TaxTMI 
TaxTMI 
2018 (12) TMI 450
X X X X Extracts X X X X
X X X X Extracts X X X X
....essment order passed by the assessing officer. 2. On the facts and circumstances of the case and in law, the assessing officer erred in law and fact in not appreciating the fact that there can't be any documentary evidence of negative premises. The onus to prove allegations was on the AO, which he wrongly shifted to assessee. The AO was required to give evidence as to alledged Client Code Modification was done at the behest of the assessee and the Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs. 4,63,706/- made by the assessing officer on account of alleged contrived losses. 3. On the facts and circumstances of the case and in law, the Commissioner of Income Tax (Appeal) erred in confirming the addition of Rs. 4,63,706/- made by the assessing officer on account of alleged contrived losses whereas assessee never made any claim of loss of Rs. 4,63,706/- and the reasons given by CIT(A) for confirming the said additions are erroneous and not sustainable both on facts and in law and accordingly the addition of Rs. 4,63,706/- on account of alleged contrived losses is liable to be deleted. 4. on the facts and circumstances of the case ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sessee vide his order dated 23.12.2016 passed u/s. 147 of the Act and assessed the income of the assessee at Rs. 8,60,240/-. Against the assessment order, the assessee has preferred appeal before the Ld. CIT(A)-12, New Delhi who vide his impugned order dated 28/9/2017 has dismissed the appeal of the assessee. 3. Ld. Counsel for the assessee submitted that the notice u/s 148 issued in this case is bad-in-law, without jurisdiction and barred by limitation and is contrary to the provisions of section 147 to section 151 of Income Tax Act, 1961 and this notice was issued without application of mind and without verification of facts and without connecting the information with the assessee and accordingly, also the assessment order passed on the foundation of such notice are liable to be quashed. He further submitted that Ld. CIT(A) wrongly not quashed the notice u/s 148 and the assessment order passed by the Assessing Officer. The Assessing Officer erred in holding there can't be any documentary evidence of negative premises. The onus to prove allegations was on the AO, which he wrongly shifted to assessee. He further submitted that The AO was required to give evidence as to alledged ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....Rs. 4,13,593.55 on 28.12.2009 i.e. around three months prior to the transactions done by the broker. As against the observations of the Assessing Officer to produce evidence with respect to Client Code Modification, the Appellant states that there cannot be any documentary evidence of a negative premise. It is alleged that the Assessing Officer is in the possession of wrong facts as amount of alleged contrived loss is matching with the bank statement of the Assessee. The Assessing Officer did not provide original statement given by M/s A to Z Stock Trade Pvt. Ltd. The Assessee was not allowed to confront M/s A to Z Stock Trade Pvt. Ltd. 4.3.2 In the Assessment Order, the Assessing Officer has observed that an information was received through email from ADIT, Investigation, Unit-1(3), Ahmedabad in respect of Client Code Modification with the dissemination of beneficiary clients who have taken contrived losses and shifted out profit during FY 2009-10. The list includes the name of the Assessee having availed contrived losses of Rs. 4,63,706/-. The Assessing Officer issued notice u/s 148 based on the information received. 4.3.3 Briefly, the Assessing Officer remarked....
X X X X Extracts X X X X
X X X X Extracts X X X X
....to mandatorily record in writing the reason to believe. Sufficiency of reason is not a matter to be decided by the Writ Court. But existence of belief is the subject matter of the scrutiny. Notice u/s 148 can be quashed if the belief is not bonafide, or one based on vague irrelevant and non specific information. There should be a link between the reasons and the evidence / material available with the Assessing Officer. It is not necessary that material should conclusively prove the escapement. It is not necessary that Assessing Officer should have finally ascertained the fact by legal evidence or reached a conclusion, as this is determined and decided in the Assessment Order. 1 find that the Assessing Officer in the case under consideration had reason to believe that certain clients were benefited by their brokers using the method of Client Code Modification. The report to this effect was a received from the ADIT, Investigation. Ahmedabad disclosing the facts that survey was conducted at the premises of 1 2 brokers and a few of their clients across India. The ADIT also received information from National Stock Exchange in this regard. The ADIT' analyzed the dat....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... the submission dated 18.04.2017 the Appellant has stated that the broker would have given the statement under duress and his statement would have been manipulated by the person in-charge. But this allegation has not been proved by the Appellant by giving any evidence. There is no evidence that broker has given any such statement to confess the manipulation under duress. The information with regard to Client Code Modification was received from National Stock Exchange. The information was not generated by the Investigation Wing of Ahmedabad. The Appellant has alleged that M/s A to Z Stock Trade Pvt. Ltd. has done criminal manipulation of the funds of the Appellant and has given such statement taking the shield of Income Tax Department Officers. The sum of this allegation is that the officers of Income Tax Department connived with the broker to usurp the money of the Assessee. If the Appellant was cheated by the broker by any such act. he should have filed a criminal case against the broker. But I find that no such action has been reported by the Appellant. On the other hand, I find that in the process, the Appellant is a beneficiary in whose case the loss has been booked by....