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Income Tax Appellate Tribunal - Mumbai

Ito 25(3)(2), Mumbai vs Kunjan D Parikh, Mumbai on 11 February, 2019

              IN THE INCOME TAX APPELLATE TRIBUNAL,
                    MUMBAI BENCH "H", MUMBAI

     BEFORE SHRI RAJESH KUMAR, ACCOUNTANT MEMBER AND
             SHRI RAM LAL NEGI, JUDICIAL MEMBER

                            ITA No.3516/M/2014
                          Assessment Year: 2009-10

       Income Tax Officer -      Smt. Kunjan D. Parikh,
       25(3)(2),                 A-102, Sharda Gram,
       C-11, R.No.306,           Mathuradas Road,
                             Vs.
       Pratyaksh Kar Bhavan,     Kandivali (W),
       Bandra-Kurla Complex,     Mumbai- 400 067
       Bandra(East),             PAN: AKLPP0552B
       Mumbai - 400051
             (Appellant)           (Respondent)

     Present for:
     Assessee by                  : Shri Rajesh S. Kodhari, A.R.
                                    Ms. Hemali R. Soni, A.R.

     Revenue by                   : Shri Manoj Kumar Singh, D.R.

     Date of Hearing       : 08.01.2019
     Date of Pronouncement : 11.02.2019

                                    ORDER


Per Rajesh Kumar, Accountant Member:

The present appeal has been preferred by the Revenue against the order dated 14.02.2014 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment year 2009-10.

2. The various grounds raised by the revenue are as under:

"(i) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in directing the A.O. to delete the addition of Rs.32,02,6467- being 5% on intraday sales without considering that the assessee failed to provide any data with respect of trade executed at the fag end of the year 2007-08.

(ii) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in directing the A.O. to delete the addition of Rs. 3,79.95,717/- on account of 2 ITA No.3516/M/2014 Smt. Kunjan D. Parikh difference in turnover of sales as per P&L account and F&O options without appreciate the fact that the said addition was made on the basis of Form 10DB issued by the brokers.

(iii) On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in directing the A.O. to delete the addition of Rs.1,52,978/- on account of unexplained purchases from undisclosed sources without considering the fact given in the remand report that the assessee failed to provide any data.

(iv) On the facts and in the circumstances of the case and in law, the Id.CIT(A) erred in directing the A.O. to delete the additions made on account of disallowance of claim of STT amounting to Rs.2,69,544/- without appreciating the fact that the said addition was made on the basis of Form 10DB issued by the brokers.

(v) On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in holding that the speculation loss is correctly arrived at by the assessee after adjusting intraday purchase and sales.

(vi) The appellant prays that the order of the Ld.CIT(A) on the above grounds be set aside and that of the AO be restored.

(vii) The appellant craves leave to amend or alter any ground or add a new ground."

3. The issue raised in the first ground of appeal is against the deletion of addition of Rs. 32,02,646/- by CIT(A) as made by the AO by estimating 5% on intraday sales for the reason that the assessee did not furnish any data qua trades done at the end of the year.

3.1. The facts in brief are that the AO during the assessment proceedings observed that the assessee has squared up the sale of shares or units of Rs. 6,40,52,920/- which were not disclosed in the profit and loss account. The AO estimated the income @ 5% of the squared up value of transactions when the assessee failed to furnish the details of sales and purchase for verification and added the same to the income of the assessee.

Smt. Kunjan D. Parikh 3.2. The ld CIT(A) in the appellate proceedings allowed the appeal of the assessee on this ground after taking into consideration the contentions of the assessee, remand report of the AO. The assessee submitted before the CIT(A) that the assessee recorded the transactions of sales and purchase of shares from 1.4.2008 to 26.03.2009 whereas the transactions as per the broker in form 10DB were for the entire year i.e. upto 31.3.2009. The assessee duly filed details and explained before the CIT(A) all the transactions from 1.4.2008 to 26.3.2009 and from 27.3.2009 to 31.03.2009. In other words the assessee explained all the transactions by filing necessary reconciliation before the CIT(A).It was also stated by the assessee that the trades executed by him on 30th and 31st March were billed on 2nd April 2009 and were recorded in the next year. Finally, the CIT(A) allowed the ground by observing and holding as under:-

"6a. Addition of Rs.32,02,646/- being 5% of squared up value of transactions of Rs.6,40.52,920/- (Ground No.4) I have carefully considered the findings of the AO provided in the remand report and also the submissions of the Appellant. The AO has not disputed but on the contrary admits in points 6 & 8 of the remand reports that the Appellant incurred speculation loss in intra-day sale and purchase of shares. The fact remains that there is speculation loss incurred by the Appellant. Now, the question that arises is about the amount of speculation loss booked by the assessee (Rs.44,684/-) and the amount of speculation loss as worked out from trade files (Rs.39,323/-). In both the cases there is a speculation loss and hence there remains no question of assumption and estimation of profit @ 5% of speculation sale turnover. Further, I agree with the script wise working provided by the Appellant from the trade files for speculation profit/loss. It is pertinent to note that the learned Assessing Officer could not point out any trade which the Appellant has not recorded in the books of account which are shown in trade files and at the same time any trades which were recorded in books of account but not reflected in trade files. I do not agree with the observation of the Assessing Officer that the Appellant has failed to provide any data and supporting with respect to trade executed at the fag end of the year 2007-08. In fact the AO has not made any further inquiry or called for any information in reply to Appellant submission letter dt.06.01.2014 regarding this matter.

Smt. Kunjan D. Parikh I agree with the Appellant that speculation loss is correctly arrived at after adjusting intra-day purchase and sales. I direct the A.O to delete the addition of Rs.32,02,646/-."

3.3. After hearing both the parties and considering the materials before us we find that the assessee has explained the shares transactions comprehensively. The ld CIT(A) gave finding of facts that on the transactions during the year upto 26.3.2009 there were speculation losses of Rs. 44,684/- which were recorded by the assessee in the books of accounts. Ld CIT(A) also noted that there was loss on the transactions carried out from 27.3.2009 till 31.3.2009 of Rs. 39,323/- which was determined from trades files thus there was no basis for estimating the income @5% of the speculation sales turnover which is based upon assumptions and presumptions of the AO. Thus, there is no reason to deviate from the findings of the CIT(A) as there are no materials brought before us to take a contrary view. Accordingly we are inclined to uphold the order of CIT(A) on this issue. The ground of appeal is dismissed.

4. The issue raised in the second ground of appeal against the deletion of additions of Rs. 3,79,95,717/- by CIT(A) as made by the AO on account of difference in turnover as shown in the profit and loss account and F & O options vis-à-vis the form 10DB issued by the brokers.

4.1. The facts in brief are that during the course of assessment proceedings, the AO noted that there is difference between the turnover of F&O transactions as per the profit and loss account and as per the form 10DB issued by the brokers. The AO accordingly added the difference of Rs. 3,79,95,717/- to the 5 ITA No.3516/M/2014 Smt. Kunjan D. Parikh income of the assessee by rejecting the contentions and submissions of the assessee.

4.2. The ld CIT(A) allowed the appeal of the assessee on the ground after calling for a remand report from the AO and considering the submissions of the assessee. The assessee submitted before the CIT(A) that difference has arisen because the assessee has accounted for the transactions from 1.4.2008 to 26.3.2009 whereas the transactions as per form 10DB were for the entire year till 31.3.2009.The assessee submitted that as per the standard practice of the of the exchange, F & O transactions end on the last Thursday of every month. Accordingly assessee accounted for the transactions till last Thursday for the month of March 2009.In the remand report the AO has given a finding that AO has wrongly made the additions. The AO noted that the transactions were duly accounted for as per system of accounting followed by the assessee and there is no fault in that system. Finally the ld CIT(A) deleted the additions by observing and holding as under:-

"6e Addition of Rs.3,79,95,717/- on account of difference in turnover of as per Profit & Loss account and future & options turnover as per code no. 04 & 05 in Form No.10DB (Ground No.5) From the perusal of the documents available on record and the observations of AO in remand report, I conclude that AO has no objection against the reconciliation of turnover of F&O as per books with F&O turnover as per Form No. 10DB and trade files. The query raised by AO that "While explaining the difference of turnover with form 10DB the assessee has considered transactions upto 26-03-2009 and while reconciling the turnover as per the trade file, the assessee has considered transactions upto 27-03-2009" is far from the truth. The said observation of the AO is not correct as it is evident from the face of the reconciliation that for F&O reconciliation of turnover as per books with turnover as per Form No.10DB and Trade Files both are considered upto 26-03- 2009 only, which the AO has failed to appreciate. Now that query raised by the AO does not hold true, and from the examination of records it seems that the appellant has rightly, recorded the F&O transactions in the books upto 26-03-2009.

Smt. Kunjan D. Parikh From the submissions made during the remand proceedings it seems that there is a loss in F&O transactions during the period of 27-03-2009 to 31-03-2009. Had assessee recorded turnover upto 31-03-2009 it would have resulted in to decrease in profit by Rs.69,078/-, hence there remains no question of making any addition based an above.

From the documents submitted before me I am also satisfied with the explanation of the Authorised Representative that the Appellant has rightly booked all transactions of March, 2008 in the same year.

Since the difference in F&O turnover as per books has been correctly reconciled with turnover as per form No.10DB and trade files, I direct the AO to delete the addition of Rs.3,79,95,717."

4.3. After hearing the rival parties and perusing the facts before us as per records including remand report, we observe that the ld CIT(A) has given detailed finding and reasoning for deleting the addition. The ld CIT(A) has recorded a findings of facts that the assessee has correctly accounted for all the transactions after taking into account the remand report. There is no material or evidence before us to deviate from the findings of the ld CIT(A) who has passed a very detailed and reasoned order. Under the circumstances we are inclined to uphold the order of CIT(A) by dismissing the appeal of the assessee.

