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2022 (9) TMI 402 - AT - Income TaxAllowance of loss on account of share of loss of the assessee in the partnership firm while computing book profit u/s. 115JB - HELD THAT:- As decided in own case [2018 (2) TMI 868 - ITAT KOLKATA] Merely because share of profit from partnership firm is exempt u/s. 10(2A) of the Act and is excluded from the computation of book profit if credited in the P&L Account as per clause (a) of explanation u/s. 115JB of the Act then, for this reason alone, it cannot be held that share of loss from the partnership firm when debited to the P&L Account is to be added for calculating the book profit - since none of the clauses of the explanation to sec. 115JB permitted the AO to make adjustment to the net profit on account of share of loss from partnership firm debited to the P&L Account, the AO was not justified in making the addition which was not specifically provide for by the legislature by way of any specific clause in the said explanation to section 115JB of the Act. We note that the Co-ordinate bench thus held that the addition made by the AO in respect of share of loss allocated by the partnership firm, was legally unsustainable. CIT(A) following the decision of the coordinate bench of ITAT, Kolkata in assessee’s own case [2018 (2) TMI 868 - ITAT KOLKATA] deleted the addition in the present case on account of share of loss from the partnership firm while computing the book profit u/s. 115JB of the Act. Since there is no change in the facts and law in the present case before us, we respectfully following the decision of the Co-ordinate bench of ITAT, Kolkata in assessee’s own case find no reason to interfere with the finding given by the Ld. CIT(A) in deleting the addition made by the Ld. AO. Thus, no interference is called for in the relief granted by the ld. CIT(A). These grounds of appeal are thus dismissed. Ingenuine sale of shares by the assessee through off market trade - Carry forward of long term capital loss on off market sale of shares of eleven listed companies - Revenue contends that assessee by effecting off market sale of the said shares has perpetuated a mischief and the transaction is a colorable device - case of the assessee is that it has sold the shares of listed companies on the price range on Bombay Stock Exchange prevailing on the relevant dates which were sold off market on which no STT was paid and, therefore, it is not governed by section 10(38) - HELD THAT:- Genuineness or otherwise of any transaction can be tested on the touch-stone of several other factors which are not exhaustive. What essentially boils down to is whether the shares were sold at a correct price or at the price which was artificially arrived at to inflate the loss. In this respect, we note that facts on record do not suggest that sale prices of shares were artificially arrived at. It is an accepted fact that shares were sold in the price range which prevailed on the Bombay Stock Exchange on the date of sale of the shares under consideration. Nothing has been brought on record to establish that the impugned transaction of off-market sale is a sham and bogus transaction. We note that ld. CIT(A) has given a finding that no material is available on record to show that either the prices were manipulated or the transactions did not take place at all. Ld. CIT(A) also gave his finding that no claim of set off was made either in the year on in the subsequent year so as to justify AO’s claim that loss was artificially generated to gain unfair tax advantage. We thus hold that no interference is called for on these factual findings by the ld. CIT(A). Thus we hold that no interference is called for in the observations and findings given by the ld. CIT(A) on the issue relating to carry forward and set off of long term capital loss in subsequent years as claimed by the assessee. Accordingly, in terms of our above observations and findings, the ground of appeal is dismissed.
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