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TMI Blog2022 (12) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... vide order dated 28.03.2014. The assessee has raised the following grounds of appeal:- "1.On the facts and circumstances of the case as well as law on the subject, the learned assessing officer has erred in reopening assessment by issuing notice u/s 148 of the I.T Act, 1961. 2.On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income Tax (Appeals) has erred in partly confirming the action of assessing officer in making addition u/s 69 of the I.T. Act by sustaining addition to the extent of Rs.10,23,600/- as against addition of Rs.21,09,967/- made by ld. assessing officer. 3. On the facts and circumstances of the case as well as law on the subject, the learned Commissioner of Income T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee furnished reply along with copy of profit and loss account, balance-sheet, computation of income. During the assessment, the assessee was asked to furnish the information regarding share transaction. The assessee in his reply dated 22.03.2014 submitted that during the relevant period he sold certain machinery and jewellery to different persons to make trading in F&O in Religare Securities Pvt. Ltd. in such trading he used to deposits 10 to 15% of margin as securities amounts and purchased various script of different dates. On each and every time, the assessee was unable to cash so as per Security Exchange Board of India's guidelines he entered into agreement with Religare Securities Pvt. Ltd. The assessee furnished account stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he has passed assessment order under section 143(3). The assessee filed such details along with plea of additional evidence under Rule 46A. The assessee submitted that Assessing Officer added the entire share transaction. On furnishing such details, the Ld. CIT(A) forwarded such details to Assessing Officer for examination and furnishing his remand report. The Assessing Officer furnished his remand report dated 09.10.2015. In the remand report, the Assessing Officer reported that assessee made share transaction in derivatives segment as well as delivery of share. The assessee has shown loss of derivatives segment of Rs.9,69,451/- and in cash (delivery) segments of Rs.1,68,881/-. On verification of statement from 01.08.2007 to 31.03.2008 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investment of Rs.10,23,600/- the assessee incurred the loss of Rs.11,38,332/-. Hence, net addition income would be Rs.(-) 1,14,732/- after set of loss. The assessee stated that he has not carried forward any kind of loss in his return of income. The assessee stated that no addition be made against the assessee. 6. The Ld. CIT(A) after considering the remand report of Assessing Officer and the submission of assessee held that assessee paid Rs.11,43,200/- to Religare Securities Pvt. Ltd. and assessee has received Rs.2,99,400/- from Religare Securities Pvt. Ltd. The peak of the same were worked out to Rs.10,23,600/-. Further the assessee made cash deposits of Rs.7,17,500/- in two bank accounts which were utilized for payment to Religare Secu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fered by assessee during the year under consideration in derivatives and cash delivery segments against the addition sustained by Ld. CIT(A). The Ld. AR for the assessee submits to cut short the controversy, though no addition, even to the extent of Rs.10,23,600/- is liable to be sustained, yet the assessee made a limited prayer that if loss of current year is directed to be set off against the cash delivery segment the assessee would not pressed for any other ground. The Ld. AR for the assessee further submits that it is an admitted position under law that where the Assessing Officer made addition of some amount to the assessees income as income from undisclosed sources under section 69, the claim of loss for set off to be allowed. To supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are transaction of Rs.9,69,451/- in derivative segment and Rs.1,68,881/-in cash delivery segment. The Ld. CIT(A) upheld the addition to the extent of peak investment. On the plea of assessee that assessee be allowed set off loss, the Ld. CIT(A) held that such claim cannot be entertained at this stage. In my view, though the Assessing Officer is not entitled to admit or entertain additional claim during the assessment proceedings, however the appellate authority has such jurisdiction to admit such additional claim as has been held by Hon'ble jurisdictional High Court in the case of CIT Vs. Mitesh Impex (2014) 367 ITR 85 (Guj). Thus, I admit the additional plea of set off of loss of current year against the income of assessee in the impug ..... X X X X Extracts X X X X X X X X Extracts X X X X
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