Pr. Commissioner Of Income Tax - Central, Jaipur v. M/S Manoj Kumar Vipin Kumar, 118, New Dhan Mandi, Bikaner

HIGH COURT OF JUDICATURE FOR RAJASTHAN ATJODHPUR D.B. Income Tax Appeal No. 22/2021 Pr. Commissioner of Income Tax - Central, Jaipur Versus ----Appellant M/s Manoj Kumar Vipin Kumar, 118, New Dhan Mandi, Bikaner ----Respondent For Appellant(s) : Mr. K.K. Bissa, Mr. Gajendra SinghChouhan HON'BLE MR. JUSTICE VIJAY BISHNOI HON'BLE MR. JUSTICE ANOOP KUMAR DHAND 15/11/2021 Judgment / Order This appeal is preferred by the Revenue being aggrieved with the order dated 29.8.2018 passed by theCommissioner of Income Tax (Appeals) – 4, Jaipur (forshort ‘the CIT(A)’) as well as the order dated 1.2.2021passed by the Income Tax Appellate Tribunal, JodhpurBench, Jodhpur (for short ‘the ITAT’). Brief facts of the case are that the assessee filed income tax returns for the assessment year 2012-13 on14.9.2012 disclosing a total income of Rs.79,98,920/-. The return was processed under Section 143(1) of theIncome Tax Act, 1961 (for short ‘the Act of 1961’)accepting the income disclosed. Later on, a notice underSection 148 of the Act of 1961 was issued on 16.3.2016.In response to the said notice, the assessee filed writtensubmissions stating therein that the original return filedby it may be treated as the return filed in compliance ofthe said notice. The Assessing Officer has completed theassessment on 29.12.2016 by making addition to theincome disclosed by the assessee and determining thetotal income of the assessee at Rs.4,10,70,730/-. Thefollowing additions were made by the Assessing Officer :- Aggrieved by the assessment order, the assesseepreferred an appeal before the CIT(A), which vide orderdated 29.8.2018 has deleted the following additionsmade by the Assessing Officer :- Being aggrieved with the same, the Revenue has filed appeal before the ITAT, which vide impugned orderdated 1.2.2021 has dismissed the said appeal of theDepartment. Challenging the impugned order, Mr. K.K. Bissa appearing for the Revenue has argued that the CIT(A) aswell as the ITAT have not examined the matter in itsentirety, objectivity and in correct perspective. It is urgedthat the findings recorded by both the appellateauthorities ex facie contrary to the facts and law. It isfurther argued that the AO has rightly made addition ofRs.2,43,59,629/- while treating it as bogus businesstransactions withM/s Swift Tie Up Pvt. Ltd. It is alsourged that the addition made by the Assessing Officerunder Section 68 of the Act of 1961 on account ofunexplained cash received of Rs.75,00,000/- from M/s Swift Tie Up Pvt. Ltd. by the assessee has wrongly beendeleted by the appellate authorities, though from theorder of the Assessing Officer, it is clear that the saidamount has been received by the assessee throughvarious layers of bank accounts of non-operationalKolkata based companies, which on verification werefound to be not existing at the registered addresses.Learned counsel Mr. Bissa has further argued that theAssessing Officer has rightly disallowed loss ofRs.11,75,857/- to the assessee on account of trading inNCDEX/MCX. It is submitted that as the activity ofhedging is a speculative transaction and the resultantloss of Rs.11,75,857/- is not eligible for set off againstincome from business and profession. Learned counselfor the appellant, thus, argued that several substantialquestions of law arise in this case, which have beenproposed in the present appeal. Having heard learned counsel for the Revenue andafter going through the impugned orders passed by theappellate authorities, we are of the view that nosubstantial question of law is involved in the instantappeal. The ITAT has observed that the transaction recordedin the books of accounts in the regular course of business Having heard learned counsel for the Revenue andafter going through the impugned orders passed by theappellate authorities, we are of the view that nosubstantial question of law is involved in the instantappeal. The ITAT has observed that the transaction recordedin the books of accounts in the regular course of business is to be accepted as true and correct unless there is astrong evidence to rebut the same and the burden ofproof that the transaction is not genuine is on the personwho alleges so. The ITAT has further held that theexistence of M/s Swift Tie Up Pvt. Ltd. is not disputed. Ithas filed the return of income for the assessment year inconsideration, confirmed the transaction, made paymentby cheque and income of Rs.5,86,612/- earned from thistransaction by the assessee is declared in the return. TheAssessing Officer without bringing any adverse evidenceon record, simply on assumptions and presumptions, hasheld that the transactions of the assessee with M/s SwiftTie Up Pvt. Ltd. are bogus. The ITAT has also observedthat the determination of income of Rs.2,43,59,629/-made by the Assessing Officer is hypothetical and there isno basis for the said determination. The ITAT has heldthat the Assessing Officer has erred in not allowing theloss of Rs.11,75,857/- to the assessee as of NCDEX/MCXloss. It was held that the CIT(A) has rightly allowed thesaid loss to the assessee in the facts and circumstancesof the case. The ITAT has further observed that theCIT(A) has rightly deleted the addition of Rs.75,00,000/-to the assessee made under Section 68 of the ACT of1961 as transaction between the assessee and M/s Swift Tie Up Pvt. Ltd. is clearly evident from the documentaryevidence produced by the assessee. The ITAT has alsoupheld the deletion of disallowance donation expensesand disallowance expenses claimed in the P & L accountby the CIT(A). On a careful scrutiny of the material available onrecord, the findings recorded by the appellate authorities,we are of the opinion that in the facts and circumstanceof the case, the evidence has properly been appreciatedby the CIT(A) as well as the ITAT and in the absence ofany clinching adverse evidence on record, the said findingof facts are not liable to be interfered with. As we have already observed above that nosubstantial question of law is arising in the matter andthe impugned orders passed passed by the appellateauthorities are essentially based on the finding of facts,we are not inclined to interfere in the instant appeal. Resultantly, the appeal being devoid of merit, ishereby dismissed. (ANOOP KUMAR DHAND),J (VIJAY BISHNOI),J 16 – ms rathore