M/s. Vega Investment & Leasing Co. Ltd., New Delhi V. ACIT, New Delhi

CO 222/DEL/2012

• Counselvise Citation: [2012] 122 COUNSELVISE.COM (IT) 8104 (ITAT-DELHI)
• Duration Of Justice: 5 month(s) 15 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 07-12-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: H
• Next Hearing Date: 05-12-2012
• Assessment Year: 2008-2009
• Appeal Filed On: 22-06-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SYAMAL DUTTA
• Keywords: Opportunity of being heard; Principle of natural justice; Tax effect; Revised return
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH H : NEW DELHI BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI B.C.MEENA, ACCOUNTANT MEMBER ITA NO.1955/DEL/2012 ASSESSMENT YEAR : 2008-09 ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-17(1), NEW DELHI. VS. M/S VEGA INVESTMENT & LEASING CO.LTD., K-39, CONNAUGHT PLACE, NEW DELHI. PAN : AAACV2264Q. (APPELLANT) (RESPONDENT) CROSS OBJECTION NO.222/DEL/2012 ASSESSMENT YEAR : 2008-09 M/S VEGA INVESTMENT & LEASING CO.LTD., K-39, CONNAUGHT PLACE, NEW DELHI. PAN : AAACV2264Q. VS. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-17(1), NEW DELHI. (APPELLANT) (RESPONDENT) REVENUE BY : SHRI SYAMAL DUTTA, SR.DR. ASSESSEE BY : SHRI VINOD KUMAR BINDAL, CA. ITA-1955/D/2012 & C.O.222/D/2012 2 ORDER PER JOGINDER SINGH, JM : THE REVENUE IS AGGRIEVED BY THE IMPUGNED ORDER DATED 13 FEBRUARY, 2012 PASSED BY THE LEARNED FIRST APPELLATE AUTHORITY, NEW DELH I WHEREAS THE ASSESSEE HAS ALSO PREFERRED CROSS-OBJECTION. THE REVENUE HAS CHALLEN GED THE DELETION OF ADDITION OF RS.1,07,26,929/-, BEING DIFFERENCE IN IN COME AS PER ORIGINAL RETURN AND REVISED RETURN ACCEPTING THE PLEA OF THE ASSESSEE THAT CORRECT INCOME HAS BEEN SHOWN IN COMPUTATION OF INCOME AND FURTHER E RRED THAT THERE WAS NO TAX EFFECT INVOLVED ON THE REFUND DUE TO THE ASSESSEE. 2. DURING HEARING, THE LEARNED SR.DR SHRI SYAMAL DUTTA ADVANCED HIS ARGUMENTS WHICH ARE IDENTICAL TO THE GROUND RAISED. OUR ATTENT ION WAS INVITED TO PARA 17 (PAGE 11) OF THE IMPUGNED ORDER BY SUBMITTING THAT THE TOTAL TAXABLE INCOME WAS STILL REFLECTED AT RS.22,31,669/- A ND ONLY, RS.13,31,756/- WAS CLAIMED AS REFUND. ON THE OTHER HAND, THE LEARNED COUNSEL FOR THE ASSESSEE STRONGLY DEFENDED THE IMPUGNED ORDER BY SUBMITTING THAT IT WAS A CLERICAL MISTAKE IN FEEDING THE FIGURES AND THERE WAS N O FINANCIAL IMPACT ON THE TOTAL TAX LIABILITY AND SAME FIGURES WERE MENTIONED IN BOTH THE RETURNS. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATER IAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT THE ASSESSEE CO MPANY FILED ITS ORIGINAL RETURN (E-FILING) ON 25.9.2008 SHOWING INCOME OF RS.22, 31,669/- ITA-1955/D/2012 & C.O.222/D/2012 3 CLAIMING REFUND OF RS.42,96,993/-. THE ASSESSEE REALIZED THAT THERE IS A MISTAKE IN THE FIGURES GENERATED BY THE COMPUTER, THEREFORE, ON THE SAME DAY, THE RETURN WAS REVISED AS THE TOTAL TAXABLE INCOME WAS STILL REFLECTED AT RS.22,31,669/-. DURING HEARING, OUR ATTENTION WAS INVITE D TO PAGE 38 OF THE PAPER BOOK. WE FIND THAT IN COLUMN NO.34 MENTIONING PROFIT OR LOSS BE FORE DEDUCTION, THE FIGURE MENTIONED IS RS.1,29,58,598/- WHEREAS I N COLUMN NO.36, SAME FIGURE IS APPEARING UNDER THE HEAD NET PROFIT OR LOSS FROM BUSI NESS OR PROFESSION. THE LEARNED COUNSEL ALSO CLAIMED THAT THE COMPUTER OF I TS OWN GENERATED FIGURE AND EVEN OTHERWISE, THERE WAS NO LOSS TO THE RE VENUE. WE FIND THAT IN THE ORIGINAL AS WELL AS THE REVISED RETURN, SAM E FIGURES ARE AVAILABLE. SINCE THE ASSESSEE BEFORE COMPLETION OF ASSESSMENT PROCEEDINGS FILED THE REVISED COMPUTATION SUO MOTU , IT WAS THE DUTY OF THE ASSESSING