Shri Prabin Omprakash Khakholia, Surat V. The Income Tax Officer, Ward0 3(1), Surat

ITA 1638/AHD/2013

• Counselvise Citation: [2018] 118 COUNSELVISE.COM (IT) 2210 (ITAT-SURAT)
• Duration Of Justice: 5 year(s) 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 13-07-2017
• Assessment Year: 2008-2009
• Appeal Filed On: 03-06-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S R MEENA
• Assessee Lawyers: MEHUL R SHAH
• Keywords: Unexplained cash credit; Business income
• Section: 143(3)

Judgement Text

PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 1 OF 12 , , IN THE INCOME TAX APPELLATE TRIBUNAL SURAT BENCH, SURAT . . , . . , BEFORE SHRI C.M.GARG, JUDICIAL MEMBER AND SHRI O.P.MEENA, ACCOUNTANT MEMBER . . ./I.T.A NO.1638/AHD/2013/SRT /ASSESSMENT YEAR : 2008-09 PRABIN OMPRAKASH KHAKHOLIA, 207, SHREE SHYAM CHAMBERS, OPP. SUB-JAIN, RING ROAD, SURAT 395 002. [PAN: ADTPK 8959 J] VS. THE INCOME TAX OFFICER, WARD-3(1), SURAT. APPELLANT /RESPONDENT /ASSESSEE BY SHRI MEHUL R. SHAH CA /REVENUE BY SHRI S.R.MEENA SR.DR / DATE OF HEARING: 07 .0 8 .2018 /PRONOUNCEMENT ON 05 .0 9 . 2018 /O R D E R PER O. P. MEENA, ACCOUTANT MEMBER: 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-IV, SURAT(IN SHORT THE CIT (A)) DATED 30.03.2013 PERTAINING TO ASSESSMENT YEAR 208-09, WHICH IN TURN HAS ARISEN FROM THE ORDER PASSED BY THE INCOME TAX OFFICER, WARD-3(1), SURAT (IN SHORT THE AO) DATED 25.11.2010 UNDER SECTION 143(3) OF INCOME TAX ACT, 1961 (IN SHORT THE ACT). PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 2 OF 12 2. GROUND NO.1 RELATES TO CONFIRMING THE ADDITION OF RS.50,000/- OUT OF TOTAL ADDITION OF RS.5,50,000/- MADE BY THE ASSESSING OFFICER AS UNEXPLAINED CASH CREDIT U/S.68 OF THE ACT. 3. FACTS APROPOS OF THIS GROUND ARE THAT THE ASSESSEE HAS SHOWN UNSECURED LOAN OF RS.3,00,000/- FROM NEELAM JHUNJHUNWALA, RS.2,00,000/- FROM AMBAJI AUTO POINT (PROP. SURESH KUMAR TODI), AND RS.50,000/- FROM SWASTIK LEASING CO. FOR WHICH THE ASSESSEE FURNISHED CONFIRMATION LETTER, COPY OF PAN OF DEPOSITOR. THUS, THE ASSESSEE HAS PROVED IDENTITY OF THE DEPOSITOR, BUT NOT THE CREDIT WORTHINESS IN RESPECT OF ABOVE THREE CREDITORS, HENCE, THE AO MADE ADDITION OF RS.5,50,000/- U/S.68 OF THE ACT. 4. THE ASSESSEE CARRIED THE MATTER BEFORE THE CIT(A) WHO OBSERVED THAT IN RESPECT OF LOAN OF RS.3,00,000/- RECEIVED FROM NEELAM JHUNJHUNWALA, THE ASSESSEE HAS FILED CONFIRMATION OF THE DEPOSITOR ALONG WITH PAN AND ALSO BANK STATEMENT OF THE DEPOSITOR AND THE LOAN WAS REPAID BY THE APPELLANT ON 21.12.2009 WHICH WAS RECEIVED BY ACCOUNT PAYEE