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TMI Blog2019 (5) TMI 1794X X X X Extracts X X X X X X X X Extracts X X X X ..... rs for providing alleged entries through CCM. 4. The appellant craves to alter, amend and modify any ground of appeal. 5. Necessary cost be awarded to the assessee. First, we take up ground nos. 2 & 3 regarding addition made by the AO on account of transferring of fictitious profits/loss to other clients in the garb of client code modification. 2. The assessee is an individual and engaged in the business of trading in shares and securities as well as doing trading in derivative segment. The assessee filed his return of income on 20th September, 2009 declaring total income of Rs. 3,51,16,730/-. The return was processed under section 143(1) on 05.05.2011. Subsequently, the AO reopened the assessment by issuing notice under section 148 on 27th March, 2017 by recording the reasons that information has been received from the ADIT (Investigation) Unit-1(3), Ahmedabad regarding fictitious profits and losses were created by some brokers by misusing client code modification facility in F&O segment on NSE. The AO accordingly proposed to assess an amount of Rs. 1,04,985/- on account of shifting out profits in the garb of client code modification. The AO completed the assessment un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Pvt. Ltd. in ITA No. 2750/Del.2017 (Del. Trib.) dated 13.09.2017 as well as decision of Coordinate Bench of this Tribunal in case of Noble Securities vs. ITO in ITA No. 911/JP/2016 dated 23.03.2017. The ld. A/R has also relied upon the decision of Hon'ble Bombay High Court in case of Coronation Agro Industries Ltd. vs. DCIT, 97 CCH 372 (Bom.). 4. On the other hand, the ld. D/R has relied upon the orders of the authorities below and submitted that the AO has received the information from Investigation Wing whereby it was found that certain brokers were indulged in shifting the fictitious profits/losses in the garb of client code modification in the Stock Exchange. The assessee has also claimed loss on account of client code modification, therefore based on the material as gathered during the investigation, the disallowance made by the AO is justified. 5. We have considered the rival submissions as well as the relevant material on record. There is no dispute that it is a matter of regular business practice that a broker in the Stock Exchange makes modification in the client code on sales and purchases of securities after the trading is over so as to rectify the error, if any occurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vs. Gyandeep Khemka in ITA No. 695/JP/2018 and C.O. No. 15/JP/2018 dated 23.10.2018 has considered an identical issue in para 11 and 11.1 as under :- "11. We have considered the rival submissions as well as relevant material on record. We note that the Assessing Officer has reopened the assessment on the basis of the information in the shape of the report of the Investigation Wing of Mumbai and Ahmadabad. There is no dispute that the assessee has done trade at stock exchange through the stock broker M/s C.M. Goyenka Stock Brokers Pvt. Ltd. and during the year under consideration, there were various instances of Client Code Modification whereby certain transactions were executed in the name of the assessee, were subsequently modified as to the other clients of the said broker. This modification was done as per the norms of the stock exchange which allows the brokers to carry out necessary Client Code Modification after execution of the trade but in a limited period of ½ hour. This facility is no doubt provided to the brokers to rectify the genuine mistakes committed in typing the wrong codes or the mistakes in punching the client codes at the time of trade transactions on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essing Officer has not conducted any enquiry in this matter but has passed the assessment order based on the report of the Investigation Wing. The assessee has specifically raised objection and demanded cross examination which was denied by the Assessing Officer in para 4.8 of the assessment order as under: "4.8 The Ld. A/R also contended for jccross examination of brokers u/s 131 by placing reliance upon certain case laws and requested for providing relied upon documents viz. statements etc. The relied upon details were provided from time to time to the Ld. A/R during the course of hearing and the modus operandi was discussed in detail. The Ld. A/R was also made aware of the Hon'ble Supreme Court judgment in the case C Vasantlal & Co. V/s CIT 45 ITR 206(SC) (3 Judge Bench) wherein the Apex court had observed that "...the ITO is not bound by any technical rules of the law of evidence. It is open to him to collect material to facilitate assessment even by private enquiry. But, if he desires to use the material so collected, the assessee must be informed about the material and given adequate opportunity to explain it..." The statements were material on which the I.T. Authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be borne in mind that the order of the Commissioner was based upon the statements given by the aforesaid two witnesses. Even when the assessee disputed the correctness of the statements and wanted to cross-examine, the Adjudicating Authority did not grant this opportunity to the assessee. It would be pertinent to note that in the impugned order passed by the Adjudicating Authority he has specifically mentioned that such an opportunity was sought by the assessee. However, no such opportunity was granted and the aforesaid plea is not even dealt with by the Adjudicating Authority. As far as the Tribunal is concerned, we find that rejection of this plea is totally untenable. The Tribunal has simply stated that crossexamination of the said dealers could not have brought out any material which would not be in possession of the appellant themselves to explain as to why their ex-factory prices remain static. It was not for the Tribunal to have guess work as to for what purposes the appellant wanted to cross-examine those dealers and what extraction the appellant wanted from them. 7. As mentioned above, the appellant had contested the truthfulness of the statements of these two witness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instructions of the assessee and subsequently these were transferred in the account of the other persons to shift the profit. 