LAXMI CHAND N. VORA, v. DCIT 22(3),

MA 6/MUM/2012 | 2004-2005
Pronouncement Date: 27-07-2012 | Result: Allowed

Appeal Details

RSA Number 619924 RSA 2012
Assessee PAN ABMPV2129E
Bench Mumbai
Appeal Number MA 6/MUM/2012
Duration Of Justice 6 month(s) 23 day(s)
Appellant LAXMI CHAND N. VORA,
Respondent DCIT 22(3),
Appeal Type Miscellaneous Application
Pronouncement Date 27-07-2012
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted H
Tribunal Order Date 27-07-2012
Assessment Year 2004-2005
Appeal Filed On 04-01-2012
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI H BENCH MUMBAI BENCHES MUMBAI BEFORE SHRI R S SYAL AM & SHRI VIJAY PAL RAO J M MISCELLANSOUS APPLICATION NO. 06/MUM/2012 ARISING OUT OF ITA NO. 4755/MUM/2007 & CO NO.46/MUM/2009 (ASST YEAR 2004-05 ) SHRI LAXMICHAND N VORA PROP. M/S SAMRUDHI INVESTMENT L-31/32 APMC MARKET - PHASE II TURBHE VASHI NAVI MUMBAI 400 705 VS THE DYCOMMR OF INCOME TAX VASI NAVI MUMBAI (APPELLANT) (RESPONDENT) PAN NO. ABMPV 2129E ASSESSEE BY SH AJAY R SINGH REVENUE BY SH C K G NAIR DT.OF HEARING 20 TH JULY 2012 DT OF PRONOUNCEMENT 27 TH JULY 2012 PER VIJAY PAL RAO JUDICIAL MEMBER THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATI ON WITH PRAYER TO RECALL THE ORDER OF THE TRIBUNAL IN ITA NO.4755/MUM/2007 & CO NO.46/MUM/2007 DATED 30 TH APRIL 2010. 2 IT IS STATED BY THE ASSESSEE THAT WHILE DECIDING THE APPEAL OF THE DEPARTMENT ALONG WITH THE CROSS OBJECTION OF THE ASSESSEE THI S TRIBUNAL DID NOT ADJUDICATE THE GROUND NO.3 OF THE CROSS OBJECTION FILED BY THE ASS ESSEE. 3 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE RELEVANT MATERIAL ON RECORD ALONG WITH THE IMPUGNED ORDER OF THE TRIBUNAL. THE ASSESSEE RAISED THE FOLLOWING GROUND IN THE CROSS OBJECTION: 1) LOSS ON FUTURE & OPTIONS TRANSACTIONS IN SHARES OF RS.51 08 484/- WAS WRONGLY CALCULATED UNDER SPECULATION LOSS INSTEAD OF TREATING THE SAME A S BUSINESS LOSS WHICH AS PER THE DECISION OF TRIBUNAL IN CASE OF RBK SECURITIES PVT. LTD. ITA NO.2465/MUMJ2006 AND SSKI INVESTOR SERVICES PVT. LTD.I 13 11J 511 MA NO.6/M/2012 SHRI LAXMICHAND N VORA . 2 2) WITHOUT PREJUDICE TO THE ABOVE WHILE GIVING EFFE CT OF LEARNED CIT (APPEALS) ORDER ASSESSING OFFICER HAS WRONGLY CONSI DERED INTEREST AND BANK CHARGES AND INSURANCE AS RELATED TO SPECULATION BUSIN ESS AND ALLOWED IT FOR CARRIED FORWARD UNDER SPECULATION LOSS WHILE THERE W AS NO DIRECTION OR REFERENCE OF SAME WAS GIVEN IN ORIGINAL ASSESSMENT ORD ER AND ALSO IN LEARNED CIT (APPEALS) ORDER. ALTERNATIVELY AND 3) WITHOUT PREJUDICE TO THE ABOVE THE BROKERAGE INCOM E EARNED OF RS.9 50 000/- IS THE PART REMISSION OF BROKERAGE EFFEC TED BY THE SHARE BROKER ON OUR FUTURE & OPTION TRANSACTIONS AND WHICH IN TU RN HAS TO RESULT IN THE LOSS UNDER FUTURE & OPTIONS TO BE REDUCED BY SAID AMOUNT. 3.1 WHILE DECIDING THE CROSS OBJECTION OF THE ASSES SEE VIDE IMPUGNED ORDER DATED 30.4.2010 THE TRIBUNAL HAS ADJUDICATED GROUN D NO.2 WHICH IS THE MAIN GROUND IN PARAS 12 & 13 AS UNDER: 12. THE SECOND GROUND RAISED BY THE CROSS OBJECTOR READS AS FOLLOWS: WITHOUT PREJUDICE TO THE ABOVE WHILE EFFECT OF LD. CIT(A) ORDER AO HAS WRONGLY CONSIDERED INTEREST AND BANK CHARGES AND I NSURANCE AS RELATED TO SPECULATION BUSINESS AND ALLOWED IT FOR C ARRIED FORWARD UNDER SPECULATION LOSS. THERE WAS NO DIRECTION OR REFEREN CE OF SAME WAS GIVEN IN ORIGINAL ASSESSMENT ORDER AND ALSO IN L D. COMMISSIONER OF INCOME TAX(APPEALS)S ORDER. 13 WE SET ASIDE THIS ISSUE TO THE FILE OF THE AO FO R DECISION AFRESH AFTER ALLOWING ASSESSEE REASONABLE OPPORTUNITY OF BEING HEA RD IN THE MATTER OF WHETHER INTEREST AND BANK CHARGES AND INSURANCE ARE ALLOWABLE AS BUSINESS EXPENDITURE TO BE SET OFF AGAINST THE BUSINESS OR SHO ULD BE CONSIDERED AS PART C: SPECULATION LOSS AND ALLOWED TO BE CARRIED FORWARD AS SPECULATION LOSS. 4 SINCE GROUND NO.3 OF THE CROSS OBJECTION REMAIN U N-ADJUDICATED; THEREFORE THERE IS A MISTAKE APPARENT IN THE IMPUGNED ORDER O F THE TRIBUNAL WHICH REQUIRES TO BE RECTIFIED. 4.1 AS THE ISSUE INVOLVED IN THE APPEAL OF THE REVE NUE AS WELL AS THE OTHER GROUND OF THE CROSS OBJECTION OF THE ASSESSEE ARE SET ASID E TO THE RECORD OF THE ASSESSING OFFICER AND GROUND NO.3 OF CROSS OBJECTION IS AN A LTERNATIVE GROUND RAISED BY THE ASSESSEE; THEREFORE THE SAME IS DEPENDANT UPON THE OUTCOME OF THE OTHER GROUNDS MA NO.6/M/2012 SHRI LAXMICHAND N VORA . 3 WHICH HAVE BEEN RESTORED TO THE RECORD OF THE ASSES SING OFFICER BY THE TRIBUNAL. ACCORDINGLY IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE WE SET ASIDE THE GROUND NO.3 OF THE CROSS OBJECTION OF THE ASSESSEE TO THE RECORD OF THE ASSESSING OFFICER. 5 IN THE RESULT THE MISCELLANEOUS APPLICATION FILE D BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 27 TH DAY OF JULY 2012. SD/- SD/- ( R S SYAL ) ACCOUNTANT MEMBER ( VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 27 TH JULY 2012 RAJ* COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR ITAT MUMBAI