Mahipat R. Shah, Ahmedabad V. The ITO. Ward-1(3)(3), Ahmedabad

ITA 839/AHD/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 0988 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 8 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-12-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 27-09-2019
• Assessment Year: 2009-2010
• Appeal Filed On: 05-04-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: NK GOEL
• Keywords: Transactions in derivatives; Tangible material; Accommodation entries; Set aside
• Section: 143(3); 201; 147

Judgement Text

PAGE 1 OF 8 , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC BENCH, AHMEDABAD BEFORE , SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND MS . MADHUMITA ROY , JUDICIAL MEMBER ./ ITA NO . 83 9 /AHD/2018 / ASSTT. YEAR : 2009 - 2010 MAHIPAT R. SHAH , 701/702. PREMIUM HOUSE , B/H HANDLOOM HOUSE , ELLISBRIDGE , AHMEDABAD - 380006 . PAN: ACZPS3725R VS . I.T .O , WARD - 1 (3) (3) , AHMEDABAD . (APPLICANT) ( RESPON D ENT ) ASSESSEE BY : SHRI DEEPAK SHAH , A.R REVENUE BY : SHRI N.K. GOEL , SR . DR / DATE OF HEARING : 27 / 09 / 201 9 / DATE OF PRONOUNCEMENT: 17 /12 /2 01 9 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER: THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTANCE OF THE AS SESSEE AGAINST THE ORDER OF THE LEARNED COMMISS IONER OF INCOME TAX (APPEALS) , AHMEDABAD - 7 [ LD. CIT (A) IN SHORT] , DATED 05 / 02 / 2018 ARI SING IN THE MATTER OF ASSESSMENT ORDER PASSED UNDER S. 143(3) OF THE INCOME TAX ACT, 1961 ( HERE - IN - AFTER REFERRED TO AS 'THE ACT') DATED 15 / 12 / 201 6 RELEVANT TO ASSESSMENT YEAR (A . Y) 2009 - 10 . THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL: ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 2 OF 8 BEING AGGRIEVED AND DISSATISFIED BY THE ORDER DT.05 - 02 - 2018 PASSED BY THE LD.CIT(A), THE APPELLANT BEGS TO PREFER THIS APPEAL ON THE FOLLOWING AMONGST OTHER GROUNDS 1 THAT THE LD.CIT9A) ERRED IN LAW AND ON THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN RE - OPENING THE CASE OF THE APPELLANT U/S.147 OF THE ACT. 2 THAT THE LD.CIT(A) ERRED IN LAW AND IN THE FACTS OF THE CASE IN CONFIRMING THE ORDER OF THE AO IN MAKING ADDITION OF RS.25,78,403/ - ON ACCOUNT OF F & O TRANSACTIONS BY TREATING THE SAME AS INCOME OF THE APPELLANT. 3 ANY OTHER GROUND WHICH MAY BE URGED BEFORE OR DURING THE HEARING OF THE AP PEAL. 2. THE LEARNED AR FOR THE ASSESSEE AT THE TIME OF HEARING DID NOT PRESS GROUND NO. 1 RAISED IN THE MEMO OF APPEAL CHALLENGING THE VALIDITY OF THE ASSESSMENT FRAMED UNDER SECTION 147 OF THE ACT. THEREFORE WE DISMISS THE SAME AS NOT PRESSED. 3. THE ONLY ISSUE RAISED BY THE ASSESSEE IS THAT THE LEARNED CIT (A) ERRED IN UPHOLDING THE ORDER OF THE AO BY SUSTAINING THE ADDITION OF 25,78,403.00 IN FUTURE AND OPTION TRANSACTION AS INCOME OF THE ASSESSEE. 4. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IN THE PRESENT CASE IS AN INDIVIDUAL AND ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND SECURITIES. THE ASSESSEE IS ALSO A DIRECTOR IN A COMPANY NAMELY M/S MAHIPAT RAICHAND SHARE BROKING PRIVATE LTD (FOR SHORT MRSBL) WHICH IS A MEMBER OF NATIONAL STOCK E XCHANGE AND BOMBAY STOCK EXCHANGE. THE AO FOR THE YEAR UNDER CONSIDERATION RECEIVED INFORMATION FROM THE INVESTIGATION DIRECTORATE WHEREIN IT WAS STATED THAT THE CLIENT CODE OF THE ASSESSEE MAINTAINED WITH THE BROKER I.E. MRSBL HAS BEEN MODIFIED 389 TIMES. AS A RESULT OF SUCH CHANGE IN THE CODE, THE ASSESSEE HAS SHIFTED HIS PROFIT OF 25,78,403.00 OF FUTURE AND OPTION TRANSACTIONS. 4.1 ON QU ESTION BY THE AO, THE ASSESSEE V IDE LETTER DATED 27 OCTOBER 2016 DENIED TO HAVE SUCH TRANSACTIONS THROUGH HIS BROKE R WHERE THE ALLEGED CLIENT CODE WAS MODIFIED. ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 3 OF 8 4.2 THE ASSESSEE ALSO SUBMITTED THAT CONTRACT NOTE IS GENERATED BY THE BROKER AFTER OBTAINING THE TRADE LOG FILE FROM THE NATIONAL STOCK EXCHANGE (FOR SHORT NSE). SUCH CONTRACT NOTE CONTAINS THE DETAILS SUCH AS ORDER NUMBER, TRADE NAME, CLIENT CODE, CLIENT NAME AND ALSO THE SCRIP, QUANTITY, RATE ETC WHICH IS BASED ON THE TRADE LOG PROVIDED BY THE NSE. AS SUCH THE NAME OF THE ASSESSEE DOES NOT APPEAR IN THE TRADE LOG PROVIDED BY THE NSE. IN FACT, AS PER THE TRA DE LOG THE NAME OF THE MODIFIED CLIENT IS APPEARING THEREIN IN. 4.3 THE ASSESSEE ALSO CLAIMED TO HAVE CARRIED OUT ONLY THOSE TRANSACTIONS IN HIS NAME WHICH ARE APPEARING IN THE TRADE LOG PROVIDED BY THE NSE AND THE SAME WERE DULY ACCOUNTED FOR IN THE BOOK S OF ACCOUNTS AND CONSEQUENTLY OFFERED TO TAX IN THE INCOME TAX RETURN. 4.4 THERE WAS NO CONSIDERATION RECEIVED BY THE ASSESSEE AGAINST THE ALLEGED TRANSACTIONS WHERE THE CLIENT CODE WAS MODIFIED. THEREFORE, IT CANNOT BE SAID THAT ANY INCOME HAS ACCRUED/ RECEIVED BY THE ASSESSEE. 4.5 IT IS ALSO NOT CLEAR FROM THE TRANSACTIONS WHERE THE ALLEGED CLIENT CODE WAS MODIFIED WHETHER THESE CO DES WERE MODIFIED AT THE TIME OF PURCHASES OR AT THE TIME OF SALE. AS SUCH IN THE ABSENCE OF SUCH DETAILS IT IS NOT POSSIB LE TO ASCERTAIN WHETHER TRANSACTIONS WERE DISCLOSED IN THE INCOME TAX RETURN OR NOT. 4.6 THE ASSESSEE ALSO CLAIMED THAT THERE CAN BE SOME PUNCHING ERRORS WHILE ENTERING THE CLIENT CODE FOR THE PARTICULAR TRANSACTIONS WHICH HAS ALSO BEEN PERMITTED BY THE S EBI I.E. WITHIN THE LIMIT OF 1% OF THE TOTAL TRADES. 4.7 THE ASSESSEE ALSO SUBMITTED THAT THE NAME OF THE MODIFIED CLIENTS NEEDS TO BE EXAMINED WHETHER THEY HAVE OFFERED TAX IN THE INCOME TAX RETURN WITH RESPECT TO SUCH ALLEGED TRANSACTIONS. THIS FACT IS NECESSARY TO ASCERTAIN OTHERWISE THE SAME INCOME WILL BE T AXED TWO TIMES WHICH IS NOT PERMISSIBLE UNDER THE LAW. ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 4 OF 8 4.8 HOWEVER, THE AO DURING THE ASSESSMENT PROCEEDINGS OBSERVED THAT THE CLIENT CODES MODIFICATION WERE NOT CARRIED OUT BY THE BROKERS OTHER THAN TO RECTIFY THE GENUINE MISTAKES. ACCORDINGLY, THE AO HE LD THAT THE ASSESSEE HAS GENERATED THE LOSS BY WAY OF CLIENT CODE MODIFICATION FOR 25,78,403.00 WHICH WAS SET OF AGAINST THE TRUE INCOME BY OBSERVING AS UNDER: 8. IN THIS CASE THE ASSESSEE HAS GOT BENEFIT OF ACCOMMODATION ENTRIES OF LOSS BY WAY OF CLIENT CODE MODIFICATION USED BY THE BROKER M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD.. AS PER DATA AVAILABLE ON RECORD, IT IS SEEN THAT THE CLIENT CODE MODIFICATION ENTRIES HAVE BEEN DONE 389 TIMES AND ASSESSEE HAS TRANSFERRED LOSS FROM CLIENT CODE MOOS OF M AHIPAT RAICHAND SHAH (THE ASSESSEE), THROUGH THE BROKER M/S. MAHIPAT RAFCHAND SHARE BROKING PVT. LTD. IN A THOUGHTFUL, SYSTEMATIC MANNER WITH A MALAFIDE INTENTION TO AVOID THE PAYMENT OF TAXES ON THE TRUE INCOME BY SETT[NG_OFF_SUCH PROFITS OF RS. 25,78,403 / - BY CLIENT CODE MODIFICATION AGAINST THE F&O PROFITS AND THEREBY EVADE PAYMENT OF TAXES. THE CLIENT CODE MODIFICATIONS CARRIED OUT BY M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD.WAS NOT AN INADVERTENT ERROR, BUT, HAS BEEN USED AS A SYSTEMATIC TOOL SO AS TO EVADE TAXES. THEREFORE, THE CLIENT CODE MODIFICATIONS INDULGED IN BY M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD. WAS NOT DONE TO CORRECT GENUINE PUNCHING ERRORS AS GENUINE PUNCHING ERRORS WOULD BE FEW AND WOULD BE WELL DISTRIBUTED AMONGST DIFFERENT C LIENTS. IN VIEW OF THE DETAILED DISCUSSION IN THE FOREGOING PARAGRAPHS, THE PROFITS OF RS. 25,78,403/ - TRANSFERRED TO THE ACCOUNT OF ASSESSEE BY CLIENT CODE MODIFICATION HAS IN EFFECT REDUCED THE TRUE PROFIT OF THE ASSESSE. 9. SUBJECT TO THE ABOVE DISCUSS ION AND CONSIDERING THE MATERIAL AVAILABLE ON THE RECORDS, IT IS CONCLUDED THAT THE ASSESSEE IS DIRECTOR IN THE M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD., AND HE HAS MADE SHARE TRANSACTIONS/TRADING FROM THE M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD. AS WELL AS THE CLIENT CODE MODIFICATIONS HAVE BEEN CARRIED OUT FOR PU RPOSES OTHER THAN THOSE TO RECTIFY GENUINE ERRORS, AND GIVEN BENEFITS BY TRANSFERR ING HIS PROFITS TO THE FAMILY M EMBERS AND OTHERS, WITH AN INTENTION TO SET UP THEIR LOSSES FROM THE SHAR E WADING/DERIVATIVES BUSINESS. THE STOCK EXCHANGES SHALL NOT NORMALLY PERMIT CHANGES IN THE CLIENT ID AND WOULD KEEP A STRICT VIGIL ON CASE S OF CLIENT CODE MODIFICATION. THEREFORE, IT IS NOTICED THAT THERE WERE CERTAIN CLIENT CODE MODIFICATIONS FOR WHICH THE ERROR COULD NOT BE CONSIDERED TO BE A MERE PUNCHING OR TYPING ERROR, NOR COULD IT BE SAID THAT THE ORIGINAL CLIENT CODE OR NAME AND THE MODIFIED CLIENT'S CODE OR NAME ARE SIMILAR TO EACH OTHER. AS SUCH, THERE IS NOTHING ON RECORD TO PROVE OR SUBSTANTI ATE THE GENUINENESS OF SUCH CLIENT CODE MODIFICATIONS. THESE CLIENT CODE MODIFICATIONS AS PER ANNEXURE - A, (WHICH IS ENCLOSED WITH THE ASSTT ORDER), IS AGGREGATED TO RS. 25,78,403/ - , AND THE ASSESSEE CHOSE TO REMAIN SILENT ON SUCH CLIENT CODE