Sharma Buildwell Pvt. Ltd., Sirsa V. ITO, W-3, Sirsa

ITA 450/CHANDI/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 1273 (ITAT-CHANDIGARH)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-05-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 18-03-2020
• Assessment Year: 2015-2016
• Appeal Filed On: 09-04-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ARVIND SUDARSHAN
• Assessee Lawyers: SUDHIRA SEHGAL
• Keywords: Principle of natural justice; Transactions in derivatives; Speculation loss; Corroborative evidences; Capital Gains; Bogus
• Section: 250; 20

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH B , CHANDIGARH , ! ' # , BEFORE SHRI SANJAY GARG, JUDICIAL MEMBER AND SMT.ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO.450/CHD/2019 / ASSESSMENT YEAR : 2015-16 SHARMA BUILDWELL PRIVATE LIMITED, BAWARI STREET, NOHARIA BAZAR, SIRSA, HARYANA. THE INCOME TAX OFFICER, WARD-1, SIRSA, HARYANA. ./PAN NO: AAICS7681J /APPELLANT /RESPONDENT /ASSESSEE BY: SHRI SUDHIRA SEHGAL ! / REVENUE BY: SHRI ARVIND SUDARSHAN, JCIT DR ' # /DATE OF HEARING : 18 .03.2020 $%&' /DATE OF PRONOUNCEMENT:. 21/05/2020 /ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER : THE ABOVE APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- 5, LUDHIANA [(IN SHORT REFERRED TO AS CIT(A)] DAT ED 22.02.2019, RELATING TO ASSESSMENT YEAR 2015-16, PASSED U/S 250 (6)) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS A CT. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: 1. THAT THE ORDER OF LD. CIT (A) AS WELL AS INCOME TAX OFFICER IS AGAINST LAW AND FACTS. ITA NO.450/CHD/2019 A.Y. 20 15-16 2 2 THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) , HISAR AS WELL AS LD INCOME TAX OFFICER WAS GROSSLY ERRED BOTH IN LAW AND , ON FACTS IN DENYING THE CLAIM OF LOSS IN THE STOCK BUSINESS ON SURMISES AND CONJECTURERS. 3. THAT LD COMMISSIONER OF INCOME TAX(APPEALS), HAS ERRED ON FACTS IN CONFIRMING THE ADDITION OF RS. 2,06,39.101 /- BY NOT ACCEPTING THE WELL ACCEPTED S YSTEM OF STOCK, WHEREIN THERE IS A PAKKA ARTHTIA AND OTHE R IS STOCKIEST . 4. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS FAILED TO APPRECIATE THE EVIDENCE TENDERED BY T HE APPELLANT TO SUPPORT THE CLAIM OF LOSS INCURRED AND HENCE , FINDINGS RECORDED ON BORROWED INFERENCE IN DISREGAR D OF EVIDENCE AND BASED ON IRRELEVANT AND EXTRANEOUS CONSIDERATIONS ARE MISCONCEIVED AND, MISPLACED. 5. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN CONFIRMING THE ABOVE ADDITION AND DENI ED LOSS BY NOT APPRECIATING THE DETAILED EXPLANATION OF APP ELLANT AND ALSO DOCUMENTARY EVIDENCE FURNISHED DURING ASSESSMENT PROCEEDINGS AND THEREFORE ORDER SO MADE IS IN DISREGARD OF PRINCIPLES OF NATURAL JUSTICE IS VITIA TED. 6. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN TREATING THE STOCK BUSINESS AS SPECULATIVE LOSS BY STATING THAT THAT THE GOODS WER E NOT PURCHASED BY THE ASSESSSEE AND NO DELIVERY OF GOODS TAKEN PLACE, WHERE AS IN STOCK BUSINESS, IT IS VERY OLD AND WELL ACCEPTED SYSTEM OF BUSINESS THAT THE GOODS REM AINED WITH THE ARHTIA. HENCE, ORDER SO MADE IS IN DISREGA RD OF PRINCIPLES OF WELL ACCEPTED SYSTEM OF STOCK BUSINES S. 7. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) HAS ERRED IN SUSTAINING THE ADDITION ON ACCOUNT OF INTEREST PAID TO VARIOUS PERSONS BY NOT APPRECIATING THE FAC T THAT THE INTEREST WAS PAID ON UNSECURED LOANS WHICH WERE TAKEN FOR THE USE OF THE BUSINESS AND THE INTEREST EXPENSE WERE RIGHTLY CLAIMED IN THE PROFIT AND LOSS ACCOUNT . 8. THAT THE FURTHERMORE THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS SUSTAINED THE ADDITION ON MERE SPECULATIONS, GENERALIZED STATEMENTS, THEORETICAL ASSUMPTIONS AND ALLEGATIONS, ASSERTIONS AND ALSO ON PREPONDERANCE OF POSSIBILITIES, WITHOUT THERE BEING ANY SUPPORTING EVIDENCE AND IS THEREFORE NOT IN ACCORDA NCE WITH LAW. 9. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS) WHILE SUSTAINING THE ABOVE ADDITION HAS ARBITRARILY , AND MECHANICALLY REJECTED THE EXPLANATION AND EVIDENCE TENDERED BY THE APPELLANT AND CONFIRMED THE ADDITIO N AND DENIED THE CLAIM OF LOSS AS WELL AS INTEREST EXPENS ES BY ITA NO.450/CHD/2019 A.Y. 20 15-16 3 DRAWING SUBJECTIVE, PREMEDITATED AND PRECONCEIVED INFERENCES THEREFORE THE SAME IS NOT SUSTAINABLE. 10. THAT THE LD COMMISSIONER OF INCOME TAX (APPEALS ) HAVE GROSSLY ERRED IN APPLYING THE JUDGMENT OF HON BLE SUPREME COURT IN CASE OF DAVENPORT & CO. PVT. LTD. VS. CIT, WEST BENGAL, WHEREAS FACTS OF THIS CASE IS ENT IRELY DIFFERENT FROM AS THAT OF ASSESSEE CASE. 11. THAT THE APPELLANT CRAVES LEAVE FOR ANY ADDITIO N, DELETION OR AMENDMENT IN THE GROUNDS OF APPEAL ON O R BEFORE THE DISPOSAL OF THE SAME. 3. THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE SOLITARY ISSUE INVOLVED IN THE PRESENT APPEAL RELAT ES TO DISALLOWANCE OF CLAIM OF LOSS FROM COMMODITY STOCK TRADING AMOUNTING TO RS.2,06,39,101/-. AT THE OUTSET ITSELF, THE LEARNED COUNSEL FOR THE ASSESSEE STATED THAT IDENTICAL ISSUE HAS ALREADY BEEN DEALT WITH BY THE ITAT IN THE CASE OF SMT.ANJU SHARMA VS. ITO, WARD-I IN ITA NO.451/CHD/2019 VIDE THEIR ORDER DATED 6.11.2019, A LLOWING THE ASSESSEES APPEAL. COPY OF THE ORDER WAS PLACED BEFORE US. LD. COUNSEL FOR THE ASSESSEE CONTENDED THAT THE FAC TS AND THE ISSUE INVOLVED IN THE CASE OF SMT.ANJU SHARMA(SUPRA ) WERE IDENTICAL TO THAT IN THE PRESENT CASE. DRAWING OUT ATTENTION TO THE FACTS OF THE PRESENT CASE, LEARNED COUNSEL FOR THE ASSESSEE STATED THAT THE ASSESSEE H AD CLAIMED SET OFF OF COMMODITY STOCK TRADING LOSS OF RS.2,06, 39,101/- AGAINST LONG TERM CAPITAL GAINS OF RS.2,80,71,062/ - EARNED DURING THE YEAR. THAT THE ASSESSING OFFICER(AO) HA D SCRUTINIZED THIS CLAIM OF LOSS OF THE ASSESSEE DURI NG THE ITA NO.450/CHD/2019 A.Y. 20 15-16 4 ASSESSMENT PROCEEDINGS AND HAD DENIED THE SAME NOTI NG THAT THE ASSESSEE HAD NOT INDULGED IN SUCH TRANSACTIONS EITHER IN THE PRECEDING YEAR OR THE SUCCEEDING YEAR, THAT THE SCOPE OF THE COMPANY DID NOT INCLUDED TRADING IN COMMODITY, THAT THE CHANGE IN OBJECT HAD NOT BEEN INTIMATED TO ANY AUTH ORITY, THAT NO CONCRETE DOCUMENT TO SUPPORT THE RATE OF PURCHAS E AND SALE OF COMMODITIES HAD BEEN FILED BY THE ASSESSEE AND T HE ASSESSEES EXPLANATION FOR SELLING THE COMMODITIES AT A LOSS ON ACCOUNT OF THE SAME BEING INFECTED WAS NOT BELIEVAB LE. THAT ACCORDINGLY THE AO HELD THAT THE ASSESSEE WAS NOT E LIGIBLE TO THE LOSS ON ACCOUNT OF COMMODITY TRADING AND DISALL OWED THE SAME. THE LD.CIT(A),IT WAS POINTED OUT, UPHELD THE ORDER OF THE AO. THE LEARNED COUNSEL FOR THE ASSESSEE THEREAFTER DREW OUT ATTENTION TO THE ORDER OF THE LD.CIT(A) AT PAGE 9 AND POINTED OUT THAT THE LD.CIT(A) HAD NOTED THAT IDENTICAL TYP E OF BOGUS LOSS HAD BEEN CLAIMED IN ANOTHER ASSESSEE OF THE GR OUP, NAMELY SMT.ANJU SHARMA AND HAD OBSERVED THAT IT POINTED TO WARDS THE FACT THAT THE ASSESSEE GROUP WAS IN THE HABIT OF AD OPTING OF SUCH UNSCRUPULOUS METHOD OF TAX AVOIDANCE. THE LEA RNED COUNSEL FOR THE ASSESSEE STATED THAT EVIDENTLY THE ISSUE IN THE PRESENT CASE HAD BEEN NOTED BY THE LD.(CIT(A) TO BE IDENTICAL TO THAT IN THE CASE OF ANJU SHARMA(SUPRA) WHICH ALREAD Y STANDS DECIDED IN FAVOUR OF THE ASSESSEE BY THE AFORESTATE D ORDER OF THE ITAT. HE THEREAFTER TOOK US THROUGH THE ORDER OF TH E ITAT IN THE CASE OF ANJU SHARMA(SUPRA) AND DRAWING OUR ATTENTIO N TO THE ITA NO.450/CHD/2019 A.Y. 20 15-16 5 FACTS OF THE CASE ENUMERATED AT PARA 3 OF THE ORDER POINTED OUT THE PARITY OF THE FACTS AND THE ISSUE IN THAT CASE WITH THE PRESENT CASE. REFERRING TO PARA 3 HE POINTED OUT TH AT IN THE CASE OF ANJU SHARMA(SUPRA) ALSO THE ASSESSEE HAD DE CLARED STOCK LOSS OF RS.75,31,781/- AND SET OFF THE SAME A GAINST THE INCOME FROM LONG TERM CAPITAL GAIN OF RS.78,83,716/ -. THAT THE LOSS HAD BEEN EXPLAINED TO BE ON ACCOUNT OF PUR CHASE AND SALE OF WHEAT WHICH HAD BEEN SOLD AT LOSS ON ACCOUN T OF INSECT INFESTATION. THAT THE AO HAD TREATED THE TRANSACTI ONS AS BOGUS AND MANIPULATED BY THE ASSESSEE TO AVOID THE LEVY O F CAPITAL GAINS TAX. THE LEARNED COUNSEL FOR THE ASSESSEE THE REAFTER TOOK US THROUGH THE FINDINGS OF THE ITAT ALLOWING THE CL AIM OF THE ASSESSEE, AT PARA 8 OF THE ORDER AS UNDER: 8. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND GONE THROUGH THE RECENT CAREFULLY. ACCORDING TO THE ASSE SSING OFFICER, THE ASSESSEE HAS SOLD OFFICE SPACE IN GURG AON FOR RS. 2.00 CRORES WHICH HAS GIVEN RISE TO LONG TERM C APITAL GAIN OF RS. 78,83,716/-. THEREFORE, THE ASSESSEE HA S A MOTIVE TO REDUCE TAX LIABILITY BY ADOPTING CERTAIN STRATEGY. HE INVESTIGATED THE CLAIM OF THE ASSESSEE ABOUT LOS S IN WHEAT TRADING WITH THIS ANGLE. THE QUESTION BEFORE US IS , WHETHER THE ASSESSING OFFICER TO ABLE TO BRING SUFF ICIENT EVIDENCE DEMONSTRATING THE FACT THAT VERSION PUT FO RTH BY THE ASSESSEE WAS FALSE AND SHE HAS NOT CARRIED OUT ANY ALLEGED TRADING IN WHEAT. LET US EVALUATE THE EVIDE NCE SUBMITTED BY THE ASSESSEE AS WELL AS INVESTIGATION CARRIED OUT BY THE ASSESSING OFFICER.A PERUSAL OF PARA NO 3 OF THE ASSESSMENT ORDER EXTRACTED (SUPRA) WOULD INDICATE T HAT THE ASSESSEE HAS GIVEN SPECIFIC DETAILS OF PURCHASE OF WHEAT, COPIES OF BILLS, VOUCHERS ETC. SHE HAS COMPI LED ALL THESE DETAILS IN TABULAR FORM WHICH EXHIBITS AMOUNT TRANSMITTED BY THE ASSESSEE THROUGH RTGS, RATE AT W HICH WHEAT WAS PURCHASED. COMMISSION, BROKERAGE, LABOUR CHARGES, PACKAGING ETC. THE ASSESSING OFFICER DID N OT CALL FOR ANY OF THE ALLEGED PAKKA ARHTIASOR ENTRIES FR OM WHOM THE WHEAT WAS PURCHASED. HE SIMPLY PUT A DOUBT ON THE BASIS OF CIRCUMSTANCES. FIRST SUSPICION IS THAT ITA NO.450/CHD/2019 A.Y. 20 15-16 6 INCIDENCE OF LONG TERM CAPITAL GAIN OCCURRED TO THE ASSEESSEE ON 21.07.2014, AND THEREAFTER, THE ASSEES SEE HAS BOOKED PURCHASE OF WHEAT, ITS INFESTATION AND S ALE. THE INFESTATION HAS HAPPENED IN ALL THESE SEVEN GOD OWNS. THIS WAS NOT ACCEPTABLE TO THE ASSESSING OFFICER. T O OUR MIND , IT IS ONE OF STRONG CIRCUMSTANCE AND CORROBO RATIVE FACTORS TO DISBELIEVE THE CLAIM OF THE ASSESSEE, BU T IT IS A JUST SUSPICION AND IT SHOULD HAVE BEEN CROSS-VERIFI ED BY THE ASSESSING OFFICER BEFORE DISBELIEVING IT. HE OU GHT TO HAVE AT LEAST ISSUED SUMMONS TO THESE ENTITIES AND TO VERIFY WHETHER THIS ACTIVITY WAS ACTUALLY UNDERTAKE N BY THE ASSESSEE OR NOT. SUSPICION HOWEVER MAY BE STRON G, BUT ONLY ON THE BASIS OF THE SUSPICION CLAIM OF THE ASS ESSEE CANNOT BE REJECTED. FOR BUTTRESSING THE ASPECT, WE WOULD LIKE TO DECISIONS OF HONBLE SUPREME COURT IN THE C ASE REFERRED BY THE LD COUNSEL FOR THE ASSESSEE IN HIS