M/S. Osian Stock Broking Pvt. Ltd., Kolkata V. I.T.O., Ward - 6(1), Kolkata, Kolkata

ITA 128/KOL/2023

AI Insights

The case involves M/s. Osian Stock Broking Pvt. Ltd., which appealed against the order of the National Faceless Appeal Centre, Delhi, for the Assessment Year 2012-13. The appeal was heard by the Income Tax Appellate Tribunal, Kolkata, where the assessee was represented by none, and no adjournment petition was filed. The Tribunal decided to proceed ex-parte on merits after hearing the Departmental Representative. The Tribunal admitted the legal grounds raised for the first time and restored the matter to the CIT(A) for a detailed examination and adjudication, particularly focusing on the legality of the assessment proceedings and the disallowance of a business loss claimed by the assessee.

• Counselvise Citation: [2023] 140 COUNSELVISE.COM (IT) 132666 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2023
• Appeal Filed By: Assessee
• Order Result: PartlyAllowed
• Bench Allotted: SMC
• Next Hearing Date: 09-07-2023
• Assessment Year: 2012-2013
• Appeal Filed On: 16-02-2023
• Other Referred Cases: National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC), PCIT vs. Swati Bajaj and Ors. in ITA No. 6 of 2022
• Laws Referred To: Income Tax Act, 1961
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Assessment record; Set aside
• Section: 250

Judgement Text

| आयकर अपीलीय अिधकरण ᭠यायपीठ, कोलकाता | IN THE INCOME TAX APPELLATE TRIBUNAL “SMC” BENCH, KOLKATA BEFORE DR. MANISH BORAD, HON’BLE ACCOUNTANT MEMBER I.T.A. No. 128/Kol/2023 Assessment Year: 2012-13 M/s. Osian Stock Broking Pvt. Ltd. C/o. S.M. Surana Advocate Unit No. 1501, 5 th Floor Diamond Heritage 16, Strand Road Kolkata- 700001 [PAN : AAACO3479N] Vs Income Tax Officer, Ward – 6(1), Kolkata अपीलाथᱮ/ (Appellant) ᮧ᭜ यथᱮ/ (Respondent) Assessee by : None Revenue by : Shri Nicholas Murmu, Addl. CIT D/R सुनवाई कᳱ तारीख/Date of Hearing : 10/07/2023 घोषणा कᳱ तारीख /Date of Pronouncement: 24/07/2023 आदेश/O R D E R PER DR. MANISH BORAD, ACCOUNTANT MEMBER : The present appeal is directed at the instance of the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter the “ld. CIT(A)”) dated 03/02/2023, passed u/s 250 of the Income Tax Act, 1961 (“the Act’), for Assessment Year 2012-13. 2. None appeared on behalf of the assessee despite issuance of notice. There is no petition for adjournment either. Under these circumstances, we dispose off the case ex-parte on merits qua the assessee after hearing the ld. Departmental Representative. 3. The ld. D/R, vehemently argued supporting the order of the lower authorities. 4. We have heard the ld. D/R and perused the material available on record. I.T.A. No. 128/Kol/2023 Assessment Year: 2012-13 M/s. Osian Stock Broking Pvt. Ltd. 2 5. Ground No. 1 raised by the assessee is general in nature, which needs no adjudication. 6. Ground Nos. 2, 3, 4 & 5, have been raised for the first time before this Tribunal. Through these grounds the assessee has challenged the legality of the assessment proceedings. These being legal grounds can be raised before the Tribunal even if not raised before the lower authorities in view of the judgement of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). We, therefore, admit Ground Nos. 2 to 5 four adjudication. However, since these grounds were not raised before the ld. CIT(A) and for dealing with these grounds facts of the case need to be examined including the reasons recorded for reopening and the submissions made by the assessee against all such reasons for reopening. It is also claimed by the assessee that copies of the reasons recorded were not provided along with the copy of sanction under section 151 of the Act and also copy of the investigation report and statements relied upon were not provided for cross examination. Under these given facts and circumstances, we deem it proper to restore the issue raised in Ground Nos. 2 to 5 to the file of the ld. CIT(A) for necessary adjudication and if necessary call for the remand report from the Assessing Officer or in the alternative call for the assessment records and decide the issues accordingly. 7. Ground No. 6, has been raised by the assessee on merits challenging the finding of the ld. CIT(A) making disallowance of I.T.A. No. 128/Kol/2023 Assessment Year: 2012-13 M/s. Osian Stock Broking Pvt. Ltd. 3 business loss of Rs.29,33,726/- treating it as bogus. We notice that the assessee has not filed any details about the alleged loss before us. The ld. CIT(A) has summarily dismissed the grounds placing reliance on the judgement of the Hon’ble Calcutta High Court in the case of PCIT vs. Swati Bajaj and Ors. in ITA No. 6 of 2022, dated 14.06.2022. Through this ground, the assessee is contending that its case is not of claiming exemption of Long term capital gain but it is a case of business loss incurred in the share trading business. We find, that the ld. CIT(A) has given a non-speaking finding and the facts of the case has not been discussed while deciding the issue. Since Ground Nos. 2 to 5 have already been restored to the ld. CIT(A), we deem it proper to restore Ground No. 6 also to the file of the ld. CIT(A). The ld. D/R is fair enough in not opposing the set aside of the issues to the file of the ld. CIT(A). Accordingly, Ground No. 6 raised by the assessee is also allowed for statistical purposes. 8. In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 24 th July, 2023 at Kolkata. Sd/- (DR. MANISH BORAD) ACCOUNTANT MEMBER Kolkata, Dated 24/07/2023 *SC SrPs I.T.A. No. 128/Kol/2023 Assessment Year: 2012-13 M/s. Osian Stock Broking Pvt. Ltd. 4 आदेश कᳱ ᮧितिलिप अᮕेिषत/Copy of the Order forwarded to : 1. अपीलाथᱮ / The Appellant 2. ᮧ᭜यथᱮ / The Respondent 3. संबंिधत आयकर आयुᲦ / Concerned Pr. CIT 4. आयकर आयुᲦ)अपील (/ The CIT(A)- 5. िवभागीय ᮧितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाडᭅ फाईल /Guard file. आदेशानुसार/ BY ORDER, TRUE COPY Assistant Registrar आयकर अपीलीय अिधकरण ITAT, Kolkata