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2016 (5) TMI 810 - ITAT CHENNAI

2016 (5) TMI 810 - ITAT CHENNAI - TMI - Reopening of assessment - Held that:- Admittedly, the assessment was completed under Section 143(3) of the Act on 13.12.2010. There was no discussion in the assessment order about the cost incurred by the assessee for ESOP scheme. When the Assessing Officer has not framed any opinion in the original assessment, this Tribunal is of the considered opinion that it cannot be said that the Assessing Officer reopened the assessment due to change of opinion. For .....

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four years from the end of the relevant assessment year

Disallowance towards ESOP expenses - Held that:- Since the shares were purchased by the Trust from the promoters of the assessee-company at the rate of ₹ 15/- per equity share and the same was also claimed to be allotted to the employees of the assessee-company at a price of ₹ 15/- per equity share, this Tribunal is of the considered opinion that the buy back of the shares from the very same employees at a cost of &# .....

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- is payable to various clients since there was dispute pending among them, was not substantiated by any material. The assessee could not produce any evidence before the authorities below that the liability has arisen during the year under consideration. It is also not in dispute that the brokerage income was shown as trading receipt in the books of account. The only contention of the assessee before the Assessing Officer is that the refund arises only in case the case was decided in favour of r .....

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ny material to show the liability of the assessee, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed

Disallowance under Section 14A of the Act read with Rule 8D - Held that:- The CIT(Appeals), after considering the material available on record, found that the assessee has earned dividend income of ₹ 15,41,947/- which was exempted from the provisions of Income-tax Act. The assessee claimed before the lowe .....

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y the assessee to the extent of ₹ 7,200/-, the balance of ₹ 4,37,291/- was treated as expenditure for earning the excess income. Since the CIT(Appeals), after applying the provisions of Rule 8D(2), which is mandatory for the year under consideration, rightly confirmed the disallowance made by the Assessing Officer at Rs. 4,37,291/-, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.

Computation of .....

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than the provisions contained in clause (38) thereof) has to be increased with book profit computed under the provisions of Parts II and III of Schedule VI to the Companies Act, 1956. In the case before us, the dividend income earned by the assessee to the extent of ₹ 15,41,947/- is exempted under Section 10(34) of the Act. Therefore, the expenditure relatable to such income has to be increased after computing the book profit under the provisions of Companies Act. In view of the specific p .....

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ted before the Assessing Officer by letter dated 03.09.2012 that the interest income of ₹ 7,11,919/- may be added to the total income. In view of this, the Assessing Officer has rightly found that the sum of ₹ 7,11,919/- would form part of total income. The CIT(Appeals) confirmed the order of the Assessing Officer. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed.

TDS credit - Held that:- In the a .....

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gly the same is confirmed.

Allowability of expenditure - Held that:- The payment was in pursuance of arbitration award passed by arbitrators in the course of business activity. Of course, there was a violation of contractual obligation. Therefore, the arbitrator decided the matter in favour of claimant. This Tribunal is of the considered opinion that meeting the obligations pursuant to award passed by arbitration cannot be construed as penal consequence. This Tribunal is of the consid .....

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Disallowance of bad debt - Held that:- Merely because the clients could not honour their respective commitment of paying the purchase price, it does not mean that the assessee suffers loss at this stage. The assessee has to first sell the shares and the assessee could not realise the entire amount invested, then the amount which could not be realized may be claimed as business loss. At no stretch of imagination, it can be said that the amount due from the clients is bad debt. Since the .....

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the shares during the year under consideration and suffered any loss. If the assessee suffered loss on sale of such shares, the same shall be allowed as business loss. - ITA Nos. 733, 734 & 735/Mds/2015 - Dated:- 5-5-2016 - Shri N. R. S. Ganesan, Judicial Member And Shri A. Mohan Alankamony, Accountant Member For the Appellant : Shri R. Sivaraman, Advocate For the Respondent : Shri Arun C. Bharat, CIT ORDER Per N. R. S. Ganesan, Judicial Member All the three appeals of the assessee are directed .....

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ee, submitted that the issue of reopening of assessment arises for consideration for the assessment year 2008-09. According to the Ld. counsel, the assessee-company is engaged in the business of share broking. The original assessment was passed under Section 143(3) of the Act on 13.12.2010. Subsequently, the Assessing Officer issued notice on 26.03.2012 to reopen the assessment under Section 147 of the Act on the ground the ESOP cost of ₹ 1,11,18,000/- cannot be allowed as expenditure in t .....

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sment by issuing notice under Section 148 of the Act. The Ld.counsel submitted that all the particulars were available with the Assessing Officer, therefore, the reopening of assessment is only due to change of opinion. According to the Ld. counsel, when the assessee has filed the details before the Assessing Officer, the Assessing Officer allowed the claim of the assessee in the original assessment. There cannot be any reason for reopening the assessment on the ground that the particulars of in .....

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re for purchasing the shares of the assessee s employees by the Trust cannot be a business expenditure. Therefore, it is not an allowable expenditure either under Section 37 of the Act or otherwise. The Ld. D.R. submitted that the Assessing Officer has not discussed anything in the assessment order about the allowability of the cost of ESOP. Therefore, it cannot be said that the Assessing Officer has taken one of the possible view. According to the Ld. D.R., reopening the assessment is not due t .....

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essee-company, according to the Ld. D.R., the Assessing Officer has rightly reopened the assessment. 5. We have considered the rival submissions on either side and perused the relevant material available on record. Admittedly, the assessment was completed under Section 143(3) of the Act on 13.12.2010. There was no discussion in the assessment order about the cost incurred by the assessee for ESOP scheme. When the Assessing Officer has not framed any opinion in the original assessment, this Tribu .....

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f the above, this Tribunal is of the considered opinion that the Assessing Officer has rightly reopened the assessment within a period of four years from the end of the relevant assessment year. In view of this, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly, the same is confirmed. 6. The next ground of appeal is regarding disallowance of ₹ 1,11,18,000/- towards ESOP expenses. 7. Shri R. Sivaraman, the Ld.counsel for the assessee, su .....

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loyees Stock Option Plan 2006, the Ld.counsel submitted that the ESOP Committee determined to offer the option to the eligible employees. On acceptance by the respective employees, shares were allotted to them. Therefore, the expenditure incurred by the assessee has to be allowed under Section 37 of the Act. Referring to the Securities and Exchange Board of India (Share Based Employee Benefits) Regulations, 2014, the Ld.counsel submitted that the company may grant the benefit of stock option eit .....

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rchased 3,50,000 equity shares from existing promoters of the company at a price of ₹ 15/- per equity shares which were sold to the eligible employees at ₹ 15/- per equity share. Subsequently, the Trust purchased the shares from the employees to whom the shares were allotted. The expenditure incurred by the Trust to the extent of ₹ 1,11,18,000/- to buy back the equity shares was claimed as expenditure by the assessee-company. The Ld.counsel submitted that the Assessing Officer .....

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llowable under Section 37 of the Act. 8. On the contrary, Shri Arun C. Bharat, the Ld. Departmental Representative, submitted that the assessee has not allotted even a single share to its employees during the year under consideration. No shares were issued to the Shriram Insight Welfare Trust during the year under consideration. Therefore, the contention of the assessee that the ESOP Scheme was implemented through the Trust is not justified. In the case before us, the Trust purchased the shares .....

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over and above the value of the shares allotted to the employees are allowable as deduction or not? In this case, it is not the excess market value paid by the company for allotting the shares to its employees. It is a case of buy back of shares from employees by the Trust. Therefore, the cost of purchase of shares by the Trust cannot be a business expenditure in the hands of the assessee-company. Therefore, according to the Ld. D.R., the CIT(Appeals) has rightly confirmed the addition made by .....

