Rajasthan High Court - Jodhpur
Pr. Commissioner Of Income Tax vs M/S Manoj Kumar Vipin Kumar on 15 November, 2021
Bench: Vijay Bishnoi, Anoop Kumar Dhand
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Income Tax Appeal No. 22/2021
Pr. Commissioner of Income Tax - Central, Jaipur
----Appellant
Versus
M/s Manoj Kumar Vipin Kumar, 118, New Dhan Mandi, Bikaner
----Respondent
For Appellant(s) : Mr. K.K. Bissa, Mr. Gajendra Singh
Chouhan
HON'BLE MR. JUSTICE VIJAY BISHNOI
HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Judgment / Order 15/11/2021 This appeal is preferred by the Revenue being aggrieved with the order dated 29.8.2018 passed by the Commissioner of Income Tax (Appeals) - 4, Jaipur (for short 'the CIT(A)') as well as the order dated 1.2.2021 passed by the Income Tax Appellate Tribunal, Jodhpur Bench, Jodhpur (for short 'the ITAT'). Brief facts of the case are that the assessee filed income tax returns for the assessment year 2012-13 on 14.9.2012 disclosing a total income of Rs.79,98,920/-. (Downloaded on 18/11/2021 at 08:28:35 PM)
(2 of 6) [ITA-22/2021] The return was processed under Section 143(1) of the Income Tax Act, 1961 (for short 'the Act of 1961') accepting the income disclosed. Later on, a notice under Section 148 of the Act of 1961 was issued on 16.3.2016. In response to the said notice, the assessee filed written submissions stating therein that the original return filed by it may be treated as the return filed in compliance of the said notice. The Assessing Officer has completed the assessment on 29.12.2016 by making addition to the income disclosed by the assessee and determining the total income of the assessee at Rs.4,10,70,730/-. The following additions were made by the Assessing Officer :-
Sr. No. Issues involved Amount
1 Bogus business transaction with 2,43,59,629/-
M/s Swift Tieup P. Ltd.
2 Addition made u/s 68 of the Act 75,00,000/-
3 Disallowance of loss NCDEX/MCX 11,75,857/-
4 Disallowance of Donation expenses 11,020/-
5 Disallowance of expenses claimed 25,300/-
in P & L account
Total 3,30,71,810/-
Aggrieved by the assessment order, the assessee preferred an appeal before the CIT(A), which vide order dated 29.8.2018 has deleted the following additions made by the Assessing Officer :-
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(3 of 6) [ITA-22/2021] S.N Nature of addition made in Addition Amount Relief allowed by order u/s 143(3) r.w.s. 147 the CIT(A) of the Act
1. Bogus business transaction Rs.2,43,59,629/- Rs.2,43,59,629/-
with M/s Swift Tieup P. Ltd.
2. Addition made u/s 68 of the Rs.75,00,000/- Rs.75,00,000/-
Act
3. Disallowance of loss Rs.11,75,857/- Rs.11,75,857/-
NCDEX/MC
4. Disallowance of Donation Rs.11,020/- Rs.5500/-
expenses
5. Disallowance of expenses Rs.25,300/- Rs.11,800/-
claimed in P & L account Being aggrieved with the same, the Revenue has filed appeal before the ITAT, which vide impugned order dated 1.2.2021 has dismissed the said appeal of the Department.
Challenging the impugned order, Mr. K.K. Bissa appearing for the Revenue has argued that the CIT(A) as well as the ITAT have not examined the matter in its entirety, objectivity and in correct perspective. It is urged that the findings recorded by both the appellate authorities ex facie contrary to the facts and law. It is further argued that the AO has rightly made addition of Rs.2,43,59,629/- while treating it as bogus business transactions with M/s Swift Tie Up Pvt. Ltd. It is also urged that the addition made by the Assessing Officer under Section 68 of the Act of 1961 on account of unexplained cash received of Rs.75,00,000/- from M/s (Downloaded on 18/11/2021 at 08:28:35 PM) (4 of 6) [ITA-22/2021] Swift Tie Up Pvt. Ltd. by the assessee has wrongly been deleted by the appellate authorities, though from the order of the Assessing Officer, it is clear that the said amount has been received by the assessee through various layers of bank accounts of non-operational Kolkata based companies, which on verification were found to be not existing at the registered addresses. Learned counsel Mr. Bissa has further argued that the Assessing Officer has rightly disallowed loss of Rs.11,75,857/- to the assessee on account of trading in NCDEX/MCX. It is submitted that as the activity of hedging is a speculative transaction and the resultant loss of Rs.11,75,857/- is not eligible for set off against income from business and profession. Learned counsel for the appellant, thus, argued that several substantial questions of law arise in this case, which have been proposed in the present appeal.
Having heard learned counsel for the Revenue and after going through the impugned orders passed by the appellate authorities, we are of the view that no substantial question of law is involved in the instant appeal.
The ITAT has observed that the transaction recorded in the books of accounts in the regular course of business (Downloaded on 18/11/2021 at 08:28:35 PM) (5 of 6) [ITA-22/2021] is to be accepted as true and correct unless there is a strong evidence to rebut the same and the burden of proof that the transaction is not genuine is on the person who alleges so. The ITAT has further held that the existence of M/s Swift Tie Up Pvt. Ltd. is not disputed. It has filed the return of income for the assessment year in consideration, confirmed the transaction, made payment by cheque and income of Rs.5,86,612/- earned from this transaction by the assessee is declared in the return. The Assessing Officer without bringing any adverse evidence on record, simply on assumptions and presumptions, has held that the transactions of the assessee with M/s Swift Tie Up Pvt. Ltd. are bogus. The ITAT has also observed that the determination of income of Rs.2,43,59,629/- made by the Assessing Officer is hypothetical and there is no basis for the said determination. The ITAT has held that the Assessing Officer has erred in not allowing the loss of Rs.11,75,857/- to the assessee as of NCDEX/MCX loss. It was held that the CIT(A) has rightly allowed the said loss to the assessee in the facts and circumstances of the case. The ITAT has further observed that the CIT(A) has rightly deleted the addition of Rs.75,00,000/- to the assessee made under Section 68 of the ACT of 1961 as transaction between the assessee and M/s Swift (Downloaded on 18/11/2021 at 08:28:35 PM) (6 of 6) [ITA-22/2021] Tie Up Pvt. Ltd. is clearly evident from the documentary evidence produced by the assessee. The ITAT has also upheld the deletion of disallowance donation expenses and disallowance expenses claimed in the P & L account by the CIT(A).
On a careful scrutiny of the material available on record, the findings recorded by the appellate authorities, we are of the opinion that in the facts and circumstance of the case, the evidence has properly been appreciated by the CIT(A) as well as the ITAT and in the absence of any clinching adverse evidence on record, the said finding of facts are not liable to be interfered with.
As we have already observed above that no substantial question of law is arising in the matter and the impugned orders passed passed by the appellate authorities are essentially based on the finding of facts, we are not inclined to interfere in the instant appeal.
Resultantly, the appeal being devoid of merit, is hereby dismissed.
(ANOOP KUMAR DHAND),J (VIJAY BISHNOI),J 16 - ms rathore (Downloaded on 18/11/2021 at 08:28:35 PM) Powered by TCPDF (www.tcpdf.org)