MODIFICATIONS DESPITE ADEQUATE TIME AND OPPORTUNITY. THE FACT THAT THE ASSESSEE HAS CLARIFIED ONLY THOSE CLIENT CODE MODIFICATION ENTRIES WHICH PERTAINED TO THE RELATED PARTIES CLEARLY SHOWS THAT THE ASSESSEE IS UNABLE TO ADDUCE ANY EVIDENCE OR PROVIDE ANY REASON TO SU BSTANTIATE THE AFOREMENTIONED CLIENT CODE MODIFICATIONS. THEREFORE, IT CAN BE HELD WITHOUT REASONABLE DOUBT THAT THE AFOREMENTIONED CLIENT CODE MODIFICATION IS ENTERED INTO BY THE BROKER OF THE ASSESSEE IN COLLUSION WITH THE ASSESSEE IN ORDER TO ARTIFICIAL LY SHIFT THE PROFITS OUT OF THE BOOKS OF THE ASSESSEE AND IN RETURN CAUSE ARTIFICIAL LOSS WHICH DID NOT BELONG TO THE ASSESSEE IN THE FIRST PLACE. IN VIEW THE FACTS OF THE CASE, AND THE D ISCUSSION ABOVE AN AMOUNT OF RS. 25,78,403/ - IS DISALLOWED AND ADDED BACK TO THE INCOME OF THE ASSESSEE CONSIDERING THE SAME TO BE ARTIFICIAL LOSSES BROUGHT IN THROUGH MANIPULATION OF CLIENT CODE AND THEREFORE LIABLE TO ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 5 OF 8 BE DISALLOWED. PENALTY PROCEEDINGS U/S 27L(L)(C) OF THE ACT FOR CONCEALMENT O F INCOME ACT IS INITIATED SEPARATELY. THE AGGRIEVED ASSESSEE PREFERRED AN APPEAL TO THE LEARNED CIT (A). 5. THE ASSESSEE BEFORE THE LEARNED CIT (A) SUBMITTED THAT THERE IS NO EVIDENCE AVAILABLE ON RECORD SUGGESTING THAT HE HAS RECEIVED OR ANY INCOME ACCRUED TO HIM OUT OF SUCH TRANSACTIONS WHERE THE CLIENT CODE WAS MODIFIED. 5.1 THE MISTAKE /ERROR OF CLIENT COD E MODIFICATION WAS COMMITTED BY THE BROKER WHICH WAS SUBSEQUENTLY RECTIFIED AFTER OBTAINING THE APPROVAL FROM THE STOCK EXCHANGE. ACCORDINGLY THE SAID TRANSACTIONS ARE NOT APPEARING IN HIS (ASSESSEE) NAME. 5.2 SIMILARLY, THERE IS NO DOCUMENT EVIDENCING T HAT THE PERSON IN WHOSE NAME CLIENT CODE WAS MODIFIED HAS NOT OFFERED SUCH INCOME IN HIS INCOME TAX RETURN. THUS IN THE ABSENCE OF SUCH INFORMATION ANY ADDITION IN THE HANDS OF THE ASSESSEE WOULD LEAD TO DOUBLE ADDITION OF THE SAME INCOME. 6. HOWEVER, THE LEARNED CIT (A) DISREGARDED THE CONTENTION OF THE ASSESSEE AND CONFIRMED THE ORDER OF THE AO BY OBSERVING AS UNDER: 5.3 I HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORDER, FACTS OF THE CASE AND THE SUBMISSIONS MADE BY THE APPELLANT. THE AO MADE THE IMPUGNED ADDITION ON ACCOUNT OF THE FACT THAT THE APPELLANT HAD RESORTED TO CCM AND IT WAS HELD BY THE AO THAT THE SAME HAD BEEN DONE IN ORDER TO EVADE PAYMENT OF TAXES BY TRANSFERRING LOSSES. THE APPELLANT HAS SUBMITTED DURING THE COURSE OF APPELLATE PROCEEDINGS THAT THE ERROR HAD BEEN MADE ON THE PART OF THE BROKER AND THE TRANSACTIONS WERE NOT IN HIS NAME. HENCE, IT HAS BEEN STATED THAT THE SAID AMOUNT WAS NOT HIS INCOME AND COULD NOT BE TREATED AS SUCH. 5.3.1 I FIND FROM THE SUBMISSION FILED THAT THE APPELLANT HAS FURNISHED A VERY PERFUNCTORY SUBMISSION IN RESPECT OF THESE GROUNDS. A PERUSAL OF THE ASSESSMENT ORDER SHOWS THAT THIS IS NOT A CASE WHERE AN ERROR HAS BEEN MADE IN PUNCHING OF CODES ON A COUPLE OF OCCASIONS WHICH HAS BEEN RECTIFIED SUBSE QUENTLY. ON THE CONTRARY, IN THIS CASE, THE CCM ENTRIES HAVE BEEN DONE AS MANY AS 389 TIMES THROUGH THE BROKER M/S. MAHITPAT RAICHAND SHARE BROKING PVT. LTD. THUS, IT IS VERY EVIDENT THAT THE CCM IS NOT DONE BY ERROR BUT HAS BEEN DONE IN A THOUGHTFUL AND S YSTEMATIC MANNER. HAD THESE BEEN GENUINE PUNCHING ERRORS, THE SAME WOULD HAVE BEEN EQUALLY DISTRIBUTED AMONG VARIOUS CLIENTS. THE APPELLANT HAS NOT GIVEN ANY DOCUMENTARY EVIDENCE IN RESPECT OF ITS TRANSACTIONS THROUGH THE SAID BROKER. ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 6 OF 8 MOREOVER, THE SAME BR OKER MAKING PUNCHING ERRORS AS MANY AS 389 ERRORS IN RESPECT OF THE SAME CLIENT CANNOT BY ANY STRETCH OF IMAGINATIONS BE SAID TO BE A GENUINE ERROR AND HAS EVIDENTLY BEEN DONE WITH THE COLLUSION OF BOTH THE BROKER AND THE CLIENT IE THE APPELLANT. IT IS ALS O PERTINENT TO NOTE HERE THAT THE APPELLANT IS A DIRECTOR IN M/S. MAHIPAT RAICHAND SHARE BROKING PVT. LTD. AND CCM HAD BEEN CARRIED OUT BY TRANSFERRING OF PROFITS TO CREATE 'ARTIFICIAL LOSSES. 5.3.2 IN VIEW OF THE DISCUSSION ABOVE, THE ADDITION OF RS.25,7 8,403/ - MADE BY THE ASSESSING OFFICER IS CONFIRMED. GROUND OF APPEAL NOS. 2,3 & 4 ARE ACCORDINGLY DISMISSED. BEING AGGRIEVED BY THE ORDER OF THE LEARNED CIT (A), THE ASSESSEE IS IN APPEAL BEFORE US. 7. THE LEARNED AR BEFORE US FILED A PAPER BOOK RUNNING FROM PAGES 1 TO 121 AND SUBMITTED THAT THE ASSESSEE HAS NOT CLAIMED THE SET OFF OF THE LOSSES AS ALLEGED BY THE AO ON ACCOUNT OF CLIENT CODE MODIFICATION. THUS THE ENTIRE THRUST OF THE REVENUE THAT THE INCOME OF THE ASSESSEE OF 25,78,403.00 HAS ESCAPED ASSESSMENT IS WITHOUT ANY TANGIBLE MATERIALS. 7.1 THE LEARNED AR FURTHER SUBMITTED THAT THE AUTHORITIES BELOW DURING THE ASSESSMENT PROCEEDINGS HAS NOT CALLED FOR ANY INFORMATION EITHER FROM THE BROKER O R THE STOCK EXCHANGE TO VE RIFY THE VERACITY OF INFORMATION RECEIVED FROM THE INVESTIGATION DIRECTORATE. 7.2 THE LEARNED AR BEFORE US REITERATED THE SUBMISSIONS AS MADE BEFORE THE AUTHORITIES BELOW. 8. ON THE OTHER HAND, THE LEARNED DR SUBMITTED THAT THERE IS NO INFORMATION AVAI LABLE ON RECORD WHETHER THE ASSESSEE HAS SET OFF THE IMPUGNED LOSS OF 25,78,403.00 AGAINST HIS INCOME. THE LEARNED DR FURTHER SUBMITTED THAT THE MATTER CAN BE REMITTED BACK TO THE AO FOR THE VERIFICATION. THE LEARNED DR VEHEMENTLY SUPPORTED THE ORDER OF THE PARTIES BELOW. ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 7 OF 8 9. THE LEARNED AR IN HIS REJOINDER DID NOT RAISE ANY OBJECTION IF THE MATTER IS SET ASIDE TO THE FILE OF THE AO FOR FRESH ADJUDICATION AS PER THE PROVISIONS OF LAW. 10. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERU SED THE MATERIALS AVAILABLE ON RECORD. THE ALLEGATION OF THE R EVENUE IN THE CASE ON HAND IS THAT THE ASSESSEE HAS GENERATED LOSS AMOUNTING TO 25,78,403.00 BY WAY OF CLIENT CODE MODIFICATION WHICH WAS SET OF F AGAINST HIS TRUE INCOME. THE BASIS OF SUCH ALL EGATION WAS THAT THE INFORMATION WAS RECEIVED FROM THE INVESTIGATION DIRECTORATE INFORMING ABOUT THE TRANSACTIONS WHERE THE CLIENT CODE WAS MODIFIED. THE ACTION TAKEN BY THE AO WAS SUBSEQUENTLY CONFIRMED BY THE LEARNED CIT (A). 