THE ADDL CIT RG 4(2), MUMBAI v. M/S. SBI CAPITAL MARKETS LTD, MUMBAI

ITA 190/MUM/2009 | 2005-2006
Pronouncement Date: 01-02-2010 | Result: Partly Allowed

Appeal Details

RSA Number 19019914 RSA 2009
Assessee PAN AAACS7914E
Bench Mumbai
Appeal Number ITA 190/MUM/2009
Duration Of Justice 1 year(s) 23 day(s)
Appellant THE ADDL CIT RG 4(2), MUMBAI
Respondent M/S. SBI CAPITAL MARKETS LTD, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 01-02-2010
Appeal Filed By Department
Order Result Partly Allowed
Bench Allotted E
Tribunal Order Date 01-02-2010
Date Of Final Hearing 18-01-2010
Next Hearing Date 18-01-2010
Assessment Year 2005-2006
Appeal Filed On 09-01-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH E : MUMBAI BEFORE SHRI D.K. AGARWAL (JM) AND SHRI RAJENDRA SINGH (AM) ITA NO.190/MUM/2009 ASSESSMENT YEAR : 2005-06 ADDL. COMMISSIONER OF INCOME TAX-LTU 29 TH FLOOR CENTRE-1 WORLD TRADE CENTRE CUFFE PARADE MUMBAI-400 005. ..( APPELLANT ) VS. M/S. SBI CAPITAL MARKET LTD. 202 MAKER TOWER E CUFFE PARADE MUMBAI-400 005. ..( RESPONDENT ) P.A. NO. (AAACS 7914 E) APPELLANT BY : SHRI SATISH SHARMA RESPONDENT BY : SHR I P.J. PARDIWALA O R D E R PER D.K. AGARWAL (JM). THIS APPEAL PREFERRED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER DATED 10.10.2008 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEAR 2005-06. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSESSEE COM PANY IS A PUBLIC SECTOR UNDERTAKING ENGAGED IN THE BUSINESS AS A M ERCHANT BANKER FILED ITS RETURN SHOWING AN INCOME OF RS.81 39 62 860/-. ITA NO.190/M/09 A.Y: 05-06 2 HOWEVER THE ASSESSMENT WAS COMPLETED AT AN INCOME OF RS.82 78 42 250/- VIDE ORDER DT.27.12.2007 PASSED U/S.1 43(3) OF THE IT ACT 1961(THE ACT). ON APPEAL BEFORE THE LD. CI T(A) THE ASSESSEE INTERALIA RAISED AN ADDITIONAL GROUND OF APPEAL THA T THE LD. ACIT ERRED IN NOT ALLOWING CARRYFORWARD OF LONG TERM CAPITAL LO SS OF RS.5 11 33 005/- ON SALE OF UNITS OF UTI MIP 2000. THE LD. CIT(A) WHILE PARTLY ALLOWING THE APPEAL VIDE PENULTIMATE PARA OF HIS ORDER DIRECTED THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE A PPELLANT AFTER BEING SATISFIED ABOUT THE QUANTUM OF CLAIM OF LOSS. 3. BEING AGGRIEVED BY THE ORDER OF THE LD. CIT(A) T HE REVENUE IS IN APPEAL BEFORE US TAKING SIX GROUNDS OF APPEAL. HOWEVE R AT THE TIME OF HEARING IT HAS BEEN AGREED BY THE PARTIES THAT THE HIGH POWERED COMMITTEE VIDE ORDER DT.13.10.2009 HAS PERMITTED TO PURSUE THE 4 TH ISSUE ONLY BEFORE THE ITAT WHICH READS AS UNDER : 4. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE LD. CIT(A) ERRED IN ALLOWING C ARRY FORWARD OF LONG TERM CAPITAL LOSS OF RS.5 11 33 005 /- ON SALE OF UNITS OF UTI MIP 2000. 4. AT THE TIME OF HEARING THE LD. DR SUBMITS THAT THE LD. CIT(A) HAS ERRED IN ALLOWING CARRYFORWARD OF LONG TERM CAPITAL L OSS OF RS.5 11 33 005/- ON SALE OF UNITS OF UTI MIP 2000 . HE THEREFORE SUBMITS THAT THE ORDER PASSED BY THE AO BE RESTORED. ITA NO.190/M/09 A.Y: 05-06 3 5. ON THE OTHER HAND THE LD. SR. COUNSEL FOR THE ASSE SSEE WHILE SUPPORTING THE ORDER OF THE LD. CIT(A) SUBMITS THAT H E HAS NO OBJECTION IF THE ISSUE IS SET ASIDE TO THE FILE OF THE LD . CIT(A). 