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tted to eligible employees at a price of ₹ 15/- per equity share. Subsequently, the Trust purchased 32,700 equity shares from the employees at a price of ₹ 340/- per equity share. The assessee-company granted a sum of ₹ 1,11,80,000/- for the purpose of buying back the equity shares by the Trust from its employees. The question arises for consideration is whether the sum of ₹ 1,11,18,000/- advanced by the assessee to the Trust for buying back the equity shares from its emp .....

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f the Trust. Therefore, the CIT(Appeals) found that the amount advanced by the assessee for buying back the shares from the employees has to be treated as loan. Even though the assessee has produced material before the authorities below for purchase of 3,50,000 equity shares from the existing promoters of the company at a price of ₹ 15/- per equity share, there is no material available on record to suggest that when the shares were allotted to the employees of the assesseecompany. Whereas .....

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is arrangement of purchase of very same shares said to be allotted at ₹ 15/- per equity share were bought back at ₹ 340/- per equity share creates a doubt whether the shares were in fact allotted to the respective employees or not? In the absence of any material, this Tribunal is of the considered opinion that the CIT(Appeals) has rightly confirmed the disallowance made by the Assessing Officer. 10. We have carefully gone through the decision of Bangalore Bench of this Tribunal in No .....

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it & Loss account. The Bangalore Bench of the Tribunal in fact found that the difference between fair market value of the shares and the price at which the shares were allotted to the employees is revenue expenditure and therefore, it has to be allowed as deduction while computing the income. The Bangalore Bench further found that the very object of issuing of shares to the employees at a discounted premium is to compensate them for the continuity of their services in the company. In the cas .....

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as expenditure. Therefore, this Tribunal is of the considered opinion that the decision of Bangalore Bench in Novo Nordisk India Pvt. Ltd. (supra) is not applicable to the facts of the case. Since the shares were purchased by the Trust from the promoters of the assessee-company at the rate of ₹ 15/- per equity share and the same was also claimed to be allotted to the employees of the assessee-company at a price of ₹ 15/- per equity share, this Tribunal is of the considered opinion t .....

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11. Now coming to assessment year 2010-11, the first issue raised by the assessee is with regard to addition of ₹ 50,23,360/-. 12. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the assessee disclosed brokerage income of ₹ 50,23,360/- out of ₹ 51,21,960/-. According to the Ld. counsel, the balance amount of ₹ 98,600/- represents service tax payable to security deposit. The assessee explained before the Assessing Officer that a sum of ₹ 78,000/- r .....

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amount is subjected to dispute, according to the Ld. counsel, a sum of ₹ 50,23,360/- was not shown as income of the assessee. 13. On the contrary, Shri Arun C. Bharat, the Ld. Departmental Representative, submitted that the assessee had disclosed a sum of ₹ 50,23,360/- as brokerage in the Profit & Loss account. It is also claimed that the same is payable to various parties. The assessee in fact treated the amount payable to the extent of ₹ 50,23,360/- as revenue expenditur .....

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from various customers and accepted the same as trading receipt in the books of account. However, for the year under consideration, a part of amount received from the customers as payable and same was shown as liability in the balance sheet without any substantive evidence. The assessee is admittedly following mercantile system of accounting. The gross brokerage income was shown as trading receipt in the books of account. Therefore, the claim of the assessee that the part of the amount to the ex .....

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ayable to various clients since there was dispute pending among them, was not substantiated by any material. The assessee could not produce any evidence before the authorities below that the liability has arisen during the year under consideration. It is also not in dispute that the brokerage income was shown as trading receipt in the books of account. The only contention of the assessee before the Assessing Officer is that the refund arises only in case the case was decided in favour of respect .....

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erial to show the liability of the assessee, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. 15. The next ground of appeal is disallowance made by the Assessing Officer under Section 14A of the Act read with Rule 8D of the Income-tax Rules, 1962. 16. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the Assessing Officer disallowed a sum of ₹ 4,37,291/-. According to the Ld. counsel, the assesse .....

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, unless the Assessing Officer is not satisfied with the correctness of the claim of the assessee, the Assessing Officer shall not determine the amount of expenditure incurred in connection with earning of the income which is warranted under the provisions of the Income-tax Act. The Ld.counsel further submitted that the expenditure in relation to exempted income needs to be satisfactorily considered. 17. On the contrary, Shri Arun C. Bharat, the Ld. Departmental Representative, submitted that Ru .....

