TMI Blog2020 (2) TMI 1348X X X X Extracts X X X X X X X X Extracts X X X X ..... corroborative evidence which supports the view of the AO that the said transaction was unexplained. No additional evidence, which was filed before the CIT-A, but not before the AO. CIT-A deleted the said addition only on the basis of material/evidence available on record, which were very much before the AO in the re-assessment proceedings. The case laws as relied on by the assessee before the CIT-A were relevant and applicable to the present facts of the case - Decided against revenue. - ITA No.1435/Kol/2018 - - - Dated:- 26-2-2020 - Shri J.Sudhakar Reddy, Accountant Member AND Shri S.S.Godara, Judicial Member For the Appellant : Shri Dilip Kumar Patri, CA For the Respondent : Shri Dhrubajyoti Roy, JCIT-DR ORDER PER ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed. We find that the instant issue of bogus currency derivative loss based on Shri Sachet Saraf s search statement is no more res integra as tribunal s co-ordinate bench s decision in ITA 1560/Kol/2016 ACIT, Circle-12(2) Kolkata vs. M/s Tirupati Awas Pvt. Ltd., decided on 28.03.2018 has deleted the identical disallowance vide following detailed discussion:- 4. The brief facts of the case are that the assessee is a company engaged in the business of real estate development investment in shares. The assessee filed its return of income for the A.Y under consideration declaring total income of ₹ 10,68,100/- on 30-01-2015, and the same was processed u/s. 143(1) of the Act on 28-01-2012. 5. A search seizure operation was conducte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. CK0105 for trading purpose in currency derivatives in the segment of exchange. The MCX Stock Exchange is a notified/listed stock exchange under the Income Tax Act. The assessee has been issued valid contract notes in respect of on line trade, wherein, order number, trade number, trade time etc. are properly mentioned as prescribed by concerned authorities/stock exchange. The assessee made the payments to above said registered/listed broker for the said transaction by way of account payee cheques. The assessee submitted all the details relating to contract notes and ledger copies of assessee in the books of said broker. Apart from above, the assessee also submitted an affidavit of Mr. Sachet Saraf, director of M/s. Marigold Vanijya Pvt. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, the appellant furnished all the requisite documents in support of transactions entered into by it in respect of foreign exchange derivatives. On this score, I find that no enquiry, whatsoever, has been conducted by the AO with either the broker or the MCX Stock Exchange to verify the genuineness of the transactions entered into by the appellant. No convincing material, except for the statement of Mr. Sachet Saraf, has been relied upon by the AO in making the impugned addition. It has been brought to my notice that even the statement of Mr. Sachet Saraf was retracted at a later point of time (supra). This fact has not been controverted by the AO in any manner. It is trite law that additions cannot be made, based merely on the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nish full details in respect of said transaction of assessee in response to notice issued u/s. 133(6) of the Act. Thus the AO has rightly added the said amount to the total income of assessee. The CIT-A basing on submissions of assessee has given relief to assessee without calling remand report of AO in admitting additional evidence. Thus, the CIT-A has erred in accepting wrong contention of assessee. He also violated the provisions of Rule 46A in admitting the same. The CIT-A has also failed to give an opportunity to AO for verification of the details as submitted by the assessee. In view of above, he prayed to allow the grounds of appeal of the revenue. 9. On the other hand, the ld. AR submits that there was no new submission/evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the search seizure operation in the premises of the said Shri Sachet Saraf, director of M/s. Marigold Vanijya P.Ltd. The said statement of Mr. Saraf was retracted at a later point of time. The CIT-A found satisfied that there was no corroborative evidence which supports the view of the AO that the said transaction was unexplained. Therefore, we find no additional evidence, which was filed before the CIT-A, but not before the AO. The CIT-A deleted the 6 ITA No. 1560/Kol/2016 said addition only on the basis of material/evidence available on record, which were very much before the AO in the re-assessment proceedings. The case laws as relied on by the assessee before the CIT-A were relevant and applicable to the present facts of the case. The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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