VARIETY INVESTMENTS PVT LTD, MUMBAI v. A.C.I.T.4(3), MUMBAI

ITA 1699/MUM/2011 | 2005-2006
Pronouncement Date: 14-11-2014 | Result: Partly Allowed

Appeal Details

RSA Number 169919914 RSA 2011
Assessee PAN AAACV3458Q
Bench Mumbai
Appeal Number ITA 1699/MUM/2011
Duration Of Justice 3 year(s) 8 month(s) 14 day(s)
Appellant VARIETY INVESTMENTS PVT LTD, MUMBAI
Respondent A.C.I.T.4(3), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 14-11-2014
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted F
Tribunal Order Date 14-11-2014
Assessment Year 2005-2006
Appeal Filed On 01-03-2011
Judgment Text
INCOME TAX APPELLATE TRIBUNAL MUMBAI - F BENCH. ! ! ! ! BEFORE S/SH. VIJAY PAL RAO JUDICIAL MEMBER & RAJEND RA ACCOUNTANT MEMBER /. ITA NO. 1699/MUM/2011 ' ' ' ' # # # # / ASSESSMENT YEAR-2005-06 VARIETY INVESTMENT PVT. LTD. C/O M/S. LAW CHARTER 14-K HAMAN STREAT FORT MUMBAI 400 001 ACIT 4(3) AAYAKAR BHAVAN M.K. RD. MUMBAI- 400020 PAN: AAACV3458Q $% $% $% $% & & & & / APPELLANT BY : SH. PRADIP KAPASI '($% ) & / RESPONDENT BY :SH. SACHCHIDANAND DUBEY ' ' ' ' ) )) ) *+ *+ *+ *+ / DATE OF HEARING :14/11/2014 -# ) *+ / DATE OF PRONOUNCEMENT :14/ 11/2014 ' ' ' ' 1961 ) )) ) 254(1) *.* *.* *.* *.* / / / / ORDER U/S.254(1)OF THE INCOME-TAX ACT 1961(ACT) PER RAJENDRA AM ! ! ! ! ' ' ' ' : CHALLENGING THE ORDER DT.09.12.2010 OF THE CIT(A)-8 MUMBAI ASSESSEE HAD RAISED FOLLOWING GROUNDS OF APPEAL : (A)THE LD. CIT (A) ERRED IN LAW AND ON FACTS IN CON FIRMING THE ACTION OF THE LD. A.O. IN ASSESSING THE TOTAL INCOME AT RS. 43 53 160 AGAINST THE RETUR NED INCOME OF RS. 28 24 102 COMPUTED AFTER SETTING OFF BUSINESS LOSS OF RS. 9 82 060 AND IN TH E PROCESS ERRED IN MAKING AN ADDITION OF RS. 15 29 058 TO THE RETURNED INCOME. (B)YOUR APPELLANT SUBMITS THAT IT HAD COMPUTED THE TOTAL INCOME IN ACCORDANCE WITH THE PROVISIONS OF INCOME TAX ACT. (C)YOUR APPELLANT PLEADS FOR THE DELETION OF THE AD DITION OF RS.15 29 058 MADE BY THE A.O. AFTER ALLOWANCE OF BUSINESS LOSS OF RS. 9 82 060 AND FURT HER PLEADS THAT THE RETURNED INCOME OF RS.28 24 102 BE ACCEPTED. 2.ERRONEOUS TREATMENT OF BUSINESS LOSS AS SPECULATI ON LOSS OF R5.9 82 060 AND DENIAL OF SET OFF OF SUCH LOSSES AGAINST THE BU SINESS INCOME AND OTHER INCOME (PARA2) (A)THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN CONFI RMING THAT THE BUSINESS LOSS OF RS. 9 82 060 REPRESENTED THE SPECULATIVE LOSS UNDER EXPLANATION TO S.73 OF THE ACT AND FURTHER ERRED