SYNOPSIS VIZ OMAR SALARY MOHAMED SAIT VS. CIT,37 IT R 151, CIT VS. DAULAT RAM RAWATMULL, 87 ITR 349 (SC). IN BOTH THESE DECISIONS, HONBLE SUPREME COURT PROPOUN DED THAT CLAIM OF THE ASSESSEE CANNOT BE REJECTED ON SU RMISES, SUSPICION AND CONJECTURE. IT IS FOR THE ASSESSING O FFICER TO PROVE THAT APPARENT IS NOT REAL. SIMILARLY, AS FAR AS FINDINGS OF THE CIT(A) THAT THE ALLEGED LOSS IS SPE CULATIVE LOSS, WE ARE OF THE VIEW THAT THE LD CIT(A) HAS BAS ED HIS FINDINGS ON THE GROUND THAT ACTUAL DELIVERY WAS NOT TAKEN. THE LD CIT (A) FAILED TO APPRECIATE THAT DELIVERY T AKEN BY THE PAKKA ARHTIAS IN THE CAPACITY OF AGENT OF THE ASSESSEE IS TO BE CONSTRUED AS ACTUAL DELIVERY TAKE N BY THE ASSESSEE. THEREFORE, IN VIEW OF THE ABOVE DISCU SSION WE ARE OF THE VIEW THAT LD REVENUE AUTHORITIES HAVE FAILED TO BRING CONCLUSIVE EVIDENCE FOR FALSIFYING THE CLA IM OF THE ASSESSEE. WE ALLOW THE APPEAL OF THE ASSESSEE AND D IRECT THE ASSESSING OFFICER TO ACCEPT THE LOSS OF RS. 75, 31,781/- DISCLOSED BY THE ASSESSEE ON STOCK-LOSS OF WHEAT, AND THERE AFTER COMPUTE THE INCOME OF THE ASSESSEE. 4. REFERRING TO THE SAME THE LEARNED COUNSEL FOR TH E ASSESSEE POINTED THAT THE ITAT ON EVALUATING THE EVIDENCES B EFORE IT AS WELL AS THE INVESTIGATION CARRIED OUT BY THE AO, H AD NOTED THAT THE ASSESSEE HAD GIVEN SPECIFIC DETAILS OF PURCHASE AND SALE OF WHEAT ALONGWITH NECESSARY DOCUMENTARY EVIDENCES OF BILLS, VOUCHERS AND DETAIL OF TRANSFER OF AMOUNT THROUGH R TGS, TOTAL COMMISSION BROKERAGE ETC. THAT THE ITAT FURTHER NOT ED THAT THE AO MADE NO ENQUIRIES FROM THE PUCCA ARHTIAS OR ENTI TIES FROM ITA NO.450/CHD/2019 A.Y. 20 15-16 7 WHOM WHEAT WAS PURCHASED BUT MERELY SUSPECTED THE TRANSACTION WITH NO BASIS AT ALL. THE ITAT HELD THA T SUSPICION, HOWEVER STRONG, CANNOT BE THE SOLE BASIS FOR REJECT ING THE CLAIM OF THE ASSESSEE AND ACCORDINGLY ALLOWED THE APPEAL OF THE ASSESSEE. THE LEARNED COUNSEL FOR THE ASSESSEE FURT HER POINTED OUT FROM THE ORDER OF THE ITAT THAT THE LD.CIT(A) HAD HELD IN THAT CASE THAT EVEN IF THE CLAIM OF THE ASSESSEE WA S GENUINE, THE TRANSACTION IN COMMODITY STOCK WAS A SPECULATIV E TRANSACTION WITH NO ACTUAL DELIVERY OF GOODS AND, T HEREFORE, ALSO THE LOSS INCURRED ON ACCOUNT OF THE SAME WAS NOT AL LOWABLE AS PER STATUTE. THE LEARNED COUNSEL FOR THE ASSESSEE P OINTED OUT FROM THE ORDER OF THE ITAT THAT THIS ISSUE WAS ALSO DEALT WITH BY THE ITAT NOTING THAT THE DELIVERY TAKEN BY PUCCA ARHTIAS IN THE CAPACITY OF AGENT OF THE ASSESSEE IS TO BE CONS TRUED AS ACTUAL DELIVERY TAKEN BY THE ASSESSEE AND, THEREFOR E, IT CANNOT BE TREATED AS SPECULATIVE TRANSACTION. THE LEARNED