6. IN THE REJOINDER THE LD. DR ALSO AGREED FOR RESTOR ING THE ISSUE TO THE FILE OF THE LD. CIT(A). 7. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RIVAL P ARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECORD WE FIND THA T THE LD. CIT(A) HAS OBSERVED AND HELD VIDE PARA 12 TO 12.8 OF HIS ORDE R AS UNDER : 12. VIDE LETTER DATED 29 TH SEPTEMBER 2008 THE APPELLANT FILED AN ADDITIONAL GROUND OF APPEAL STAT ING AS UNDER :- 1. THE LD. ACIT ERRED IN NOT ALLOWING CARRY FORWARD OF LONG TERM CAPITAL LOSS OF RS.5 11 33 005/- ON SALE OF UNITS OF UTI MIP 2000. A REVISED STATEMENT OF COMPUTATION OF CAPITAL GAIN S AFTER CONSIDERING THE ABOVE LONG TERM LOSS WAS FILE D BEFORE THE LD. ACIT DURING THE COURSE OF THE ASSESS MENT PROCEEDINGS VIDE LETTER DATED 11 SEPTEMBER 2007. SIMILARLY THE APPELLANT HAD ALSO FILED ANOTHER LET TER DATED 17 OCTOBER 2007 REQUESTING FOR ALLOWING THE CARRY F ORWARD OF ABOVE LOSS. THE LD. ACIT ERRED IN NOT CONSIDERING THE ABOVE SUBMISSIONS MADE BEFORE HIM DURING THE COURSE OF TH E ASSESSMENT PROCESS. 12.1. COPY OF LETTER DATED 01-10-2008 WAS SENT TO A.O REQUESTING HIM TO FURNISH COMMENTS ON ADMISSIBILITY OF ADDITIONAL GROUND OF APPEAL. TILL DATE NO COMMENT OF THE A.O HAS COME. THE APPELLANT IN COURSE OF ASSESSME NT PROCEEDINGS FILED LETTERS DATED SEPTEMBER 11 2007 AND ITA NO.190/M/09 A.Y: 05-06 4 OCTOBER 17 2007 FILED BEFORE THE A.O TO ALLOW LON G TERM CAPITAL LOSS OF RS. 5 11 33 005/- AS THEY INADVERTE NTLY DID NOT INCLUDE THE SAME IN THE RETURN OF INCOME AN D NO CARRY FORWARD OF THE LOSS WAS CLAIMED. 12.2. THE A.OS ORDER IS SILENT ON THE ISSUE OF ALL OWING OR DISALLOWING THE CLAIM OF THE APPELLANT. 12.3. IN COURSE OF APPEAL PROCEEDINGS IT WAS POINT ED OUT THAT THE SUPREME COURT IN CASE OF GOETZ INDIA LTD. VS. CIT 284 323 HAS HELD THAT THE A.O CAN ENTERTAIN CLA IM ONLY BY FILING A REVISED RETURN. MS. ANJANA SINGH C.A A.R OF THE APPELLANT SUBMITTED THAT ALLAHABAD HIGH COURT IN CASE OF UNIVERSAL SUBSCRIPTION AGENCY P. LTD. VS . JCIT 293 ITR 244 HAS OBSERVED THAT IN CASE OF GOETZ INDI A LTD. 284 323 THE APEX COURT HAS NOT LAID DOWN AS A MATT ER OF LAW THAT THERE IS A BAR TO ENTERTAIN CLAIM FOR DEDU CTION OR OTHERWISE BY FILING A REVISED RETURN. 12.4. IN ACCORDANCE WITH THE PROVISIONS OF SECTION 143(3) THE A.O. IS DUTY BOUND TO PASS ON ORDER IN WRITING AFTER TAKING INTO ACCOUNT ALL THE RELEVANT MATERIAL WHICH HE HAS GATHERED AND WHICH HAS BEEN BROUGHT BEFORE H IM AND MAKING AN ASSESSMENT OF TOTAL INCOME AND DETERM INE THE SUM PAYABLE OR REFUNDABLE ON THE BASIS OF SUCH ASSESSMENT. 12.5. IN COURSE OF ASSESSMENT PROCEEDINGS THE APPELLANT VIDE LETTER DATED SEPTEMBER 11 2008 SR . NO.14 ENCLOSING ANNEUXRE 10 SUBMITTED STATEMENTS SHOWING CAPITAL GAIN FOR A.Y. 05-06 WHICH CONTAINS DETAILS REGARDING LONG TERM CAPITAL LOSS OF UTI MIP 2000 OF RS. 5 11 33 004.02. 