11.1. We note that this issue of rectification of the error by using the Client Code Modification facility has been considered and decided by this Tribunal in the series of decisions as relied by the assessee. The Coordinate Bench of this Tribunal in the case of Nobel Securities Vs ITO (supra) has also considered an identical issue in para 3.1 to 3.4 as under: "3.1 Apropos Ground No. 2 and 2.1 of the assessee, the facts as emerges from the order of the ld. CIT(A) is as under:- 5.3.1. I have gone through the assessment order as well as submissions made by the appellant. Following facts have emerged. 1. That the appellant is a partnership firm engaged in the business of trading in share. 2. That the firm is doing trading on its own behalf and on behalf of its clients. 3. That on the basis of an information received from Directorate of Income Tax (Intelligence & Criminal Investigation) that the appellant had booked a loss of Rs. 27,63,104/- due to modification made by the assessee in F& O segment to the third parties through the Client Code Modi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the appellant is hinged upon the inadvertent mistake of the staff in punching the wrong client code i.e. client code of the appellant instead of client code of its clients. However, the appellant's claim, to my mind, is hollow as clearly made out by the AO in the assessment order that such modifications are done 2380 times involving 55 clients over a period of 197 days during the year under consideration. Mistake cannot be repeated so brazenly over such a number of times. Even if the end of the session, still the facility cannot be allowed to be manipulated for undue gains and create a situation where the income/loss can be diverted. In this regard, I have also taken into account the Apex court judgement in the case of Mcdowell & Co. Ltd. It is worthwhile to quote from the landmark judgement as under:- ''Misra,J. who delivered judgement on behalf of himself and three other Judges (other than Reddy. J.) extracted the following observation from the judgement of Gujarat High Court (ITR pp 200- 01) in the case of CIT vs. Sakarlal Balabhai (affirmed by the Supreme Court in CIT vs. Vadilal Lallubhai): (SCC 253-54, para 43) ''Tax avoidance postulates that the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant's ground of appeal on the issue is dismissed.'' 3.2 During the course of hearing, the ld. AR of the assessee prayed for deletion of addition by filing the following written submission. ''1. It is submitted that the assessee is a trading in share business not in the capacity of broker but on its own account and for it clients. The assessee, itself, is a client of M/s Artistic Finance Pvt. Ltd which carried out transactions on behalf of the assessee and the clients of the assessee. Every client is assigned a unique client code which is punched in at the time of transactions. The AO issued notice u/s 131 to M/s Artistic Finance Pvt. Ltd. who vide letter dated 05.03.2016 (PB 37-38) explained that the assessee is its major client and provides them with a huge volume of transactions. The operating staff who are not well qualified, to save time had prefixed the client code of the assessee in the system as default which led to error in punching of client codes at the time of transactions. To rectify the error in punching of client code, a facility known as 'Client Code Modification (CCM)' is provided by the stock exchange till 4:15 PM of the trade day itself. This can be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 5. The Ld. CIT(A) only on surmises and conjectures observed that these transactions are of the assessee ignoring that M/s Artistic Finance Pvt. Ltd. has admitted that these transactions are not of the assessee. The reliance placed by him in case of McDowell & Co. Ltd. is thus misplaced and not applicable. 6. Reliance in this connection is placed in the case of ACIT Vs. Kunvarji Finance Pvt. Ltd. 119 DTR 1 (Ahd.) (Trib.) where it was held that as per Circular No. MCX/T&S/032/2007 dt. 22.01.2007 issued by the Commodity Exchange, client code modification is permitted intra-day i.e. on the same day. There is no penalty if the client code modification is upto 1 per cent of the total orders. In the present case, client code modifications made by the assessee being only 0.94 per cent i.e. less that 1 per cent of the total trading transactions, cannot be said to be unusually high or mala fide when the modification was made on the same day. Had the client modification been done after the transaction period when the price of the commodity had changed, then perhaps there could have been some basis to presume that client code modification was intentional. Even if the view of the Revenue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out the broker had carried out 2380 modifications by using CCM facility which is only 0.18% of the total trades carried out by the broker during the year. It is noted that the assessee's client code was set as default in the system is for the convenience of the broker. The assessee has no control over the system. The client brings to the notice of the broker any mistake/ error in the client code. It may be noted that ITAT Ahemdabad Bench in the case of ACIT vs. Kunvarji Finance (P) Ltd. 119 ld. DR 1 had observed that the client code modification is permitted intra day i.e. on the same day. The relevant portion of the decision is as under:- ''As per Circular No. MCX/T&S/032/2007 dt. 22.01.2007 issued by the Commodity Exchange, client code modification is permitted intraday i.e. on the same day. There is no penalty if the client code modification is upto 1 per cent of the total orders. In the present case, client code modifications made by the assessee being only 0.94 per cent i.e. less that 1 per cent of the total trading transactions, cannot be said to be unusually high or mala fide when the modification was made on the same day. Had the client modification been done after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s also accepting the fact that such kind of client code modification is inevitable. 12. Under these set of facts, the next question that arises is - Whether the client code modification has resulted into shifting of profits, otherwise earned by the assessee. It is a fact that the assessee company has started its operations only in July, 2005 by converting individual membership into corporate membership. Further, the commodity exchange was about 3-4 years old only at the relevant point of time. Hence, the assessee cannot be considered to be an established player in the years under consideration. Further, the movement of prices of commodities cannot be predicted by anyone with accuracy and hence it is inconceivable or unlikely that the assessee could have made profits consistently, even if it is assumed for a moment that the assessee had actually carried out the transactions for its own benefit. We notice that the assessee has offered explanations as to why it carried out the transactions in its own code, i.e. since the timing of entering the transactions is crucial in the online trading, the staffs of the assessee company found it convenient to punch its own code. Further, we noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding amount from the recipient of profit. However, in the instant case, the AO has not brought any material on record to show that the assessee had received back corresponding amount equivalent to the amount of profit claimed to have been shifted to the clients. The AO has mainly relied upon the report given by the MCX and has drawn adverse conclusions without bringing any material to support his view. 15. The Ld CIT(A) has also pointed out that modifications carried out by the assessee works out to around 3% of the total transactions only and in our view, the said volume, in fact, vindicates the explanation of the assessee. Further none of the clients has been found to be bogus and all of them have complied with KYC norms, meaning thereby the identity of all the clients stand proved. None of them has disowned the transactions and all of them have also declared the income in their respective returns of income. All these factors, in our view, support the contentions of the assessee. 16. In view of the foregoing discussions, we are of the view that the Ld CIT(A) was justified in deleting the additions made in both the years under consideration. In our view also, the assessin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enalty on the client code changes made on a daily basis shall be imposed as under: S. No Percentage of Client Code changed to total orders (matched) on a daily basis Penalty (Rs.) 1 Less than or equal to 1% Nil Nil 2 Greater than 1% but less than or equal to 5% 500 3 Greater than 5% but less than or equal to 10% 1000 4 Greater than 10% 10000 f. It is clarified that the facility of client code modification is allowed as an interim measure only upto March 31, 2007 and after this date the said facility will be completely stopped. With reference to point C. as referred above, Members may please note that the client code modifications will be allowed only upto 11:55 p.m. in international referenceable commodities (i.e. commodities traded upto 11:55 p.m.) Members are requested to take note of the FMC directives and ensure strict compliance." From the above, it is evident that client code modification is permitted intra-day, i.e. on the same day. As per Commodity Exchange, if client code modification is upto 1% of the total orders, there is no penalty and if it is greater than 1% but less than 5%, the penalty is Rs. 500/-. If it is greater th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... transactions period when the price of the commodity has already changed, then perhaps there could have been some basis to presume that client code modification is intentional. However, when the client code modification is done on the same day, in our opinion, there was no basis or justification to hold the same to be malafide. 10. Moreover, the ld. Assessing Officer has computed the notional profit/loss till the transactions period and not till the period by which the client code modification took place. Even if the view of the Revenue is accepted that the client code modification was with malafide intention, then the profit or loss accrued till the client code modification can be considered in the case of the assessee but by no stretch of imagination the profit/loss arising after the client code modification can be considered in the hands of the assessee. 11. The ld. CIT(A) in paragraph 4.13 of his order has also recorded the findings that "all transactions at the Commodities Exchanges have been duly accounted in the books of account maintained by the concerned parties. Such profits/loss has been duly accounted whenever the transactions have been closed. Thus, whatever profit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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