OFFICER TO TAKE NOTE OF THE DECLARED FIGURES IN COMPUTATION OF INCOME. THE REFUND DUE WAS ALSO CORRECTLY WORKED OUT AFTER TAKING INTO ACCOUNT TH E FIGURE OF RS.1,29,58,598/-. ADMITTEDLY, THERE WAS NO FINANCIAL IMPA CT ON THE TOTAL TAX LIABILITY AS SAME FIGURES ARE AVAILABLE IN ORIGINAL AS WELL AS THE REVISED RETURN, THEREFORE, WE FIND NO INFIRMITY IN THE CONCLUSION DRAWN IN THE IMPUGNED ORDER. SO FAR AS THE RELIANCE OF THE LEARNED SR.DR ON THE CASE OF GOE TZE (INDIA) LTD. VS. CIT 284 ITR 323 (SC) IS CONCERNED, THE FACTS ARE DISTINGUI SHABLE, THEREFORE, MAY NOT HELP THE REVENUE. THEREFORE, THE APPEAL OF THE REVENUE IS HAVING NO MERIT. WE FIND NO INFIRMITY IN THE CONCLUSION DRAW N IN THE IMPUGNED ORDER ON THIS ISSUE. ITA-1955/D/2012 & C.O.222/D/2012 4 4. NOW, WE SHALL TAKE UP THE CROSS-OBJECTION RAISED BY THE ASSESS EE WHEREIN CONFIRMATION OF DISALLOWANCE OF RS.1,50,086/- U/S 14A OF THE ACT WAS NOT PRESSED BY THE LEARNED COUNSEL FOR THE ASSESSEE, THEREFORE, THE SA ME IS DISMISSED AS NOT PRESSED. 5. THE NEXT GROUND PERTAINS TO DENIAL OF SET OFF OF RS.20,322/-, B EING LOSS FROM DERIVATIVES AGAINST THE SHARE TRADING BUSINESS BY HOLDING THE SA ME TO BE SPECULATIVE IN NATURE IGNORING THAT THE SAID TRANSACTIONS WERE COVERED UNDER PROVISO (D) TO SECTION 43(5), THEREFORE, WERE NOT SPECULATIVE IN NATU RE. THE LEARNED COUNSEL FOR THE ASSESSEE ADVANCED HIS ARGUMENTS WHICH IS IDEN TICAL TO THE GROUND RAISED. IN REPLY, THE LEARNED SR.DR CONTENDED THAT IN ITS ACCOUNT, ASSESSEE HIMSELF MENTIONED THE SAME AS DERIVATIVES. 5.1 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL AVAILABLE ON RECORD. THE FACTS IN BRIEF ARE THAT FROM THE PROFIT & LOSS ACCOUNT, IT WAS OBSERVED BY THE ASSESSING OFFICER THAT THE ASSESSEE HAS SHOWN A MINUS FIGURE OF RS.20,322/- AS LOSS ON SHARE TRADING AND THUS HAS INDIRECT LY SET OFF THE SAID LOSS FROM INCOME SHOWN IN THE ACCOUNT. THE ASSESSING OFFICER WAS OF THE VIEW THAT SINCE THE SAID TRADING WAS NON-DELIVERY TRANSA CTION, THEREFORE, IT IS SPECULATIVE IN NATURE, THEREFORE, SET OFF OF THE SAME IS NOT A LLOWED. IT WAS CLAIMED BY THE ASSESSEE THROUGH ITS SUBMISSIONS THAT THE ASSESSING OFFICER DID ITA-1955/D/2012 & C.O.222/D/2012 5 NOT ASK ANY EXPLANATION AND PRESUMED THAT THE AMOUNT OF RS.20,3 22/- (IN SCHEDULE 10 OF PROFIT & LOSS ACCOUNT) WAS A MINUS FIGURE AND THEREFORE , TREATED THE SAME AS SPECULATIVE IN NATURE. THE LEARNED CI T(A) HAS MENTIONED IN PARA 21 OF THE IMPUGNED ORDER THAT AR ADMITTED THAT NET IN COME FROM SHARE TRADING IS LOSS WHICH IS SHOWN AT RS.20,322/-. ANOTHER PL EA RAISED BY THE LEARNED COUNSEL FOR THE ASSESSEE IS THAT PROPER OPPORTUNITY WAS N OT PROVIDED TO THE ASSESSEE BY THE ASSESSING OFFICER. IN SUCH A SITUATION, KEEPING IN VIEW THE PRINCIPLES OF NATURAL JUSTICE, WE REMAN D THIS ISSUE TO THE FILE OF THE LEARNED ASSESSING OFFICER FOR FRESH ADJUDICATION. THE ASSESSEE BE PROVIDED DUE OPPORTUNITY OF BEING HEARD. THE ASSESSEE IS ALSO AT LIBER TY TO FURNISH EVIDENCE, IF ANY, TO SUBSTANTIATE ITS CLAIM. THEREFOR E, THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES ONLY. FINALLY, THE APPEAL OF THE REVENUE IS DISMISSED AND THE CROSS-OBJ ECTION OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES ONLY. DECISION PRONOUNCED IN THE OPEN COURT ON 7 DECEMBER, 2012. SD/- SD/- (B.C.MEENA) (JOGINDER SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 07.12.2012 VK. ITA-1955/D/2012 & C.O.222/D/2012 6 COPY FORWARDED TO: - 1. REVENUE : ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-17(1), NEW DELHI. 2. ASSESSEE : M/S VEGA INVESTMENT & LEASING CO.LTD., K-39, CONNAUGHT PLACE, NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR