALIDITY OF THE IMPUGNED REOPENING / RE-ASSESSMENT AND CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION MAKING ADDITION IN QU ESTION OF RS.7,36,530/- UNDER THE HEAD ENTIRE LOSS MADE IN THE COURSE OF THE ASSESSMENT AS AFFIRMED BY THE LOWER APPELLATE AUTHORITY. BOTH THE AUTHORITIES VIEW ON MERITS IS THAT THE AS SESSEE HAS CONTRIVED LOSS AMOUNTING TO ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 5 RS.7,36,530/- BY TAKING RECOURSE TO CLIENT CODE MOD IFICATION THROUGH HIS BROKER. NAMELY M/S C.M. GOENKA STOCK BROKERS PVT. LTD., I NOTICE IN TH ESE BACKDROP OF FACTS THIS TRIBUNALS CO- ORDINATE BENCHS DECISION IN M/S RATNABALI COMMODIT IES PVT. LTD. VS. ITO, W-12(3), KOLKATA DECIDED ON 16-06/2017 HAS DELETED THE IDENTICAL ADD ITION STAYED TO BE MODIFICATION OF CLIENT CODE BY FOLLOWING DETAILED DISCUSSION: 3. SOLE ISSUE RAISED BY ASSESSEE IN ITS GROUNDS OF APPEAL IS THAT LEARNED. CIT(A) ERRED IN HOLDING THE LOSS OF 19,76,538/- IN THE TR ANSACTIONS OF DERIVATIVES AS BOGUS LOSS. 4. BRIEFLY STATED FACTS ARE THAT THE ASSESSEE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN THE BUSINESS OF DEALING IN COMMODITIES. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS INCURRED LOSS OF 45,23,943/- IN DERIVATIVE TRANSACTIONS OF SHARES. T HE ABOVE LOSS WAS INCURRED BY THE ASSESSEE AT THE FAG-END OF THE RELE VANT ASSESSMENT YEAR I.E. FROM 18.03.2009 TO 26.03.2009. ALL THE TRANSACTIONS WERE CARRIED O UT THROUGH A BROKER NAMELY M/S RATNABALI CAPITAL MARKETS LTD. (RCML FOR SHORT) A MEMBER OF N ATIONAL STOCK EXCHANGE (NSE FOR SHORT). THE DIRECTOR IN THE ASSESSEE-COMPANY AND RE ML WERE COMMON AND THE NAME OF RCML WAS APPEARING IN THE LIST OF SPECIFIED PERSON AS ENVISAGED U/S. 40A(2)(B) OF THE ACT. THE ASSESSEE HAS ALSO PAID BROKERAGE TO RCML FOR 92,566/- ONLY FOR THE ABOVE STATED TRANSACTIONS. THE ASSESSING OFFICER DURING THE COUR SE OF ASSESSMENT PROCEEDINGS TO VERIFY THE VERACITY OF THE LOSS CLAIMED BY ASSESSEE HAS CONFIR MED FROM NSE BY ISSUING A NOTICE U/S.133(6) OF THE ACT. AS PER THE CONFIRMATION RECE IVED FROM NSE, THE AO OBSERVED THAT THE NAME OF THE CLIENT AND CODE HAS BEEN MODIFIED DURIN G THE PROCESS OF SAID TRANSACTIONS. THEREFORE, THE ASSESSING OFFICER HAD A DOUBT ABOUT THE GENUINENESS OF THE IMPUGNED LOSS AND THEREFORE HAS SOUGHT THE EXPLANATION FROM THE ASSES SEE. IN COMPLIANCE THERETO THE DIRECTOR OF THE ASSESSEE-COMPANY AND REML NAMELY, SHRI VIKASH S OMANI IN HIS STATEMENT RECORDED DATED 22.12.2010 SUBMITTED THAT THE NAME OF THE CLI ENT AND CODE WAS MODIFIED DUE TO PUNCHING ERRORS BY THE CLERICAL STAFF. IT WAS ALSO SUBMITTED THAT ALL THE MODIFICATION IN THE NAME OF CLIENT AND ITS CODE WERE CARRIED OUT WITHIN THE TIME PERMITTED BY THE STOCK EXCHANGE. THE ASSESSEE ALSO SUBMITTED THAT THE SECURITY TRANS ACTION TAX (STT) WAS PAID IN RESPECT OF ALL THE TRANSACTIONS GIVING RISE TO THE IMPUGNED LOSS. HOWEVER, AO DISAGREED WITH THE CONTENTION OF AS ON ACCOUNT OF FOLLOWING REASONS:- (A) THE IMPUGNED LOSS WAS INCURRED BY THE ASSESSEE AT THE FAG-END OF THE YEAR AND SIMILAR LOSS WAS ALSO INCURRED IN THE IMMEDIATE PRE CEDING AY 