DCIT, New Delhi v. M/s. Blue Birds Securities (P) Ltd., New Delhi

ITA 4968/DEL/2010 | 2001-2002
Pronouncement Date: 13-01-2011 | Result: Dismissed

Appeal Details

RSA Number 496820114 RSA 2010
Assessee PAN AAACB3188K
Bench Delhi
Appeal Number ITA 4968/DEL/2010
Duration Of Justice 2 month(s)
Appellant DCIT, New Delhi
Respondent M/s. Blue Birds Securities (P) Ltd., New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 13-01-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted A
Tribunal Order Date 13-01-2011
Date Of Final Hearing 13-01-2011
Next Hearing Date 13-01-2011
Assessment Year 2001-2002
Appeal Filed On 12-11-2010
Judgment Text
ITA NO. 4968/DEL/2010 1 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DELHI BEFORE SHRI R.P. TOLANI JUDICIAL MEMBER AND SHRI SHAMIM YAHYA ACCOUNTANT MEMBER I.T.A. NO. 4968/DEL/2010 A.Y. : 2001-02 DEPUTY COMMISSIONER OF INCOME TAX CIRCLE 3(1) NEW DELHI VS. M/S BLUE BIRDS SECURITIES LIMITED 3/11078 SATNAGAR KAROL BAGH NEW DELHI (PAN/GIR NO. : AAACB3188K) (APPELLANT ) (APPELLANT ) (APPELLANT ) (APPELLANT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) (RESPONDENT ) ASSEESSEE BY : NONE DEPARTMENT BY : MRS. ANUSHA KHURANA SR. D.R. ORDER ORDER ORDER ORDER PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM PER SHAMIM YAHYA: AM THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 23/9/2 010 PERTAINING TO ASSESSMENT YEAR 2001-02. 2. THE ASSESSEE FILED RETURN DECLARING LOSS OF ` 11 33 732/- ON 29.10.2001. ASSESSING OFFICER NOTED THAT SEVERA L TIMES THE CASE WAS ADJOURNED AND NOTICES WERE ISSUED. HE OBSERVED THA T FROM THE BEHAVIOR OF THE ASSESSEE IT SEEMS THAT IT DID NOT WANT TO FURNISH THE REQUISITE DETAILS. ASSESSING OFFICER DISALLOWED T HE LOSS OF ` 11 33 732/- CLAIMED BY THE ASSESSEE FOR THE CURRENT YEAR AND ALS O THE BROUGHT FORWARD LOSSES AGGREGATING TO ` 6 41 946/- CLAIMED AS PERTAINING TO EARLIER YEARS. 3. BEFORE THE LD. COMMISSIONER OF INCOME TAX (APPEALS) ASSESSEE SUBMITTED THE DETAILS OF PURCHASE AND SALE OF SHARE S FOR THE PERIOD ITA NO. 4968/DEL/2010 2 1.10.2000 TO 31.3.2000. IT WAS CLAIMED TO HAVE BEE N FILED BEFORE THE ASSESSING OFFICER. IT WAS FURTHER SUBMITTED THAT T HE PROFIT AND LOSS ON SALE OF SHARES IS A DERIVED ACCOUNT WHERE THE TRA NSACTIONS IN THE PARTICULAR SHARES ARE SQUARED OFF AND THE LOSS / PR OFIT IS DEBITED OR CREDITED IN THE P&L ACCOUNT. THE LD. COMMISSIONER OF INCOME TAX (APPEALS) OBSERVED THAT ASSESSEE HAS DEALT WITH 106 SCRIPS AND MOSTLY THE SHARES HAVE BEEN TRANSACTED ON THE SAME DAY OR WITHIN A TIMEFRAME OF 15-30 DAYS. HENCE HE OBSERVED THAT THERE IS NO DOUBT THAT THE ASSESSEE IS DEALING IN TRADING OF SHARES. IN ORDER TO FORTIFY ITS STAND THE ASSESSEE ALSO GAVE CONTRACT NOTES ISSUED BY M/S LEO FINANCIAL SERVICES LTD. THIS ALSO CERTIFIES THE ST AND TAKEN BY THE ASSESSEE. 3.1 LD. COMMISSIONER OF INCOME TAX (APPEALS) FURTHER OBSERVED THAT VIDE LETTER NO. 189 HE HAS REQUISITIONED FOR THE AS SESSMENT RECORDS TO VERIFY THE FACTS AS GIVEN BY THE ASSESSING OFFICER IN THE IMPUGNED ORDER AND THE CONTENTION OF THE ASSESSEE. HOWEVER TILL THE TIME OF ISSUANCE OF THIS ORDER THE ASSESSMENT RECORD HAS NO T BEEN SENT. HE HELD THAT THIS WAS A FACT WHICH WILL GO AGAINST THE REVENUE AND THE VERSION OF THE ASSESSEE HAS TO BE ACCEPTED. 3.2 AS REGARDS THE EARLIER YEAR LOSSES OF ` 6 41 94 6/- THE ASSESSEE SUBMITTED THAT THIS WOULD BE EVIDENT FROM THE ORDER OF THE ASSESSING OFFICER FOR THE YEAR 98-99 AND ACKNOWLEDGEMENT FOR THE YEAR 99-2000. LD. COMMISSIONER OF INCOME TAX (APPEALS) NOTED THAT HE HAD CALLED FOR THE RECORDS WHICH HAVE NOT BEEN SUBMITTED TO H IM IN SPITE OF EXPIRY OF ALMOST A FORTNIGHT. HENCE HE HELD THAT H E WAS TO GIVEN THE BENEFIT OF DOUBT TO THE ASSESSEE AND ALLOW THE ASSE SSEES APPEAL. 4. AGAINST THIS ORDER THE REVENUE IS IN APPEAL BEFO RE US. ITA NO. 4968/DEL/2010 3 5. WE HAVE HEARD THE LD. DEPARTMENTAL REPRESENTATIV E. NONE APPEARED ON BEHALF OF THE ASSESSEE. UPON CAREFUL C ONSIDERATION WE FIND THAT THE CASE CAN BE ADJUDICATED AFTER CONSIDER ING THE SUBMISSIONS AND HEARING THE LD. DEPARTMENTAL REPRESENTATIVE. UP ON CAREFUL CONSIDERATION WE FIND THAT ASSESSING OFFICER HAS PRIMARILY MADE THE ADDITION BY NOTING THAT ASSESSEE HAD NOT COOPERATED DURING THE ASSESSMENT. ON THE OTHER HAND LD. COMMISSIONER OF INCOME TAX (APPEALS) HAD NOTED THAT ASSESSEE HAS SUBMITTED ALL THE RELEVANT DETAILS BEFORE HIM. HE HAD ASKED FOR THE CASE REC ORDS. ASSESSING OFFICER DID NOT SUPPLY THE RECORDS DESPITE LD. CO MMISSIONER OF INCOME TAX (APPEALS) ISSUING A LETTER IN THIS REGA RD. IN THESE CIRCUMSTANCES LD. COMMISSIONER OF INCOME TAX (APPEAL S) FOUND AVERMENTS OF THE ASSESSEE TO BE CORRECT. HE GAV E A FINDING THAT ASSESSEE WAS DEALING IN TRADING OF SHARES. IN OUR CONSIDERED OPINION THERE IS NO ILLEGALITY OR INFIRMITY IN THE ORDER O F THE LD. COMMISSIONER OF INCOME TAX (APPEALS). THE REVENUES GRIEVANCE OF VIOLATION OF RULE 46A IS DEVOID OF COGENCY WHEN THE LD. COMMISSIONER OF INCOME TAX (APPEALS) HAS CLEARLY OBSERVED THAT HE HAS WRITTEN A LETTER TO THE ASSESSING OFFICER TO SUBMIT THE CASE RECORDS BUT THE SAME HAS NOT BEEN COMPLIED WITH. ITA NO. 4968/DEL/2010 4 6. IN THE BACKGROUND OF THE AFORESAID DISCUSSION W E UPHOLD THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS). 7. IN THE RESULT THE APPEAL FILED BY THE REVENU E STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 13/01/2011 UP ON CONCLUSION OF HEARING. SD/- SD/- [R.P. TOLANI] [R.P. TOLANI] [R.P. TOLANI] [R.P. TOLANI] [SHA [SHA [SHA [SHAMIM YAHYA] MIM YAHYA] MIM YAHYA] MIM YAHYA] JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER JUDICIAL MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER ACCOUNTANT MEMBER DATE 13/01/2011 SRB COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: COPY FORWARDED TO: - -- - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT DELHI BENCHES