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2018 (9) TMI 1902 - ITAT DELHIUnexplained cash sales - HELD THAT:- As regard the request of the Ld. DR for verification of the purchases corresponding to sale of ₹ 45.50 Lacs is concerned, we find that before the CIT(A) the assessee has already submitted that no purchases were made corresponding to claim of sale of ₹ 44.50 lakhs and it was explained as received in excess in another purchase transaction. The assessee has not controverted this finding before us, thus, in view of the factual finding, we do not feel any requirement of restoring the matter to the lower authorities for verification of purchases. On the issue of double addition we find that when the explanation of the cash sales of the assessee is rejected and the cash seized of ₹ 44.50 Lacs is held as an unexplained, the said cash sales cannot be retained as part of the sales of the assessee during the year under consideration. Accordingly, we direct the Assessing Officer to exclude the cash sales of ₹ 44.50 credited in books of account on 30/03/2011 out of the total sales declared by the assessee, for the purpose of return of income filed. The ground no. 1 of the appeal is accordingly dismissed. Asst Commissioner powers to enhancement - HELD THAT:- In the case of CIT Vs Shapoorji Palloonji [1962 (2) TMI 12 - SUPREME COURT] held that although the appellant Asst Commissioner has powers to enhance the assessment, but he has no power to travel beyond the record to enhance assessment of any year by discovering new source of income either in the return made by the assessee or the assessment order passed by the Income-tax Officer. Since the issue of adjustment of losses from futures and options against the business income is arising from the return of income filed by the assessee, in our opinion, it is well within the powers of the Ld. CIT(A) to make additions in view of the finding of the Hon’ble Supreme Court in the case of CIT Vs Shapoorji Palloonji Mistry [1962 (2) TMI 12 - SUPREME COURT] . Accordingly, the ground 2.1 of the appeal is dismissed. Whether the Explanation in section 73 has an overriding effect on section 43(4) - claim of the assessee is that the activity of trading in futures and options is not a speculative activity in view of the provisions of section 43(4) of the Act, and, thus, the loss on account of said activity of trading in future and option is eligible for setoff against other losses from non-speculative business? - HELD THAT:- Contention of the Ld. counsel not to invoke Explanation below section 73(4) in case of futures and options transaction of the assessee, is also rejected. In view of the binding decision of the Hon’ble Delhi High Court DLF COMMERCIAL DEVELOPERS LIMITED [2013 (7) TMI 334 - DELHI HIGH COURT] followed by the Ld. CIT(A), we are not examining the decisions cited by the Ld. counsel as to whether same are applicable in the facts of the instant case.
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