2008-09 AT THE FAG-END OF THE YEAR WHICH WAS ALSO DISALLOWED. THE CLIENT CODE AND NAME WERE MODIFIED BY REML WITH OUT HAVING INSTRUCTION FORM THE ASSESSEE. THE NATURE OF MODIFICATION CARRIED OUT IN THE CLI ENTS NAME AND CODE DO NOT SUGGEST THAT IT WAS A CLERICAL PUNCHING ERROR RATHER IT IS SUGGESTING THAT THE LOSS WAS TAKEN BY THE AS IN ORDER TO REDUCE ITS PROFIT WHICH IS NOT P ERMISSIBLE IN THE EYES OF LAW. IN VIEW OF THE ABOVE, AO TREATED THE IMPUGNED LOSS OF 19,76,538/- AS BOGUS AND ACCORDINGLY ADDED TO THE TOTAL INCOME OF ASSESSEE. 5. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L EARNED. CIT(A). THE ASSESSEE BEFORE LEARNED. CIT(A) SUBMITTED THAT THE CLIENTS NAME AN D CODE WERE MODIFIED WITHIN THE TIME PERMITTED BY NATIONAL SECURITIES CLEARING CORPORATI ON LTD., (NSCCL SHORT) WHICH IS THE WHOLLY OWNED SUBSIDIARY OF NSE. THE ASSESSEE ALSO S UBMITTED THAT THERE IS ALWAYS HUGE RUSH DURING THE MARKETING HOURS AND THEREFORE THERE IS H IGH POSSIBILITY OF HUMAN ERRORS DUE TO EXTREMELY HIGH VOLUME OF ORDERS WHICH ARE PLACED ON SCREENS ON REAL TIME BASIS. THE ASSESSEE ALSO SUBMITTED THAT ALL THE TRANSACTIONS WERE CARRI ED OUT THROUGH BANKING CHANNEL AND THIS WAS SUPPORTED WITH THE CONTRACT NOTES. THE ASSESSEE ALSO PRODUCED FORM NO.10BB WHICH EVIDENCED THE PAYMENT OF STT ON THE IMPUGNED TRANSA CTIONS IN RECOGNIZED STOCK EXCHANGE. HOWEVER, LEARNED. CIT(A) DISREGARDED THE CONTENTION OF ASSESSEE AND CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 6 .. THE FACTS IN THIS CASE HAVE BEEN CONSIDERED A ND IT IS APPREHENDED THAT THERE IS A POSSIBILITY THAT THE MODIFICATIONS MIGHT HAVE BEEN MADE TO ACCOMMODATE THE APPELLANT AS THE BROKER OF THE APPELLANT WAS A SIST ER CONCERN. EVEN THOUGH APPARENTLY IT HAS NOT BEEN ESTABLISHED THAT THE SUCH MODIFICAT ION HAD BEEN DONE IN VIOLATION OF RULES AND REGULATIONS PRESCRIBED BY SEBI AND THE AO HAD PROCEEDED ON SUSPICION. HOWEVER AT THE SAME ITEM IT ALSO CANNOT BE CONCLUDE D EITHER THAT THE LOSS WOULD NOT BE ATTRIBUTABLE TO THESE MODIFICATIONS . THUS, I FIND MERIT IN THE CONTENTION OF THE AO. THEREFORE, THE APPELLANTS CONTENTION IN RESPEC T OF THE CLAIM OF LOSS CANNOT BE ACCEPTABLE AS THE SAME PERTAINED TO THE MODIFIED TR ANSACTIONS BEING ENTERED INTO BY THE APPELLANTS SISTER CONCERN WHO WAS THE BROKER A ND HELPED IN MANIPULATION FOR THE BENEFIT OF THE APPELLANT . I ALSO FIND THAT SIMILAR ADDITION WAS MADE BY THE AO ON THE SAME GROUND IN THE PREVIOUS AY 2008-09 AND THE CIT( A)-XXX. KOLKATA HAS PARTLY CONFIRMED THE ADDITION SO MADE BY THE AO VIDE APPEA L ORDER DATED 23.11.2012. HENCE DISALLOWANCE MADE BY THE AO FOR THE LOSS OF R S.19,76,538/- CLAIMED TO BE INCURRED BY THE APPELLANT COMPANY IS CONFIRMED AS I T WAS DONE WITH THE INTENTION OF REDUCING APPELLANT COMPANYS TAXABLE INCOME MANIPUL ATION OF TRANSACTIONS ENTERED INTO BY THE APPELLANTS SISTER ITA NO.191/KOL/2015 AY 2009-10 M/S RATNABALI COMMODITIES PVT. LTD. VS. ITO WARD-12(3) PAGE 4 C ONCERN WHO WAS THE BROKER AND HELPED IN MANIPULATION FOR THE BENEFIT OF THE APPEL LANT. HENCE, THIS GROUND OF APPEAL OF THE APPELLANT IS DISMISSED. BEING