COUNSEL FOR THE ASSESSEE THEREAFTER TOO K US THROUGH THE FACTS OF THE PRESENT CASE AND DRAWING OUR ATTEN TION TO THE PAPER BOOK FILED BEFORE US POINTED OUT THAT ALL DET AILS OF THE LOSS ON STOCK HAD BEEN FILED TO THE AO IN THE FORM OF COPY OF ACCOUNT OF THE SAME ALONGWITH CONFIRMED COPY OF ACC OUNT OF ALL PARTIES THROUGH WHOM THE TRANSACTION HAD BEEN UNDER TAKEN AND ALSO DOCUMENTS EVIDENCING CONSIGNMENT PURCHASE AND ITA NO.450/CHD/2019 A.Y. 20 15-16 8 CONSIGNMENT SALE OF THE STOCK. OUR ATTENTION WAS DR AWN TO THE FOLLOWING DOCUMENTS FILED AT BOOK PAGE NOS.4 TO 34 AS UNDER: 1. COPY OF LOSS ON STOCK ACCOUNT AS PER THE BOOKS OF A CCOUNTS OF THE ASSESSEE. 4 2. COPY OF CONFIRMED LEDGER ACCOUNTS AS ISSUED BY M/S SAT NARAIN GUPTA & SONS. 5 3. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURC HASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S P.R TRA DERS 6-8 4. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT P URCH ASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S KUNJ BIHARI FOOD SALES INDIA. 9-11 5. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURC HASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S GAURI SHANKER TRADING CO. 12 - 14 6. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURCHASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S PANMESHWATI DASS YOGESH KUMAR 15-19 7. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURC HASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S LAL CHA ND JAI NARAIN 20 - 25 8. CO PY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURCHA SE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S ANITA I NDUSTRIES . 2&28 9. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURC HASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S SINGHAL TRADERS . 29-31 10. COPY OF CONFIRMED LEDGER ACCOUNTS, CONSIGNMENT PURC HASE AND CONSIGNMENT SALE DOCUMENTS AS ISSUED BY M/S CHHAVI SALES CORPORATION. 32 - 34 5. THE LEARNED COUNSEL FOR THE ASSESSEE CONTENDED T HAT IN VIEW OF THE EVIDENCE FILED BY THE ASSESSEE REGARDIN G ITS TRANSACTION OF PURCHASE SALE OF COMMODITY STOCK EVI DENCING THE LOSS INCURRED IN THE SAME AND THE REVENUE HAVING NO BASIS FOR DISALLOWING THE CLAIM EXCEPT SUSPICION, THE FACTS O F THE PRESENT CASE WERE IDENTICAL TO THAT CASE OF ANJU SHARMA(SUP RA) AND ACCORDINGLY THE ISSUE IN THE PRESENT CASE STOOD SQU ARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE AFORESAID ORDER. THE LEARNED COUNSEL FOR THE ASSESSEE ACCORDINGLY PLEADE D THAT THE APPEAL OF THE ASSESSEE BE ALLOWED. ITA NO.450/CHD/2019 A.Y. 20 15-16 9 6. THE LD.DR THOUGH VEHEMENTLY RELIED UPON THE ORDE R OF THE AO BUT WAS UNABLE TO UPSET THE FACTUAL CONTENTION OF THE LEARNED COUNSEL FOR THE ASSESSEE, NOR THE LD.DR WAS ABLE TO DRAW OUR ATTENTION TO ANY DISTINGUISHING FACTS IN T HE PRESENT CASE FROM THAT IN THE CASE OF ANJU SHARMA(SUPRA). 