Shri Satyanarayan J. Kabra, Ahmedabad v. The Income tax Officer,Central Ward-1(1),, Ahmedabad

ITA 1105/AHD/2009 | 2005-2006
Pronouncement Date: 07-02-2012 | Result: Partly Allowed

Appeal Details

RSA Number 110520514 RSA 2009
Assessee PAN ADGPK2858M
Bench Ahmedabad
Appeal Number ITA 1105/AHD/2009
Duration Of Justice 2 year(s) 9 month(s) 24 day(s)
Appellant Shri Satyanarayan J. Kabra, Ahmedabad
Respondent The Income tax Officer,Central Ward-1(1),, Ahmedabad
Appeal Type Income Tax Appeal
Pronouncement Date 07-02-2012
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted A
Tribunal Order Date 07-02-2012
Date Of Final Hearing 09-11-2011
Next Hearing Date 09-11-2011
Assessment Year 2005-2006
Appeal Filed On 13-04-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH AHMEDABAD BEFORE SHRI G.C.GUPTA VICE-PRESIDENT(AZ) AND SHRI A. MOHAN ALANKAMONY ACCOUNTANT MEMBER ./ I.T.A. NO.1105/AHD/2009 ( / / / / ASSESSMENT YEAR : 2005-06) SATYANARAYAN J.KABRA PROP. OF M/S.POONAM CORPORATION 3 RAJESH APARTMENT B/H. AJANTA SHOPPING CENTRE ASHRAM ROAD AHMEDABAD / VS. THE ITO CENTRAL WARD-1(1) AHMEDABAD !' ./#$ ./ PAN/GIR NO. : ADGPK 2858 M ( % / // / APPELLANT ) .. ( &' % / RESPONDENT ) % ( ! / APPELLANT BY : SHRI SAKAR SHARMA A.R. &' % ) ( ! / RESPONDENT BY : SHRI D.C. SHARMA SR. D.R. *+ ) -' / / / / DATE OF HEARING : 09/11/2011 ./ ) -' / DATE OF PRONOUNCEMENT : 07/2/2012 !0 / O R D E R PER SHRI A.MOHAN ALANKAMONY AM: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E IMPUGNED ORDER OF THE LD. CIT (A)-I AHMEDABAD IN A PPEAL NO. CIT (A)I/CC I/68/07-08 DATED 13.1.2009 FOR THE ASSE SSMENT YEAR 2005-06. 2. THE ASSESSEE HAD IN HIS GROUNDS OF APPEAL RAI SED THREE GROUNDS OUT OF WHICH GROUND NO.3 WITH REGARD TO ADDITION ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 2 - OF RS.5000/- MADE U/S 14A OF THE ACT WAS NOT PRESSE D DURING THE COURSE OF HEARING AND ACCORDINGLY THIS GROUND IS DISMISSED AS NOT PRESSED. THE REMAINING GROUNDS ARE REFORMULATED AS UNDER: (1) THE LD. CIT (A) ERRED IN CONFIRMING THE AOS AC TION IN ASSESSING THE GAINS ARISING ON SALE OF SHARES HELD AS INVESTMENT AS BUSINESS INCOME AS AGAINST INCO ME FROM OTHER SOURCES; & (2) ALSO ERRED IN CONFIRMING THE ADDITION OF RS.15 64 695/- ON ACCOUNT OF DISALLOWANCE OF SHARE LOSS. 3. BRIEFLY STATED THE ASSESSEE AN INDIVIDUAL DE RIVES INCOME FROM SALARY BUSINESS OTHER SOURCES ETC. DURING THE COURSE OF ASSESSMENT PROCEEDINGS THE AO NOTICED TH AT THE ASSESSEE WAS DOING BUSINESS