TaxTMI 
TaxTMI 
2022 (5) TMI 509
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....cordingly the same was correctly assessed u/s 68 of the IT Act. 2. On the facts and circumstances of the case, the ld. CIT(A) erred in allowing assesse's claim that the profit of Rs. 5,75,40,478/- from F&O trading was to be assessed either as business income or under either of the heads of income A to F of section 14 of the IT. Act merely by relying upon the decisions of the Hon'ble ITAT Mumbai and Calcutta without appreciating the fact that the facts of the aforesaid cases were quite different to that of the assesse. 32. On the facts and circumstances of the case, the ld. CIT(A) erred in deleting the addition of Rs. 14,38,512/- being the brokerage and commission u/s 69C of the I.T. Act on the ground that the A.O.'s finding of treating the profit was not bogus without appreciating the fact the investigation and analysis of the facts as borne out by the A.O. in the assessment order clearly establish that the profit was bogus and sham earned through synchronized trading in illiquid stock option and therefore the Assessing Officer had correctly held that in order to arrange the transactions the assessee had incurred aforesaid expenditure. ?" 3. The brief facts of the case ....
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....d to income tax as the income of the assessee of that previous year: The plain reading of the Sec. 68 clearly suggest that if the explanation offered by the Assessee is not satisfactory in the opinion of the Assessing Officer, the sum so credited may be charged as the Income of the Assessee of that previous year. In the present case, the Assessee has offered his explanation on the nature & source of the sum credited. However, the said explanation was no 0 the satisfaction of the AO and by applying the provision of Sec. 68 the AO added the said sum under Income from undisclosed sources. The issue arises here when the Assessee himself has declared the same to be his Income from Business & offered for Taxation in Return of Income as such, then whether the same can be treated as income from undisclosed sources. The AR of the Appellant referred to the various Citations. However, I have considered only two of them which are close to the present issue. The First one being the citation in the case of Margaret's Hope Tea Co. Ltd. 71 Taxman 574 (Calcutta)(1990), wherein Para 7 the Bench observed as follows: A similar question came up before this Court in C/T v. Hasimara Ind....
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..../-have to be set off against the income in terms of provision of section 71 of the Act. Reliance can be placed on the judgment of Chensing Venture vs CIT [2007] 163 Taxman 175 (Mad). Following the above Judicial Pronouncements, it is concluded that the Credits/Income referred in the present case also to be treated as either Business Income or under either of the head of Income A to F of section 14 of the Act and once it is so decided, then the set off of losses u/s 71 of the Act, is permissible to the Assessee. Appellant succeeds on this ground." 5. The facts are that the assessee has already declared the said income from business and offered for taxation in his return. How the same is required to be considered as undisclosed as income is not understood able. The CIT(A) has relied upon the decision in the case of Margaret's Hope Tea Co. Ltd. 71 Taxmann 574 (Calcutta) (1990). The facts are not distinguishable at this stage. The CIT(A) has rightly adjudicated the matter of considered by giving the detail reasons. No incriminating material is available on record to interfere with the finding of the CIT(A). In view of the said circumstances, we are of the view that the CIT(....
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....in section 68, section 69, section 69A, section 69B, section 69C or section 69D, the income-tax payable shall be the aggregate of (a) the amount of income-tax calculated on income referred to in section 68, section 69, section 69A, section 69B, section 69C or section 69D, at the rate of thirty per cent; and (b) the amount of income-tax with which the assessee would have been chargeable had his total income been reduced by the amount of income referred to in clause (a)." 16. Inserted by the Finance Act, 2016, w.e.f. 1-4-2017. 16a. Inserted by the Finance Act, 2018, w.r.e.f. 1-4-2017. From the definition of Sec. 115BBE it is clear that restriction on set off of loss against Income taxed by the AO u/s 68 is effective only from-QL04,2017, Such restriction was not there till AY 2016-17. Precisely, it does not apply to the case under review which relates to AY 2015-16. Prior to 01.04.2017 the restriction was only in respect of deduction of any Expenditure or Allowance against the Income taxed by the AO u/s 68 of the Act. There is a difference between the word Expenditure and Loss. The said difference is explained in Para 17by the Apex Court in....