7. HAVING HEARD BOTH THE PARTIES AND HAVING GONE TH ROUGH THE ORDERS OF THE AUTHORITIES BELOW IN THE PRESENT CASE AND AFTER HAVING PERUSED THE ORDER OF THE ITAT IN THE C ASE OF ANJU SHARMA(SUPRA), WE ARE CONVINCED WITH THE ARGUMENTS OF THE LEARNED COUNSEL FOR THE ASSESSEE THAT THE FACTS AND ISSUE INVOLVED IN THE PRESENT CASE ARE IDENTICAL TO THAT AS IN THE CASE OF ANJU SHARMA(SUPRA) AS IN THE PRESENT CASE ALSO T HE LOSS ON ACCOUNT OF CONSIGNMENT STOCK OF RS.2,06,39,101/- HA S BEEN DENIED BY THE REVENUE AUTHORITIES TREATING THE SAME AS BOGUS BUT THE ASSESSEE IN THE PRESENT CASE, WE HAVE NOTED HAD FILED SUFFICIENT DOCUMENTARY EVIDENCES TO SUBSTANTIATE IT S CLAIM OF PURCHASE AND SALE OF COMMODITY STOCK IN THE FORM OF DOCUMENTS AS NOTED AT PARA 4 ABOVE GIVING DETAILS OF ALL COMM ODITY STOCK TRANSACTIONS ENTERED INTO, COPY OF ACCOUNT OF THE P ARTIES WITH WHOM TRANSACTION HAD BEEN ENTERED ALONGWITH CONSIGN MENT PURCHASE AND CONSIGNMENT SALE DOCUMENTS. THE REVENU E, ON THE OTHER HAND, WE FIND, HAS BASED ITS FINDINGS OF THE TRANSACTION BEING BOGUS MERELY ON THE BASIS OF SUSP ICION AND THERE IS NO CONCRETE EVIDENCE, NOR ANY INVESTIGATIO N CARRIED OUT ITA NO.450/CHD/2019 A.Y. 20 15-16 10 BY IT ON THE FINDINGS SUBMITTED BY THE ASSESSEE, TO ARRIVE AT THIS CONCLUSION. IN VIEW OF THE SAME, THEREFORE, AS HELD BY THE ITAT IN THE CASE OF ANJU SHARMA(SUPRA) ON IDENTICAL FACTS AND CIRCUMSTANCES, WE ARE UNABLE TO AGREE WITH THE FIND INGS OF THE REVENUE THAT THE TRANSACTION COULD BE HELD TO BE A BOGUS TRANSACTION. FURTHER AS HELD BY THE ITAT, IN THE CA SE OF ANJU SHARMA(SUPRA) DELIVERY TAKEN BY ARHTIAS IN THE CA PACITY OF AGENT OF THE ASSESSEE IS TO BE CONSTRUED AS ACTUAL DELIVERY TAKEN BY THE ASSESSEE, THE TRANSACTION THEREFORE CA NNOT BE TREATED AS SPECULATIVE ALSO. THE DECISION RENDERED BY THE ITAT IN THE CASE OF ANJU SHARMA(SUPRA), WE HOLD, SQUAREL Y APPLIES IN THE PRESENT CASE. ACCORDINGLY, WE HOLD THAT THE AS SESSEE BE ALLOWED ITS CLAIM OF LOSS OF COMMODITY TRANSACTION . 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED ON 21/05/2020. SD/- SD/- ! ' # (SANJAY GARG) (ANNAPURNA GUPTA) /JUDICIAL MEMBER $ % /ACCOUNTANT MEMBER /DATED: 21 MAY, 2020 * * % ( ) / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. ' * / CIT 4. ' * ( )/ THE CIT(A) 5. +, , , -./,0 / DR, ITAT, CHANDIGARH 6. ,/ 1# / GUARD FILE %( ' / BY ORDER, / ASSISTANT REGISTRAR