TMI Blog2023 (5) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... d issues pointed out by the Ld. AO and hence the Ld. CIT(A) has not analyzed the facts and circumstances of the case comprehensively, while adjudicating the issue in favour of the assessee.T he issue is being set-aside to the file of the Ld. CIT(A) to pass a fresh order in light of the observation/discrepancies pointed out by the Ld. AO in the assessment order. In result, the appeal is set-aside to the file of the CIT(A) with the above observations. Appeal of the Revenue is allowed for statistical purposes. - I.T.A. No. 100/Ahd/2020 - - - Dated:- 26-4-2023 - Shri Waseem Ahmed, Accountant Member And Shri Siddhartha Nautiyal, Judicial Member For the Appellant : Shri Tushar Hemani, Sr. Adv. And Shri Parimalsinh B. Parmar, A.R. For the Respondent : Shri Durga Dutt, CIT D.R. ORDER PER SIDDHARTHA NAUTIYAL - JUDICIAL MEMBER: This appeal has been filed by the Revenue against the order passed by the Ld. CIT(Appeals)-8, (in short CIT(A) ), Ahmedabad in Appeal No. CIT(A)-8/87/15-16 vide order dated 14.11.2019 passed for Assessment Year 2012-13. 2. The Revenue has taken the following grounds of appeals:- 1. Whether the Ld. CIT(A) has erred in law and on f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id query raised by the AO. Accordingly, AO was of the view that it was unusual for the assessee company, which was engaged in the business of civil construction to have incurred a substantial loss of Rs. 7.06 crores on the MCX Exchange and that too by way of dealing with a broker situated at Calcutta and within a very brief period of 1 month only. On enquiry being carried out by the AO with the jurisdictional AO of the aforementioned broker in Calcutta, it was found out that the above mentioned broker is engaged in providing bogus / loss entries to willing customers in return for the commission of 0.25% to 0.5%. Statement under Section 132(4) of the Act was recorded of Shri Sachet Sharaf, who was director in the above mentioned broker company in which he admitted that he used to give bogus loss / profit accommodation entries to willing customers in return for commission in cash. The AO further observed that the list of beneficiaries recovered from the premises of the above mentioned broker contained the name of the assessee company which was also made part of the appraisal report filing in this regard. Accordingly, the AO was of the view that the assessee had procured accommodation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween the transactions confirmed by MCX-SX and MVPL. The CIT(A) observed that all the transactions are settled through account payee cheque and are appearing in the bank statement of the appellant. Further, these transactions are supported by contract notes issued by broker, trade number, trade time, contract description, quantity, total amount, brokerage and service tax charged by broker and no discrepancy has found in such details. (iii) The statement of the broker referred by AO in assessment order is not assessee specific and is a general statement. In the assessment order, AO has not referred to any seized material found during the search at the premises of above broker which can prove that assessee has also obtained any accommodation entry from him or has received cash against cheque payment made by appellant towards loss incurred in currency transaction. There is no cash trade or any transaction which can prove that assessee has obtained accommodation entries from such broker. 5. The Department is in appeal against the order passed by Ld. CIT(A) giving complete relief to the assessee on this issue. Before us, the Ld. D.R. primarily relied upon the observation made by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... broker based out of Calcutta who does not have any office in Ahmedabad. Despite being asked, the assessee was not able to give any explanation as to how he came in contact with the aforesaid broker, and the assessee neither furnished copies of correspondences with the aforesaid broker and how he had engaged the services of such broker based out of Calcutta. It is observed that in the case of Sumati Dayal vs. CIT 80 taxmann 89 (SC) , the Hon ble Supreme Court has held that the apparent must be considered real until it is shown there are reasons to believe that the apparent is not the real and that the taxing authorities are entitled to look in to the surrounding circumstances to find out the reality and the matter has to be considered by applying the test of human probabilities. In the instant facts, in our considered view, Ld. CIT(A) has erred in not making any observations in the appellate order on this crucial aspect of assessee incurring a substantial loss of 7.06 crores on the MCX Stock Exchange within a period of less than one month, especially in light of the fact that assessee is engaged in the business of civil construction with no prior experience of such dealings on MCX ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... crores on the MCX Stock Exchange and that too within a period of 30 days, the fact that assessee incurred such substantial loss through dealings with a broker situated in Calcutta having no office in Ahmedabad, CIT(A) erred in ignoring the fact that the enquiries by investigation was revealed that broker was engaged in providing accommodation entries and in the list of beneficiaries, the name of assessee was appearing as one of the persons receiving accommodation entries etc. Therefore, in light of the above observations, in our considered view, the Ld. CIT(A) has failed to take into cognizance the aforesaid glaring discrepancies raised by the AO as part of the assessment order, while affording relief to the assessee. In our considered view, the Ld. CIT(A) has failed in making any observation with respect to the aforesaid issues pointed out by the Ld. AO and hence the Ld. CIT(A) has not analyzed the facts and circumstances of the case comprehensively, while adjudicating the issue in favour of the assessee. In light of the above observation, the issue is being set-aside to the file of the Ld. CIT(A) to pass a fresh order in light of the observation/discrepancies pointed out by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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