The ITO, Ward-2(1), Baroda V. M/s. Devilaben B.Shah, Baroda

ITA 1166/AHD/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 0063 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 6 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 10-11-2016
• Assessment Year: 2006-2007
• Appeal Filed On: 26-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Speculation loss
• Section: 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, AHMEDABAD BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI MANISH BORAD, ACCOUNTANT MEMBER ./ ITA NO. 1166/AHD/2013 / ASSESSMENT YEAR : 2006-07 INCOME TAX OFFICER, WARD 2 (1), BARODA VS SMT DEVILABEN B. SHAH, NARHARI AVENUE, SANDESARA ESTATE, SAMIALA PADRA ROAD, BARODA PAN : AHAPS 2279 J / (APPELLANT) / (RESPONDENT) REVENUE BY : SHRI K. MADHUSUDAN, SR DR ASSESSEE BY : NONE / DATE OF HEARING : 10/11/2016 / DATE OF PRONOUNCEMENT: 16/11/2016 / O R D E R PER R.P. TOLANI, JUDICIAL MEMBER:- \ THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS)-II, BA RODA DATED 31.01.2013 FOR ASSESSMENT YEAR 2006-07. 2. FOLLOWING GROUNDS ARE RAISED:- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD.CIT(APPEALS) ERRED IN HOLDING THE TOTAL TURNOVER OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION AT RS.99,98,004/- ON THE B ASIS OF SUBMISSION MADE BY THE ASSESSEE DURING THE COURSE OF APPELLATE PROC EEDINGS IN CONTRAVENTION OF PROVISIONS OF RULE 46A OF THE INCOME-TAX RULES AND DIRECTING THE ASSESSING OFFICER TO ALLOW THE CARRY FORWARD SPECULATION BUSI NESS LOSS SUBJECT TO THE VERIFICATION THAT AS TO WHETHER THE ASSESSEE HAS FI LED HER RETURN OF INCOME WITHIN THE PERMISSIBLE TIME FRAME 2. THE LD.CIT(A) ERRED IN LAW AND ON FACTS IN NOT A PPRECIATING THE FACT THAT THE ASSESSEE COULD NOT SUBSTANTIATE THAT THE TURNOV ER OF THE ASSESSEE WAS' MORE THAN RS.40 LAKH EITHER BY HER AUDITED ACCOUNTS FURNISHED ALONG WITH THE RETURN OF INCOME FILED ON 30.12.2006 OR BY THE SUBM ISSION FURNISHED DURING ITA NO. 1166/AHD/2013 ITO VS. DEVILABEN B. SHAH AY : 2006-07 2 THE COURSE OF THE PROCEEDINGS U/S. 154 OF THE ACT V IDE HER LETTER DATED ON 28.03.2011. 3. AT THE TIME OF HEARING, NONE APPEARED ON BEHALF OF THE ASSESSEE. THEREFORE, IT WAS CONSIDERED APPROPRIATE TO PROCEED WITH THE PRESENT APPEAL EX-PARTE QUA THE APPELLANT-ASSESSEE AFTER CONSIDERING THE S UBMISSIONS OF THE LD. DR AND THE MATERIAL AVAILABLE ON RECORD. 4. THE BRIEF FACTS ARE THE ASSESSEE FILED NIL RET URN ON 30.12.2006 WITH CARRIED FORWARD OF SPECULATION LOSS. LD. AO, HOWEV ER, ACCEPTED ASSESSEES INCOME AS NIL AND WITHOUT COMMENTING ABOUT THE SPEC ULATION LOSS CLAIMED BY THE ASSESSEE AND MADE NO MENTION ABOUT THE CARRY FORWARD. AGGRIEVED, THE ASSESSEE FILED APPLICATION U/S 154 OF THE ACT T O RECTIFY THE MISTAKE. THE LD. AO, HOWEVER, HELD THAT THE ASSESSEE WAS NOT LIA BLE FOR AUDIT OF ACCOUNTS; THEREFORE, THE DUE DATE OF FILING OF RETURN WAS 30. 09.2003 FOR AY 2003-04 AND THE ASSESSEES RETURN WAS FILED ON 08.10.2003. THE SAME BEING BELATED, THE SPECULATION LOSS CANNOT BE CARRIED FORWARD. THE CIT (A), AFTER CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CASE, ALLOWED TH E APPEAL OF THE ASSESSEE BY FOLLOWING OBSERVATIONS:- I HAVE CONSIDERED THE SUBMISSIONS OF THE LEARNED A UTHORIZED REPRESENTATIVE AND THE ORDER OF THE ASSESSING OFFICER. FROM THE C OPY OF ACCOUNT IN THE BOOKS OF FINANCE MONITOR PVT LTD ALONGWITH SUMMARY OF TRA NSACTIONS WITH FINANCE MONITOR PVT LTD, IT TRANSPIRES THAT THE TOT AL TURNOVER OF THE ASSESSEE IS RS.99,98,004/-. THE SAME IS ALSO VERIFIABLE FRO M THE BANK STATEMENT OF THE ASSESSEE FURNISHED DURING THE APPELLATE PROCEEDINGS . AS THE TURNOVER OF THE ASSESSEE EXCEEDED RS.40 LAKHS, IT WAS MANDATORY FOR HER TO GET THE ACCOUNTS AUDITED U/S 44AB OF THE ACT. ACCORDINGLY SHE HAD L IABLE TO FILE HER RETURN OF INCOME ON OR BEFORE 31 ST SEPTEMBER. THE ASSESSEE HAS CLAIMED THAT FOR AY 2006-07, DUE DATE FOR FILING OF RETURN OF INCOME IN CASE OF COMPULSORY AUDIT U/S 44AB WAS EXTENDED UPTO 31.12.2006, WHEREAS, SHE HAD FILED HER RETURN ON 30.12.2006. THE ASSESSING OFFICER IS DIRECTED T O VERIFY THE CONTENTION OF THE ASSESSEE ABOUT THE LAST PERMISSIBLE DATE FOR FI LING OF RETURN AND ALLOW THE CLAIM OF CARRY FORWARD OF LOSSES IN CASE SHE HAD FI LED THE RETURN WITHIN THE PERMISSIBLE TIME FRAME. 5. LD. DR RELIED UPON THE ORDER OF THE ASSESSING OF FICER. ITA NO. 1166/AHD/2013 ITO VS. DEVILABEN B. SHAH AY : 2006-07 3 6. WE HAVE HEARD THE LD. DR, PERUSED THE MATERIAL A VAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELO W. IN OUR CONSIDERED VIEW, THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(A) INASMUCH AS THE LD. ASSESSING OFFICER WHILE PASSING THE ASSESSMENT ORDE R MADE NO COMMENT ABOUT THE BELATED RETURN AND NON-ALLOWABILITY OF CA RRYING FORWARD OF THE SPECULATION LOSS. ONCE IT IS ACCEPTED THAT THE ASS ESSEE WAS CARRYING OUT SHARE TRADING SPECULATION ACTIVITY, THE TURNOVER BE ING PART OF BUSINESS WAS ALLOWABLE FOR AUDIT U/S 44AB OF THE ACT. IN OUR CO NSIDERED VIEW, THE CIT(A) HAS TAKEN JUST AND PROPER DECISION. WE, THEREFORE, SEE NO REASON TO INTERFERE WITH THE ORDER OF THE LD. CIT(A) AND THE SAME IS UP HELD. 7. IN THE RESULT, REVENUES APPEAL IS DISMISSED. ORDER PRONOUNCED IN THE COURT ON 16 TH NOVEMBER, 2016 AT AHMEDABAD. SD/- SD/- (MANISH BORAD) ACCOUNTANT MEMBER (R.P. TOLANI) JUDICIAL MEMBER AHMEDABAD; DATED 16/11/2016 *BIJU T., SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. / CONCERNED CIT 4. ( ) / THE CIT(A) 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, TRUE COPY / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD