DCIT, New Delhi v. Sh. Ravinder Kumar Gupta, New Delhi

ITA 4363/DEL/2011 | 2008-2009
Pronouncement Date: 27-07-2012 | Result: Allowed

Appeal Details

RSA Number 436320114 RSA 2011
Bench Delhi
Appeal Number ITA 4363/DEL/2011
Duration Of Justice 9 month(s) 27 day(s)
Appellant DCIT, New Delhi
Respondent Sh. Ravinder Kumar Gupta, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 27-07-2012
Appeal Filed By Department
Order Result Allowed
Bench Allotted F
Tribunal Order Date 27-07-2012
Date Of Final Hearing 09-07-2012
Next Hearing Date 09-07-2012
Assessment Year 2008-2009
Appeal Filed On 30-09-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F NEW DELHI) BEFORE SHRI I.C. SUDHIR JUDICIAL MEMBER AND SHRI T.S. KAPOOR ACCOUNTANT MEMBER I.T.A. NO.4363/DEL/2011 ASSESSMENT YEAR : 2008-09 DCIT SHRI RAVINDER KUMAR GUPTA CIRCLE-30 (1) 63-DARYA GANJ NEW DELHI. V. NEW DELHI-110002. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.AACPG AACPG AACPG AACPG- -- -7619 7619 7619 7619- -- -P PP P APPELLANT BY : SMT. VEENA JOSHI SR. DR. RESPONDENT BY : SHRI SANJAY MEHRA FCA. ORDER PER TS KAPOOR AM: THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE OR DER OF LD CIT(A) DATED 28.7.2011. THE GROUNDS RAISED BY THE REVENUE A RE AS UNDER:- 1. ON THE FACTS AND IN CIRCUMSTANCES OF THE CASE THE LD C IT(A) XXV NEW DELHI HAS ERRED IN ALLOWING THE APPEAL OF A SSESSEE I.E. TREATING THE INCOME OF ` .1 62 02 904/- AS COMMISSION INCOME UNDER THE HEAD BUSINESS INCOME WHICH WAS ASSESSED BY THE ASSESSING OFFICER UNDER THE HEAD INCOME FROM OTHER SOURC ES. 2. THE APPELLANT CRAVES LEAVE FOR RESERVING THE RIGHT T O AMEND MODIFY ALTER ADD OR FOREGO ANY GROUND(S) OF APPEAL AT ANY TIME BEFORE NOR DURING THE HEARING OF THIS APPEAL. ITA NO4363/DEL/2011 2 2. THE BRIEF FACTS OF THE CASE ARE THAT AS PER INCOME TAX RETURN FILED BY THE ASSESSEE THE BUSINESS OF THE ASSESSEE IS TRADING IN SHAR ES AND DEBENTURES AND AS PER ASSESSEES OWN ADMISSION HE HAS BEEN D OING THE BUSINESS OF TRADING IN SHARES AND DEBENTURES SINCE PA ST 25 YEARS AND HAD BEEN INCURRING LOSSES FAR THE LAST MORE THAN 1 0 YEARS. THE ASSESSEE HAS BROUGHT FORWARD BUSINESS LOSSES OF ` .3 72 33 512/- PERTAINING TO ASSESSMENT YEARS 2000-01 TO 2007-08. THE R ETURN OF INCOME DECLARING INCOME OF ` .4 88 9042/- WAS FILED ON 19.9.2008. THE CASE WAS SELECTED FOR SCRUTINY AND NECESSARY NOTICES WERE ISSUED U/S 143(2) OF THE ACT. DURING ASSESSMENT PROCEEDINGS THE ASSE SSING OFFICER NOTED THAT THE ASSESSEE HAD RECEIVED COMMISSION O F ` .1 62 02 904/- FROM MR. ZHAO JINGJUN R/O 499 HEPP ING ROAD SHIJLAZHAUNG HEBEI CHINA. MR. HAO WEIQUN R/O 66-D AJI ONYINZIANG NANJING CHINA MR./MS. JHAD JIN HUA & MA ZHAO ANG ON EXPORT OF IRON ORE TO CHINA ON BEHALF OF SOME IMPORTERS OF CHINA. D URING DISCUSSIONS WITH THE ASSESSEE THE ASSESSING OFFICER NOTED THAT ASSESSEE H AD RECEIVED SUCH TYPE OF COMMISSION FOR THE FIRST TIME. TH E ASSESSING OFFICER ISSUED NOTICE DATED 6.12.2010 AND 20.12.2010 ASKING ASSESSEE TO SUBSTANTIATE HIS CLAIM OF COMMISSION WITH NECESSARY EV IDENCES AND WAS ASKED TO SHOW CAUSE AS TO WHY THE SO-CALLED COMMISSION INCOME SHOULD NOT BE TREATED AS INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. THE SUBMISSIONS OF THE ASSESSEE WERE CAREFULLY CONSID ERED BUT HE DID NOT ACCEPT THE SAME BECAUSE OF THE FOLLOW ING REASONS:- I) THAT ASSESSEE ADMITS THAT HE HAD NO AGREEMENT WITH EXPORTERS AND HAD NO BUSINESS CONNECTION WITH THEM BEFORE OR AFTER PREVIOUS YEAR; II) THE ASSESSEE HAD FAILED TO PRODUCE ANY AGREEMENT WITH THE ALLEGED IMPORTERS COMPANY AND ASSESSEE HAD NO ITA NO4363/DEL/2011 3 BUSINESS CONNECTION WITH THEM BEFORE OR AFTER THE PREVIOUS YEAR; III) THAT NO EVIDENCE OUT LINING THE NATURE OF DUTIES PERFORMED BY THE ASSESSEE THE RISK SHARED TERMS & CONDITIONS OF SUPPLY OF MATERIAL OR TERMS & CONDITIONS OF RELEASE OF PAYMENT WAS PRODUCED; IV) THAT THE ONLY WORK THE ASSESSEE HAS DONE IS TO INTRODUCE THE IMPORTERS OF IRON ORE TO THE EXPORTER OF IRON ORE FROM INDIA AND THE ASSESSEE CLAIMED TO HAVE RECEIVED A WHOPING SUM OF ` .1 62 02 904/- AS COMMISSION FOR JUST INTRODUCING THE PARTIES WITH WHOM HE HIMSELF HAD NO CONNECTION; V) THAT THE ASSESSEE WAS NOT A PARTY TO THE PRICE NEGOTIATION THOUGH THE ASSESSEE CLAIMS TO HAVE AGREEMENTS WITH THE PAYERS OF COMMISSION BUT HAD FAILED TO PRODUCE THE ORIGINAL AGREEMENTS; VI) THAT THE PHOTO COPY OF AGREEMENTS BETWEEN THE ASSESSEE AND PAYERS ARE SIGNED BY THEM IN THEIR INDIVIDUAL CAPACITY AND NOT ON BEHALF OF EITHER OF THE ALLEGED IMPORTERS OR OF THE ALLEGED EXPORTERS. VII) THAT THE ASSESSEE HAS NOT TRAVELED SO AS TO REACH OUT TO THE PARTY WHO HAD PAID HIM THE ALLEGED COMMISSION. VIII) THAT THE ASSESSEE HAD FAILED TO SUBSTANTIATE HIS CREDENTIAL FOR HAVING ANY KNOWLEDGE EXPERIENCE OR EXPERTISE REGARDING EXPORT OF IRON ORE OR GETTING RE LIABLE SUPPLIER OF IRON ORE. IX) THAT THE ASSESSEE HIMSELF ADMIT THAT HE HAS NOT EARNED COMMISSION FROM THE ALLEGED IMPORTERS AND IN FACT SOME INDIVIDUALS HAD REMITTED THE AMOUNT. ITA NO4363/DEL/2011 4 X) THAT THE ASSESSEE HAD FAILED TO ESTABLISH THAT MR. JHAD JIN HUA AND MS. HAO WEIQUN HAD MADE THE PAYMENT OF ALLEGED COMMISSION ON BEHALF OF THE ALLEGED IMPORTERS. NOT EVEN A SINGLE EVIDENCE TO THIS EFFECT WAS PRODUCE D BY THE ASSESSEE. IN FACT THE ASSESSEE HIMSELF ADMITTED THAT HE HAS NO KNOWLEDGE ABOUT THE DESIGNATION/STAKE OF MR.ZHAO JINAJUN OR MR. HAO WEIQUN IN ANY OF THE ALLEGED IMPORTER COMPANY. XI) THAT ALL THE AMOUNTS OF SO-CALLED COMMISSION HAVE BEEN RECEIVED DURING VERY SHORT PERIOD OF 16 DAYS I.E. FRO M 16.1.2008 TO 1.2.2008. XII) THAT THE ASSESSEE HAD NOT FILED ANY DOCUMENT TO SUBSTANTIATE THE NATURE OF REMITTANCE WHICH STILL REMAINS UN-VERIFIABLE. XIII) THAT THE ASSESSEE IS NOT REGISTERED UNDER THE SERVICE TAX FOR PROVIDING SERVICE OF COMMISSION AND SERVICE TAX HAS NOT BEEN CHARGED AND PAID ON THE TRANSACTION ON WHICH SO-CALLED COMMISSION HAS BEEN RECEIVED. IN THE LIGHT OF ABOVE OBSERVATIONS THE ASSESSING OFFICER DID NOT TREAT THE INCOME UNDER THE HEAD BUSINESS OR PROFESSION AND INS TEAD TREATED IT AS UNEXPLAINED INCOME U/S 68 OF THE INCOME TAX ACT 1961 AND TAXED IT UNDER THE HEAD INCOME FROM OTHER SOURCES. A S PER ASSESSING OFFICER THE ENTRY OF COMMISSION WAS BOGUS AND WAS OBTAIN ED JUST TO SET OFF CARRY FORWARD BUSINESS LOSSES. 3. AGGRIEVED THE ASSESSING OFFICER FILED APPEAL BEFOR E LD CIT(A) AND SUBMITTED AS UNDER:- ITA NO4363/DEL/2011 5 I) THAT THE ASSESSEE IS A BUSINESS MAN AND HAS BEEN DOING BUSINESS FOR A LONG TIME AND HAS ALSO BEEN FILING REGULA R INCOME TAX RETURN. II) THAT THE ASSESSEE HAD EARNED COMMISSION INCOME FROM CHINESE PARTIES FOR FACILITATING THE EXPORT OF IRON ORE BY THREE PARTIES M/S CHOWGULE & CO. PVT. LTD. GOA MANDOVI PEL LETES GOA AND VIKRAM ISPAL. III) THAT THE PAYMENT HAS BEEN RECEIVED IN FOREIGN EXCHAN GE AND THE SAME HAS BEEN DEPOSITED IN THE BANK ACCOUNT OF TH E ASSESSEE WITH ORIENTAL BANK OF COMMERCE IN CURRENT A NO . 00130003990 IN THE NAME OF PROPRIETARY CONCERN OF A SSESSEE M/S PRATIK INVESTMENTS. IV) THAT THE BOOKS OF ACCOUNTS OF ASSESSEE HAD BEEN AUDITED AND THE SAME WERE NOT REJECTED BY THE ASSESSING OFFICER. V) THAT THE CASES OF THE ASSESSEE HAS BEEN SCRUTINIZED IN THE PAST U/S 143(3) OF THE ACT FOR ASSESSMENT YEAR 2006-07 A ND LOSS WAS ASSESSED AT ` .48 72 217/- VIDE ORDER DATED 28.2.2008 AND THE ASSESSING OFFICER HAD ALSO ALLOWED BENEFIT OF C ARRY FORWARD OF EARLIER YEAR LOSSES. SIMILARLY IN THE ASSESSM ENT YEAR 2007-08 THE DECLARED LOSS OF ` .39 69 450/- WAS ACCEPTED VIDE ORDER U/S 143(3) OF THE ACT DATED 8.12.2009. VI) THAT DURING ASSESSMENT YEAR 2009-10 THE ASSESSEE HAD AGAIN DECLARED COMMISSION INCOME OF ` .25 22 840/-. VII) THAT THE ASSESSING OFFICER WAS NOT JUSTIFIED TO CHANGE T HE HEAD OF INCOME WITHOUT ANY VALID REASON AND ANY INC OME CAN BE ASSESSED UNDER THE RESIDUARY HEAD OF INCOME ONLY WHEN THE INCOME OF THE ASSESSEE IS NOT TAXABLE UNDER ANY SPECI FIC HEAD OF INCOME. VIII) THAT THE ASSESSING OFFICER HAS CHANGED THE HEAD OF BUSINE SS INCOME TO THE HEAD OF INCOME FROM OTHER SOURCES WITH A CLEAR ITA NO4363/DEL/2011 6 MOTIVE TO DISALLOW THE BENEFIT OF SET OFF BUSINESS LOSSES OF EARLIER YEARS AGAINST CURRENTS YEAR BUSINESS INCOME. 4. THE LD CIT(A) AFTER CONSIDERING THE SUBMISSIONS MADE BY THE LD AR REVERSED THE ORDER OF ASSESSING OFFICER AND HELD THAT THE INCOME OF ASSESSEE BE ASSESSED UNDER THE HEAD BUSINESS INCOME INSTEAD OF INCOME FROM OTHER SOURCES. THE RELEVANT PORTION OF LD CIT(A)S ORDER IS REPRODUCED BELOW AS UNDER:- I HAVE CONSIDERED THE ADDITION OF THE ASSESSING OFFICER AND THE SUBMISSION OF THE ASSESSEE AND I FIND CONSIDERABLE MERIT I N THE SUBMISSION OF THE ASSESSEE. THERE IS NO DISPUTE THAT THE ASSESSEE HAS BEEN FILING THE REGULAR RETURN OF INCOME FO R A LONG TIME AND HAS ALSO BEEN A WT ASSESSEE. THERE IS ALSO NO DISP UTE THAT THE ASSESSEE HAS EARNED THE COMMISSION INCOME WHICH H AS BEEN CREDITED AND REFLECTED IN THE BANK ACCOUNT OF THE ASSESSEE WITH THE OBC AND THE SAME HAS BEEN INCLUDED IN THE BO OKS OF ACCOUNTS OF THE ASSESSEE AND THE SAME HAS BEEN AUDITED U /S 44AB OF THE ACT. SO THERE IS NO DISPUTE SO FAR AS THE EARNING OF THE COMMISSION INCOME IS CONCERNED. THERE IS ALSO NO DISP UTE THAT THE ASSESSEE HAS CARRIED FORWARD BUSINESS LOSSES WHICH HAS BEEN ASSESSED U/S 143(3) IN THE PRECEDING ASSESSMENT YEARS OF ASSESSMENT YEARS 2006-07 & 2007-08 WHICH THE ASSESSEE OTHERWISE ELIGIBLE FOR CARRY FORWARD AND SET OFF AS PR OVIDED U/S 70 71 & 72. THE ONLY ISSUE IS WHETHER THE ASSESSING OFFIC ER IS JUSTIFIED TO CHANGE THE HEAD OF INCOME OF COMMISSION I NCOME AS CLAIMED BY THE ASSESSEE AS BUSINESS INCOME TO THE DIFFEREN T HEAD U/S 56 AS INCOME FROM OTHER SOURCES. ITA NO4363/DEL/2011 7 IT IS APPARENT THAT THE PROVISIONS OF THE RESIDUARY SEC TION 56 CAN BE INVOKED ONLY WHEN THE INCOME OF THE ASSESSEE IS NOT TAXA BLE UNDER ANY OF THE SPECIFIC HEADS STARTING FROM INCOME FROM SAL ARY U/S 17 INCOME FROM HOUSE PROPERTY U/S 22 INCOME FROM THE PR OFITS & GAINS OF BUSINESS OR PROFESSION U/S 28 INCOME FROM CAPITAL GAI N U/S 45 AND AS SUCH THE PROVISIONS OF RESIDUARY SECTION 56 UNDER THE HEAD INCOME FROM OTHER SOURCES READ AS UNDER:- I) INCOME OF EVERY KIND WHICH IS NOT TO BE EXCLUDED FRO M THE TOTALS INCOME UNDER THIS ACT SHALL BE CHARGEABLE TO IN COME TAX UNDER THE HEAD INCOME FROM OTHER SOURCES IF IT IS NOT CHARGEABLE TO INCOME TAX UNDER ANY OF THE HEADS SPECI FIED IN SECTION 14 ITEMS A TO E. II) IN PARTICULAR AND WITHOUT PREJUDICE TO THE GENERAL ITY OF THE PROVISIONS OF SUB SECTION (1) THE FOLLOWING INCOMES SH ALL BE CHARGEABLE TO INCOME TAX UNDER THE HEAD INCOME FROM OTHER SOURCES. THE ASSESSEE HAS ALSO SUBMITTED THAT THE PROVISIONS OF RESIDUARY SECTION 56 CAN BE INVOKED ONLY WHEN THE INC OME IS NOT TAXABLE UNDER ANY OF THE SPECIFIC HEADS AND HAS AL SO RELIED ON THE HON'BLE SUPREME COURT IN THE CASE OF S G MERCANTILE CORPORATION P. LTD. V. CIT 83 ITR 700 (S C) (1972) WHICH HAS HELD AS UNDER:- THE RESIDUARY HEAD OF INCOME CAN BE RESORTED TO ONLY IF NONE OF THE SPECIFIC HEADS IS APPLICABLE TO THE INCOME IN Q UESTION IT COMES INTO OPERATION ONLY AFTER THE PRECEDING HEADS ARE EXCLUDED. AFTER CONSIDERING ALL THE FACTS AND CIRCUMSTANCES OF TH E CASE I AM OF THE VIEW THAT THE ASSESSING OFFICER IS NOT JUSTIFIE D TO CHANGE THE HEAD OF INCOME WITHOUT ANY PROPER OR VAL ID REASON ITA NO4363/DEL/2011 8 AND IT IS APPARENT THAT THE ASSESSING OFFICER HAS TAKEN T HIS ACTION OF CHANGING THE HEAD OF INCOME WITH THE MAIN PURPOSE OF DENYING THE BENEFIT OF STATUTORY PROVISIONS OF SET O FF CARRY FORWARD AND SET OFF OF A BUSINESS LOSS ETC. AS PROVIDED U/ S 70 71 & 72. ACCORDINGLY I AM OF THE VIEW THAT THE ASSESSI NG OFFICER IS NOT JUSTIFIED TO DISALLOW THE CLAIM OF THE ASSESSEE OF CARRY FORWARD AND SET OFF WITHOUT ANY VALID AND PRO PER REASONS AND ACCORDINGLY THE APPEAL OF THE ASSESSEE IS ALLOWED. 5. AGGRIEVED THE REVENUE HAS FILED APPEAL BEFORE TH IS TRIBUNAL. 6. THE LD DR AT THE OUTSET ARGUED THAT REMAND REPOR T WAS NOT CALLED FOR BUT LD AR INTERVENED THAT VIOLATION OF R ULE 46A IF ANY IS NOT PART OF GROUNDS OF APPEAL. THE LD DR THEN ARGUED THA T LD CIT(A) HAD NOT COMMENTED/COUNTERED REASONS TAKEN BY THE ASSESSING OF FICER FOR TREATING THE INCOME UNDER THE HEAD INCOME FROM OTHE R SOURCES. HE FURTHER ARGUED THAT NATURE OF RECEIPT WAS NOT GOT CO NFIRMED FROM THE BANK. IN THIS RESPECT HE TOOK US TO PAGE 33 OF PAPER BOOK WHEREIN A HAND WRITTEN LETTER WRITTEN BY THE CHIEF MANAGER O RIENTAL BANK OF COMMERCE ADDRESSED TO AGM NEW DELHI WAS PLACED. THE LD DR STATED THAT THIS IS A JUST A REQUEST LETTER AND NOT A PROOF OF EXPLAINING THE NATURE OF RECEIPT OF AMOUNT IN THE BANK. THEREFORE IN VIEW OF THE ABOVE FACT AND IN VIEW OF THE ASSESSING OFFICERS DETAIL ED ASSESSMENT ORDER HE ARGUED THAT ASSESSING OFFICER WAS RIGHT IN HOLD ING THE INCOME UNDER THE HEAD INCOME FROM OTHER SOURCES. 7. THE LD AR ON THE OTHER HAND ARGUED THAT ASSESSEE H AS BEEN DOING BUSINESS SINCE LONG AND HAS SUFFICIENT EXPERIENCE IN THE BUSINESS. IN THIS RESPECT HE TOOK US TO PAGES 13-18 OF PAP ER BOOK WHERE COPIES OF RETURNS AND OTHER DOCUMENTS SHOWING ASSESSE ES ITA NO4363/DEL/2011 9 INCOME AS BUSINESS INCOME WERE PLACED. HE ALSO INVIOTED OUR ATTENTION TO PAPER BOOK PAGES 69-71 WHERE COMPUTATION OF INCOM E FOR SUBSEQUENT YEARS SHOWING ASSESSEES INCOME AS BUSINESS INCOME W ERE PLACED. IN VIEW OF THE ABOVE FACTS HE ARGUED THAT SI NCE ASSESSEE HAS BEEN INTO BUSINESS SINCE LONG AND EVEN CONTINUED DOING BUSINESS DURING SUBSEQUENT YEARS HOLDING OF BUSINESS INCOME DURING ASSESSMENT YEAR 2008-09 AS INCOME FROM OTHER SOURCE WAS NO T JUSTIFIED. RELIANCE WAS PLACED ON THE JUDGMENTS OF VAR IOUS COURTS IN THE FOLLOWING CASES:- 1. SG MERCANTGILE CORPORATION P. LTD. V. CIT 83 ITR 70 0 (SC). 2. KARANPURA DEVELOPMENT CO. LTD. V. CIT 44 ITR 362. 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. WE HAVE OBSERVED THAT ASSESSEE HAD BEEN DOING BUSINESS OF SHARE TRADING DUR ING LAST SO MANY YEARS AND BEFORE THAT HE HAD BEEN DOING SOME BUSI NESS OR THE OTHER ALONG WITH BUSINESS OF TRADING IN SHARES AND HAD SU FFERED HEAVY LOSSES DURING LAST FEW YEARS. SUDDENLY DURING THE YEAR U NDER CONSIDERATION THE ASSESSEE RECEIVED HUGE COMMISSION. THE ASSESSING OFFICER HAS ELABORATELY DEALT WITH HIS APPREHENSION IN THE ASSESSMENT ORDER AND BASED UPON THE APPREHENSION HE HAD TREATED THE COMMISSION INCOME AS UNEXPLAINED INCOME AND HAD ASSESSED T HE SAME AS INCOME FROM OTHER SOURCES. THE LD CIT(A) IN HI S ORDER HAS NOT ADDRESSED THE OBSERVATIONS MADE BY THE ASSESSING OFFICER V IDE POINT NO.8.1. TO 8.20 OF PARA 8 OF ASSESSMENT ORDER AND INSTEA D HAD ALLOWED THE CLAIM OF THE ASSESSEE SIMPLY ON THE BASIS OF FACTS THA T ASSESSEE HAD BEEN FILING INCOME TAX RETURNS FOR A LONG PERIOD AND COMMISSION INCOME HAS BEEN CREDITED IN THE BOOKS OF ACCOUNTS AND BOOKS OF ACCOUNTS ARE SUBJECT TO THE AUDIT U/S 44AB OF THE ACT . WE FEEL THAT ITA NO4363/DEL/2011 10 THESE OBSERVATIONS MADE BY THE LD CIT(A) ARE A MATTER OF FACT WHICH ASSESSING OFFICER ALSO DOES NOT DENY BUT ANSWER TO OBSERVAT IONS RAISED BY THE ASSESSING OFFICER WERE NOT ADDRESSED BY LD CIT(A) AND THE TRUE NATURE OF TRANSACTIONS OF RECEIPTS COULD NOT BE SUBSTANT IATED BY ASSESSEE. THE CASE LAWS RELIED UPON BY LD AR ARE OF LITTL E HELP TO ASSESSEE AS IN THE CASE OF KARANPURA DEVELOPMENT CO. LTD . THE ASSESSEE USED TO ACQUIRE PROPERTIES FOR SELLING OR LEASING AND INCOME THEREOF WAS HELD TO BE BUSINESS INCOME WHICH IS NOT THE FACT IN THE PRESENT CASE. IN THE SECOND CASE OF SG MERCANTILE CORPO RATION LTD. (SUPRA) IT WAS HELD THAT THE RESIDUARY HEAD OF INCOME CAN BE RESORTED TO ONLY IF NONE OF THE SPECIFIC HEADS IS APPLICABLE TO THE INCOME IN QUESTION. IN THE PRESENT CASE ASSESSING OFFICER HAD PROVE D THAT THE SAID RECEIPT OF COMMISSION INCOME WAS NOT FROM BUSINESS A CTIVITY AND BEFORE LD CIT(A) LD AR HAD NOT BEEN ABLE TO REBUT A NY OF THE OBSERVATIONS MADE BY ASSESSING OFFICER. MOREOVER THE ORD ER OF LD CIT(A) IS NOT A SPEAKING ORDER THEREFORE IN ORDER TO MEET BOTH ENDS OF JUSTICE WE ARE OF THE CONSIDERED OPINION THAT THE CA SE SHOULD BE SET ASIDE TO THE OFFICE OF LD CIT(A) FOR FRESH ADJUDICATI ON. THE LD CIT(A) IS DIRECTED TO PASS A SPEAKING ORDER KEEPING IN VIEW THE OBSERVATION OF THE ASSESSING OFFICER. 9. IN THE RESULT THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. 10. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27TH DAY OF JULY 2012. SD/- SD/- (I.C. SUDHIR) (T.S. KAPOO R) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 27.7.2012. HMS ITA NO4363/DEL/2011 11 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)- NEW DELHI. 5. THE DR ITAT LOKNAYAK BHAWAN KHAN MARKET NEW DEL HI. TRUE COPY. BY ORDER (ITAT NEW DELHI). DATE OF HEARING 9.7.2012 DATE OF DICTATION 23.7.2012 DATE OF TYPING 24.7.2012 DATE OF ORDER SIGNED BY 27.7.2012 BOTH THE MEMBERS & PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET 27.7.2012 & SENT TO THE BENCH CONCERNED.