TaxTMI 
TaxTMI 
2017 (11) TMI 193
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....sion". In order to verify the veracity of the said claim made by the assessee, notices under section 133(6) of the Act were issued by the Assessing Officer to the broker M/s. Jagtarni Commodities Pvt. Limited and exchange i.e. NMCE. In response, NMCE vide letter dated 29.12.2015 informed the Assessing Officer that the assessee was never registered with the Exchange by the broker M/s. Jagtarni Commodities Pvt. Limited and even the said broker was never active on the Exchange. The notices issued under section 133(6) by the Assessing Officer to M/s. Jagtarni Commodities Pvt. Limited remained un-complied with. Keeping in view this response received from the concerned parties to the notices issued by him under section 133(6), the assessee was called upon by the Assessing Officer to offer its explanation and produce evidence to prove the genuineness of its claim of speculation profit. The assessee, however, failed to comply with this requirement and the Assessing Officer accordingly did not accept the claim of the assessee for speculation profit as genuine. He treated the said profit as unexplained cash credit under section 68 chargeable to tax in the hands of the assessee @ 30% as per t....
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....judgement: 27/11/2015. CIT vs Kundan Investment Ltd 130 Taxman 689 (Calcutta High Court) CIT vs Emerald Comm .Ltd 250 1TR 539 (Calcutta High Court) CIT vs Dhawan Investment & Trading Co Ltd238 ITR486(CaI] 8. In reply to communication with* NMCE, the Ld. AO has incorporated reply from the said institution where it is asserted "........ was expelled from the membership of the exchange with effect from 15th May 2013......" Submissions by the appellant: The expulsion of any member from the Institution is an internal matter between the broker and the institution. Such act could not be made basis for any adversity on the appellant. 9. Submissions made before the Ld. AO along with analysis of case decided by the Hon'ble Calcutta High Court are enclosed, which may kindly be considered". 5. The ld. CIT(Appeals) did not find merit in the submissions made by the assessee and proceeded to uphold the action of the Assessing Officer in treating the speculation profit as unexplained cash credit under section 68 for the following reasons given in paragraph no. 5 of his impugned order:- "5. Having considered the matter, and the specific findings of the Ld. AO, it has to be said th....
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.... lies upon the assessee. But in view of section, 68, where any sum is found credited in the books of the assessee for any previous year, the same may be charged to income-tax as the income of the assessee of that previous year if the explanation offered by the assessee about the nature and source thereof Is, in the opinion of the Assessing Officer, not satisfactory. In such case there is prima facie evidence against the assessee, viz., the receipt of money, and if he fails to-rebut the same, the said evidence being unrebutted, can be used against him by holding that it is a receipt of an Income nature. While considering the explanation of the assessee, the department cannot, however, act unreasonably. .......... Having regard to the conduct of the appellant as disclosed In her sworn statement as well as other material on the record, an Inference could reasonably be drawn that the winning tickets were purchased by the appellant after the event. The majority opinion after considering surrounding circumstances and applying the test of human probabilities had rightly concluded that the appellant's claim about the amount being her winning from races, was not genuine. It could not....
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....nsaction of shares. He further relied on the decision of this Tribunal in the case of Rahul -vs.- ITO (ITA No. 140/KOL/2009 dated 10.08.2007), wherein the genuineness of share transactions was accepted by the Tribunal as the same were duly supported by the Contract Notes as well as Bank statements. 7. The ld. D.R., on the other hand, submitted that a specific reply was received by the Assessing Officer from the concerned Exchange in response to notice issued under section 133(6) that neither the assessee nor the broker had done any transaction as claimed by the assessee resulting into speculative profit. He submitted that the assessee was not even registered with NMCE and even the concerned broker M/s. Jagtarni Commodities Pvt. Limited was never active on NMCE as clearly informed by the Exchange. He contended that this specific information received from M/s. NMCE was sufficient to show that the claim of the assessee of speculative profit was not genuine and the authorities below, therefore, were fully justified in treating the same as unexplained cash credit under section 68. As regards the case laws relied upon by the ld. counsel for the assessee in support of the assessee's case....
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....tock Exchange which clearly revealed that the relevant transactions were not done through the Stock Exchange as claimed by the assessee on the basis of Contract Notes issued by the broker. In the present case, such enquiry was made by the Assessing Officer, which clearly revealed that not only the assessee but even the concerned broker was never active on the Stock Exchange. It also revealed that the said broker was indulging in issuing fraudulent Contract Notes which resulted into his expulsion from the membership of the Exchange from 15th May, 2013. Keeping in view all these facts of the case, I find myself in agreement with the ld. CIT(Appeals) that the genuineness of the assessee's claim of having earned the speculation profit of Rs. 3,00,905/- was not established and the Assessing Officer, therefore, was fully justified in treating the said amount as unexplained cash credit under section 68 chargeable to tax at the flat rate of 30%. I, therefore, uphold the impugned order of the ld. CIT(Appeals) on this issue and dismiss Ground No. 1 of the assessee's appeal. 9. The issue raised in Ground No. 2 relates to the disallowance of Rs. 1,00,000/- made by the Assessing Officer and co....
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....aln has been holding the shares. Her name as shareholder appears in the MCA records. As Vikash B Jain did not send the shares to the company, the same could not be registered in that name". 12. The above submissions made by the assessee did not find favour with the ld. CIT(Appeals), who proceeded to confirm the action of the Assessing Officer in disallowing the assessee's claim for short-term capital loss by observing as under:- "1. I find that in the matter of the impugned transactions, the Ld. AO has recorded clear and cogent findings, and in assessment as well as in appeal, the appellant has been unable to place any clear reasoning or evidence in the matter. In fact, I find that the appellant has not defended himself at all, but has placed certain irrelevant considerations in the matter. 2. In the said circumstances, I am not inclined to interfere with the findings of the Ld. AO, which accordingly stand confirmed. The ground is adjudicated against the appellant, and stands dismissed". 13. The ld. counsel for the assessee submitted that the genuineness of the relevant transactions of purchase and sale of shares resulting into short-term capital loss was never doubted by ....