IN DISALLOWING SET-OFF OF SUCH LOSS AGAINST OTHER BUSI NESS INCOME AND OTHER INCOME. (B)YOUR APPELLANT SUBMITS THAT THE LOSS OF RS. 9 82 060 WAS IN REGULAR COURSE OF BUSINESS AND WAS ELIGIBLE FOR SET-OFF UNDER THE PROVISIONS OF INCOME TAX ACT. (C)YOUR APPELLANT SUBMITS THAT THE LOSS IN QUESTION REPRESENTED THE LOSS INCURRED IN REGULAR COURSE OF BUSINESS AND THAT THE PROVISIONS OF EXPLANATION TO SEC.73 DID NOT APPLY TO THE CASE OF THE APPELLANT AT ALL AND FURTHER SUBMIT THAT THE LOSS S HOULD BE ALLOWED FOR SET-OFF AGAINST BUSINESS INCOME AND OTHER INCOME. 3.DISALLOWANCE OF BUSINESS EXPENDITURE OF RS.6 17 5 90 (PARA 3) (A)THE LEARNED CIT(A) FURTHER ERRED IN LAW AND ON F ACTS IN CONFIRMING THAT THE ACTION OF THE LD. AO IN HOLDING THAT EXPENSES TO THE TUNE OF RS.6 17 590 HAD BEEN INCURRED FOR SUCH ALLEGED SPECULATIVE 2 ITA.NO. 1699 /M/2011 BUSINESS AND OF DISALLOWANCE THE SAME ON THE GROUND THAT SUCH PROPORTIONATE EXPENSES OF RS.6 17 590 WERE INCURRED FOR THE PURPOSES OF ALLEG ED SPECULATION BUSINESS AND WERE NOT ALLOWED TO BE SET-OFF AGAINST REGULAR INCOME. (B)YOUR APPELLANTS SUBMIT THAT: (I)EXPL. TO SEC 73 WAS NOT APPLICABLE TO SUCH LOSS THE SAME NOT BEING SPECULATION BUSINESS LOSS. (II) NO PARTICULAR EXPENDITURE WAS INCURRED SOLELY FOR SUCH ACTIVITY. (III) THE ENTIRE BUSINESS OPERATION RESULTS IN ONE BUSINESS ACTIVITY AND HENCE IT WAS NOT OPEN TO APPORTION A PART OF THE EXPENSES BETWEEN BUSINESS A ND DEEMED SPECULATION TRANSACTION. (IV) NO APPORTIONMENT OF EXPENSES COULD BE MADE ON NOTIONAL BASIS. (V) WITHOUT PREJUDICE TO THE ABOVE THE LEARNED CIT (A) HAD ERRED IN CONFIRMING THE ESTIMATION OF THE LD. A.O. THAT EXPENSES OF RS. 6 17 5 19 HAD BEEN IN CURRED FOR SUCH ALLEGED SPECULATION LOSS AND REASONS FOR SUCH ESTIMATION CITED BY HIM WERE ALSO INSUFFICIENT AND WRONG. (C)YOUR APPELLANT PLEADS THAT THE SAID ADDITION OF RS.6 17 519 BE DELETED OR ALTERNATIVELY BE WORKED OUT TO 5% OF THE LOSS OF RS.9 82 060. 4.DISALLOWACE OF EXPENDITURE OF RS. 28 332 U/S.14A [PARA 4) (A)THE LD. CIT(A) ONCE AGAIN ERRED IN LAW AND ON FA CTS IN CONFIRMING THAT DISALLOWANCE OF RS. 28 332 AS EXPENDITURE TOWARDS EARNING DIVIDEND INCO ME OF RS. 5 66 646 BY MAKING PROVISIONS OF S. 14A OF THE ACT. (B)YOUR APPELLANTS SUBMIT THAT; I)NO PARTICULAR EXPENDITURE IS INCURRED SOLELY FOR EARNING DIVIDEND INCOME. II)THE ENTIRE BUSINESS OPERATION RESULTS IN ONE BUS INESS ACTIVITY AND HENCE IT IS NOT POSSIBLE TO APPORTION THE EXPENSES BETWEEN TAXABLE AND NON TAXA BLE ACTIVITY. III)NO PROVISION OF APPORTIONMENT OF EXPENSES HAD B EEN MADE ON NOTIONAL BASIS IN S.14A. IV)NO BORROWED FUNDS WERE UTILIZED FOR THE PURPOSE OF EARNING DIVIDEND INCOME. (C)YOUR APPELLANT PLEADS THAT THE SAID ADDITION OF RS. 28 332 BE DELETED. 