JCIT(OSD), C-II, Kolkata, Kolkata V. M/s. Andaman Sea Foods(P)Ltd, Kolkata

ITA 1375/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 91930 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-05-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 27-09-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Speculation loss

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [ BEFORE SHRI P.K.BANSAL , A . M . & SHRI MAHAVIR SINGH , J.M. ] I.T. A . NO. 1375 /KOL/20 1 2 : ASSESSMENT YEAR : 20 09 - 10 JCIT(OSD), CIRCLE - 11, KOLKATA VS - M/S. ANDAMAN S EA FOODS (P) LTD. ( APPELLANT) (PAN: AADCA 1503C ) .. ( RESPONDENT ) DATE OF CONCLUDING THE HEA RING : 2 8 . 05 .201 5 DATE OF PRONOUNCING THE ORDER : 2 8 .05 .201 5 APPEARANCES : F OR THE DEPARTMENT : SHRI K.L.KANAK, JCIT, DR : FOR THE ASSESSEE : NONE O R D E R PER SHRI P.K.BANSAL, A .M. THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) - X II , KOLKATA DATED 13 . 06 .20 1 2 FOR THE ASS ESSMENT YEAR 20 09 - 10 BY TAKING THE FOLLOWING EFFECTIVE GROUND OF APPEAL. 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, LD. CIT(A) IS CORRECT IN RESTRICTING SPECULATIVE LOSS SUFFERED FROM FOREIGN EXCHANGE FROM RS.18,89,03,813/ - TO RS.1,85 CRORE ADMITTING AND RELYING UPON FRESH EVIDENCE, WITHOUT ALLOWING OPPORTUNITY TO THE REVENUE , IN CONTRAVENTION OF RULE 46A OF IT RULE 1962 ? 2. NONE APPEARED ON BEHALF OF THE ASSESSEE AT THE TIME OF HEARING, EVEN THOUGH THE NOTICE WAS DULY SERVED UPON THE ASSESSEE. WE, THEREFORE, DECIDED TO DISPOSE OF THE APPEAL, AFTER HEARING THE LD. DR. 2 IT A NO. 1375 /KOL/201 2 M/S.ANDAMAN SEA FOODS (P) LTD. : A. Y R: 20 09 - 10 4. WE HEARD THE LD. DR AND CAREFULLY CONSIDERED HIS SUBMISSIONS ALONG WITH THE ORDER OF THE TAX AUTHORITIES BELOW. WE NOTED THAT FROM THE ASSESSMENT ORDER AS ARGUED BY THE LD. DR THAT THE AO HAS ASKED THE ASSESSEE TO FURNISH THE DOCUMENTS EVIDENCING IMPORTS/ EXPORTS, DETAILS OF THE LOSS ON FOREIGN CURRENCY IN THE FORMAT AS GIVEN BY THE AO ALONG WITH THE DETAILS WITH LINKAGE OF HEDGE AMOUNT SHOWN WITH THE FOREIGN EXPORT REALIZATION AND IMPORT PAYMENTS. THE AO ALSO ASKED THE ASSESSEE TO SUBMIT THE CONTRACT NOTE S AND THE DOCUMENTARY EVIDENCES FOR DERIVATIVE LOSSES BUT THE ASSESSEE DID NOT FURNISH THE DETAILS TO SUBSTANTIATE THE CLAIM MADE BY THE ASSESSEE IN HIS RETURN ON ACCOUNT OF THE LOSS ON FOREIGN EXCHANGE AMOUNTING TO RS.20,74,03,813/ - . THE AO HAS, THEREFORE , IN THE ABSENCE OF THE DETAILS, TREATED THE SAID LOSS AS SPECULATIVE LOSS. WHEN THE MATTER WENT BEFORE THE CIT(A), WE NOTED THAT THE ASSESSEE SUBMITTED THE VARIOUS DETAILS. THE CIT(A) EVEN DID NOT CALL FOR THE REMAND REPORT AND ALLOWED THE APPEAL OF THE A SSESSEE ON THE BASIS OF THE EVIDENCES AS IS APPARENT FROM 2 ND AND 3 RD PARAGRAPHS AT PAGE 10 OF THE IMPUGNED ORDER, WHERE THE CIT(A) HAS GIVEN THE FINDING. THIS IS A FACT THAT THE EVIDENCES AND THE DOCUMENTS ON THE BASIS OF WHICH, THE CIT(A) HAS ALLOWED REL IEF TO THE ASSESSEE, WERE NEVER FILED BEFORE THE AO. IN VIEW OF THIS FACT, SINCE THE ASSESSEE HAS FILED THE FRESH EVIDENCES IN VIOLATION OF RULE 46A, WE, THEREFORE, SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THIS ISSUE TO THE FILE OF THE AO WITH THE DIR ECTION THAT THE AO SHALL RE - DECIDE THE ISSUE, AFTER GIVING PROPER AND SUFFICIENT OPPORTUNITY OF HEARING TO THE ASSESSEE. THE ASSESSEE WILL ALSO BE AT LIBERTY TO 3 IT A NO. 1375 /KOL/201 2 M/S.ANDAMAN SEA FOODS (P) LTD. : A. Y R: 20 09 - 10 PRODUCE ALL THE NECESSARY DOCUMENTS AND EVIDENCES ON WHICH HE MAY RELY AND AS MAY BE DESIRED BY THE AO. 5 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES . ORDE R PRONOUNCED IN THE OPEN C OURT ON 2 8 TH MAY , 2015 . SD/ - SD/ - ( MAHAVIR SINGH ) (P.K.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 2 8 TH MAY , 2015 TALUKDAR(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . M/S. ANDAMAN SEA FOODS (P) LTD. , 16/1/1, RAJA SANTOSH ROAD, ALIPORE, KOLKATA 700 0 27. 2 J CIT (OSD) , CIRCLE - 11 , KOLKATA 3 . THE CIT(A), 4. CIT, 5 . DR, TRUE COPY, BY ORDER, ASSTT. REGISTRAR , ITAT, KOLKATA