Shri Dhruv Dipakbhai Panchal, Ahmedabad V. The Pr. CIT-5, Ahmedabad

ITA 1039/AHD/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6193 (ITAT-AHMEDABAD)
• Duration Of Justice: 8 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 01-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VASUNDHARA UPMANYU
• Assessee Lawyers: S N SOPARKAR
• Keywords: Capital asset; Business income; Date of conversion; Assessment record; Prejudicial to interest; Tax effect
• Section: 45(2); 143(3)

Judgement Text

, D IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, AHMEDABAD BEFORE SHRI S.S. GODARA, JM AND SHRI PRADIP KUMAR KEDIA, AM ./ITA.NO. 1039/AHD/2017 ( / ASSTT YEAR :2012-13) DHRUV DIPAKBHAI PANCHAL 402-403, SHASHWAT, OPP. GUJARAT COLLEGE, ELLISEBRIDGE, AHMEDABAD. PAN: AQPPP9919E VS. THE PR. CIT-5, 1 ST FLOOR, NARAYAM CHAMBERS, NEAR PATANG HOTEL, AHMEDABAD. (APPELLANT) (RESPONDENT) / APPELLANT BY: S.N. SOPARKAR & PARIN SHAH, A.R. / RESPONDENT BY: VASUNDHARA, UPMANYU, CIT, D.R / DATE OF HEARING 28/11/2017 /DATE OF PRONOUNCEMENT 25/01/2018 / O R D E R PER PRADIP KUMAR KEDIA, ACCOUNTANT MEMBER THE CAPTIONED APPEAL HAS BEEN FILED AT THE INSTAN CE OF THE ASSESSEE AGAINST THE ORDER OF THE PR. COMMISSIONER OF INCOME TAX-5, AHMEDABAD DATED 30.03.2017 RELEVANT TO A.Y. 2012- 13. 2. IN THE CAPTAINED APPEAL, THE ASSESSEE HAS CHALL ENGED THE AUTHORITY OF THE PR. CIT IN ASSUMING JURISDICTION I N TERMS OF SECTION ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 2 263 OF THE ACT WHEREBY ORDER OF THE A.O DATED 26.03 .2015 PASSED U/S. 143(3) OF THE ACT WAS SOUGHT TO BE SET ASIDE BY THE REVISIONAL COMMISSIONER ON THE GROUNDS OF LACK OF ENQUIRY AND TOWARDS DRAWING A WRONG VIEW ON THE ISSUE. 3. BRIEFLY STATED, THE ASSESSEE, AN INDIVIDUAL, IS ENGAGED IN THE BUSINESS OF TRADING IN SHARES AND MUTUAL FUNDS ETC. THE ASSESSEE FILED ITS RETURN OF INCOME FOR A.Y. 2012-13 WHICH WAS SUB JECTED TO SCRUTINY ASSESSMENT AND THE ASSESSMENT WAS COMPLETED U/S. 14 3(3) OF THE ACT. THE PR. CIT ON REVIEW OF ASSESSMENT RECORDS ALLEGED THAT ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER (A.O) IS ERRO NEOUS IN SO FAR AS IT IS PREJUDICIAL TO THE INTEREST OF THE REVENUE. THE PR. CIT ACCORDINGLY INVOKED REVISIONAL JURISDICTION CONFERRED UNDER SEC TION 263 OF THE ACT AND SHOW CAUSED THE ASSESSEE ON THE ALLEGED INFIRMI TY IN THE ASSESSMENT ORDER VIDE NOTICE DATED 20.03.2017 WHICH READS AS UNDER:- PLEASE REFER TO THE ASSESSMENT ORDER U/S. 143(3) DATED 26.03.2015 FOR A.Y. 2012-13, WHICH WAS FINALIZED BY THE ITO, WARD-5(2)(2), AHMEDABAD, DETERMINING TOTAL INCOME AT RS. 38,020/- AGAINST RETURNED INCOME OF RS.24,160/-. 2. FROM THE DETAILS FILED DURING THE COURSE OF ASSESSMENT PROCEEDINGS, IT IS FOUND THAT THE ASSESSEE HAD EXECUTED AFFIDAVIT DATED 09.03.2009 TO CONVERT HIS ALL SHARES, LYING AS STOCK-IN-TRADE TO INVESTMENT AMOUNTING TO RS. 9,20,69,997/- AT PREVAILING MARKET RATE AND TREATED ACCORDINGLY IN THE BOOKS OF ACCOUNT BASED ON THE MARKET VALUE AS ON THE DATE OF CONVERSION. ON THE BASIS OF SUCH TREATMENT THERE WAS A LOSS OF RS.4,68,12,889/- WHICH WAS SHOWN IN THE BALANCE-SHEET AS UNREALIZED BUSINESS LOSS WHICH COULD BE CLAIMED AS AND WHEN AND TO THE EXTENT ACTUALLY INCURRED ON SALE OF THE SHARES SO ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 3 CONVERTED. THE SAID TREATMENT WAS- GIVEN IN THE ACCOUNT'S FOR FOUR A.Y.2009-10 TO 2012-13. ON SALE OF SHARES OF RELEVANT CONVERSION DURING EACH YEAR THE RESULTANT LOSS WAS CLAIMED AS REALIZED LOSS AND DEBITED TO P&L ACCOUNT. HOWEVER THE PERSON CANNOT MAKE PROFIT OR LOSS BY REASON OF TRANSFERRING AN ASSET TO HIMSELF IN A DIFFERENT CAPACITY FROM THE ONE IN WHICH HE HELD THEM BEFORE THE TRANSFER. FOR A.Y.2012-13 REALIZED BUSINESS LOSS WAS WORKED OUT OF RS.71,76,435/- HOWEVER IT WAS ALLOWED AT THE TIME OF THE SCRUTINY ASSESSMENT. 