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d and the expenditure was computed to ₹ 4,37,291/-. This was disallowed by the Assessing Officer. 18. We have considered the rival submissions on either side and perused the relevant material available on record. The CIT(Appeals), after considering the material available on record, found that the assessee has earned dividend income of ₹ 15,41,947/- which was exempted from the provisions of Income-tax Act. The assessee claimed before the lower authorities that a sum of ₹ 15,41,9 .....

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00/-, the balance of ₹ 4,37,291/- was treated as expenditure for earning the excess income. Since the CIT(Appeals), after applying the provisions of Rule 8D(2), which is mandatory for the year under consideration, rightly confirmed the disallowance made by the Assessing Officer at Rs. 4,37,291/-, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. 19. The next ground of appeal is with regard to computation of book p .....

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herefore, the Assessing Officer computed the income on the basis of material available on record. The question arises for consideration is when the disallowance was made under Section 14A read with Rule 8D, whether such disallowance would go to increase the total income of the assessee in computing income under Section 115JB of the Act? According to the Ld. D.R., in the absence of any specific provision in 115JB of the Act, deduction cannot be allowed. 22. Referring to Section 115JB of the Act, .....

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rred on earning the dividend income which was exempted under Section 10(34) of the Act. Therefore, the book profit computed under the Companies Act has to be increased by the expenditure relatable to earning of exempted income. 23. We have considered the rival submissions on either side and perused the relevant material available on record. A sum of ₹ 4,37,291/- was disallowed being an expenditure for earning dividend income. The question arises for consideration is whether ₹ 4,37,29 .....

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us, the dividend income earned by the assessee to the extent of ₹ 15,41,947/- is exempted under Section 10(34) of the Act. Therefore, the expenditure relatable to such income has to be increased after computing the book profit under the provisions of Companies Act. In view of the specific provision in Explanation 1(f) to Section 115JB(2) of the Act, this Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. 24. The next gr .....

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at, the Ld. Departmental Representative, submitted that the assessee by letter dated 03.09.2012 submitted before the Assessing Officer that an amount of ₹ 7,11,919/- may be added to the income of the assessee. In pursuance of the letter dated 03.09.2012, the same was taken as income of the assessee. Therefore, the CIT(Appeals) has rightly confirmed the addition made by the Assessing Officer. 27. We have considered the rival submissions on either side and perused the relevant material avail .....

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form part of total income. The CIT(Appeals) confirmed the order of the Assessing Officer. This Tribunal do not find any reason to interfere with the order of the lower authority and accordingly the same is confirmed. 28. The next ground of appeal is with regard to direction of the CIT(Appeals) to exclude a sum of ₹ 32,300/- being an excess interest. 29. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the Assessing Officer charged interest under Section 234A of ₹ 1 .....

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on the due date, and the CBDT circular dated 27.09.2010, the CIT(Appeals) directed the Assessing Officer to compute the interest keeping in view of the CBDT circular. Therefore, according to the Ld. D.R., no interference is called for. 31. We have considered the rival submissions on either side and perused the relevant material available on record. Section 244A of the Act provides for refund of interest on any amount due to the assessee. In the case before us, the assessee claimed that the retur .....

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600/-. 33. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the TDS was ₹ 38,17,769/-. The Assessing Officer gave a credit of ₹ 24,36,169/-. However, the credit was not given to the extent of ₹ 13,81,600/-. According to the Ld. counsel, since the TDS was deducted from the amount paid to the assessee, it has to be given credit. 34. On the contrary, Shri Arun C. Bharat, the Ld. Departmental Representative, submitted that the Assessing Officer gave a credit of &# .....

