The
present appeal was filed by M/s Narain Properties Limited for the
Assessment Year 1997-98 against the appellate order dated 15.03.2010 passed by
the Commissioner of Income Tax (Appeals)-II, Kanpur. The appeal arose from an
assessment framed under section 143(3) of the Income-tax Act, 1961, wherein the
total income of the assessee was assessed at ₹21,22,810 as against the returned
income of ₹9,61,710.
During
the assessment proceedings, the Assessing Officer disallowed the loss claimed
by the assessee on account of purchase and sale of shares by treating the same
as speculative in nature. The Assessing Officer observed that the assessee
failed to establish actual delivery of shares and held that the transactions
were structured to generate artificial losses. Reliance was placed on the
principle laid down by the Hon’ble Supreme Court in McDowell & Co. Ltd.
to hold that colourable devices aimed at tax avoidance could not be permitted.
Aggrieved,
the assessee preferred an appeal before the learned CIT(A). The learned CIT(A),
after examining the material on record, upheld the assessment. It was held that
the assessee failed to produce any direct evidence demonstrating delivery of
share certificates or their transfer for registration. The appellate authority
further noted serious anomalies in accounting entries, abnormal delays in
payment to the broker, and lack of corroborative evidence confirming the
genuineness of transactions. On these facts, the CIT(A) concluded that the
transactions were fictitious and that the loss claimed was not allowable.
The
assessee thereafter filed the present appeal before the Income Tax Appellate
Tribunal and relied upon contract notes, bank statements, broker accounts, and
earlier judicial orders in its own case, contending that the transactions
constituted normal business activity and not speculative transactions. Reliance
was also placed on judicial precedents including Aman Portfolio Pvt. Ltd. vs
DCIT.
The
Departmental Representative supported the orders of the lower authorities and
contended that the issue involved related to the genuineness of transactions
and actual delivery of shares under section 43(5), which was distinct from the
applicability of section 73 dealt with in earlier years.
After
hearing both sides and perusing the records, the Tribunal observed that the
contract notes relied upon by the assessee lacked credibility, as the
distinctive numbers of shares were handwritten without authentication. The
Tribunal further noted that substantial delays in making payments to the broker
were inconsistent with normal commercial practices and cast serious doubt on
the genuineness of the transactions.
In view
of these facts and circumstances, the Tribunal held that the assessee had
failed to establish actual delivery of shares and genuineness of transactions.
The Tribunal found no infirmity in the findings of the learned CIT(A) and
upheld the conclusion that the loss claimed was speculative and not allowable.
Accordingly,
the impugned appellate order dated 15.03.2010 was sustained, and the appeal
filed by the assessee was dismissed.
Source:
https://itat.gov.in/public/files/upload/1767607486-Y9cE4Y-1-TO.pdf
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