10.1 FROM THE PRECEDING DI SCUSSION, WE NOTE CERTAIN FACTS AS DETAILED UNDER. I. THERE IS NO FINDING OF THE R EVENUE WHETHER THE ASSESSEE HAS SET OFF SUCH LOSS AGAINST HIS INCOME IN THE YEAR UNDER CONSIDERATION. IF THE ANSWER IS IN NEGATIVE, THEN THERE IS NO QUESTION OF MAKING ANY ADDITION FOR THE IMPUGNED/ALLEGED LOSS AS DISCUSSED ABOVE. AS SUCH THE IMPUGNED ADDITION NEEDS TO BE DELETED. II. THE R EVENUE DURING THE PROCEEDINGS HAS NOT CALLED FOR ANY INFORMATION EITHER FROM THE STOCK EXCHANGE OR THE BROKER TO ESTABLISH THE AUTHENTICITY OF THE INFORMATION RECEIVED FROM THE INVESTIGATION DIRECTORATE WHICH WAS IMPORTANT TO DECIDE THE ISSUE ON HAND. III. THE R EVENUE HAS ALSO NOT ANSWERED THE QUERY OF THE ASSESSEE RAISED DURING THE ASSESSMENT PROCEEDINGS WHETHER THE CLIENT CODE WAS MODIFIED WITH RESPECT TO PURCHASE OR SALES OR BOTH THE TRANSACTIONS. IV. THERE WAS NO VERIFICATION CARRIED OUT BY TO REVENUE TO FIND OUT WHETHER THE PARTY WHOSE NAME WAS MODIFIED HAS DISCLOSED TRANSACTIONS IN HIS BOOKS OF ACCOUNTS AND OFFERED THE SAME TO TAX. IN T HE ABSEN CE OF SUCH VERIFICATION , THERE IS OF VERY HIGH PROBABILITY THAT THE SAME INCOME /TRANSACTION MIGHT GET TAXED IN THE HANDS OF 2 PERSONS WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF THE ACT. THE AO ACCORDINGLY, ITA NO.83 9/AHD/2018 ASSTT. YEAR 2009 - 10 PAGE 8 OF 8 DIRECTED TO COLLECT THE DETAILS FROM THE BR OKER/ REQUISITES PARTIES AND IF THE CONTENTION OF THE ASSESSEE IS FOUND TO BE CORRECT, THEN THE SAME NEEDS TO BE DELETED IN THE HANDS OF THE ASSESSEE. V. THERE WAS NO DOCUMENTARY EVIDENCE BROUGHT ON RECORD WHETHER THE ALLEGED TRANSACTION WHERE THE CLIENT CO DE WAS MODIFIED IS REFLECTING IN THE BANK STATEMENT OF THE ASSESSEE. AS SUCH IT IS NECESSARY TO ASCERTAIN HOW THE ALLEGED TRANSACTION WAS SETTLED IN THE BOOKS OF THE ASSESSEE/BROKERS/OTHER PARTY BUT NO SUCH EXERCISE HAS BEEN CARRIED OUT BY THE AUTHORITIES BELOW. IN VIEW OF THE ABOVE, WE ARE OF THE VIEW THAT THERE CANNOT BE ANY ADDITION TO THE TOTAL INCOME OF THE ASSESSEE IN THE GIVEN FACTS AND CIRCUMSTANCES. HOWEVER IN THE INTEREST OF JUSTICE AND FAIR PLAY, WE ARE INCLINED TO REFER THE MATTER BACK TO THE F ILE OF THE AO FOR THE FRESH ADJUDICATION IN THE LIGHT OF THE ABOVE STATED DISCUSSION AND AS PER THE PROVISION OF LAW . HENCE THE GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED FOR THE STATISTICAL PURPOSES. 11. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR THE STATISTICAL PURPOSES . O RDER PRONOUNCED IN THE COURT ON 17 /12 / 2019 AT AHMEDABAD. - SD - - SD - (MS MADHUMITA ROY ) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER (TRUE COPY) A HMEDABAD; DATED 17 / 12 /2019 M ANISH