5.DISALLOWANCE OF DEPRECIATION OF RS. 5 32 453 (PAR A6) (A)THE LD.CIT(A) ONCE AGAIN ERRED IN CONFIRMING THE DISALLOWANCE OF DEPRECIATION OF RS. 5 32 453 WHEN THE LD. A.O. HAD MADE THE DISALLOWANCE WITHOUT PROVIDING FOR ANY EXPLANATION FOR SUCH DISALLOWANCE. (B)THE LD.CIT(A) CONFIRMS IN HIS ORDER THAT THE LD. A.O. HAD NOT PROVIDED FOR ANY EXPLANATION FOR DISALLOWING THE DEPRECIATION OF RS.5 32 453 INSPITE OF WHICH THE LD. CIT(A) HAD CONFIRMED THE ACTION OF THE LD. A.O. IN DISALLOWING DEPRECIATION OF RS. 5 32 453. (C)THE APPELLANT SUBMITS THAT THE DEPRECIATION CLAI MED IS AS PER THE PROVISIONS OF S. 32 AND THAT THE DEPRECIATION OF RS 5 32 453 BE ALLOWED. 6.INTEREST U/S. 234 B & U/S. 234 C (PARA 7) (A)THE LEARNED CIT(A) IN CONFIRMING THE ACTIONS OF THE LD. A.O. HAD ONCE AGAIN ERRED IN LEVYING INTEREST U/S. 234B OF WITHOUT GIVING ANY OPPORTUNIT Y OF HEARING AND IN NOT PASSING ANY SPEAKING ORDER FOR THE LEVY OF INTEREST. (B)YOUR APPELLANT DENIES ANY LIABILITY OF PAYMENT O F INTEREST AND FURTHER SUBMITS THAT THE INTEREST WAS CHARGED IN VIOLATION OF THE PROVISION OF NATURA L JUSTICE IN AS MUCH AS NO OPPORTUNITY FOR HEARING WAS GIVEN. (C)YOUR APPELLANT PLEADS THAT THE INTEREST LEVIED B E DELETED. 7.REJECTION OF THE GROUND CHALLENGING RE-OPENINGWIT HOUT ADJUDICATION (PARA 8) (A)THE LD. CIT(A) HAD ERRED IN NOT ADJUDICATING THE GROUND NO. 11 CHALLENGING THE REOPENING OF ASSESSMENT. (B)THE LD. CIT(A) IN PARA 8 HAD STATED THAT THE GRO UND CHALLENGING REOPENING OF ASSESSMENT IS GENERAL OR REDUNDANT AND DOES NOT REQUIRE ANY SPECI FIC ADJUDICATION. (C)YOUR APPELLANT PRAYS THAT THE ENTIRE REASSESSMEN T BE HELD BAD IN LAW AND THE CONSEQUENT REASSESSMENT BE QUASHED AND RETURNED INCOME BE ACCE PTED OR IN THE ALTERNATIVE THE LD.CIT(A) MAY 3 ITA.NO. 1699 /M/2011 BE DIRECTED TO ADJUDICATE THE MATTER. 8.YOUR APPELLANT PRAYS FOR THE LEAVE TO ADD AMEND. ALTER DELETE OR MODIFY ANY OF THE ABOVE GROUNDS. 