CHEQUE AND FURTHER THE PARTY WAS ASSESSED TO TAX, THEREFORE THE SAID ADDITION WAS DELETED. SIMILARLY, IN RESPECT OF LOAN OF RS.2,00,000/- THE ASSESSEE HAS FILED PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 3 OF 12 ALL DETAILS, HENCE IT WAS DELETED. HOWEVER, WITH REGARD TO LOAN OF RS.50,000/- FROM SWASTIK LEASING COMPANY, THE CIT(A) OBSERVED THAT THE APPELLANT HAD FAILED TO MAKE ANY SUBMISSIONS, HENCE THE SAME WAS CONFIRMED. 5. BEING AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL AS AGAINST THE CONFIRMATION OF ADDITION OF RS.50,000/-. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LOAN OF RS.50,000/- WERE TAKEN BY CHEQUE NO.957429 ON 13.09.2007 WHICH WAS REPAID ON 16.10.2007 BY CHEQUE NO.87132 OF RS.40,000/- AND RS.10,000/- BY CHEQUE NO.87133. THUS, THE LOAN SO TAKEN WAS SQUARED UP DURING THE ACCOUNTING YEAR ITSELF. THEREFORE, THE NO ADDITION SHOULD HAVE BEEN MADE BY THE AO, HENCE, THE CIT(A) WAS NOT JUSTIFIED IN CONFIRMING THE SAME. 6. PER CONTRA, THE LD.DEPARTMENTAL REPRESENTATIVE (DR) RELIED ON THE ORDER OF THE CIT(A). 7. WE HAVE CONSIDERED THE FACTS AND FIND THAT THE AMOUNT OF RS.50,000/- WAS RECEIVED BY CHEQUE FROM SWASTIK AGENCIES OF WHICH CONFIRMATION WAS ALSO FILED WHICH IS PLACED ON PAPER BOOK, PAGE NO.8. IT IS FURTHER SEEN THAT THE SAID AMOUNT WAS REPAID PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 4 OF 12 WITHIN A MONTH BY CHEQUE IN SUCH CIRCUMSTANCES THE IDENTITY, CREDIT WORTHINESS AND GENUINENESS OF THE TRANSACTION HAS BEEN DULY ESTABLISHED. THEREFORE, THE ADDITION SUSTAINED BY THE CIT(A) IS NOT FOUND TO BE IN ORDER, HENCE THEREFORE SAME IS DELETED. THEREFORE, THIS GROUND OF APPEAL IS ALLOWED. 8. GROUND NO.2 RELATES TO CONFIRMATION OF DISALLOWANCE OF RS.32,695/- OUT OF TOTAL DISALLOWANCE OF RS.63,468/- MADE BY THE AO AS INTEREST EXPENSES. 9. BRIEFLY STATED THE FACTS OF THE CASE ARE THAT THE CIT(A) NOTED THAT THE INTEREST EXPENSES OF RS.32,695/- PERTAINING TO SHRI BALAKRISHNA JHUNJHUNWALA, THE APPELLANT WAS UNABLE TO PROVE WITH COGENT EVIDENCES THAT HE IS ACTUALLY LIABLE TO PAY INTEREST OF RS.32,698/-. FURTHER, THE DEPOSITOR HAS NOT CHARGED ANY INTEREST AS IS EVIDENT ON PERUSAL OF HIS TRIAL BALANCE. HENCE, THE LIABILITY OF RS.32,695/- CANNOT BE SAID TO HAVE ACTUALLY ACCRUED IN THE CASE OF APPELLANT, THEREFORE, THE DISALLOWANCE OF INTEREST AND RS.32,695/- WAS CONFIRMED. 10. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL. THE AUTHORISED REPRESENTATIVE (AR) SUBMITTED THAT THE PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 5 OF 12 LOAN OF RS.3,25,000/- TAKEN FROM SHRI BALKRISHNA JHUNJHUNWALA WAS SHOWN AS PAYABLE WITH INTEREST AT RS.32,695/- AS ON AT THE END OF THE YEAR. HOWEVER, THE EVIDENCES INCLUDING TRIAL BALANCE OF THE SAID DEPOSITOR SHOWS ONLY THE AMOUNT OF RS.3,25,000/- AS ADVANCES TO THE ASSESSEE UNDER THE HEAD LOAN AND ADVANCES OF THE BALANCE SHEET. THEREFORE, THE ASSESSEE HAS NOT PAID INTEREST OF RS.32,695/- BUT IT HAD CREDITED THE SAID AMOUNTS IN HIS BOOKS OF ACCOUNTS, SINCE THE LOAN RECEIVED FROM SHRI BALKRISHNA JHUNJHUNWALA WAS ACCEPTED AS GENUINE, THEN THE INTEREST ACCRUED THEREON SHOULD ALSO BE TREATED AS GENUINE AND ALLOWABLE AS EXPENSES. 11. PER CONTRA, THE LD.DR RELIED ON THE ORDER OF LOWER AUTHORITIES. 12. WE HAVE HEARD THE RIVAL SUBMISSIONS AND FIND THAT THE ASSESSEE HAS TAKEN LOAN OF RS.3,25,000/- FROM SHRI BALKRISHNA JHUNJHUNWALA, WHICH CARRIES THE INTEREST BEING A LOAN ACCOUNT AND SAME HAS BEEN ACCEPTED AS GENUINE LOAN. THEREFORE, THE ALLOWABILITY ON ACCOUNT OF INTEREST BOOKED BY THE ASSESSEE IN HIS BOOKS OF ACCOUNT IS NATURALLY PAYABLE TO THE SAID CREDITOR. SIMPLY BECAUSE THE SAID CREDITOR HAS NOT CREDITED, THE INTEREST IN HIS BOOKS OF ACCOUNTS, IT DOES NOT MEAN THAT THE ASSESSEE WAS NOT LIABLE TO PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 6 OF 12 PAY INTEREST ACCRUED THEREON. THEREFORE, IN OUR HUMBLE UNDERSTANDING THE LOWER AUTHORITIES ARE NOT JUSTIFIED IN ITSELF IN DIS-BELIEVING THAT THE AMOUNT CREDITED IN THE BOOKS OF ACCOUNTS BY THE ASSESSEE ON ACCOUNT LOAN IS GENUINE AND INTEREST PAYABLE THEREFORE IS NOT GENUINE. THE ENTRY OF INTEREST IN CONTRA ACCOUNT MAY NOT BE REFLECTED ON THE DEPOSITOR MIGHT BE RECORDING ON REQUEST BASIS. HENCE, THE DISALLOWANCE CONFIRMED AT RS.32,695/- ARE THEREFORE DELETED. 13. GROUND NO.3 RELATES TO CONFIRMING THE ADDITION OF RS.12,31,187/- AS UNACCOUNTED CASH INCOME DEPOSITED IN UNDISCLOSED BANK ACCOUNT. THE AIR INFORMATION REVEALED THAT THE ASSESSEE MAINTAINED A BANK ACCOUNT WITH PRIME CO-OPERATIVE BANK LTD., MAIN BRANCH, KHATODARA, SURAT WHEREIN CASH TOTALING TO RS.11,27,000/- ON VARIOUS DATES WAS FOUND DEPOSITED. THE AO NOTED THAT THE ASSESSEE HAS ADMITTED THE FACT THAT SAID BANK ACCOUNT IS UNDISCLOSED ONE. THE ASSESSEE HAS ALSO ADMITTED THAT OUT OF TOTAL AMOUNT OF RS.13,47,672/- CREDITED IN THE SAID BANK ACCOUNT, CASH DEPOSITS ARE TOTALING TO RS.11,27,000/- AND THE BALANCE AMOUNT OF R.1,67,045/- CREDITED BY WAY OF REFUND RECEIVED ON ACCOUNT OF NON-ALLOTMENT / SHORT ALLOTMENT OF SHARES PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 7 OF 12 SO THE IPOS OF RELIANCE POWER AND FUTURE CAPITAL. THE EXPLANATION OFFERED BY THE ASSESSEE WAS NOT FOUND ACCEPTABLE BY THE AO FOR THE REASONS DISCUSSED IN THE ASSESSEE ORDER AT PARA 6.4 TO 6.5, ACCORDINGLY THE AO NOTED THAT THE SAID ACCOUNT WAS USED BY THE ASSESSEE FOR INVESTMENT IN SHARES THROUGH DE-MAT ACCOUNT WITH DP M/S.ANAND RATHI SECURITIES LTD. AND M/S.NAVRATAN CAPITAL SECURITIES LTD. WHICH IS EVIDENT FROM THE AMOUNT OF RS.1,16,485/- WAS RECEIVED AS REFUND ON ACCOUNT OF SHARE ALLOTMENT AND NON- ALLOTMENT OF SHARES IN THE SAID IPO'S. IN VIEW OF THIS THE AO ALLOWED DEDUCTION OF RS.1,16,485/- OUT OF TOTAL AMOUNT OF RS.13,47,672/- CREDITED IN THE SAID BANK ACCOUNT, ACCORDINGLY BALANCE OF RS.12,31,187/- WAS TREATED AS UNACCOUNTED, UNDISCLOSED INCOME OF THE ASSESSEE. 14. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A) BEFORE WHOM THE SAME SUBMISSIONS WERE REITERATED. THE CIT(A) OBSERVED THAT THE SUBMISSION OF APPELLANT IS THAT THE SOURCE OF MONEY DEPOSITED IN THE BANK ACCOUNT AND USED FOR THE BUSINESS OF SHARE TRADING WAS THE UNDISCLOSED INCOME AND FROM HIS BROKERAGE BUSINESS AND SINCE THE SHARE ACTIVITY WHICH RESULTED INTO LOSS OF RS.4,94,173/-, THE SAID LOSS SHOULD BE ALLOWED TO BE SET-OFF AGAINST THE UNDISCLOSED BUSINESS INCOME DEPOSITED IN THE BANK PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 8 OF 12 ACCOUNT IN THE FORM OF CASH. THE CIT(A) OBSERVED THAT THE CLAIM OF APPELLANT CANNOT BE ALLOWED FOR THE SEVERAL REASONS INCLUDING THE FACT THAT THE LOSS FROM UNDISCLOSED ACTIVITY CANNOT BE ADMITTED. THE BUSINESS CHARACTER HAS NOT BEEN ESTABLISHED NOR IT IS ESTABLISHED THAT SHARE ACTIVITY RESULTED IN THE BUSINESS OR CAPITAL LOSS IN WHICH CASE NO SET-OFF CAN BE ALLOWED EVEN IF IT IS ACCEPTED THAT THE DEPOSIT IN THE BANK ACCOUNT WERE FROM BUSINESS ACTIVITIES. AS SUCH EXPENDITURE IS DEEMED TO BE INCOME OF THE ASSESSEE U/S.69C OF THE ACT. ACCORDINGLY, THE ADDITION MADE BY THE AO WAS CAME TO BE SUSTAINED. 15. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THIS TRIBUNAL. THE AR SUBMITTED THAT THE AO IS NOT JUSTIFIED IN MAKING THE ADDITION OF ENTIRE DEPOSIT OF RS.12,31,187/- AND THEREBY DISALLOWING ASSESSEES CONTENTION IN ALLOWING SET-OFF OF LOSS IN RESPECT OF SHARE TRANSACTION AFTER WHICH THE NET PROFIT COMES TO RS.6,10,163/-. THE AR SUBMITTED THAT THE ASSESSEE HAS PREPARED COMPLETE ACCOUNTS ON THE BASIS OF WHICH TRADING PROFIT AND LOSS ACCOUNT AND BALANCE SHEET WERE PREPARED AND FILED IN THE COURSE OF ASSESSMENT PROCEEDINGS. THE ASSESSEE HAS EARNED NET PROFIT OF RS.6,10,163/- IN RESPECT OF TRANSACTION APPEARING IN THIS BANK ACCOUNT THE PEAK AMOUNT OF THIS UNDISCLOSED BANK ACCOUNT COMES PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 9 OF 12 TO RS.1,85,171/- AS ON 23.01.2008. IT WAS SUBMITTED THAT THE ASSESSEE HAS ALREADY OFFERED BALANCE DEPOSIT IN THE BANK ACCOUNTS AS ITS INCOME IN THE FORM OF BROKERAGE RECEIPTS, PROFITS OF SHARES AND F & O BANK INTEREST ETC., AND AGAINST THIS DEPOSIT THE ASSESSEE HAS CLAIMED LOSS OF RS.4,94,173/- IN RESPECT OF TRADING IN SHARES AND F & O. THE AO HAS DENIED THE SET-OFF OF LOSS ONLY ON THE GROUND THAT THE ASSESSEE ISSUED CHEQUE NOT ONLY OF DP M/S.ANAND RATHI SECURITIES LTD. WHO ALSO TO DP M/S.NAVARATAN CAPITAL AND SECURITIES LTD. HAS NOT BEEN SHOWN. HOWEVER, THE AR SUBMITTED THAT THE AO IS NOT AT ALL CORRECT AS IN THE PROFIT AND LOSS ACCOUNT AND BALANCE SHEET COMPLIED ON THE BASIS OF THE TRANSACTION APPEARING IN PRIME CO-OPERATIVE BANK LTD. TRANSACTION RELATING TO DP M/S.NAVARATAN CAPITAL SECURITIES LTD. HAVE BEEN DULY CONSIDERED. THE LOSS ARISING IN RESPECT OF TRADING OF SHARES F & O REPRESENTING BUSINESS LOSS AND SET-OFF OF THE SAME IS ALLOWABLE AGAINST THE DEPOSIT IN THE ABOVE BANK ACCOUNT. IN FACT, THE AO HAS ALSO NOT DENIED THE SET-OFF, AS THE ONLY REASON GIVEN BY HIM FOR NOT ACCEPTING THE PROFIT AS PER PROFIT AND LOSS ACCOUNT FILED DURING THE ASSESSMENT PROCEEDINGS IS THAT THE TRANSFERS PERTAINING TO M/S.ANAND RATHI SECURITIES LTD., HAS NOT BEEN COVERED. THEREFORE, IT WAS SUBMITTED THAT THE TRANSACTION RELATING TO BOTH ENTITIES HAVE BEEN COVERED AND PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 10 OF 12 ACCORDINGLY THE ADDITION CAN BE MADE ONLY IN RESPECT OF THE NET PROFIT OF RS.6,01,163/- PERTAINING TO THE TRANSACTIONS IN BANK ACCOUNT WITH PRIME CO-OPERATIVE BANK LTD. THE AO HAS ACCEPTED THE FACT THAT THE DEPOSIT TO THE EXTENT OF RS.1,16,485/- REPRESENTS APPLICATION MONEY RECEIVED BACK ON ACCOUNT OF SHORT ALLOTMENT/NON-ALLOTMENT OF SHARES IN IPO. HENCE, IT WAS SUBMITTED THAT THE ADDITION IS REQUIRED TO BE RESTRICTED TO RS.6,10,163/-. THE LD.AR FURTHER PLACED RELIANCE IN THE CASE OF GHANSHYAM KEVADIA VS. ITO IN ITA NO.1580/AHD/2013 DATED 18.04.2017 OF AHMEDABAD TRIBUNAL AND CONTENDED THAT THE ASSESSEE IS ENTITLED TO SET-OFF OF BUSINESS LOSS AGAINST THE UNEXPLAINED INCOME U/S.69 OF THE ACT AS PER PROVISIONS OF SECTION 71(1) OF THE ACT AS THE ALLEGED INCOME AND ALLOTTED LOSS BOTH EMANATES FROM THE SAME UNDISCLOSED ALLEGED BANK STATEMENT AND THEREFORE, THE NET INCOME FROM THE TRANSACTIONS APPEARING IN THE ALLEGED BANK STATEMENTS SHOULD HAVE BEEN TAXED. THE LD.TRIBUNAL, IN FACT PLACED RELIANCE IN THE CASE OF CIT