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2018 (10) TMI 1912 - ITAT KOLKATAAssessment u/s 153A - disallowance of trading loss on sale of shares as bogus - Addition based on statement recorded u/s 132(4) - assessee argued as retracted statements of third parties have been relied upon without giving any opportunity to the assessee to cross-examine such third parties - HELD THAT:- We find that the ld AO had placed reliance on the investigation report of DDIT and finding of SEBI in respect of scrips traded by the assessee. There is absolutely no evidence brought on record linking the assessee with the alleged malafides. Hence the entire disallowance of trading loss was made only based on suspicion, surmises and conjectures without bringing on record with material evidences, the linkage of the assessee and by proving the connivance of the assessee with the stock brokers, stock exchange and the third parties from whom purchases were made and to whom sales were made. There is no evidence to prove that the assessee had received back the monies in cash from the concerned parties after making the purchases and similarly there is no evidence to prove that the assessee had passed on the cash to the concerned parties after receiving the sale proceeds of shares by cheque. As decided in BLB CABLES AND CONDUCTORS PVT. LTD. [2018 (8) TMI 525 - CALCUTTA HIGH COURT] to hold a transaction as bogus, there has to be some concrete evidence where the transactions cannot be proved with the supportive evidence. Here in the case the transactions of the commodity exchanged have not only been explained but also substantiated from the confirmation of the party. Both the parties are confirming the transactions which have been duly supported with the books of accounts and bank transactions. We find that the statement recorded u/s 132(4) of the Act cannot be considered as an evidence or material found during the course of search - see BEST INFRASTRUCTURE (INDIA) PVT. LTD. [2017 (8) TMI 250 - DELHI HIGH COURT] and BEST INFRASTRUCTURE (INDIA) PVT. LTD. [2017 (8) TMI 250 - DELHI HIGH COURT] - Also M/S. CONSISTENT VYAPAAR PVT. LTD. VERSUS DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-3 (3) , KOLKATA [2018 (9) TMI 1745 - ITAT KOLKATA]. - Decided in favour of assessee.
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