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elevant material available on record. In the absence of any evidence for TDS to the extent of ₹ 13,81,600/-, the CIT(Appeals) directed the Assessing Officer to verify the claim on the basis of CBDT circular. This Tribunal is of the considered opinion that the Assessing Officer has to verify the claim and if any TDS was made, credit should be given in accordance with the provisions of Income-tax Act and the instruction given by the CBDT. Therefore, this Tribunal do not find any infirmity in .....

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applying the provisions of Rule 8D. According to the Ld. counsel, in the absence of any expenditure incurred by the assessee, there is no question of disallowance. 38. On the contrary, Shri Arun C. Bharat, the Ld. Departmental Representative, submitted that the Assessing Officer is not satisfied by the claim of the assessee, therefore, he recomputed the expenditure by applying provisions of Rule 8D. The Assessing Officer has taken the average expenditure as per limb (ii) and (iii) of Rule 8D. 39 .....

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t ground of appeal is with regard to addition of loss on arbitration to the extent of ₹ 3,30,348/-. 41. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that three claims of the assessee appeared in arbitration proceeding. On the basis of arbitration award, the assessee has to pay to the clients a sum of ₹ 3,30,348/-. According to the Ld. counsel, this is only consequent to the arbitration award as mechanism for dispute resolution, therefore, it cannot be construed as pe .....

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,348/- is not a business expenditure. Therefore, according to the Ld. D.R., the CIT(Appeals) has rightly confirmed the addition made by the Assessing Officer. 43. We have considered the rival submissions on either side and perused the relevant material available on record. The payment of ₹ 3,30,348/- was in pursuance of arbitration award passed by arbitrators in the course of business activity. Of course, there was a violation of contractual obligation. Therefore, the arbitrator decided th .....

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has to be allowed as revenue in nature. Therefore, this Tribunal is unable to uphold the orders of the lower authorities. Accordingly, the orders of the lower authorities are set aside and the addition of ₹ 3,30,348/- is deleted. 44. The next ground of appeal is with regard to disallowance of bad debt of ₹ 11,36,85,242/-. 45. Shri R. Sivaraman, the Ld.counsel for the assessee, submitted that the assessee claimed a sum of ₹ 11,36,85,242/- as bad debt written off in the books of .....

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ot honoured their commitment, the amount due from the clients was written off in the books of account. Referring to the regulations of the stock exchange, the Ld.counsel submitted that the assessee has to settle the amount to the stock exchange regardless of whether the assessee received the payment from the clients or not. If the payment was not made, the assessee will be declared as defaulter and the assessee will not be allowed to transact business in exchanges. Therefore, the assessee was fo .....

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e conditions stipulated in Section 36 of the Act are complied with. Section 36(1)(vii) of the Act clearly says that the deduction of bad debt can be allowed provided the same was written off. The debt should be an actual debt which was offered for taxation in the earlier assessment year. In the case before us, according to the Ld. D.R., the assessee is not doing any money lending business. It is not the case of the assessee that the bad debt claim was formed part of income in any of the earlier .....

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actual income of the assessee is only ₹ 2/-. If at all there is any loss, the assessee at the best can claim only ₹ 2/- and not the entire amount of ₹ 102/-. The amount which is remained to be settled by clients for purchasing of shares cannot be construed as bad debt. The stock purchased by the assessee is very well with the assessee. The assessee can sell the same at any time and reimburse the cost. Therefore, according to the Ld. D.R., at any stretch of imagination, it canno .....

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y be loss in the hands of the clients of the assessee. Therefore, according to the Ld. D.R., the outstanding amount from the clients cannot be construed as debt. 47. We have considered the rival submissions on either side and perused the relevant material available on record. Section 36(2)(i) of the Act reads as follows:- 36(2) In making any deduction for a bad debt or part thereof, the following provisions shall apply - (i) No such deduction shall be allowed unless such debt or part thereof has .....

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lent in the course of ordinary business of the assessee. In case the money lending is not the business of the assessee, then the assessee has to necessarily establish that the so-called debt was taken as income of the assessee for the previous year in which the amount of such debt or part thereof is written off or of an earlier previous year. There is no material on record to suggest that the amount invested in shares was taken as income of the assessee in any of the previous year. Moreover, as .....

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