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2019 (7) TMI 295 - ITAT MUMBAIReopening of assessment u/s 148 - no failure on the part of the assessee to disclose material facts during original assessment proceedings - notice u/s 143(2) has been issued prior to disposing off the objections - suppression of profit and obtaining fictitious loss by way of Client Code Modification (CCM) by the brokers in large number of commodity transaction - HELD THAT:- Subsequent to completion of assessment u/s 143(3), Ld. AO was clinched with tangible information from investigation wing which suggested possible escapement of income in the hands of the assessee. Nothing more was required and Ld. AO was not required to carry out detailed investigation so as to reach a conclusive finding that the income, in fact, escaped in the hands of the assessee. Therefore, we are not convinced with these submissions. Further. we find that there was no bar under law for issue of notice u/s 143(2) prior to disposal of assessee’s objections and the disposal-off of the objections was not pre-requisite for the issue of notice u/s 143(2). Fictitious loss by way of Client Code Modification (CCM) - unexplained expenditure - CCM is a facility granted by stock exchanges / SEBI to brokers so as to take care of the punching errors which take place during trading hours - HELD THAT:- The transactions of the assessee’s were duly supported by bills / contract notes. The assessee placed on record confirmation of few parties whose name appear in the data provided to the assessee wherein they have confirmed the transactions as belonging to them only. No evidence has been brought on record to establish that any of the party disown the transactions. The assessee maintained that the data did not pertain to the assessee which has not been rebutted by AO. No nexus of the said data has been established with the losses suffered by the assessee. Nothing on record establishes any collusion / connivance of the assessee with the share broker. It is trite law that additions could not be made merely on the basis of presumption, conjectures or surmises without bringing on record any concrete material to dislodge the assessee’s claim. Therefore, the allegations as levelled byAO, in our opinion, are without any cogent or supporting evidences and therefore, the same could not be sustained in the eyes of law. - Decided in favour of assessee.
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