AGGRIEVED BY THIS ORDER OF LEARNED. CIT(A) AS SESSEE CAME IN SECOND APPEAL BEFORE US. 6. LEARNED. AR FOR THE ASSESSEE FILED PAPER BOOK WH ICH IS RUNNING PAGES FROM 1 TO 20 AND CITED CASE LAW. LD. AR FOR THE ASSESSEE REITERATED THE ARGUMENTS THAT WERE PLACED BEFORE LEARNED. CIT(A). FURTHER, HE ALSO SUBMITTED THE COP IES OF CONTRACT NOTES IN (SUPRA)-PORT OF THE TRANSACTIONS GIVING RISE TO THE IMPUGNED LOSS WHICH ARE PLACED ON PAGES 1 TO 5 OF THE PAPER BOOK. HE ALSO SUBMITTED THE EVIDENCE FOR THE PAYMEN T OF STT ON SUCH TRANSACTIONS WHICH IS PLACED ON PAGES 6 OF THE PAPER BOOK. LEARNED. AR AL SO SUBMITTED THE COPY OF BANK STATEMENT OF THE ASSESSEE AND RCML ALONG WITH THE LEDGER COPY OF THE BROKER AND THE ASSESSEE IN THE RESPECTIVE BOOKS OF ACCOUNT WHICH ARE PLACED ON PAG ES 7 TO 20 OF THE PAPER BOOK. ON THE OTHER HAND, LEARNED. DR VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED AND CAREFULLY CONSIDERED THE MATERIAL ON RECORD; INCLUDING THE JU DICIAL 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 BE LOW AS BOGUS MAINLY DUE TO THE MODIFICATION CARRIED OUT IN THE NAME AND CODE OF TH E ASSESSEE BY THE BROKE. 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 I N THE IMMEDIATE PRECEDING YEAR. 7.1 FROM THE FOREGOING DISCUSSION, WE FIND THAT IND EED THE CLIENTS CODE AND NAME WERE MODIFIED DIN RESPECT OF TRANSACTIONS CLAIMED BY ASS ESSEE. HOWEVER, ON PERUSAL OF RECORD, WE FIND THAT THE IMPUGNED TRANSACTIONS WERE CARRIED OU T THROUGH BANKING CHANNEL AND ALL THE SUPPORTING EVIDENCE SUCH AS CONTRACT NOTE, PAYMENT OF STT WERE FILED AT THE TIME OF AM 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 WHIC H IS REPRODUCED BELOW:- THERE IS A POSSIBILITY THAT THE MODIFICATIONS MIGH T HAVES BEEN MADE TO ACCOMMODATE THE APPELLANT AS THE BROKER OF THE APPELLANT WAS A SISTER CONCERN. FURTHER THE LEARNED. CIT-A HAS OBSERVED IN HIS ORD ER AS UNDER:- ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 7 EVEN THOUGH APPARENTLY IT HAS NOT BEEN ESTABLISHED THAT THE SUCH MODIFICATION HAD BEEN DONE IN VIOLATION OF RULES AND REGULATIONS PRE SCRIBED BY SEBI AND THE AO HAD PROCEEDED ON SUSPICION, HOWEVER AT THE SAME TIME IT ALSO CANNOT BE CONCLUDED EITHER THAT THE LOSS WOULD NOT BE ATTRIBUTABLE TO THESE MODIFICATIONS . ON PERUSAL OF THE ORDER, WE FIND THAT LEARNED. 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 LEARNED. AR FOR THE ASSESSEE AS WELL AS NO DEFECTS OF WHATSOEVER HAS BE EN POINTED OUT IN THE DOCUMENTS PRODUCED BY ASSESSEE IN SUPPORT OF ITS IMPUGNED LOSS. WE ALS O 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 TAN GIBLE MATERIAL TO TREAT THE IMPUGNED LOSS AS BOGUS LOSS. 7.2 MOREOVER, WE ALSO FIND THAT THE DETAILS FURNISH ED 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 FORM NSE. HAD THERE BEEN ANY MANIPULATION IN THE IMPUGNED LOSS THEN IT COULD HAV E BEEN REVEALED FROM THE CONFIRMATION RECEIVED FROM NSE. THEREFORE, THE MODIFICATIONS IN THE CLIENTS 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 C ONJECTURE 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 INVESTM ENT LTD. REPORTED IN 263 ITR 626 (CAL) WHERE HON'BLE JURISDICTIONAL HIGH COURT HAS HELD:- THE TRIBUNAL HAD FOUND THAT ALL RELEVANT DOCUMENT S 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 REPU TED COMPANIES AND WERE QUOTED SHARES IN THE STOCK EXCHANGES AND WERE PURCHASE AND SOLD AT THE PREVALENT QUOTED MARKET RATES, WHICH WAS VERIFIED FROM THE STATEMENT OF THE STOCK EXCHANGES. ON THE BASIS, THE TRIBUNAL FOUND THAT THE CIT(A) HAD PROCE EDED 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, W HICH 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 DECISI ON WAS CORRECT OR WRONG CANNOT BE A QUESTION, WHICH CAN BE A SUBJECT-MATTER OF DEC ISION IN SUCH A CASE. IN ORDER TO FIND OUT WHETHER THE TRANSACTION IS GENUINE OR INGE NUINE, IT IS NEITHER THE EXPEDIENCE OR CORRECTNESS OF THE DECISION NOR THE BUSINESS EXP ERTISE 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 ASSESSEE THE VIEW TAKEN BY THE TRIBUNAL ALLOWING SHARE LOSS CANNOT BE SAID TO BE ERRONEOUS OR PERVERSE. CIT VS. EMERALD COMMERCIAL LTD. & ANR. (W2001) 171 CTR (CAL) 193: (2001) 250 ITR 539 (CAL) ,M CIT VS. DHAWAN INVESTMENT & TRADING CO. LTD. (1999) 238 ITR 486 (C AL) RELIED ON. RESPECTFULLY FOLLOWING THE SAME, WE HOLD THAT THE I MPUGNED LOSS CLAIMED BY THE ASSESSEE IS GENUINE LOSS IN THE ABOVE FACTS AND CIR CUMSTANCES OF THE ASSESSEE AND THEREFORE ELIGIBLE FOR DEDUCTION. ACCORDINGLY, AO I S DIRECTED. THIS GROUND OF ASSESSEES APPEAL IS ALLOWED. 3. SHRI C.J. SINGH, JCIT, LEARNED. DR/REVENUE FAILS TO POINT OUT ANY DISTINCTION ON FACT OR LAW IN THE INSTANT CASE THOSE INVOLVED IN ANY CO-ORDINA TE BENCHS DECISION. I THEREFORE DELETE THE ITA NO. NO.1449 & 1660/KOL/2018 A.YS. 12-13 & 09-10 ANA VINCOM P LTD. & SUBHANKAR SARKAR VS. ITO WD-7 (1)/36(3)/KOL. PAGE 8 IMPUGNED ADDITION BY ADOPTING ABOVE CO-ORDINATE BEN CHS DETAILED REASONING MUTATIS MUTANDIS. THE ASSESSEE SUCCEEDS IN THIS SUBSTANTIVE GROUND ON MERITS. HIS FORMER GROUND SEEKS TO CHALLENGE VALIDITY OF IMPUGNED RE-OPENING/ RE-ASSESSMENT IS RENDERED INFRUCTUOUS. 5. LEARNED DEPARTMENTAL REPRESENTATIVE FAILS TO RE BUT THE ASSESSEES SUPPORTING EVIDENCE FORMING PART OF THE CASE FILE INCLUDING LE DGER ACCOUNTS, BILLS AS WELL OTHER PARTICULARS RUNNING TO 99 TO 100 PAYEES. I ACCORDIN GLY DIRECT THE ASSESSING OFFICER TO DELETE THE IMPUGNED DISALLOWANCE OF DERIVATIVE LOSS . NO MORE POINT HAS BEEN ARGUMENT BEFORE ME. 6. THESE ASSESSEES APPEALS ARE ALLOWED IN ABOVE TE RMS. COPY OF THIS COMMON ORDER BE PLACED IN THE RESPECTIVE CASE FILE(S). ORDER PRONOUNCED IN OPEN COURT ON 24/07/2019 SD/- (S.S. GODARA) JUD ICIAL MEMBER KOLKATA, *DKP/SR.PS - 24/07/2019 / COPY OF ORDER FORWARDED TO:- 1. / ASSESSEE-ANA VINCOM PVT. LTD., 8 CAMAC STREET, 15 TH FLOOR, SHANTI NIKETAN BUILDNG,KOL- 17/SUBHANKAR SARKAR, MARSHALL HOUSE, 33/1 N.S. ROAD, R.NO.245 A, DALHOUSIE, KOLKATA-700001 2. % /REVENUE-ITO WD-7(1), P-7 CHOWRINGHEE SQ. AYAKR BHA WAN, 8 TH FL. KOL-69/ ITO WED-36(4), AAYAKA R BHAWAN, POORVA, R.NO.815, 110, SHANTIPALLY, E.M.BYEP ASS, KOLKATA-107 3. & ( / CONCERNED CIT 4. ( - / CIT (A) 5. ) ,,& , & / DR, ITAT, KOLKATA 6. . / GUARD FILE. BY ORDER/ , /TRUE COPY/ &,