3. FROM THE ABOVE DISCUSSIONS, IT APPEARS THAT THE SAID ASSESSMENT ORDER DATED 26/03/2015 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. YOU ARE, THEREFORE, REQUESTED TO SHOW CAUSE AS TO WHY THE ASSESSMENT PASSED U/S. 143(3) OF THE, ACT, WITHOUT VERIFYING THE ISSUES INVOLVED, SHOULD NOT BE ENHANCED OR MODIFIED U/S. 263 OF THE ACT. XX XX XX XX 4. THE PR. CIT, IN ESSENCE, ALLEGED THAT THE ORDER OF THE A.O. SUFFERS FROM NON-APPLICATION OF MIND AS THE ORDER W AS PASSED WITHOUT PROPER EXAMINATION, ENQUIRY AND VERIFICATION. THE P R. CIT FOUND THAT THE ASSESSEE HAS CONVERTED SHARES SO HELD BY IT AS TRADING ASSET (STOCK IN TRADE) AMOUNTING TO RS. 9,20,69,977/- INTO CAPIT AL ASSET (INVESTMENTS) AT MARKET PRICE (ON 09.03.2009) DURIN G THE RELEVANT FINANCIAL YEAR. IT WAS NOTED THAT ON THE DATE OF C ONVERSION, THE COST OF SHARES HELD AS STOCK IN TRADE AS PER RECORD WAS RS. 9,20,69,977/- WHICH WAS VALUED BY THE ASSESSEE AT RS. 4,52,57,107/- BY APPLYING MARKET PRICE. THE ASSESSEE THUS STATED TO HAVE INCURRED A LOSS OF RS. 4,68,12,889/- WHICH WAS CLAIMED TO BE UNREALISED LO SS. THE AFORESAID LOSS WHICH AROSE ON CONVERSION OF STOCK IN TRADE IN TO INVESTMENTS WAS NOT BOOKED AS A BUSINESS LOSS IN THE YEAR OF CONVER SION (ASSESSMENT ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 4 YEAR 2009-10) BUT APPROPRIATE BUSINESS LOSSES WERE BOOKED SUBSEQUENTLY IN THE RELEVANT YEAR IN WHICH THE CONV ERTED SHARES WERE ACTUALLY SOLD AND TRANSFERRED BY THE ASSESSEE. 5. IN PURSUANCE OF THE SHOW CAUSE NOTICE UNDER SECT ION 263, THE ASSESSEE ASSERTED THAT THE RESPECTIVE LOSSES HAVE B EEN BOOKED IN THE A.Y. 2009-10 TO 2012-13 BASED ON THE LOSS REALISED IN THE YEAR OF TRANSFER/SALE OF CONVERTED SHARES. THE ASSESSEE ACC ORDINGLY CLAIMED THAT THE TREATMENT OF LOSSES HAVE BEEN APPROPRIATEL Y EFFECTED IN RESPECTIVE A.Y. 2009-10 TO 2012-13 OF VARIED AMOUNT S IN SYNC WITH CORRESPONDING SALES. THE ASSESSEE SUBMITTED BEFORE THE PR. CIT THAT THE TREATMENT OF LOSS ON SAID CONVERSION WAS IN TUN E WITH THE PROVISIONS OF SECTION 45(2) OF THE ACT. IT WAS CONT ENDED BEFORE THE PR. CIT THAT A PORTION OF REALISED LOSS OF RS. 22,39,69 5/- CORRESPONDING A.Y. 2011-12 WAS DISALLOWED BY THE A.O. HOWEVER THE CIT(A) IN FIRST APPEAL, ULTIMATELY ALLOWED THE REALISED LOSS OF RS. 22,39,695/- RELEVANT TO A.Y. 2011-12. 6. IT WAS FURTHER CONTENDED BEFORE THE PR. CIT THAT THE AO DID NOT DISALLOW THE REALISED LOSS OF RS. 71,76,435/- RELEV ANT A.Y. 2012-13 IN QUESTION BASED ON THESE FACTS. THEREFORE, THE ACTIO N OF THE AO IS IN CONFIRMITY WITH THE POSITION EMERGING IN THIS REGAR D AND THUS CANNOT BE CONDEMNED. THE ASSESSEE ALSO CONTENDED BEFORE TH E REVISIONAL AUTHORITY THAT THERE BEING NO SPECIFIC PROVISION FO R TREATMENT OF LOSSES ARISING ON ACCOUNT OF CONVERSION OF STOCK IN TRADE INTO INVESTMENT UNLIKE REVERSE SITUATION DEALT WITH IN SECTION 45(2 ) OF THE ACT, THE ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 5 UNREALISED LOSS OF RS. 4,68,12,889/- ARISING ON SUC H CONVERSION WITHOUT ACTUAL SALE OR TRANSFER OF SHARES HAS BEEN RIGHTLY TREATED IN ITS BOOKS FOLLOWING THE BROAD PRINCIPLES OUTLINED IN SE CTION 45(2) OF THE ACT. IT WAS THUS SUBMITTED THAT THE CORRESPONDING L OSSES WERE BOOKED IN THE RESPECTIVE YEARS ON ACTUAL SALE/TRANSFER OF SHARES IN PARITY WITH PROVISIONS OF SECTION 45(2)OF THE ACT. 7. THE REVISIONAL AUTHORITY HOWEVER FOUND