SACHIN N. MORAKHIA, MUMBAI V. ITO 4(2)(1), MUMBAI

ITA 1122/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 4229 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-07-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-07-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 16-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: O P SINGH
• Assessee Lawyers: JITENDRA SINGH
• Keywords: Opportunity of being heard; Speculation loss; Revised return

Judgement Text

. , IN THE INCOME TAX APPELLATE TRIBUNAL SMC , BENCH MUMBAI , BEFORE SHRI R. K. GUPTA , JM ITA NO. 1122 / MUM/ 20 1 2 ( ASSESSMENT Y EAR : 200 8 - 20 0 9 ) SACHIN N. MORAKHIA, PG 14, RTUNDA, B.S.MARG, FORT, MUMBAI - 400 001 . VS. ITO 4(2)(1) , MUMBAI PAN/GIR NO. : A ADPM 9633 L ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : SHRI JITENDRA SINGH /REVENUE BY : SHRI O.P.SINGH DATE OF HEARING : 1 ST JULY , 201 3 DATE OF PRONOUNCEMENT : 10 TH JULY , 2013 O R D E R TH IS APPEAL HAS BEEN PREFERRED BY TH E ASSESSEE AGAINST THE ORDER DATED 9 - 12 - 2011 OF CIT(A) - 9 , MUMBAI RELA TING TO THE ASSESSMENT YEAR 200 8 - 0 9 . 2 . GROUNDS NO. 1A & 1B WERE NOT PRESSED, THEREFORE, THEY ARE DISMISSED AS NOT PRESSED. 3. GROUNDS NO.1C&1D RELATE TO DENIAL OF BENEFIT OF CARRY FORWAR D OF SHORT TERM CAPITAL LOSS AT RS.11,93,886/ - AND DENIAL OF CARRY FORWARD OF SPECULATION LOSS AT RS. 28,926/ - . 4 . THE AO DID NOT ALLOW THE CARRY FORWARD LOSSES BY OBSERVING THAT THE ASSESSEE HAS NOT CLAIMED IN THE RETURN FILED ORIGINALLY. BY PLACING RELI ANCE ON THE DECISION OF GOETZ (INDIA) LTD. VS. CIT, REPORTED IN (2006) 284 ITR ITA NO. 1122 /20 1 2 2 323 (SC) , THE AO DENIED THE CLAIM OF LOSS AS MENTIONED ABOVE TO BE CARRIED FORWARD. 5 . IN APPEAL, LEARNED CIT(A) ALSO CONFIRMED THE ACTION OF THE AO. 6 . AFTER CONSIDERING THE RIVAL SUBMISSIONS, I FOUND THAT THE MATTER SHOULD GO BACK TO THE FILE OF THE AO TO DECIDE THE ISSUE ON MERIT. IN THE CASE OF GOETZ (INDIA) LTD. (SUPRA) , THE HONBLE SUPREME COURT HAS HELD THAT IF NO REVISED RETURN WAS FILED BEFORE THE AO, THEN CLAIM CANNO T BE ALLOWED WITHOUT FILING REVISED RETURN, HOWEVER, BEFORE THE APPELLATE AUTHORITY, THE CLAIM CAN BE MADE. IN THIS CASE THOUGH IN THE RETURN FILED ORIGINALLY THE CLAIM OF LOSS WAS NOT CLAIMED, HOWEVER, DURING THE ASSESSMENT PROCEEDING A LETTER WAS FILED B EFORE THE AO TO CONSIDER THE SAME. AS STATED ABOVE, IN VIEW OF THE DECISION OF THE HON BLE APEX COURT, THE AO HAS NOT CONSIDERED THE CLAIM OF THE ASSESSEE. CIT(A) ALSO DID NOT CONSIDER THE CLAIM OF THE ASSESSEE AND CONFIRMED THE ACTION OF THE AO. IN MY CON SIDERED VIEW, THE LEARNED CIT(A) SHOULD HAVE CONSIDERED THE ISSUE ON MERIT AS BEFORE THE APPELLATE AUTHORITY A LEGAL CLAIM CAN BE MADE. IN VIEW OF THESE FACTS AND CIRCUMSTANCES OF THE CASE, I SET ASIDE THE ORDER OF THE AO AND CIT(A) ON THESE ISSUES AND RES TORE THE MATTER BACK TO THE FILE OF THE AO TO CONSIDER THE CLAIM OF THE LOSS ON CARRY FORWARD UNDER THE HEAD SHORT TERM CAPITAL LOSS AND UNDER THE HEAD SPECULATION LOSS ON MERIT AFTER AFFORDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. I ORD ER ACCORDINGLY. 7 . CHARGING OF INTEREST IS CONSEQUENTIAL IN NATURE, WHICH DOES NOT REQUIRE ANY SEPARATE ADJUDICATION. ITA NO. 1122 /20 1 2 3 8 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED IN PART FOR STATISTICAL PURPOSES . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 10 TH DAY OF JU LY .2013 SD/ - ( ) ( R.K.GUPTA ) / JUDICIAL MEMBER MUMBAI; DATED : 10/07 / 2013 /PKM , PS COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / THE CIT(A) , MUMBAI. 4. / CIT 5. / DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// / BY ORDER, ( ASSTT. REGISTRAR) / ITAT, MUMBAI