SAMEER AGARWAL, Jaipur v. DCIT, Jaipur

ITA 728/JPR/2013 | 2009-2010
Pronouncement Date: 11-10-2013 | Result: Dismissed

Appeal Details

RSA Number 72823114 RSA 2013
Assessee PAN AFWPA9565K
Bench Jaipur
Appeal Number ITA 728/JPR/2013
Duration Of Justice 1 month(s) 1 day(s)
Appellant SAMEER AGARWAL, Jaipur
Respondent DCIT, Jaipur
Appeal Type Income Tax Appeal
Pronouncement Date 11-10-2013
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted SMC
Tribunal Order Date 11-10-2013
Assessment Year 2009-2010
Appeal Filed On 09-09-2013
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL JAIPUR BENCH SMC JAIPUR BEFORE SHRI B.R. JAIN ACCOUNTANT MEMBER ITA NO. 728/JP/2013 ASSTT. YEAR : 2009-10. PAN : AFWPA 9565 K SHRI SAMEER AGARWAL VS. THE DCIT 129-E GOVIND NAGAR CENTRAL CIRCLE- 3 DUSHERRA KOTHI JAIPUR JAIPUR (APPELLANT) (RESPONDENT) APPELLANT BY : NONE RESPONDENT BY : SHRI D.C. SHARMA DATE OF HEARING : 11.10.2013. DATE OF PRONOUNCEMENT : 11.10.2013 ORAL ORDER PER B.R. JAIN A.M. THIS APPEAL BY ASSESSEE AGAINST THE ORDER DATED 07 .08.2013 OF LD. CIT (APPEALS)- CENTRAL JAIPUR RAISES THE SOLITARY GROUND AS UNDER :- UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE TH E LD. CIT(A) HAS ERRED IN CONFIRMING THE ADDITION OF RS. 1 43 181/- ON ACCOUNT OF ALLEGED SPECULATIVE TRANSACTION LOSS IN CURRED AND SET OFF AGAINST NORMAL PROFIT WITHOUT CONSIDERATION THE SUB MISSION OF THE ASSESSEE AND MATERIAL EVIDENCES SUBMITTED DURING TH E ASSESSMENT PROCEEDINGS. 2. BRIEFLY THE FACTS ARE THAT THE ASSESSEE SUFFERED A LOSS OF RS. 1 43 181/- IN COMMODITIES ON MCX AS F&O TRANSACTIONS AND CLAIMED SET OFF THEREOF AGAINST INCOME FROM OTHER SOURCES. THE AO DID NOT ALLOW SAID SPECU LATIVE LOSS AS THE MCX STOCK 2 EXCHANGE LIMITED WAS RECOGNIZED VIDE NOTIFICATION N O.46/2009 DATED 22-05-2009 ISSUED BY THE CBDT FOR THE PURPOSE OF SECTION 45(3)(D)(II) OF THE ACT. 3. BEFORE THE LD. CIT(A) THE ASSESSEE CLAIMED THAT THE SAID NOTIFICATION IS RETROSPECTIVE IN NATURE BUT THE LD. CIT(A) FOUND TH AT THE SPECIAL BENCH OF THE KOLKATA TRIBUNAL IN THE CASE OF SHREE CAPITAL SERVICES LTD. VS. ACIT (2009) 121 ITD 498 / (2009) 28 DTR 1 OVERRULED THE DECISION OF JAIPUR BENCH OF THE TRIBUNAL AND HELD THAT AMENDMENT IN SECTION 43(5)(D)(II) OF THE ACT READ W ITH NOTIFICATION IS PROSPECTIVE ONLY. HE REPRODUCED THE FINDINGS OF THE SPECIAL BENCH OF THE TRIBUNAL AS UNDER:- THE TRANSACTION IN DERIVATES IS EXEMPTED FROM THE PURVIEW OF SPECULATIVE TRANSACTION U/S 43(5) BECAUSE OF REC ENT SYSTEMATIC AND TECHNOLOGICAL CHANGES INTRODUCED BY STOCK EXCHA NGE. THE ABOVE INTENTION OF THE LEGISLATURE IS ALSO CLEAR FR OM THE FACT THAT ALL THE TRANSACTIONS IN DERIVATIVES HAVE NOT BEEN EXEMP TED FROM THE AMBIT OF SPECULATIVE TRANSACTIONS U/S 43(5) BUT ONL Y THE ELIGIBLE TRANSACTIONS OF TRADING IN DERIVATIVES CARRIED OUT IN A RECOGNIZED STOCK EXCHANGE ARE EXEMPT. BY WAY OF EXPLANATION T HE LEGISLATURE HAS ALSO DEFINED THE TERMS ELIGIBLE TRANSACTION A ND RECOGNIZED STOCK EXCHANGE. FROM THE ABOVE IT IS ABUNDANTLY CLEAR THAT CL. (D) OF PROVISO TO S. 43(5) CANNOT BE SAID TO BE CLARIFI CATORY IN NATURE. CLAUSE (D) OF PROVISO TO S. 43(5) IS PROSPECTIVE IN NATURE AND WILL BE EFFECTIVE FROM THE DATE FROM WHICH THE LEGISLATU RE MADE IT EFFECTIVE. ACCORDINGLY THE LD. CIT(A) REJECTED THE GROUND RAI SED IN APPEAL BY HOLDING THAT LOSS OF RS. 1 43 181/- ON COMMODITY TRANSACTION BEING SPECU LATIVE TRANSACTION CANNOT BE SET OFF AGAINST BUSINESS PROFITS OR ANY OTHER INCOME. 4. ON THE DATE WHEN THE CASE WAS LISTED FOR HEARING ON 10-10-2013 NONE APPEARED FOR ASSESSEE DESPITE EFFECTIVE OPPORTUNITY HAVING B EEN AFFORDED TO HIM. THE POWER OF ATTORNEY LAID ON RECORD WAS NOT FOUND ACCEPTED BY A NY ADVOCATE OR CHARTERED ACCOUNTANT. THE APPELLATE TRIBUNAL OBSERVED THAT T HERE IS DELIBERATE DEFIANCE IN NOT MAKING APPEARANCE AND ASSISTING THIS TRIBUNAL FOR E ARLY DISPOSAL OF THE APPEAL. 3 ACCORDINGLY THE LD. DR WAS PARTLY HEARD WITH REFER ENCE TO THE MATERIAL ON RECORD ON 10-10-2013 AND THE ARGUMENTS WERE CONCLUDED ON 11-1 0-2013. 5. HAVING HEARD THE LD. DR AND UPON CAREFUL PERUSAL OF THE MATERIAL ON RECORD I FIND THAT THE LD. CIT(A) HAS FOLLOWED THE DECISION OF SP ECIAL BENCH OF ITAT KOLKATA IN THE CASE OF SHREE CAPITAL SERVICES LTD. VS. ACIT (SUPRA ) AND HELD THAT THE LOSS ON COMMODITY TRANSACTION AMOUNTING TO RS. 1 43 181/- W AS SPECULATIVE AND THE SAME CANNOT BE SET OFF AGAINST BUSINESS PROFIT OR INCOME FROM O THER SOURCES AS THE AMENDMENT IN THIS SECTION 43(5) OF THE ACT READ WITH NOTIFICATION TH ERETO ARE PROSPECTIVE IN NATURE. IN THE ABSENCE OF ANY CONTRARY PRECEDENT I FIND NO ERROR IN THE DECISION RENDERED BY THE LD. CIT(A). ACCORDINGLY THE GROUND RAISED IN APPEAL BE ING DEVOID OF ANY MERIT STANDS REJECTED. 6. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS REJECTED AS PRONOUNCED IN THE OPEN COURT ON 11-10-2013. SD/- ( B.R. JAIN ) ACCOUNTANT MEMBER JAIPUR DATED: 11 TH OCT 2013 *MISHRA COPY FORWARDED TO :- 1.SHRI SAMEER AGARWAL JAIPUR . 2.THE DCIT CENTRAL CIRCLE- 3 JAIPUR 3.THE CIT (A) 4.THE CIT 5.THE D/R 6.GUARD FILE (ITA NO. 728/JP/2013) BY ORDER AR ITAT JAIPUR. 4