THAT THE A.O. HAS WRONGLY PASSED THE ASSESSMENT ORDER U/S. 143(3) AND ADMITTED THE CLAIM OF RS. 71,76,435/- BOOKED IN IMPUGNED A.Y. 20 12-13 [ A PART OF AGGREGATE LOSS OF RS. 4,68,12,889/-] WITHOUT ANY PR OPER ENQUIRY AND VERIFICATION. IT WAS ALSO ALLEGED THAT A.O. HAS DRA WN WRONGFUL CONCLUSION IN THE FACTS AND THE CIRCUMSTANCES OF TH E CASE. 8. THE RELEVANT OPERATIVE PARAS OF THE ORDER OF THE REVISIONAL AUTHORITY PASSED UNDER SECTION 263 IS REPRODUCED HE REUNDER FOR READY REFERENCE:- 4.0 THE REPLY OF THE ASSESSEE IS CONSIDERED BUT NOT FOUND ACCEPTABLE. ON ONE HAND THE ASSESSEE PLEADS THAT IN THE INCOME TAX ACT THERE IS NO SPECI FIC PROVISION FOR CONVERSION OF STOCK IN TRADE INTO INVESTMENT LIKE IN SEC TION 45(2) OF THE ACT WHICH RELATE TO CONVERSION OF INVESTMENT INTO STOCK I N TRADE. IN SPITE OF THE ASSESSEE BEING WELL CONVERSANT WITH LAW AND ALSO COUNSELED BY LD. CHARTERED ACCOUNTANT MADE THE CONVERSION OF STOCK-IN-TRADE INTO INVESTMENT AND GAVE THE SAME TREATMENT IN THE BOOKS OF ACCOUNT AS PRESCRIBED IN SECTION 45(2) OF THE ACT THE ACT OF THE ASSESSEE IS NOT IN ACCORDANCE WITH T HE TAW AND CONTRADICTORY TO PROVISION OF SECTION 45(2) OF THE ACT. HAD THE LEGISLAT URE INTENDED \THAT THE TRANSACTION OF THE NATURE CARRIED OUT BY THE ASSESSEE ARE ALSO TO BE INCLUDED IT WOULD HAVE CLEARLY STATED SO. WHEN SECTION 45(2) OF THE ACT DOES NOT PERMIT SUCH CONVERSION HOW THE ACCOUNTING TREATMENT MADE BY THE ASSESSEE IN ITS BOOKS OF ACCOUNT CAN BE ALLOWED. MOREOVER, THE ASSESSE E ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 6 WHO IS A DEALER IN .SHARES, WITHDRAWS A PART OF THE STOCK FROM HIS BUSINES S OF SHARE, AND TRANSFER SOME SHARES TO INVESTMENT, THE WITHDRAWAL OF THESE SHARES BE REFLECTED IN THE BOOKS-OF ACCOUNTS OF BUSINESS AT THE COST PRICE AND NOT AT THE MARKET VALUE OF THE SHARES. BY MANIPULATING THE BOOKS OF ACCOUNT, NOT SUPPORTED BY ANY LEGISLATIVE PROVISIONS, THE ASSESSEE HAS CALCULATED AN ARTIFICIAL LOSS WHICH WAS CLAIMED AS UNREALIZED LOSS. 4.1 THE ASSESSEE HAS ARGUED THAT THE REALISED LOSS OF RS. 22,39,695/- FOR A. Y. 2011-12 WAS DISALLOWED BY LD. AO. HOWEVER, THE SAME WAS ALLOWED BY LD. CIT(A) ; VIDE ORDER DATED 08.10.2015 FOR AY 2011-12 IN. THE ASSESSEE'S OWN CASE. SO THE DOCTRINE OF JUDICIAL COMITY, THE ORDER OF LD. CTT(A) SHOULD BE RESPECTED. RELIANCE IS PLACED ON JUDGMENT OF HON'BLE APEX COURT IN CASE O F VIDUR IMPEX & TRADERS PVT. LTD. CIVIL APPEAL NO. 5918/2012. THERE IS NO DENIAL THAT THE CIT (A) HAD DELETED THE SAID DISALLOWANCE OF RS. 22,39,695/- FOR AY 2011-12, BUT THE DOCTRINE OF JUDICIAL COMITY ONLY APPLICABLE WHEN THE DECISION IS ACCEPTED BY THE DEPARTMENT IN THE FIRST PLACE. THE DEPARTMENT DID NOT ACCEPT THE SAID DECISION OF THE CIT (A), BUT THE FURTHER APPEAL WAS NOT FILED AS THE TAX EFFECT WAS BELOW RS. 10 LAKHS AS PER BOARD'S GUIDELINES. HE NCE THE DOCTRINE OF JUDICIAL COMITY AS WELL AS RELIED UPON CASE IS NOT APPLICABLE IN THE PRESENT CASE. FURTHER, IT IS ALREADY HELD IN VARIOUS COURT PRONOUNCEMENTS THAT EVERY ASSESSMENT YEAR IS DIFFERENT FROM EACH OTHER. 4.2 THE ASSESSEE HAS RELIED UPON VARIOUS COURT CAS ES WHICH/ARE AS DISCUSSED:- (I) THE ASSESSEE RELIES UPON THE JUDGMENT OF ACIT VS BRIGHT STAR INVESTMENT PVT. LTD., (2008) 24 SOT 288 (MUM.). IN THE SAID JUDGMENT OF BRIGHT STAR, RELIANCE ON JUDGMENT OF HON'BLE SUPREME COURT IN CASE OF KIKABHAI PREMCHAND V. CIT (1952) 24 ITR 506 IS ALSO PLACED. THE ASSESSEE STATES THAT THE JUDGMENT OF BRIGHT STAR IS DIRECTLY APPLICABLE TO THE CASE OF THE ASSESSEE AND AS PER THE DOCTRINE OF JUDICIAL COMITY THE SAID JUDGMENT SHOULD BE RESPECTED AND FOLLOWED. IN THE CITED THAT ASSESSEE HAD ONLY OFFERED CAPITAL GAIN OUT OF SALE OF SU CH SHARES NO BUSINESS INCOME/LOSS WAS CLAIMED OUT OF SUCH SALE. HENCE, THE FACTS ARE NOT SIMILAR WITH THE FACTS OF PRESENT CASE, HENCE NOT APPLICABLE. ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 7 A. THE ASSESSEE HAS ALSO PLACED RELIANCE ON THE JUDGMENT OF HON'BLE SUPREME COURT IN A SEVEN JUDGES BENCH IN CASE OF CIT VS. BAI SHIRINBAI K. KOOKA DECIDED ON 23.02.1962. IN THE CITED CASE THAT ASSESSEE HAD PURCHASE SHARES BY WAY OF INVESTMENT AND SOLD SUBSEQUENTLY AS TRADING ACTIVITY. HENCE, THE FACTS ARE NOT SIMILAR WITH THE FACTS OF PRESENT CASE, HENCE NOT APPLICABLE. B. THE ASSESSEE ALSO RELIES UPON THE JUDGMENT OF ACJT VS. M/S. SUPERIOR FINANCIAL CONSULTANCY SERVICES (ITAT MUMBAI), APPEAL NO. ITA NO. 4208/MUM/2007, DATE OF PRONOUNCEMENT 06.03.2013 IN WHICH IT WAS HELD THAT THERE IS NO LEGAL BAR ON CONVERSION OF STOCK-IN-TRADE TO INVESTMENT. IN THAT CASE, THE CONVERSION WAS NECESSITATED DUE TO THE SHIFT IN THE BUSINESS MODEL OF THE ASSESSEE FROM SHARE TRADING TO FINANCING BUSINESS. BUT, IN THE PRESENT CASE NO SUCH NECESSITY IS SURFACED. HENCE, NOT APPLICABLE. 4.3 THE PERUSAL OF FORM NO.3CD FOR THE YEAR REVEALS THAT THE NATURE OF BUSINES S OR PROFESSION OF THE ASSESSEE MENTIONED AS DEALING IN SHARE MUTUAL FUND, FUTURE AND OPTION. THUS THE ASSESSEE IS INVOLVED IN TRADING OF SHARES, IN S UCH CONDITION THE MECHANISM BY WHICH HE KEPT DEMARCATION OF THE SHARES FALLING IN STOCK IN TRADE AND INVESTMENT CATEGORIES, THE SALE-PURCHASE PROCEEDS IN THE SE COMMON SCRIP WAS REQUIRED TO BE INVESTIGATED PROPERLY. THE AO HAS FAILED TO CONDUCT SUCH ENQUIRIES AND NOTHING WAS BROUGHT ON RECORD. THE CONVERTED SHARES SCRIP WERE PURCHASED WITH THE MOTIVE OF ADVENTURE IN NATURE AND SUDDENLY THE ASSESSEE CHANGES ITS NOMENCLATURE TO INVESTMENT AND NO JUSTIFICATION AND REASONING IS AVAILABLE ON RECORD WHICH CAN JUSTIFY THE CLAIM OF THE ASSESSEE. 4.4 AS HELD BY THE HON. SUPREME COURT IN KIKABHAI PREMCHAND VS. CIT 24 ITR 506, NO MAN CAN BE SUPPOSED TO BE TRADING WITH HIMSELF FOR THE PURPOSE OF EARNING PROFITS. THUS, A PERSON CANNOT BE SAID TO MAKE A PROFIT/LOSS BY REASON OF TRANSFERRING AN ASSET TO HIMSELF IN A DIFFERENT CAPACITY FROM THE ONE IN WHICH HE HELD THEM BEFORE THE TRANSFER. ACCORDINGLY, WHEN THE ASSESSEE, W HO IS DEALING IN SHARE, WITHDRAWS A PART OF THE STOCK IN TRADE FROM HIS BUSINESS , AND TRANSFERS SUCH SHARES TO INVESTMENT ACCOUNT, THE WITHDRAWAL OF THE SHARES SHOULD BE REFLECTED IN THE ACCOUNTS OF THE BUSINESS AT COST PRICE AND NOT AT THE ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 8 MARKET VALUE OF THE SHARES. THE ASSESSEE HAS DE-FACTO CARRIED FORWAR DED THE ACCRUED BUSINESS LOSS (UNREALIZED BUSINESS LOSS) FROM THE A.Y. 2009-10 AND CLAIMED SAME AS DEDUCTION DURING A.Y. 2012-13, WHICH IS NOT COVERED UNDER ANY SPECIFIC SECTION FALLING BETWEEN 30 TO 43D. THEREFORE, THE ASSESSEE WAS NOT ELIGIBLE FOR SET-OFF OF SUCH ARTIFICIAL LOSS CARRIED FORWARD F ROM A.Y. 2009- 10. IT CAN BE CLEARLY UNDERSTOOD THAT THE MOTIVE OF THE ASSESSEE BEHIND SUCH CONVERSION OF STOCK-IN-TRADE INTO INVESTMENT AND SHOWING SUCH HUGE LOSS AND CLAIM THE SAME IN THE P&L ACCOUNT, IS NOTHING BUT TO SUPPRESS THE INCOME OF THE ASSESSEE TO EVADE LEGITIMATE TAXES. THE HON'BLE SUPREME COURT IN THE CASE OF MC DOWEIL & CO. LT D, VS.CTO(1985) - 154 ITR 148 HAS OBSERVED AS UNDER: 'TAX PLANNING MAY BE LEGITIMATE PROVIDED IT IS WITHIN THE FRAMEWORK OF LAW. COLOURABLE DEVICES CANNOT BE PART OF TAX PLANNING AND IT IS WRONG TO ENCOURAGE OR ENTERTAIN THE BELIEF THAT IT IS HONORABLE