5. The issue raised in the 3rd ground of appeal is against the order of CIT(A) deleting the addition of Rs. 1,52,978/- made by the AO towards unexplained purchases from undisclosed sources.

5.1. The AO during assessment proceedings upon the perusal of information filed the assessee observed that there is difference in the purchases as shown in the profit and loss account and form 10DB column (3) code(1) of Rs. 1,52,978/- and added the same to the income of the assessee as suppressed and unexplained purchases.

Smt. Kunjan D. Parikh 5.2. The Ld. CIT(A) in the appellate proceedings, deleted the additions after taking into account the remand report in which AO stated that there is difference on the purchases as stated by the AO by observing and holding as under:

"6b. Addition of Rs.1,52,978/- on account of unexplained purchase from undisclosed sources. (Ground No.9) I have considered the above factual submissions of the Appellant and the various submissions made in remand proceedings which are kept on record. The AO is not disputing and finding faults with the reconciliation of delivery based purchases as per trade files with turnover of purchases as shown in the books of account. Not only that, the AO admits in Para-6 of remand report that delivery based purchases of Rs.14,79,906/- are verifiable from the trade files. The appellant has discharged his onus of proving delivery based purchases. The AO could not provide any evidence from the trade files that the Appellant has not recorded any trade as appearing in NSE/BSE trade files. There is no-unexplained purchase from undisclosed sources which needs to be added.

I do not agree with the observation of the Assessing Officer that the Appellant foiled to provide any data and supporting with respect to trade executed at the fag

-end of the year 2007-08. In fact the AO has not made any further inquiry or called for any information in reply to Appellant submission letter .dt.06-01-2014 regarding this matter.

I agree with the contention of the Appellant and direct the AO to delete the additions of Rs.1,52,978/- on account of delivery based purchases."

5.3. We have heard the rival parties and perused the records before us. We observe that the assessee has explained during remand proceedings and before the ld CIT(A) that whatever difference is there is only due to the reason that the assessee accounted for transactions up to 26.3.2009 as in issues dealt with by us in the earlier paras. The AO has made the additions without any basis. After considering the facts and taking into the contentions of the assessee, we do not find any infirmities in the order of the ld CIT(A) and accordingly the ground raised by the revenue is dismissed.

Smt. Kunjan D. Parikh

6. The issue in ground no. 4 is against the deletion of Rs.2,69,544/- by CIT(A) as made by the AO on account of disallowance of claim of STT.

6.1. The AO compared the STT as per profit and loss account of Rs. 5,40,592/- with STT as per form 10DB Rs. 2,71,048/- and added the difference of Rs. 2,69,544/- to the income of the assessee when the assessee did not explain the same to the AO.

6.2. Ld. CIT(A) deleted the same by observing as under:-

"6d. Addition of Rs.2,69,544/- on account of disallowance of STT. (Ground No.8) I have considered the observations of the Ld. AO and submissions of the appellant. The Appellant brought to my notice the statement showing loss of Rs.2,77,353/- on open position filed with submission letter dt. 20-05-2013. The Appellant also explained to me how the loss of Rs.2,77,353/- for open position of F&O is worked out and I agree with that. The Appellant also stated that the loss on open position of Rs.2,77,353/- is erroneously booked under the head STT expenses instead of showing separately in Profit & Loss Account. There is no doubt that this loss which is booked under the head STT expenses is not genuine. There is only error on the part of Appellant in the classification of head of expenses under which this loss should have been debited in the books of account. The fact that the Appellant incurred loss in open position in F&O is undisputed. Hence in the given circumstances and keeping in view of the facts of the case, I direct the Ld. AO to delete the addition of Rs.2,69,544/- on account of disallowance of STT."

6.3. After perusal of CIT(A) order, we find that there is, in fact, no difference at all. The Ld. CIT(A) noted that there is classification mistake which does not require any addition to be made. In our view the order of CIT(A) appears to be correct and does not require any interference on our part and accordingly the ground raised by the revenue is dismissed.

7. The other grounds are general in nature and do not require any adjudication.

Smt. Kunjan D. Parikh

8. In result appeal of the revenue is dismissed.

Order pronounced in the open court on 11.02.2019.

          Sd/-                                           Sd/-
    (Ram Lal Negi)                                 (Rajesh Kumar)
  JUDICIAL MEMBER                               ACCOUNTANT MEMBER

Mumbai, Dated: 11.02.2019.
* Kishore, Sr. P.S.

Copy to: The Appellant
         The Respondent
         The CIT, Concerned, Mumbai
         The CIT (A) Concerned, Mumbai
         The DR Concerned Bench
//True Copy//                             [




                                                   By Order



                                   Dy/Asstt. Registrar, ITAT, Mumbai.