OF PURCHASE AND SALE OF SHARES INCOME FROM WHICH WAS SHOWN AS INCOME FROM BUSINESS OF SHARE TRADING; THAT DURING THE YEAR THE ASSESSEE HAD CON VERTED THE CLOSING STOCK OF THE PREVIOUS YEARS INTO INVESTMEN T WITHOUT GIVING THE DATE OF CONVERSION OF STOCK IN TRADE INTO IN VESTMENT AND THE SURPLUS OF PURCHASES AND SALE OF SHARES HAS BEEN SH OWN AS STCG/LTCG TO THE EXTENT OF RS.32.67 LAKHS. THE ASS ESSEE WAS REQUIRED BY THE AO AS TO WHY THE PROFIT FROM PURCHA SE AND SALE OF SHARES AMOUNTING TO RS.32.67 LAKHS SHOULD NOT BE BR OUGHT TO TAX AS BUSINESS INCOME AS AGAINST STCG/LTCG AS CLAI MED BY THE ASSESSEE. AFTER DUE CONSIDERATION OF THE ASSESSEE S CONTENTIONS ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 3 - THE AO REJECTED THE ASSESSEES CLAIM FOR THE REASON S RECORDED IN HIS IMPUGNED ORDER (PARA 4.3) AND TREATED THE PROFI T FROM PURCHASE AND SALE OF SHARES OF THE ASSESSEE AS BUSINESS INC OME. 4. ON AN APPEAL THE ASSESSEE PUT-FORTH THE SAME S ET OF ARGUMENTS AS PLACED BEFORE THE AO. TAKING INTO ACCO UNT THE ASSESSEES CONTENTIONS THE CIT (A) HAD OBSERVED: 4.1.4FROM THE REPLY OF THE APPELLANT IT IS CL EAR THAT HE CONVERTED THE BUSINESS INCOME INTO CAPITAL GINS ONLY BECAUSE OF CHANGE OF TAX RATES. HOWEVER AS T HE AO HAS RIGHTLY POINTED OUT HE DID NOT MAKE CORRESPOND ING CHANGES INTO THE ACCOUNTS LIKE HE DID NOT FURNISH THE DATE OF CONVERSION OF STOCK IN TRADE INTO INVEST MENT. THE STOCK IN TRADE CONTINUED TO BE SHOWN AS SHARE S HELD IN RESPECTIVE NAMES AND NOT AS INVESTMENT. FURTHER MULTIPLE SHARE APPLICATIONS FILED BY THE A PPELLANT IN THE IPOS ALSO SHOWED THAT HE WAS TRADING IN SHAR E. HAD HE APPLIED IN PERSONAL CAPACITY HE COULD HAVE MADE ONLY A SINGLE APPLICATION. THE FREQUENT PURCHASE AND SALE OF SHARES AS POINTED OUT BY THE AO ALSO INDI CATED THAT THE APPELLANT WAS ENGAGED IN PURCHASE AND SALE OF SHARES. ALL THIS ALONG WITH CONTRA ENTRY ADJUSTMEN TS AS POINTED OUT BY THE AO GOES TO SHOW THAT THE APPELLA NT WAS ENGAGED IN THE BUSINESS OF SHARE TRADING. THE ASSESSMENT ORDER FOR THE AY 2006-07IN HIS CASE DOE S NOT LEND ANY SUPPORT TO HIS CASE BECAUSE (A) EVERY CASE HAS ITS OWN FACTS TO BE DECIDED ACCORDINGLY; SAND (B) T HE ORDER DOES NOT CONTAIN ANY DISCUSSION IN THIS REGAR D. IN VIEW OF ALL THIS THE AO WAS RIGHT TO CONSIDER THE INCOME OF RS.32 67 770/- AS FROM BUSINESS OF SHARE TRADIN G AND NOT FROM SHORT/LONG TERM CAPITAL GAIN.. 5. DURING THE COURSE OF HEARING BEFORE THIS BENCH THE LD. A R REITERATED MORE OR LESS