TO AVOID PAYMENT OF TAX BY RESORTING TO DUBIOUS METHODS'. THE TAX PLANNING SHOULD NOT BE DONE WITH AN INTENT TO DEFRAUD THE REVENUE; THOUGH ALL TRANSACTIONS ENTERED INTO BY AN ASSESSEE TAKEN INDIVIDUALLY COULD BE LEGALLY CORRECT, YET ON THE WHOLE THESE TRANSACTIONS MAY BE DEVISED TO DEFRAUD THE REVENUE. THUS, PLANNING FOR TAX SHOULD BE CORRECT BOTH IN FORM AND SUBSTANCE. ALL SUCH METHODS WHICH ARE RESORTED TO DECEIVE AND IMPAIRING THE TRUE CONSTRUCTION OF THE STATUTE, RESULTING IN AVAILING NON-SACROSANCT ADVANTAGE OF LAW WOULD BE TERMED AS COLORABLE DEVICES. THUS, THOSE DEVICES WHERE STATUTE IS FOLLOWED IN STRICT WORDS BUT ACTUALLY SPIRIT BEHIND THE STATUTE IS MARRED WOULD BE TERMED AS COLORABLE DEVICES. ALL TRANSACTIONS RELATING TO TAX PLANNING MUST BE IN ACCORDANCE WITH THE GENUINE SPIRIT OF THE STATUTE. SIMILAR OBSERVATIONS WERE MADE BY THE HON'BIE SUPREME COURT IN THE CASE OF CIT VS. A. RAMAN & CO. 1 SCR 10 AND CIT VS. B.M.KHARWAR (1969) 72 ITR 603. IN KHARWAR'S CASE, THE HON'BIE SUPREME COURT HELD THAT: ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 9 'THE TAXING AUTHORITY IS ENTITLED AND IS INDEED BOUND TO DETERMINE THE TRUE LEGAL RELATION RESULTING FROM A TRANSACTION. IF THE PARTIES HAVE CHOSEN TO CONCEAL BY A DEVICE THE LEGAL RELATION, IT IS OPEN TO THE TAXING AUTHORITIES TO UNRAVEL THE DEVICE AND TO DETERMINE THE TRUE CHARACTER OF RELATIONSHIP'. 4.5 THE ONLY ISSUE RAISED IN THIS REVISION PROCEEDING U/S 263 OF INCOME TAX ACT, 1961 IS THAT ASSESSMENT ON THE ISSUE RAISED IN THE SHOW-CAUSE NOTICE WAS MADE WITHOUT PROPER EXAMINATION, ENQUIRY AND VERIFICATION. IT HAS BEEN HELD IN THE FOLLOWING CASES THAT REVISIONAL JURISDICTION U/S 263 BY THE COMMISSIONER IS WARRANTED IN A CASE WHERE ASSESSMENTS HAVE BEEN MADE WITHOUT ENQUIRY OR PROPER VERIFICATION OR CONSIDERATION OF FACT OR WRONG CONCLUSION DRAWN:- (I) SINCE ENTIRE MATERIAL AVAILABLE WITH DEPARTMENT WAS NOT CONSIDERED BY ASSESSING OFFICER, IT WAS AN ERRONEOUS APPROACH ON PART OF ASSESSING OFFICER RESULTING IN PREJUDICE TO REVENUE. P.V. SREENIJIN VS. CIT (CENTRAL) (2014) 47 TAXMANN.COM 61 (KERAIAJ). (II) SINCE INADEQUATE ENQUIRY CONDUCTED BY ASSESSING OFFICER WAS AS GOOD AS NO ENQUIRY MAKING ORDER ERRONEOUS AND PREJUDICIAL TO INTERESTS OF REVENUE, COMMISSIONER WAS EMPOWERED TO REVISE ASSESSMENT ORDER - [2015 ] 60 TAXRAANN.COM 60 (KOLKATA - TRIB.J IN THE ITAT KOLKATA BENCH 'B' SUBHIAKSHMI VANIJYA (P.) LTD. V. COMMISSIONER OF INCOME-TAX-I, KOLKATA.' FURTHER, IT HAS BEEN HELD IN THE CASE OF INDIAN TEXTILES VS. COMMISSI ONER OF INCOME TAX 157 ITR 112(MADRAS)/[19S6] 53 THAT IF AT LEAST IN RESPECT OF ONE ITEM ZTO'S ORDER WAS FOUND TO BE PREJUDICIAL TO REVENUE, INITIATION OF PROCEEDING BY COMMISSIONER U/S 263 COULD NOT BE QUESTIONED BY OBSERVING AS UNDER; 'IT IS SIGNIFICANT TO NOTE THAT THE ASSESSEE'S CLAIM FOR WEIGHTED DEDUCTION IN RESPECT OF FREIGHT CHARGES FALLING UNDER SUB-CLAUSE (W) HAS BEEN SET ASIDE BY THE COMMISSIONER AND THAT VIEW HAS BEEN ACCEPTED BY THE TRIBUNAL AND IT IS ONLY IN RESPECT OF OTHER MATTERS, THE TRIBUNAL HAS REMITTED THE MATTER TO THE JTO. IF AT LEAST IN RESPECT OF ONE ITEM THE JTO'S ORDER IS FOUND TO BE PREJUDICIAL TO T HE REVENUE, THE INITIATION OF THE PROCEEDING BY THE COMMISSIONER UNDER SECTION 263 CANNOT BE QUESTIONED. WE, ARE NOT THEREFORE, ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 10 INCLINED TO DIRECT A REFERENCE IN THIS CASE. THIS PETITION IS, THEREFORE, DISMISSED. 5. FROM THE ABOVE DISCUSSION, IT IS CLEAR THAT THE ASSESSING OFFICER HAS FAILED TO CONDUCT PROPER ENQUIRY AND VERIFICATION AND HAS DRAWN A WRONG VIEW ON THE ISSUE CITED ABOVE. HENCE, THE ASSESSMENT MADE BY THE AO, ITO WARD-5(2)(2), AHMEDABAD U/S 143(3) DATED 26.03.2015 IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. INVOKING THE PROVISIONS OF SECT ION 263 IN THE INCOME TAX ACT, 1961, I HEREBY SET ASIDE THE ASSESSMENT PROCEEDINGS WITH THE DIRECTION TO THE ASSESSING OFFICER TO FRAME T HE ASSESSMENT AFRESH AFTER PROPER EXAMINATION, ENQUIRY, AND VERIFICATION ON ALL THE ISSUES INCLUDING THAT CITED ABOVE AND AFTER ALLOWING REASONABLE OPPORTUNITY TO THE ASSESSEE. 9. THE REVISIONAL AUTHORITY ACCORDINGLY SET ASIDE T HE ASSESSMENT ORDER PASSED U/S. 143(3) FOR DE NOVO EXAMINATION AND ENQUIRY ON THE ISSUE. 10. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE THE TRIBUNAL ASSAILING AFORESAID ACTION OF THE REVISIONAL CIT. 11. THE LD. A.R. FOR THE ASSESSEE MR. S. N. SOPARKA R REITERATED THE SUBMISSIONS MADE BEFORE THE PR. CIT AND SUBMITTED T HAT THERE IS NO RATIONAL BASIS FOR FINDING FAULT WITH THE ACTION OF THE A.O. THE LD. D.R. SUBMITTED THAT A PART OF THE TOTAL UNREALISED LOSSES AMOUNTING TO RS. 22,39,695/- WAS ACTUALLY DISALLOWED BY A.O. IN A.Y. 2011-12 BY A.O. WHEN THE CORRESPONDING SHARES WERE SOLD. HOWEV ER THE ACTION OF THE A.O. WAS REVERSED BY THE FIRST APPELLATE AUTHOR ITY. THEREFORE THE A.O. HAS RIGHTLY ADMITTED THE SIMILAR LOSS OF RS. 7 1,76,435/- CONCERNING A.Y. 2012-13 WHEN THE CORRESPONDING STOC KS WERE SOLD ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 11 AND THE LOSS WAS REALISED. HE THEREAFTER SUBMITTED THAT, PRESENTLY, THERE IS NO PROVISION IN THE STATUTE TO DEAL WITH THE TRE ATMENT OF LOSS ARISING AS A RESULT OF VALUATION ON CONVERSION OF STOCK IN TRADE INTO INVESTMENT. THEREFORE, THE TREATMENT GIVEN FOR CONV ERSION OF CAPITAL ASSET INTO TRADING ASSET WAS ADOPTED BY THE ASSESSE E. THE LD. A.R. THEREAFTER ADVERTED OUR ATTENTION TO A DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. YATISH TRADING CO MPANY (P) LTD. 35 TAXMAN.COM 356(2013) TO SUPPORT THE ACTION OF TH E ASSESSEE IN CLAIMING THE LOSS ARISING ON CONVERSION OF TRADING ASSET IN THE YEAR OF ACTUAL TRANSFER. 12. THE LD. CIT D.R. ON THE OTHER HAND VEHEMENTLY O PPOSED THE CONTENTIONS MADE ON BEHALF OF THE ASSESSEE AND PLAC ED RELIANCE ON THE ORDER OF REVISIONAL COMMISSIONER. THE LD. CIT D.R S UBMITTED THAT IN THE INSTANT CASE, THE ASSESSEE HAS CONVERTED BUSINE SS ASSET OF TRADING NATURE INTO CAPITAL ASSET AT COST OR MARKET VALUE W HICHEVER IS LOWER AND UNREALIZED LOSS WAS CONSEQUENTLY CARRIED FORWARD WH ICH WAS READILY ALLOWED BY A.O. WITHOUT MAKING REQUISITE ENQUIRY A S CALLED FOR IN THE CIRCUMSTANCES. THE LD. D.R. SUBMITTED THAT THE PR. CIT WAS RIGHT IN HOLDING THAT AN ERRONEOUS VIEW HAS BEEN TAKEN BY TH E A.O. TO THE PREJUDICE OF THE REVENUE BY PASSING CRYPTIC ORDER S HOWING NON APPLICATION OF MIND AND LACK OF ENQUIRY. THE LD. D. R. LASTLY SUBMITTED THAT ISSUE HAS BEEN MERELY SET ASIDE TO THE FILE OF THE A.O. AND ASSESSEE IS HAVING THE LIBERTY TO MAKE SUITABLE REPRESENTAT ION BEFORE THE A.O. FOR ADJUDICATION THE ISSUE ON MERIT IN ACCORDANCE W ITH LAW. IT WAS THUS ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 12 SUBMITTED THAT THERE IS NO WARRANT TO CANCEL THE RE VISIONAL ORDER IN THE FACTS AND CIRCUMSTANCES OF THE CASES. 13. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSI ONS AND PERUSED THE ASSESSMENT ORDER AS WELL AS THE REVISIONAL ORDE R AND THE CASE LAWS CITED. 13.1 ON PERUSAL OF THE ORDER OF THE REVISIONAL CIT, IT IS NOTICED THAT THE PRIMARY ALLEGATION OF THE PR. CIT IS THAT WHILE THE ASSESSEE IS ENGAGED IN DEALING IN SHARES, MUTUAL FUNDS, FUTURES AND OPTIONS, ETC. THE CONVERSION OF SHARES HELD AS TRADING ASSET (STO CK IN TRADE) INTO CAPITAL ASSET IS NOT JUSTIFIED AND HAS BEEN DONE WI TH A VIEW TO IN GENUINELY ASSERT ARTIFICIAL LOSS WHICH IS CLAIMED A S UNREALISED LOSS THE YEAR OF CONVERSION. THE REVISIONAL CIT HAS PROCEEDE D ON THE PREMISE THAT THE ASSESSEE ENGAGED IN DEALING IN SHARES ETC. IS NOT ENTITLED TO WITHDRAW SHARES FROM STOCK IN TRADE AT MARKET PRIC E AND INSTEAD, THE SHARES SHOULD BE REFLECTED IN THE ACCOUNTS OF THE B USINESS AT COST PRICE. THE REVISIONAL CIT FURTHER OBSERVED THAT THE ASSESS EE HAS DE FACTO CARRIED FORWARD THE ACCRUED BUSINESS LOSS FROM A. Y. 2009-10 AND CLAIMED THE SAME AS DEDUCTION DURING A.Y. 2012-13 W HICH IS NOT COVERED UNDER ANY SPECIFIC SECTION FALLING BETWEEN 30 TO SECTION 43D. THEREFORE THE ASSESSEE WAS NOT ELIGIBLE FOR SET OFF OF SUCH ARTIFICIAL LOSS CARRIED FORWARD FROM A.Y. 2009-10. THE REVISIO NAL CIT FURTHER QUESTIONED THE MOTIVE OF THE ASSESSEE AND ALLEGED T HAT THE CONVERSION OF STOCK IN TRADE INTO INVESTMENT WAS INTENDED TO S UPPRESS THE INCOME OF THE ASSESSEE TO EVADE LEGITIMATE TAXES. THE REVI SIONAL CIT ALSO ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 13 HARPED THAT THE LOSS RESULTING ON SALE OF CONVERTED SHARERS WERE ACCEPTED BY THE A.O. WITHOUT ENQUIRY AND PROPER VER IFICATION AND WITHOUT CONSIDERATION OF FACT. THE PR. CIT ACCORDIN GLY HELD THAT ASSESSING OFFICER HAS DRAWN A WRONG VIEW ON THE ISS UE WITHOUT PROPER VERIFICATION AND EXAMINATION AND ACCORDINGLY PROCEE DED TO SET ASIDE THE A.Y. ORDER PASSED U/S. 143(3) OF THE ACT UNDER ITS REVISIONAL JURISDICTION. 13.2 TO BEGIN WITH, WE DO NOT SEE ANY RATIONALE IN THE AFORESAID ACTION OF THE REVISIONAL CIT. IT IS AN ADMITTED FAC T THAT THE CONVERSION OF STOCK IN TRADE INTO INVESTMENT TOOK PLACE IN A.Y . 2009-10. IT IS DIFFICULT TO APPRECIATE A PROPOSITION THAT THE ASSE SSEE IS INCAPACITATED TO MAKE CONVERSION OF STOCK IN TRADE INTO INVESTMEN T AND IS BOUND BY INITIAL TREATMENT. AN ASSESSEE HOLDING BUSINESS ASS ET/ INVENTORY AND OTHER TRADING ASSET OF BUSINESS NATURE IS ENTITLED TO REARRANGE ITS AFFAIRS AND IS NOWHERE PROHIBITED IN LAW OR IN ACCOUNTING C ONNOTATION TO CONVERT THEIR CLASS AS CAPITAL ASSET AT A LATER POI NT OF TIME. THE ASSESSEE HAS DECLARED ITS INTENTION TO DO SO AND DID SO IN T HE A.Y. 2009-10. THE LOSS ARISING ON SALE OF CONVERTED STOCK HAS BEEN AP PROPRIATED AGAINST BUSINESS PROFIT IN THE RESPECTIVE YEAR OF SALE FALL ING IN DIFFERENT ASSESSMENT YEARS. 13.3 A PERUSAL OF RECORD SHOWS THAT THE LOSS ON ACC OUNT OF VALUATION HAS NOT BEEN CHARGED TO PROFITS IN THE YEAR OF CONV ERSION AND THEREFORE AS A COROLLARY, THE LOSS ARISING AT THE TIME OF SAL E IS REQUIRED TO BE APPROPRIATELY CHARGED TO THE PROFIT AND LOSS ACCOUN T IN THE YEAR OF SALE. ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 14 CONTEXTUALLY, WE ALSO FIND THAT THE OBSERVATIONS OF THE REVISIONAL CIT ARE SOMEWHAT INCONSISTENT AND CONTRADICTORY. THE PR . CIT WHILE HOLDING THAT THE BUSINESS LOSS STOOD ACCRUED IN A .Y. 2009-10 I.E. IN THE YEAR OF CONVERSION, WENT ON TO OBSERVE IN THE S AME VAIN THAT THE BUSINESS LOSS IS UNREALISED. IF THE LOSS HAS BEEN C LAIMED AS ACCRUED IN THE YEAR OF CONVERSION THEN SUCH BUSINESS LOSS IS E NTITLED TO BE SET OFF IN THAT YEAR AND BALANCE IS REQUIRED TO BE CARRIED FORWARD TO THE SUBSEQUENT ASSESSMENT IN ACCORDANCE WITH RELEVANT P ROVISIONS OF THE ACT. HOWEVER, IT APPEARS THAT LOSS HAS BEEN CLAIMED AS UNREALISED IN THE YEAR OF CONVERSION AND CHARGED TO THE PROFIT AN D LOSS ACCOUNT IN THE YEAR OF SALE. 13.4 NOTICEABLY, THE REVENUE HAS NOT CHALLENGED THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE HOLDING THE LOS S ARISING ON CONVERSION AS UNREALISED IN THE ASSESSMENT PERTAI NING TO A.Y. 2009- 10. THEREFORE, IT IS NOT OPEN TO THE REVENUE TO QUE STION THE CORRECTNESS OF THE ACTION OF THE ASSESSEE IN TREATING LOSS AS U NREALISED IN THE SUBSEQUENT YEAR AFTER THE CLOSURE OF THE EVENT. VIE WED DIFFERENTLY, THE LOSS ARISING ON SALE OF SHARES IS EXPECTED TO BE AL LOWED EITHER IN A.Y. 2009-10 (WHEN CONVERSION TOOK PLACE) OR IN THE YEAR OF ACTUAL SALE. THE LOSS INCURRED CANNOT BE TOTALLY OUSTED AND IS R EQUIRED TO BE RECOGNISED EITHER IN THE YEAR OF CONVERSION OR IN S UBSEQUENT YEAR WHEN SALE TOOK PLACE. THE ASSESSEE INSTEAD OF CLAIMING L OSS IN THE YEAR OF CONVERSION HAS POSTPONED ITS EFFECT AND CLAIMED IT IN SUBSEQUENT YEAR. IN THE ABSENCE OF CHALLENGE TO ACTION OF CONVERSION IN YEAR OF DOING SO, THE LOSS CLAIMED BY THE ASSESSEE IN LATER YEARS HAS BEEN RIGHTLY ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 15 ADMITTED BY AO. NOTWITHSTANDING, THE ACTION APPEARS REVENUE NEUTRAL SINCE LOSS IS EITHER ACCRUED AND ALLOWABLE IN THE Y EAR OF CONVERSION OR IN THE YEAR OF ACTUAL SALE. THUS, WE FAIL TO SEE TH E PREJUDICE, IF ANY, CAUSED TO THE REVENUE BY THE ACTION OF THE ASSESSEE . IN THE ABSENCE ANY PREJUDICE TO THE REVENUE, THE AUTHORITY CONFERR ED U/S. 263 CANNOT BE EXERCISED AGAINST THE ASSESSEE. 13.5 THE PR. CIT HAS HARPED THAT ENQUIRY OR PROPER EXAMINATION OF FACTS HAVE NOT BEEN CARRIED OUT. WE DO NOT FIND MUC H PURPORT IN SUCH PLEA. THE ENQUIRY INTO THE ASPECTS OF ALLOWABILITY OF LOSS IF ANY, MAY BE PLAUSIBLE IN THE YEAR OF CONVERSION. THE ENQUIRY IN SUBSEQUENT YEAR ON ASPECTS ATTRIBUTABLE TO EARLIER YEAR WOULD BE PE RFUNCTORY IN NATURE AND CANNOT BE ORDINARILY VISUALISED. THE ASSESSMENT YEAR IN QUESTION BEING THE YEAR OF SALE OF CONVERTED STOCKS, THE ASS ESSEE HAS CLAIMED THE TRADING LOSS AS PER METHOD ADOPTED BY IT. PERTI NENTLY, THE PR. CIT UNDER SECTION 263 HAS NOT QUESTIONED THE QUANTIFICA TION ASPECTS OF LOSSES RECOGNISED DURING THE YEAR. IT HAS ONLY HARP ED ON THRESHOLD ASPECTS OF ACCRUAL OF BUSINESS LOSS ON SUCH CONVERS ION FOR WHICH CAUSE OF ACTION IF ANY, AROSE IN EARLIER YEAR. AS A LREADY NOTED, THE LOSS ON SALE OF SHARES UP TO THE DATE OF CONVERSION IS R EQUIRED TO BE ALLOWED AS BUSINESS LOSS EITHER IN THE YEAR OF CONVERSION O R IN THE SUBSEQUENT YEAR OF SALE (AS ADOPTED BY THE ASSESSEE) AND THUS CANNOT BE DENIED TO THE ASSESSEE IN OUTRIGHTLY. THE LACK OF PROPER ENQU IRY INTO THIS ASPECT FLOWING FROM EARLIER YEAR CANNOT GIVE RISE TO THE B ASIS FOR HOLDING INADEQUATELY IN ACTION OF AO. IN THE ABSENCE OF ANY PREJUDICE TOWARDS ITA.NO. 1039/AHD/2017 ASSESSMENT YEAR 2012-13 - 16 REVENUE LOSS CONCERNING THE ASSESSMENT YEAR IN QUES TION, WE ARE UNABLE TO SEE THE LEGITIMACY IN THE ACTION OF THE R EVISIONAL CIT. 14. WE THEREFORE DO NOT FIND THE ACTION OF THE PR. CIT IN INVOKING PROVISIONS OF SECTION 263 AS BEFITTING IN THE FACTS OF THE CASE. THE ACTION OF THE PR. CIT UNDER SECTION 263 IS THUS BAD IN LAW. HENCE, ORDER PASSED UNDER SECTION 263 DATED 30.03.2017 IS REQUIRED TO BE CANCELLED AND SET ASIDE. 15. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWE D. ORDER PRONOUNCED IN THE COURT ON 25/01/ 2018 AT AH MEDABAD. SD/- SD/- (S.S. GODARA) JUDICIAL MEMBER MUKUL (PRADIP KUMAR KEDIA) ACCOUNTANT MEMBER DATED, 25/01/2018 ! '!/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. &$% / THE RESPONDENT. 3. '(( ) * / CONCERNED CIT 4. ) * ( ) / THE CIT(A)- 5. !-. , , /DR,ITAT, AHMEDABAD. 6. .0 12 / GUARD FILE. ) ' / BY ORDER, ' (3 (ASSTT.REGISTRAR) ITAT, AHMEDABAD