TMI Blog2020 (8) TMI 8X X X X Extracts X X X X X X X X Extracts X X X X ..... tions however, in the absence of the relevant record we cannot examine and give a conclusive finding on this issue which is factual in nature to the extent whether the finding of the AO is factual correct or not. Though the assessee claimed to have produced the relevant record before the AO however, in the absence of the same produce before us we cannot give a finding that the decision of the AO is perversed. Approval granted u/s 151 - Proforma proposal send by the AO for approval contains all the details as well as the reasons recorded by the AO which were also examined by the JCIT and recommended the proposal of the AO for issuing notice u/s 148 of the Act and thereafter the Ld. Pr.CIT has granted the approval. Therefore, we do not find any infirmity on the face of it however, the ld. CIT(A) has not decided this issue on merits and dismissed the appeal of the assessee summarily. Appeal of the assessee was dismissed ex-parte due to non appearance of the assessee we set aside this issue to the record of the ld. CIT(A) for granting one more opportunities to the assessee of hearing and then decide the same on merits. Appeal of the assessee is partly allowed for statistical pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was concluded through video conference in view of the prevailing situation of COVId-19 pandemic. Though the assessee has raised as many as 8 grounds however, at the time of hearing the ld. AR of the assessee has confined his argument only on the issue of validity of reopening of the assessment raised in grounds No. 1 and 2 of the grounds of appeal. The ld. AR has referred to the reasons recorded by the Assessing Officer for reopening of the assessment and submitted that the Assessing officer has reopened the assessment without any tangible material to form the belief that income assessable to tax on account of profit on speculative transactions on the commodities exchange has escaped assessment. He has appointed that the Assessing Officer has referred to the information received from the Investigation Wing, Ahmedabad and that too under Section 133A of the Act at the premises of NMCE wherein certain brokers/persons were found to be indulged in providing bogus accommodation entries of speculative profit and loss to the parties as per their need. The ld. AR has further submitted that the Assessing Officer has reopened the assessee on the borrowed satisfaction as the information rec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e proposal form has mentioned Section 151(2) as relevant Section while seeking approval whereas the case in hand is arising from scrutiny assessment U/s 143(3) of the Act, therefore, the provisions of Section 151(1) are applicable. He has relied upon the decision of this Tribunal dated 06.12.2018 in case of M/s Angel Infrastructure Pvt. Ltd. vs. DCIT in ITA No. 464/JP/2018 and 761/JP/2018. 3. On the other hand, the DR has submitted that the Assessing Officer was having specific information regarding the bogus commodity entries received by the assessee on account of speculative profit. The AO has referred the transactions of the assessee carried out during the year under consideration which was found bogus commodity entries of speculative profit to be set off against speculative loss brought forward by the assessee. Thus, it is clear that by way of this bogus entries of speculative profit the assessee has controverted its uncounted income without paying income tax as speculative loss was adjusted against the alleged profit. The Assessing Officer has clearly mentioned in the reasons recorded that the brokers M/s Priyank Commodities, M/s Suruchi Trading and M/s Pioneer Trading are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that what is proposed by the AO in the reopening of the assessment treated speculative profit as income from other source and denied the benefit of setting off against speculative loss. 4. We have considered the rival submissions as well as relevant material on record. The assessee has challenged the validity of reopening of the assessment and ld. AR of the assessee has argued on the issue at length. At the outset, we note that the appeal of the assessee was dismissed by the ld. CIT(A) when nobody has attended despite several opportunities were given by the ld. CIT(A). The ld. AR of the assessee has submitted that this being a legal issue can be raised at any stage however, that would not mean that the assessee has got right to bypass the first appellate authority deliberately and then raise the issue before the Tribunal. Once, the assessee has filed an appeal and raised this issue before the ld. CIT(A) then the matter ought to have been decided by the first appellate authority., Therefore, the non adjudication of this issue by the ld. CIT(A) due to non appearance of the assessee would not give an absolute right to the assessee to raise these issued before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X
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