Crescore Stock Broking (P) Ltd., New Delhi V. ITO, Ward- 6(4), New Delhi

ITA 1451/DEL/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 5381 (ITAT-DELHI)
• Duration Of Justice: 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2015-2016
• Appeal Filed On: 21-02-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Opportunity of being heard; Principle of natural justice; Speculation loss; Set aside

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC BENCH, NEW DELHI BEFORE SHRI H.S. SIDHU, JUDICIAL MEMBER ITA NO. 1451/DEL/2019 [ASSESSMENT YEAR: 2015-16] CRESCORE STOCK BROKING (P) LTD., VS. ITO, WARD 6( 4), 403, 4 TH FLOOR, 19 KIRTIMAHAL NEW DELHI BUILDING, RAJENDRA PLACE, NEW DELHI - 110 008 (PAN: AADCC4041C) [APPELLANT] [RESPONDENT] ASSESSEE BY : SHRI SOMIL AGGARWAL, ADVOCATE REVENUE BY : SHRI PRADEEP SINGH GAUTAM, SR . DR. ORDER THIS APPEAL IS FILED BY THE ASSESSEE IS AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX [APPEALS-2], NEW DEL HI DATED 24.12.2018 PERTAINING TO ASSESSMENT YEAR 2015-16 ON THE FOLLOWING GROUNDS:- 1. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN PASSING THE EXPARTE ORDER AND THAT WITHOUT PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 2. THAT IN ANY CASE AND IN VIEW OF THE MATTER, ACTION OF LD. CIT(A) IN PASSING THE EXPARTE ORDER, IS BAD IN LAW AND AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 2 3. THAT THE LD. CIT(A) ERRED IN LAW BY CONFIRMING THE ACTION OF AO BY TREATING THE LOSS SUFFERED FROM DERIVATIVE BUSINESS OF RS. 6,76,532/-, AS SPECULATION LOSS BY WRONGLY INTERPRETING EXPLANATION TO SECTION 73(4) OF THE ACT, 1961 EVEN WHEN THE APPELLANT WAS A SUB-BROKER REGISTERED WITH SEBI. 4. THAT HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN CONFIRMING THE ACTION OF LD. AO IN TREATING THE INVESTMENT LOSS OF RS. 5,93,117/- SUFFERED IN PURCHASE AND SALE OF SHARES AS SPECULATIVE LOSS BY RECORDING INCORRECT FACTS AND FINDINGS AND WITHOUT OBSERVING THE PRINCIPLES OF NATURAL JUSTICE. 5. THAT THE APPELLANT CRAVES THE LEAVE TO ADD, MODIFY, AMEND OR DELETE ANY OF THE GROUNDS OF APPEAL AT THE TIME OF HEARING AND ALL THE ABOVE GROUNDS ARE WITHOUT PREJUDICE TO EACH OTHER. 2. AT THE TIME OF HEARING LD. COUNSEL FOR THE ASSES SEE STATED THAT LD. CIT(A) HAS PASSED THE EXPARTE IMPUGNED ORDER WI THOUT PROVIDING SUFFICIENT OPPORTUNITY TO THE ASSESSEE. H E REQUESTED THAT THE ISSUES IN DISPUTE MAY BE SET ASIDE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH, AFTER GIVING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 3. ON THE CONTRARY, LD. DR RELIED UPON THE IMPUGNE D ORDER. 4. I HAVE HEARD BOTH THE PARTIES AND PERUSED THE ORDERS OF THE AUTHORITIES BELOW. I AM OF THE VIEW THAT LD. CIT(A) HAS NOT GIVEN 3 SUFFICIENT OPPORTUNITY TO THE ASSESSEE, THEREFORE, IN THE INTEREST OF JUSTICE I AM SETTING ASIDE THE ISSUES IN DISPUTE TO THE LD. CIT(A) TO DECIDE THE SAME AFRESH AFTER GIVING ADEQUATE OPPORT UNITY OF BEING HERD TO THE ASSESSEE. 4.1 KEEPING IN VIEW OF THE NON-COOPERATION OF THE A SSESSEE, I AM DIRECTING THE ASSESSEE THROUGH HIS COUNSEL TO APPEA R BEFORE THE LD. CIT(A) ON 29.04.2020 AT 10.00 AM FOR HEARING. THERE IS NO NEED TO ISSUE THE NOTICE BY THE LD. CIT(A) TO THE ASSESS EE, SINCE THIS ORDER HAS ALREADY BEEN PRONOUNCED IN THE OPEN COURT . 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. THE ORDER PRONOUNCED ON 19.02.2020. SD/- [H.S. SIDHU] JUDICIAL MEMBER DATED: 19 -02-2020 SRB COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 4