VS. SHILPA DYEING & PRINTING MILLS PVT. LTD. [2013] 85 CCH 494 (GUJ) WHEREIN THE HON'BLE HIGH COURT HAS HELD THAT INCOME DECLARED IN THE COURSE OF SURVEY CAN BE SET-OFF FROM CURRENT LOSSES AND IT IS FURTHER HELD THAT SECTION 71 PERMITS THE ASSESSEE TO SET-OFF LOSSES OTHER THAN THAT OF CAPITAL PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 11 OF 12 GAINS AGAINST INCOME FROM OTHER HAND. THE LD.AR SUBMITTED THAT THE ADDITION THEREFORE SHOULD BE RESTRICTED TO RS.46.10.163/- AS AGAINST RS.12,31,187/- MADE BY THE AO, AS SHARE TRANSACTIONS AS PROFIT CAN ONLY BE TAXED IN THE CASE OF ASSESSEE. 16. ON THE OTHER HAND, THE LD.DR RELIED ON THE ORDER OF THE LOWER AUTHORITIES. 17. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSEE HAS PREPARED A COMPLETE PROFIT AND LOSS ACCOUNT, BALANCE SHEET, IN RESPECT OF TRANSACTIONS APPEARING IN THE IMPUGNED BANK ACCOUNT AND ARRIVING AT A NET PROFIT OF RS.6.10 LAKHS WHICH HAS BEEN OFFERED FOR TAX. SO FAR THE LOSS DERIVED FROM TRANSACTIONS OUT OF UNDISCLOSED INCOME ON ACCOUNT OF SHARE TRANSACTIONS AND F & O IS CONCERNED, WE FIND THAT THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF SHILPA DYEING & PRINTING MILLS PVT. LTD.,(SUPRA) HAS HELD THAT ONCE LOSS IS DETERMINED THE SAME SHOULD BE SET-OFF AGAINST THE INCOME DETERMINED UNDER ANY HEAD OF INCOME INCLUDING UNDISCLOSED INCOME. THE ITAT, AHMEDABAD BENCH OF IN THE CASE OF GHANSHYAM KEVADIA VS. ITO (SUPRA) HAS ALLOWED TO SET-OFF LOSS OFFERED BY THE ASSESSEE IN COMMODITY (FUTURE & OPTION) AND SHARE TRADING TRANSACTIONS. THEREFORE, WE ARE OF THE CONSIDERED OPINION THAT THE PRABIN OMPRAKASH KHAKHOLIA VS. ITO, WARD-3(1) /ITA NO.1638/AHD/2013/SRT/A.Y.:2008-09 PAGE 12 OF 12 ASSESSEE SHOULD BE ALLOWED THE SET-OFF LOSSES OF RS.4,94,173/- AGAINST THE UNDISCLOSED INCOME OF RS.12,31,187/-. 18. IN VIEW OF THESE FACTS, WE ARE OF THE CONSIDERED OPINION THAT THE ASSESSEE SHOULD BE ALLOWED THE SET-OFF OF THE SAME TRANSACTIONS BEING LOSS INCURRED ON ACCOUNT OF F & O, ACCORDINGLY THE ADDITION OF RS.12,31,187/- MADE BY THE AO IS RESTRICTED TO THE NET INCOME OF RS.6,10,163/- AS COMPUTED BY THE ASSESSEE, THIS GROUND IS THEREFORE PARTLY ALLOWED. 19. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED. 20. THE ORDER PRONOUNCED IN THE OPEN COURT ON 05-09-2018. SD/- SD/- ( . . /C.M. GARG) ( . . / O.P.MEENA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / SURAT, DATED : 5 TH SEP , 2018/ S.GANGADHARA RAO, SR.PS COPY OF ORDER SENT TO- ASSESSEE/AO/PR. CIT/ CIT (A)/ ITAT (DR)/GUARD FILE OF ITAT. BY ORDER / / TRUE COPY / / ASSISTANT REGISTRAR, SURAT