Stylish Polymers Pvt. Ltd., , Kolkata V. ITO, Ward - 11(4), Kolkata , Kolkata

ITA 1466/KOL/2018

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 9772 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-12-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 09-07-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence; Speculation loss
• Section: 133(6)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA SMC BENCH, KOLKATA [BEFORE SRI J. SUDHAKAR REDDY, ACCOUNTANT MEMBER] I.T.A. NO. 1466/KOL/2018 ASSESSMENT YEAR: 2012-13 STYLISH POLYMERS PVT. LTD..........APPELLANT C/O. SUBASH AGARWAL & ASSOCIATES SIDDHA GIBSON 1, GIBSON LANE 2 ND FLOOR SUITE-213 KOLKATA 700 069 [PAN : AAMCS 7267 A] INCOME TAX OFFICER, WARD-11(4), KOLKATA.......RESPONDENT APPEARANCES BY: SHRI SUBASH AGARWAL, ADVOCATE, APPEARED ON BEHALF OF THE ASSESSEE. SHRI NICHOLAS MURMU, JCIT, APPEARING ON BEHALF OF THE REVENUE. DATE OF CONCLUDING THE HEARING : NOVEMBER 28 TH , 2018 DATE OF PRONOUNCING THE ORDER : DECEMBER 12 TH , 2018 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) - 4, KOLKATA, (HEREINAFTER THE LD. CIT (A)), PASSED U/S 250 OF THE INCOME TAX ACT, 1961 (THE ACT), DT. 04/06/2018, FOR THE ASSESSMENT YEAR 2012-13. 2. THE ASSESSEE IS A COMPANY AND IS IN THE BUSINESS OF INVESTMENT AND SHARE TRADING. IT CLAIMED DEDUCTION ON ACCOUNT OF CURRENCY SPECULATION LOSS OF RS.6,65,547/-. ON THE GROUND THAT CORROBORATIVE EVIDENCE HAS NOT BEEN FILED, THE ASSESSING OFFICER MADE AN ADDITION TO THE RETURNED INCOME. ON APPEAL, THE LD. FIRST APPELLATE AUTHORITY OBSERVED THAT THE ASSESSEE HAS NOT DONE SUCH TRANSACTIONS ON REGULAR BASIS. HE HELD THAT, THE SUBMISSION OF THE LD. A/R OF THE ASSESSEE THAT (A) THE ASSESSEE HAS DONE SUCH TRANSACTIONS ON REGULAR BASIS AND (B) THAT SUCH TRANSACTIONS ARE DONE BY THE ASSESSEE AS A SAFEGUARD 2 I.T.A. NO. 1466/KOL/2018 ASSESSMENT YEAR: 2012-13 STYLISH POLYMERS PVT. LTD AGAINST LOSS WHICH MAY ARISE IN THE ORDINARY COURSE OF BUSINESS; ARE FACTUALLY INCORRECT. THE LD. CIT(A) RECORDED THAT THOURGH THE ASSESSEE PRODUCED ALL DOCUMENTS IN SUPPORT OF THESE TRANSACTIONS, THE APPARENT IS NOT TRUE. HE APPLIED THE JUDGMENT OF THE HONBLE SUPREMENT COURT IN THE CASE OF CIT VS. DURGA PRASAD MOORE (1971) 82 ITR 540, AND THE THEORY OF PREPONDERANCE OF PROBABILITIES AND UPHELD THE ORDER OF THE LD. ASSESSING OFFICER. 3. AGGRIEVED THE ASSESSEE IS BEFORE ME. 4. I 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, I HOLD AS FOLLOWS:-. 4.1. I FIND THAT THE ISSUE IN QUESTION IS COVERED BY THE DECISION OF THE ITAT KOLKATA B BENCHS ORDER IN THE CASE OF ACIT VS. MS/. TIRUPATI AWAS P. LTD. IN ITA NO. 1560/KOL/2016, ORDER DT. 28/03/2018, WHEREIN AT PARA 10, IT WAS HELD AS FOLLOWS:- 10. HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL 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 THAT THE CIT-A FOUND SATISFIED THAT THE ASSESSEE FILED ALL THE REQUIRED DETAILS AND DOCUMENTS 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 SEARCH & SEIZURE OPERATION IN THE PREMISES OF THE SAID SHRI SACHET SARAF, DIRECTOR OF M/S. MARIGOLD VANIJYA P.LTD. THE SAID STATEMENT OF MR. SARAF WAS RETRACTED AT A LATER POINT OF TIME. THE CIT-A FOUND SATISFIED THAT THERE WAS NO CORROBORATIVE EVIDENCE WHICH SUPPORTS THE VIEW OF THE AO THAT THE SAID TRANSACTION WAS UNEXPLAINED. THEREFORE, WE FIND NO ADDITIONAL EVIDENCE, WHICH WAS FILED BEFORE THE CIT-A, BUT NOT BEFORE THE AO. THE CIT-A DELETED THE 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 RELIED ON BY THE ASSESSEE BEFORE THE CIT-A WERE RELEVANT AND APPLICABLE TO THE PRESENT FACTS OF THE CASE. THE CIT-A HAS DISCUSSED THE EACH CASE LAW THOROUGHLY. THUS, THE CIT-A WAS JUSTIFIED IN DELETING THE ADDITION MADE BY THE AO ON THIS ISSUE. THE GROUNDS RAISED BY THE REVENUE IN THE APPEAL ARE DISMISSED. 3 I.T.A. NO. 1466/KOL/2018 ASSESSMENT YEAR: 2012-13 STYLISH POLYMERS PVT. LTD 5. CONSISTENT WITH THE VIEW TAKEN THEREIN, AS THE ASSESSEE HAS ADMITTEDLY PRODUCED ALL THE NECESSARY EVIDENCES, IN SUPPORT OF THE TRANSACTIONS AND AS THE REVENUE HAS NOT BROUGHT ANY MATERIAL TO CONTROVERT THE EVIDENCE PRODUCED BY THE ASSESSEE, WE ALLOW THIS GROUND OF THE ASSESSEE AND DIRECT THE ASSESSING OFFICER TO ALLOW THE LOSS IN QUESTION. 6. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED. KOLKATA, THE 12 TH DAY OF DECEMBER, 2018. SD/- [ J. SUDHAKAR REDDY ] ACCOUNTANT MEMBER DATED : 12.12.2018 {SC SPS} COPY OF THE ORDER FORWARDED TO: 1. STYLISH POLYMERS PVT. LTD C/O. SUBASH AGARWAL & ASSOCIATES SIDDHA GIBSON 1, GIBSON LANE 2 ND FLOOR SUITE-213 KOLKATA 700 069 2. INCOME TAX OFFICER, WARD-11(4), KOLKATA 3. CIT(A)- 4. CIT- , 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSISTANT REGISTRAR ITAT, KOLKATA BENCHES