TMI Blog2018 (4) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... re the ld AO in response to the summons issued u/s 131 of the Act. The ld AO had not given any credit even for the parties who had appeared before him in response to summons u/s 131 of the Act. The assessee had also stated that more parties could have been produced before the ld AO during remand proceedings but for the sickness of the assessee. In these circumstances, we deem it fit and appropriate, in the interest of justice and fair play, to remand this issue to the file of the ld AO for de novo adjudication to give one more opportunity to the assessee to produce the parties who were not produced earlier before the ld AO. Accordingly, the Ground Nos. 2(a) to 2(c ) raised by the assessee are allowed for statistical purposes. - I.T.A No. 774/Kol/2013 - - - Dated:- 13-4-2018 - Hon ble Shri Aby. T. Varkey, JM And Shri M.Balaganesh, AM For the Appellant : Shri Anikesh Banerjee, AR Mrs. Saswati Mitra Dutta, Advocate For the Respondent : Shri R.P. Neogi, Addl. CIT ORDER Per M. Balaganesh, AM 1. This appeal by the assessee arises out of the order passed by the Learned Commissioner of Income Tax (Appeals) XXXII, Kolkata (in short the ld CITA) in Appeal No. 59/XX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of law and it goes into the root of the matter. It is not clear from the records that whether the assessee had made any factual submissions before the ld AO that the loss of ₹ 19,63,492/- was incurred out of derivative transactions are not. We are not able to ascertain the same from the paper book filed by the assessee except placing reliance on Form 10DB filed by the ld AR. No doubt, if the said loss is incurred from derivative transactions, the same would not be speculation loss in terms of section 43(5)(d) of the Act. This requires factual verification by the ld AO. Hence we deem it fit and appropriate, in the interest of justice and fairplay, to remand this issue to the file of ld AO for denovo adjudication. The assessee is at liberty to furnish necessary documents and evidences in this regard in support of his contentions. The issue regarding the eligibility to set off this loss with other business income and other sources and balance , if any, to be carried forward to subsequent years, shall be decided by the ld AO, pursuant to the decision taken in respect of Ground No. 1 supra. Accordingly the Ground No. 1 raised by the assessee is disposed off accordingly. 3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rce of income. 3.3. The ld AO further observed that one Shri Nirmal Sarkar is stated to have paid the assessee a sum of ₹ 16,227/- as loan. He observed that the figure of loan itself is doubtful. The ld AO issued summons u/s 131 of the Act to him on 4.11.2009 but the party did not turn up. The authorized representative of the assessee was directed to produce the said party on 30.11.2009 vide order sheet noting dated 23.11.2009, which remained uncomplied. With regard to the absence of 32 persons ( difference between 40 persons to whom summons were issued and 8 persons who appeared before the ld AO) , the assessee submitted vide his letter dated 16.12.2009 that as those are casual manual workers like cultivation of land, fishing, farming and other workers in the village area, they should be given adequate time to make their deposition. The ld AO observed that this submission of the assessee makes it clear that the persons are casual daily manual workers who do not have their financial stability and also it is obvious that the assessee does not want to present them before the department by taking a plea which cannot be accepted in view of the fact that the assessee knows it v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ported in 82 ITR 540 (SC) and Sumati Dayal vs CIT reported in 214 ITR 801 (SC) where in it was stated that an evidence have to be judged by applying the test of human probabilities and an inference is to be drawn on the basis of circumstance available on record. Accordingly, the ld AO added the entire loan amount of ₹ 11,37,227/- as bogus as unexplained cash credit u/s 68 of the Act. 4. The assessee filed additional evidences before the ld CITA which were send to the ld AO for remand report on 27.8.2012. The ld AO send the remand report on 5.10.2012 as under:- 5. The ld CITA observed that no rejoinder to the remand report was filed by the assessee before him. The ld CITA observed that the three main ingredients viz (i) identity of the creditors ; (ii) creditworthiness of the creditors and (iii) genuineness of the transactions were not proved by the assessee in the instant case either during the assessment proceedings or during the remand proceedings despite giving several opportunities. Accordingly, he confirmed the addition made in the sum of ₹ 11,37,227/- u/s 68 of the Act. 6. Aggrieved, the assessee is in appeal before us on the following grounds:- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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