2. THE ASSESSEE A NON BANKING FINANCIAL COMPANY FILED ITS RETURN OF INCOME ON 3.10.2005 DECLARING TOTAL INCOME AT RS.28.24 LACS.THE ASSESSING OFFICER (AO) FINALISED THE ASSESSMENT U/S.143(3) OF THE ACT ON 31.12.2007 DETERMINING THE TOTAL INCOME OF THE ASSESSEE AT RS.43 66 100/- DURING THE COURSE OF HEARING THE AUTHORISED REPRESE NTATIVE(AR)OF THE ASSESSEE DID NOT PRESS GROUND OF APPEAL NO.4 HENCE SAME IS DISMISSED AS N OT PRESSED.HE ALSO STATED THAT GROUND NO.6 IS CONSEQUENTIAL AND DOES NOT REQUIRE ADJUDICATION. 2.1. FIRST EFFECTIVE GROUND OF APPEAL IS ABOUT TREATMEN T OF BUSINESS LOSS AS SPECULATION LOSS OF RS. 9 82 060/-AND DENIAL OF SET OFF OF SUCH LOSSES AGAI NST THE BUSINESS INCOME AND OTHER INCOME. DURING THE ASSESSMENT PROCEEDINGS THE AO FOUND THAT THE ASSESSEE HAD DEBITED F & O LOSS OF RS.9 82 060/-TO THE P & L ACCOUNT.HE CALLED FOR EXPLANAT ION FROM THE ASSESSEE IN THIS REGARD.IT WAS STATED BY THE ASSESSEE THAT THE COMPANY WAS A NBFC THAT INVESTMENTS WAS ONE OF ITS ACTIVITIES AND THE LOSS OF RS.9 82 060/- WAS FROM HEDGING ACTIVITI ES THAT THE PROVISO B TO SECTION 43(5) EXCLUDED FROM THE DEFINITION OF SPECULATIVE TRANSACTION CONT RACTS IN RESPECT OF STOCKS AND SHARES BY THE INVESTOR TO HEDGE AGAINST ITS HOLDING AGAINST STOCK AND SHARE THAT SUCH TRANSACTION DID NOT ATTRACT PROVISIONS OF SECTION 73 THAT DERIVATIVES COULD NOT BE TREATED AS EITHER STOCK OR SHARES AND THAT DERIVATIVE TRADING DID NOT INVOLVE IN PURCHASE AND SALE OF SHARES.IT PLACED RELIANCE UPON THE DECISION IN THE CASE OF SSKI INVESTOR SERVICES PVT. LTD. OF THE MUMBAI TRIBUNAL. THE ASSESSEE FURTHER ARGUED THAT THE DERIVATIVES WERE FINANCIAL CONTRACTS IN RESPECT OF SHARE AND INDEX WHOSE DELIVERY WAS IMPOSSIBLE EITHER BY STATUTE OR BY ITS VERY NATURE WHICH COULD NOT BE COVERED BY SECTION 43(5).PLACING RELIANCE UPON THE DECISION IN THE CASE OF APPOLLA TYRES LTD. [255 ITR 273] IT ARGUED THAT THE PROVISIONS OF EXPLANATION TO SECTIO N 73 WERE NOT ATTRACTED THE A.O HOWEVER CONCLUDED THAT THE EXPLANATION TO SECTION 73 WAS SQ UARELY APPLICABLE THAT THE ASSESSEE DESPITE CLAIMING THAT IT HAD TAKEN POSITION IN F&O TO SAFEG UARD AGAINST POSSIBLE LOSS IN ITS INVESTMENT HOLDING HAD FAILED TO ESTABLISH THAT POSITION IN F& O WAS ONLY TAKEN IN THOSE ITEMS WHICH IT WAS HOLDING AS INVESTMENT. FINALLY CONCLUDING THAT EXP LANATION TO SECTION 73 WAS APPLICABLE IN ASSESSEES CASE HE TREATED THE LOSS OF RS.9 82 060/ - AS SPECULATION LOSS AND DID NOT ALLOW SET OFF AGAINST NON SPECULATION BUSINESS PROFIT. 2.1. AGAINST THE ORDER OF THE AO ASSESSEE PREFERRED AN A PPEAL BEFORE THE FIRST APPEAL AUTHORITY (FAA).AFTER CONSIDERING THE SUBMISSIONS OF THE ASSE SSEE AND THE ASSESSMENT ORDER HE HELD THAT THE ASSESSEE HAD MADE SUBMISSIONS WHICH ARE FOUND CONTR ADICTORY TO EACH OTHER THAT IT HAD CONTENDED THAT THE IMPUGNED TRANSACTIONS WERE HEDGING TRANSAC TIONS AGAINST ITS HOLDING STOCK AND SHARES THAT IT HAD ALSO BEEN CONTENDED THAT THE TRANSACTIONS DI D NOT INVOLVE ANY PURCHASE OR SALE OF SHARES THAT IF THE IMPUGNED TRANSACTIONS WERE HEDGING AGAINST H OLDING OF STOCK THE SAME COULD NOT BE TRANSACTIONS WHICH DO NOT INVOLVE ANY PURCHASE AND SALE THAT IT HAD FAILED TO ESTABLISH THAT THE TRANSACTIONS UNDERTAKEN BY IT DID NOT INVOLVE SALE AND PURCHASE OF SHARES THAT THE IMPUGNED TRANSACTIONS INVOLVED SALE AND PURCHASE OF SHARES T HAT THE PROVISIONS OF EXPLANATION TO SECTION 73 WERE SQUARELY ATTRACTED THAT IT HAD NOT BROUGHT ON RECORD ANY MATERIAL TO INDICATE THAT ITS MAIN INCOME WAS FROM HOUSE PROPERTY OR INTEREST FROM SEC URITIES OR CAPITAL GAIN THAT IT HAD EARNED INCOME UNDER THE HEAD CAPITAL GAIN AS WELL AS OTHER INCOME THAT IT COULD NOT BE SAID THAT CAPITAL GAIN WAS MAIN SOURCE OF ITS INCOME THAT NO INCOME FROM HOUSE PROPERTY HAD BEEN ASSESSED. FINALLY HE UPHELD THE ORDER OF THE AO THAT THE AMOU NT OF RS.9 82 060/- WAS SPECULATIVE BUSINESS LOSS AND SAME COULD NOT BE ALLOWED TO BE SET OFF AG AINST NON SPECULATIVE BUSINESS. 4 ITA.NO. 1699 /M/2011 2.2. BEFORE US AR STATED THAT THE AO AND THE FAA HAD N OT ANALYSED THE FACTS PROPERLY THAT BOTH HAVE NOT DEALT WITH THE REAL ISSUE THAT HEDGING TRA NSACTION DO NOT INVOLVE PURCHASE AND SALE OF SHARES THAT WHILE DECIDING THE APPEAL FOR THE AY.20 04-05 FILED BY THE TRIBUNAL HAD (ITA/8021/ MUM/2011/-DATED 26.06.2014) RESTORED BACK THE ISSUE TO THE FILE OF THE AO WHERE SIMILAR ISSUE WAS INVOLVED. HE REFERRED TO PAGE NO.48-61 OF THE P APER BOOK.DEPARTMENTAL REPRESENTATIVE (DR) SUPPORTED THE ORDER OF THE FAA. 2.3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US.WE FIND THAT THE MAIN ISSUE IS ABOUT TREATMENT TO BE GIVEN TO THE HEDGING TRANSACTIONS THAT THE AO HAD REJECTED THE CLAIM MADE BY THE ASSESSEE IN THIS REGARD.WE FURTHER FIND THAT CLAUSE (5) OF SECTION 43 OF THE ACT DEFINES SPECULATIVE TRANSACTION TO MEAN A TRANSACTION IN WH ICH A CONTRACT FOR THE PURCHASE OR SALE OF ANY COMMODITY WHICH MAY INCLUDE STOCKS AND SHARES IS P ERIODICALLY OR ULTIMATELY SETTLED OTHERWISE THAN BY ACTUAL DELIVERY OR TRANSFER OF THE COMMODIT Y OR SCRIPS. HOWEVER CERTAIN EXCEPTIONS TO THE DEFINITION OF SPECULATIVE TRANSACTION ARE PROVIDE D IN A PROVISO TO SECTION 43(5). CLAUSES (A) (B) AND (C) OF THE PROVISO ENUMERATE THE CONTRACTS WHIC H ARE NOT DEEMED TO BE SPECULATIVE TRANSACTIONS. CLAUSE (B) PROVIDES THAT A CONTRACT IN RESPECT OF S TOCKS AND SHARES ENTERED INTO BY A DEALER OR INVESTOR TO GUARD AGAINST LOSS IN HIS HOLDINGS OF S TOCKS AND SHARES THROUGH PRICE FLUCTUATIONS SHALL NOT BE DEEMED TO BE A SPECULATIVE TRANSACTION. PROV ISO (B) CONTEMPLATES A TRANSACTION WHICH IS ENTERED INTO TO SAFEGUARD THE FALL IN PRICE OF THE HOLDING OF STOCKS OR SHARES. IT IS A HEDGING CONTRA CT TO PROTECT ONESELF AGAINST LOSS ON ACCOUNT OF ADVER SE PRICE FLUCTUATIONS. THE PRE-REQUISITES FOR BEING CLASSED AS A HEDGING CONTRACT AND TO FALL WITHIN TH E AMBIT OF THE SAID PROVISO ARE : (I) A CONTRACT IN RESPECT OF STOCKS OR SHARES AND (II) ENTERED INTO TO GUARD AGAINST LOSS IN THE HOLDINGS OF STOCKS AND SHARES THROUGH FUTURE PRICE FLUCTUATIONS. THE QUEST ION ABOUT THE EXISTENCE OF THE CONTRACT AND THE INTENTION TO ENTER INTO SUCH A CONTRACT ON WHICH T HE ANSWER TO THE QUESTION WHETHER A TRANSACTION IS A HEDGING TRANSACTION OR NOT RESTS IS PRIMARILY ON E OF FACT NECESSARILY TO BE DETERMINED ON APPRECIATION OF FACTS SURROUNDING THE TRANSACTION. IN OUR OPINION BOTH THE REVENUE AUTHORITIES HAVE NO T ANALYSED THE PROVISIONS OF SECTION 43(5) PROVISO (B) IN LIGHT OF THE TRANSACTION CARRIED OUT BY THE ASSESSEE.THEREFORE IN THE INTEREST OF JUSTICE WE ARE RESTORING BACK THE MATTER TO THE FIL E OF THE FAA TO DECIDE THE MATTER AFRESH AFTER AFFORDING A REASONABLE OPPORTUNITY OF HEARING TO TH E ASSESSEE. GROUND NO.2 IS ALLOWED IN FAVOUR OF THE ASSESSEE IN PART. 3. NEXT GROUND OF APPEAL IS INTERLINKED WITH THE GROUN D NO.2 AND IT PERTAINS TO EXPENDITURE OF RS. 6.17 LAKHS.DURING THE ASSESSMENT PROCEEDINGS AO HAD MADE ADDITION OF RS.6 17 519/- TREATING THE SAME AS PROPORTIONATE EXPENDITURE RELATED TO SPECUL ATION LOSS OF RS.9 82 060/-.FAA UPHELD THE DECISION OF THE AO IN THE APPELLATE PROCEEDINGS.AS THE ISSUE IS DIRECTLY RELATED WITH THE GROUND NO.2 AND WE HAVE ALREADY REMITTED THE ISSUE TO THE FILE OF THE AO SO GROUND NO.3 IS ALSO RESTORED BACK TO THE FILE OF THE AO.HE IS DIRECTED TO DECIDE D THE ISSUE AFTER GROUND NO.2. GROUND NO3.IS DECIDED IN FAVOUR OF T HE ASSESSEE IN PART. 4. NEXT GROUND IS ABOUT DISALLOWANCE OF DEPRECIATION O F RS.5 32 453/-.WHILE DECIDING THE APPEAL FILED BY THE ASSESSEE THE FAA HAS HELD THAT NEITHER THE ISSUE HAD BEEN DISCUSSED IN THE ASSESSMENT ORDER NOR ANY SUBMISSION IN THIS REGARD HAS BEEN MA DE BY THE ASSESSEE IN THE WRITTEN SUBMISSION.HE DISALLOWED THE APPEAL FILED BY THE AS SESSEE. 5 ITA.NO. 1699 /M/2011 4.1. BEFORE US THE AR STATED THAT THE AO HAD NOT GIVEN A NY REASON FOR DISALLOWING THE DEPRECIATION AND THE FAA HAD NOT PASSED A SPEAKING ORDER THOUGH THE ASSESSEE HAD TAKEN A SPECIFIC GROUND ABOUT DISALLOWANCE OF DEPRECIATION.DR LEFT THE ISSU E TO THE DISCRETION OF THE BENCH. 4.2. WE HAVE PERUSED THE MATERIAL AND HEARD THE RIVAL SU BMISSIONS. WE FIND THAT WHILE COMPUTING THE TOTAL INCOME THE AO HAD DISALLOWED DEPRECIATION WITHOUT ASSIGNING ANY REASON THAT IN THE APPEAL FILED THE ASSESSEE HAD RAISED THE ISSUE OF D ISALLOWANCE THAT THE FAA HAD NOT DECIDED THE ISSUE ON MERITS. AS THE FAA IT WAS HIS DUTY TO DECI DE THE GROUND OF APPEAL BY A SPEAKING ORDER.IN OTHER WORDS HE WAS DUTY BOUND TO DECIDE THE ISSUE R AISED BEFORE HIM BY GIVING REASONS OF ACCEPTING OR REJECTING THE ARGUMENTS ADVANCED BY TH E ASSESSEE.AS THE ORDER IS NOT A REASONED ORDER SO IN THE INTEREST OF JUSTICE WE ARE REMITTI NG IT BACK TO THE FILE OF THE FAA FOR FRESH ADJUDIC A - TION.HE IS DIRECTED TO AFFORD A REASONABLE OPPORTUN ITY OF HEARING TO THE ASSESSEE BEFORE DECIDING THE ISSUE.GROUND NO.5 IS DECIDED IN FAVOUR OF THE A SSESSEE IN PART. 5. GROUND NO.7 IS ABOUT NON ADJUDICATION OF ISSUE OF R E-OPENING OF ASSESSMENT BY THE FAA.IT WAS ARGUED BY THE AR THAT THE FAA DID NOT DECIDE THE GR OUND.WE FIND THAT THE ASSESSEE HAD RAISED A SPECIFIC GROUND ABOUT RE-OPENING OF THE ASSESSMENT. BUT HE HAS NOT ADJUDICATED THE ISSUE. THEREFORE WE ARE RESTORING BACK THE MATTER TO THE FILE OF THE FAA TO DECIDE THE GROUND AFRESH AFTER GIVING AN EFFECTIVE HEARING TO THE ASSESSEE.GROUND NO.7 IS DECIDED IN FAVOUR OF THE ASSESSEE IN PART. AS A RESULT APPEAL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. *0'1* ) /*0 2 ) * 34 . ORDER PRONOUNCED IN THE OPEN CO URT ON 14 TH NOVEMBER 2014 . / ) -# 5 6' 14.11.2014 - ) . . SD/- SD/- ( / VIJAY PAL RAO ) ( ! ! ! ! / RAJENDRA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI 6' /DATE: 14.11.2014 / / / / ) )) ) '* '* '* '* 7 #* 7 #* 7 #* 7 #* / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / $% 2. RESPONDENT / '($% 3. THE CONCERNED CIT(A)/ 8 9 4. THE CONCERNED CIT / 8 9 5. DR F BENCH ITAT MUMBAI / :. '*' . + . . . 6. GUARD FILE/ . (* '* //TRUE COPY// /' / BY ORDER ; / 3 DY./ASST. REGISTRAR /ITAT MUMBAI .