WHAT WAS REPRESENTE D BEFORE THE ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 4 - FIRST APPELLATE AUTHORITY. IN FURTHERANCE IT WAS SUBMITTED THAT THE ASSESSEE WAS NEITHER A TRADER IN PARTICULAR SHARES AND SECURITIES NOR CARRYING ON BUSINESS OF TRADING IN SHARES AS HE HAD HELD HIS SHARES AS PART OF HIS INVESTMENT PORTFOLIO ALL ALON G; THAT HE VALUED HIS SHARES AT THE END OF FINANCIAL YEAR AT COST ONL Y. IT WAS FURTHER ARGUED THAT SIMPLY BECAUSE THE ASSESSEE HAD USED TH E NOMENCLATURE IN HIS ACCOUNT AS SHARE TRADING AS WEL L AS SHARE- STOCK IT CANNOT BE HELD THAT HE BE A TRADER IN SHA RES AND SECURITIES. IT WAS SUBMITTED THAT THE ASSESSEE D URING THE WHOLE YEAR IN HIS NEW INVESTMENT ACQUIRED MAXIMUM SHARES BY APPLYING IN IPOS AND THAT TOO ONLY OF ELEVEN COMPANIES AND THREE SCRIPTS FROM MARKET AND THEREFORE HIS TRANSACTIONS WERE V ERY MUCH LIMITED FOR WHICH PROPER CALCULATIONS HAVE BEEN MAD E AND THE RETURN WAS FURNISHED ACCORDINGLY. 5.1. ON THE OTHER HAND THE LD. D R SUPPORTED THE STAND OF THE AUTHORITIES BELOW. IT WAS THE CASE OF THE REVE NUE THAT THE RECORDING IN THE BOOKS OF ACCOUNT INVESTMENT WILL N OT ALTER THE BASIC INTENTION OF THE ASSESSEE AS HE HAS BEEN FREQ UENTLY INDULGED IN SALE AND PURCHASE OF SHARES WHICH ACCORDING TO THE LD. D R ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 5 - CANNOT BE TERMED THAT THE ASSESSEE WAS ONLY MAKING INVESTMENTS AND NOT INDULGED IN SHARES. IT WAS THEREFORE PL EADED THAT THE STAND OF THE AUTHORITIES BELOW REQUIRES TO BE SUSTA INED. 6. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS DILIGENTLY PERUSED THE RELEVANT CASE RECORDS AND AL SO DOCUMENTARY EVIDENCES PRODUCED BY THE LD. A R IN THE SHAPE OF A PAPER BOOK. 6.1. AT THIS POINT IN TIME OUR ATTENTION WAS DRAW N TO THE FACT THAT A SIMILAR ISSUE TO THAT OF THE PRESENT ONE HAD CROPPED UP BEFORE THE EARLIER BENCH IN THE CASE OF SHRI SUGAMC HAND C SHAH V. ACIT C-3 SURAT IN ITA NO.3554/AHD/2008 DATED: 29.1.2010 FOR THE AY 2005-06. AFTER ANALYZING THE ISSUE AT LENGT H AND ALSO TAKING INTO ACCOUNT THE FINDINGS OF (I) THE HONBLE TRIBUNALS MUMBAI BENCH IN THE CASE OF GOPAL PUROHIT V. JT.CIT (2009) 29 SOT 117 (MUM); AND (II) THE HONBLE LUCKNOW BENCH O F THE TRIBUNAL IN THE CASE OF SARNATH INFRASTRUCTURE (P) LTD V. ACIT (2009) 120 TTJ 216 (LUCKNOW) FOR THE SIMILAR PROPOS ITION THE BENCH HAD OBSERVED THUS: 11. WHEN WE EXAMINE THE FACTS OF THE CASE WE FIND ASSESSEE HAS MAINTAINED THE BOOKS OF ACCOUNT IN RES PECT ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 6 - OF DEALING IN SHARES AND ASSESSEE HAS SHOWN THE TRANSACTIONS IN SHARES AS INVESTMENT AND NOT AS STO CK-IN- TRADE. IT HAS BEEN SHOWN CONSISTENTLY FOR SEVERAL YEARS IN THE PAST AND DEPARTMENT HAS NOT CHALLENGED THE BOOK KEEPING OR ACCOUNTING OF SHARES AS INVESTMENT. NO CONTRARY MATERIAL OR FACTS HAVE BEEN POINTED OUT BY THE REVENUE TO SHOW THAT FACTS IN THE CURRENT YEAR ARE DIFFERENT THAN THE FACTS IN EARLIER YEARS. IT IS A LSO NOT POINTED OUT BY THE REVENUE THAT FREQUENCY AND NUMBE R OF TRANSACTIONS ARE ABNORMALLY HIGH IN THE CURRENT YEAR AS COMPARED TO WHAT WAS DONE IN EARLIER YEARS. 12. THERE IS ALSO NO MATERIAL TO COME TO THE CONC LUSION THAT THE VALUATION OF INVESTMENT HAS BEEN DONE ON C OST OR NET RELIABLE VALUE WHICHEVER IS LOW. THE ASSERTION OF THE ASSESSEE IS THAT ENTIRE PORTFOLIO HAS BEEN VALUED A T COST AS AT THE END OF THE ACCOUNTING YEAR WHICH REMAINED UNCHALLENGED. 13. THE SHARES WHICH ARE SOLD OUT OF SUCH INVESTME NT THIS YEAR WERE MOSTLY PURCHASED A YEAR OR EARLIER SHOWING THAT THE ASSESSEE HAD INTENTION WHILE PURCHASING THEM TO HOLD THEM AND THEY WERE REFLECTE D IN THAT BALANCE-SHEET AS INVESTMENT. THE ASSESSEE HAS ENJOYED DIVIDEND INCOME AND DECLARED THE SAME IN TH E RETURN OF INCOME TRADING THE TRANSACTIONS AS INVEST MENT EVEN IF FREQUENCY OF SELLING OF SHARES MAY BE MORE BUT IN RESPECT OF SHARES HELD FOR A CONSIDERABLE LONGER PE RIOD (FOR MORE THAN 366 DAYS) AS PER FINDING GIVEN BY TH E LD. CIT (A). THIS FINDING REMAINED UN-CONTROVERTED. T HE ASSESSEE HAS EARNED GAIN OF RS.37 52 281/- ON SALE OF THOSE SHARES WHICH WERE HELD FOR MORE THAN 366 DAYS AND UP-TO 6832 DAYS. IN ANY CASE WHEN THOSE SHARES WE RE PURCHASED IT COULD NOT BE SAID THAT INTENTION OF T HE ASSESSEE WAS TO DEAL IN THEM AND NOT TO HOLD THEM A S INVESTMENT. EVEN IN THE CASE OF INVESTMENT IT IS FOR THE ASSESSEE TO DECIDE WHEN TO DISPOSE THEM OFF SO THAT TO GIVE MAXIMUM RETURN OUT OF THEM. THERE IS NO THEOR Y THAT ASSET HELD ON LONG TERM BASIS SHOULD BE SOLD ONLY A T THE TIME OF NEED OR IN EMERGENCY. HE CAN VERY WELL SAL E THE ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 7 - INVESTMENTS TO REAP THE BENEFIT WHEN PRICES OF SHAR ES ARE HIGH SO AS TO EARN BETTER GAINS AND MAKE INVESTMENT ELSEWHERE. IN OUR CONSIDERED VIEW IT IS THE DECIS ION OF THE ASSESSEE TO DISPOSE OF AN INVESTMENT IF ACCORD ING TO HIM MARKET VALUE THEREOF HAVE REACHED A PLATEAU SO AS TO MAKE INVESTMENT IN OTHER ASSETS WHICH HAVE POTENTIA L OF APPRECIATION IN MARKET VALUE. THIS DECISION TO SAL E HIS INVESTMENT AT HIGH PRICE CANNOT CONVERT AN OTHERWIS E INVESTMENT INTO TRADING. IF IN THE PAST THE DEPAR TMENT HAS ACCEPTED THE SALE OF SHARES OF HOLDINGS OF MORE THAN A YEAR AS INVESTMENT AND PROFITS THEREON HAS BEEN ASSESSED UNDER THE HEAD CAPITAL GAIN THEN THERE IS NO REASON TO HOLD DIFFERENTLY THIS YEAR. WE ACCORDING LY CONFIRM THE ORDER OF THE LD. CIT (A) IN RESPECT OF HOLDING THAT PROFIT OF RS.37 52 281/- SHOULD BE ASSESSED AS LONG TERM CAPITAL GAIN. 6.2. IN CONCURRENCE WITH THE FINDING OF THE EARLIE R BENCH ON A SIMILAR ISSUE WE ARE OF THE CONSIDERED VIEW THAT THE GAIN ARISING ON SALE OF SHARES HELD AS INVESTMENT BY THE ASSESSE E CANNOT BE HELD TO BE BUSINESS INCOME. IT IS ORDERED ACCORD INGLY. 7. THE OTHER GROUND RAISED BY THE ASSESSEE BEING T HAT THE CIT (A) ERRED IN CONFIRMING THE ADDITION OF RS. 15.64 LAKHS ON ACCOUNT OF DISALLOWANCE OF SHARE LOSS. THE ISSUE IN BRIEF WAS THAT THE ASSESSEE HAD SHOWN RS.15.64 LAKHS AS LOSS ON ACCOUNT OF SHARE TRANSACTION LOSS TO BE CARRIED FORWARD TO B E SET OFF IN FUTURE. THE LOSS WAS CLAIMED TO HAVE BEEN INCURRED ON ACCOU NT OF SQUARED UP TRANSACTIONS. IT WAS NOTICED BY THE AO THAT THE BILLS OF ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 8 - TWO CONCERNS M/S. KUNDAL INVESTMENT AND M/S. R.K. INVESTMENT HAVING COMMON ADDRESS AND BEING THE PROPRIETARY C ONCERNS OF ONE SMT. RUPA MAHESH GANDHI AND THAT THE SUBSTANTIA L LOSS HAS BEEN INCURRED FROM A SINGLE TRANSACTION AND ALL THE PAYMENTS OF LOSS WAS SHOWN TO BE OUTSTANDING. SMT. RUPA MAHESH GANDHI WAS REQUIRED TO PRODUCE HER BOOKS OF ACCOUNT FOR VE RIFICATION BY ISSUANCE OF STATUTORY SUMMONS; HOWEVER SHE HAD NEI THER APPEARED NOR PRODUCED BOOKS OF ACCOUNT. IN STEAD HER HUSBAND WAS DEPUTIZED AND PRODUCED THE BANK ACCOUNTS OF THE ABOVE SAID CONCERNS BESIDES M/S. POONAM CORPORATION. ON VERI FICATION OF THOSE ACCOUNTS THE AO NOTICED THAT THOSE TRANSACTI ONS WERE NOT EFFECTED THROUGH ACTUAL PURCHASE AND SALE; THE SOUR CE OF PURCHASES NOT VERIFIABLE AND THE SALE WAS NOT VERIF IABLE AS IT WAS SHOWN TO BE FROM THE SAME PERSON FROM WHOM THE PURC HASES WERE MADE. THE AO IN HIS IMPUGNED ORDER HAD OBSE RVED THUS: 5.2 .FROM THE ABOVE BANK TRANSACTIONS IT CLEARLY INDICATES DUBIOUS METHOD ADOPTED BY THE ASSESSEE TO BOOK BOGUS LOSS IN THE RETURN OF INCOME FILED. THE MODU S OPERANDI IS VERY CLEAR SUCH AS BOGUS BILL IS OBTAINED AND CHEQUE/PAYMENT IS GIVEN FOR THE LOSS TO THE BOOK AN D CASH IS TAKEN BACK ON THE SAME DAY TO AVOID ELEMENT OF RISK OF ANY. IN THE ABOVE STATEMENT THE LOSS BOOKED PAYMENT/CHE QUE GIVEN AND CASH WITHDRAWN ARE SAME WHICH CLEARLY PRO VED BEYOND DOUBT THAT THE ASSESSEE WAS INDULGED IN SUCH NON- ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 9 - GENUINE TRANSACTION TO AVOID PAYMENT OF INCOME-TAX. IT IS THEREFORE CONCLUDED THAT THE TRANSACTION IS REQUIR ED TO BE TREATED AS A SHAM ONLY. 7.1. IN A BRIEF SUBMISSION BEFORE THE CIT (A) IT WAS CONTENDED BY THE ASSESSEE THAT SINCE THE TRANSACTIO NS HAVE NOT BEEN DISPUTED BY THE RESPECTIVE PARTIES THE LOSS C LAIMED SHOULD HAVE BEEN ALLOWED. HOWEVER THE CIT (A) TOOK A VIE W THAT IN SPITE OF ISSUANCE OF SUMMONS U/S 131 OF THE ACT TO THE AL LEGED BROKER TO PRODUCE THE BOOKS OF ACCOUNTS ETC; HER HUSBAND HAD CHOSEN TO PRODUCE ONLY COPIES OF BANK STATEMENT OF TWO PROPRI ETARY CONCERNS AND ON VERIFICATION THE AO NOTICED THAT THE TRANSA CTIONS REPORTED WERE SHAM TRANSACTIONS IN ORDER TO CLAIM THE LOSS. THE CIT (A) WENT ON FURTHER TO ADD THAT THE ASSESSEE HAD NOT FU RNISHED ANY PARTICULARS TO REBUT THE CONCLUSION OF THE AO ON TH IS SCORE. 7.2. TAKING REFUGE IN THE RULING OF THE HONBLE C ALCUTTA HIGH COURT IN THE CASE OF CIT V. BANSIDHAR JALAN & SONS (1990) 184 ITR 264 (CAL) THE CIT (A) TOOK A VIEW THAT THE AO RIGHTLY DISALLOWED THE SHARE TRANSACTION LOSS CLAIM OF R S.15.64 LAKHS. 8. BEFORE US IT WAS CONTENDED BY THE LD. A R THAT THE GENUINE LOSS CLAIMED IN THE RETURN OF INCOME CANNOT BE DISALLOWED MERELY BECAUSE THE REQUIRED INFORMATION COULD NOT B E COLLECTED BY ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 10 - THE AO IN COMPLIANCE OF SUMMONS ISSUED U/S 131 OF T HE ACT; AND THAT IN THAT EXERCISE THE ASSESSEE WAS NO WAY CONNE CTED. IT WAS THEREFORE PLEADED THAT BASED ON THE DOCUMENTARY EV IDENCES FURNISHED DURING THE COURSE OF ASSESSMENT PROCEEDIN GS AND THAT THE RESPECTIVE PARITIES HAVE NOT DISPUTED THE LOSS CLAIMED BE ALLOWED WHILE COMPUTING THE INCOME UNDER THE PROVIS IONS OF THE ACT. THE LD. D R PRESENT WAS DULY HEARD. 8.1. AT THE OUTSET WE WOULD LIKE TO REITERATE THA T ON THE BASIS OF INFORMATION SUPPLIED BY THE ASSESSEE THE ALLEGED BROKER WAS REQUIRED BY ISSUANCE OF SUMMONS U/S 131 OF THE ACT TO FURNISH THE RELEVANT DETAILS. HOWEVER IN SPITE OF SUCH AN ACTION BY THE REVENUE THE ALLEGED BROKER HAD CHOSEN NOT TO PRODU CE THE RELEVANT DETAILS IN PERSON AS REQUISITIONED. IN ST EAD SHE DEPUTIZED HER HUSBAND ONLY WITH THE COPIES OF BANK STATEMENTS OF THE PROPRIETARY CONCERNS. EVEN WITH THIS PIECE OF INFORMATION THE AO HAD RETRIEVED CERTAIN VITAL PARTICULARS AS ILLUS TRATED IN HIS IMPUGNED ORDER [PARA 5.2] TO COME TO AN ULTIMATE CO NCLUSION THAT THE DUBIOUS METHOD ADOPTED BY THE ASSESSEE TO BOOK BOGUS LOSS IN THE RETURN OF INCOME FILED. THIS HAS NOT BEEN C OUNTERED WITH ANY ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 11 - DISCREET DOCUMENTARY EVIDENCE BY THE ASSESSEE EITHE R BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THIS BENCH. TH E CONTENTION OF THE ASSESSEE THAT THE GENUINE LOSS CLAIMED IN THE RETUR N OF INCOME CANNOT BE DISALLOWED MERELY BECAUSE THE REQUIRED IN FORMATION COULD NOT BE COLLECTED BY THE AO IN COMPLIANCE OF S UMMONS U/S 131 OF THE ACT - AN EXERCISE IN WHICH THE ASSESSEE WAS NO WAY CONNECTED IN OUR CONSIDERED VIEW DOESNT SOUND W ELL. WHEN AN ASSESSEE HAS PUT-FORTH A CLAIM THE ONUS OF PROVING ITS GENUINENESS LIES ONLY AT THE DOORSTEP OF THE ASSESS EE. IN THE PRESENT CASE ON THE BASIS OF CONFIRMATION FURNISHE D THE ALLEGED BROKER WAS REQUISITIONED AND ON THE BASIS OF WHATEV ER DETAILS PRODUCED IT WAS UNEARTHED BY THE AO THAT THE SAID BANK TRANSACTIONS TURNED TO BE A DUBIOUS METHOD ADOPTED BY THE ASSESSEE TO BOOK BOGUS LOSS IN THE RETURN OF INCOME . THIS CONCLUSION OF THE AO HAS NOT BEEN REFUTED WITH ANY DOCUMENTARY EVIDENCE EITHER AT THE PROCEEDINGS BEFORE THE FIRST APPELLATE AUTHORITY OR BEFORE THIS BENCH. 8.2. IN THE ABSENCE OF ANY CONCRETE DOCUMENTARY EV IDENCE TO DERAIL THE FINDING OF THE CIT (A) IS FORTH-COMIN G WE ARE OF THE CONSIDERED VIEW THAT THE CIT (A) WAS JUSTIFIED IN T AKING SUCH A ITA NO. 1105/AHD/2009 SATYANARAYAN J.KABRA VS. ITO ASST.YEAR - 2005-06 - 12 - STAND WHICH REQUIRES NO INTERVENTION OF THIS BENCH AT THIS STAGE. IT IS ORDERED ACCORDINGLY. 9. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE COURT TODAY ON 7 / 2 /2012. SD/- SD/- ( G.C. GUPTA ) ( A. MOHAN ALANKAMONY) VICE PRESIDENT [AZ] A CCOUNTANT MEMBER AHMEDABAD; DATED 07 / 02 /2012 1-.. .../ T.C. NAIR SR. PS !0 ) & 2 3!2 !0 ) & 2 3!2 !0 ) & 2 3!2 !0 ) & 2 3!2 / COPY OF THE ORDER FORWARDED TO : 1. % / THE APPELLANT 2. &' % / THE RESPONDENT. 3. *4 / CONCERNED CIT 4. *4() / THE CIT(A)-I AHMEDABAD 5. 278 & / LEARNED DEPARTMENTAL REPRESENTATIVE ITAT AHMEDABAD 6. 89 :+ / GUARD FILE. !0* !0* !0* !0* / BY ORDER '2 & //TRUE COPY// ; ;; ;/ // / # # # # (DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD