TMI Blog2018 (4) TMI 1361X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned loss claimed by assessee is genuine loss in the above facts and circumstances of the case and therefore eligible for deduction. See M/s. Ratnabali Commodities vs ITO [2018 (4) TMI 1295 - ITAT KOLKATA] - Decided in favour of assessee - I.T.A. No. 2179/Kol/2017 - - - Dated:- 13-4-2018 - Sri J. Sudhakar Reddy, Accountant Member Shri Sallong Yaden , Addl. CIT, appeared on behalf of the Revenue Shri S.K. Tulsiyan, Advocate, appearing on behalf of the Assessee ORDER Per J. Sudhakar Reddy, AM This is an appeal filed by the assessee directed against the order of the Commissioner of Income Tax (Appeals)-4, Kolkata, (hereinafter the Ld. CIT(A) ), dt. 18/08/2017, passed u/s 250 of the Income Tax Act, 1961 (herein ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 801 (SC) and CIT vs. Durga Prasad More (1971) 82 ITR 540 (SC), and made the disallowance. 2.1. On appeal the ld. First Appellate Authority, upheld this order of the Assessing Officer. He held that human error cannot occur on all occasions. He observed that the derivative transactions took place through a broker but on different dates. He also applied the theory of probabilities and dismissed the case of the assessee. He rejected the contentions of the assessee that addition cannot be made on mere suspicion, conjectures and surmises as held by the Hon ble Supreme Court in the case of Messrs. Lalchand Bhagat Ambical vs The Commissioner Of Income-Tax 37 ITR 288 SC. 3. Aggrieved the assessee is before us in appeal. 4. After hearing ri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... NSE. Relevant portion of finding of such order is reproduced herein below:- 7. We have heard the rival contentions of both the parties and perused and carefully considered the material on record; including the judicial pronouncements cited and placed reliance upon. The issue before us revolves for the amount of loss claimed by assessee for ~ 19,76,538/- which was treated by the Authorities Below as bogus mainly due to the modification carried out in the name and code of the assessee by the broker. The director of the assessee-company and the director of the broker company listed with NSE are same person. The impugned loss was treated as bogus due to several reasons such as it was incurred at the fag-end of the year, to reduce the taxab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tsoever has been pointed out in the documents produced by assessee in support of its impugned loss. We also find whatever modifications were carried out by the broker they were carried out within the time permitted by the NSE for the purpose of modification. Thus, we are of the view that the order of Authorities Below is based on surmise and conjecture and same is not based on tangible material to treat the impugned loss as bogus loss. 7.2 Moreover, we also find that the details furnished by the assessee in respect of transactions giving rise to the loss were exactly matching with the details furnished by the NSE. In none of the case. Authorities Below have brought on record where any mismatch -is found between the books of the assesse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be perverse. Whether the shares could be sold immediately on the date of purchase or not was a question of business expedience. Whether the decision was' correct or 'wrong cannot the question, which can he a subject-matter of decision in such a case. In order to find out whether the transaction is genuine or in genuine it is neither the expedience nor correctness of' the decision nor the business expertise of the person to be considered. It is to be considered on the basis of the materials that there was no such transaction and that these share transactions were paper transactions. The suffering of loss, could not be a factor for such purpose.' Having regard to the facts and circumstances of the case, the view taken by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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