12.6. FURTHER VIDE LETTER DATED OCTOBER 17 2007 AS PER ANNEXURE 2 FOLLOWINGS SUBMISSIONS WERE MADE:- DURING THE PREVIOUS YEAR THE COMPANY HAS SOLD UN ITS OF UTI MIP 200 (STT NOT PAID ON SALE) ON WHICH LONG T ERM LOSS OF RS.51 133 005/- (AFTER INDEXATION) WAS INCU RRED. HOWEVER INADVERTENTLY THE COMPANY DID NOT INCLUDE THE SAME IN THE RETURN OF INCOME AND NO CARRY FORWARD O F THE SAME LOSS WAS CLAIMED. THE COMPANY THEREFORE YOUR GOODSELF TO KINDLY ALLOW TO CARRY FORWARD THE ABOVE LONG TERM CAPITAL LOSS OF RS. 51 133 005/- ON SALE OF UN ITS UTI MIP 2000 ITA NO.190/M/09 A.Y: 05-06 5 12.7. THERE HAS BEEN THREE OMISSIONS:- A) THE APPELLANT FAILED TO INDICATE THE AFORESAID LOSS IN ITS RETURN OF INCOME AND IN THE STATEMENT OF INCOME FIL ED WITH THE RETURN OF INCOME; B) THE A.O. HAS OMITTED TO MENTION THE ALLOWABILITY OR DISALLOWABILITY OF THE CLAIM OF THE APPELLANT. IN FACT THERE IS NO REFERENCE OF THE APPELLANTS CLAIM VIDE LETTE RS DATED 11 TH SEPTEMBER 2007 AND OCTOBER 17 2007. C) OMISSION IN THE ORIGINAL GROUNDS OF APPEAL AND IT W AS SUBMITTED THAT THE ORIGINAL GROUND OF APPEAL WAS MA DE ON THE BASIS OF ASSESSMENT ORDER AND HENCE THIS OMISSI ON TOOK PLACE. 12.8 THE AFORESAID THREE OMISSIONS DO NOT MEAN THAT A FACT WHICH IS STARING ON THE FACE SHOULD BE IGNORE D. THE ADDITIONAL GROUND OF APPEAL IS ADMITTED IN VIEW OF SECTION 250(5) AS I AM SATISFIED WITH THE OMISSION OF THE GROUND FROM THE FORM OF APPEAL WAS NOT WILLFUL OR UNREASON ABLE. THE A.O IS DIRECTED TO ALLOW THE CLAIM OF THE APPEL LANT AFTER BEING SATISFIED ABOUT THE QUANTUM OF CLAIM OF LOSS. FROM THE READING OF THE ABOVE WE FIND THAT THE LD. CIT(A) WITHOUT CONSIDERING THE ISSUE ON MERITS IN TERMS OF THE PROVISION S OF SECTION 250(6) OF THE ACT HAS DIRECTED THE ASSESSING OFFICER TO AL LOW THE CLAIM OF THE ASSESSEE AFTER BEING SATISFIED ABOUT THE QUANTUM O F CLAIM OF LOSS. THIS BEING SO AND KEEPING IN VIEW THAT THE REVEN UE IS NOT AGAINST THE ADMISSION OF THE ADDITIONAL GROUND ADMITTED BY THE LD. CIT(A) WE ARE OF THE VIEW THAT IN THE INTEREST OF JUSTICE THE MA TTER SHOULD GO BACK TO THE FILE OF THE LD. CIT(A) TO CONSIDER THE ISSUE ON MERITS AND ACCORDINGLY WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WHO SHALL DECIDE THE SAME AFRESH IN THE LIGHT OF OUR OBSERVATIO NS HEREINABOVE AND ACCORDING TO LAW AFTER PROVIDING REASONABLE OPPORT UNITY OF BEING ITA NO.190/M/09 A.Y: 05-06 6 HEARD TO BOTH THE PARTIES. THE GROUND TAKEN BY THE REVENUE IS THEREFORE PARTLY ALLOWED FOR STATISTICAL PURPOSES. 8. IN THE RESULT THE REVENUES APPEAL STANDS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 01.02.2010. SD/- SD/- (RAJENDRA SINGH) ( D.K. AGARWAL ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED:01.02.2010. JV. COPY TO: THE APPELLANT THE RESPONDENT THE CIT CONCERNED MUMBAI THE CIT(A) CONCERNED MUMBAI THE DR E BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR ITAT MUMBAI. ITA NO.190/M/09 A.Y: 05-06 7 DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.1.10 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.1.10 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 01-02-10 SR.PS/PS 7. FILE SENT TO THE BENCH CLERK 03-02-10 SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER