DCIT, CHENNAI V. Jubliee Granites India Private Limited, CHENNAI

ITA 1704/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96236 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2015
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 13-10-2015
• Assessment Year: 2010-2011
• Appeal Filed On: 23-07-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Assessee Lawyers: G SEETHARAMAN
• Keywords: Capital asset; Business income
• Section: 28

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : CHENNAI , . ! '# , $ %& ' [ BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ] ./ I.T.A.NO.1704/MDS/2015 / ASSESSMENT YEAR : 2010-11 THE DY. COMMISSIONER OF INCOME-TAX CORPORATE CIRCLE 2(2) CHENNAI VS. M/S JUBILEE GRANITES INDIA PVT. LTD EGA TRADE CENTRE, 6C, 6 TH FLOOR NEW NO.318, OLD NO.809 POONAMALLEE HIGH ROAD CHENNAI 600 010 [PAN AABCJ 3761 D ] ( () / APPELLANT) ( *+() /RESPONDENT) / APPELLANT BY : SHRI A.V. SREEKANTH, JCIT /RESPONDENT BY : SHRI G. SEETHARAMAN, CA / DATE OF HEARING : 13 - 10 2015 / DATE OF PRONOUNCEMENT : 16 - 10 - 2015 , / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-6, CHENNA I, DATED 24.2.2015 FOR ASSESSMENT YEAR 2010-11. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: 2.1 THE LD.CIT(A) HAS DECIDED THE ISSUE (BEING RE LIEF U/S 28 OF THE IT ACT) THAT WHICH WAS NEITHER BEFORE THE ITA NO.1704/15 :- 2 -: ASSESSING OFFICER NOR RAISED IN THE GROUNDS OF APPE AL BY THE ASSESSEE. 2.2 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE SAID ADVANCES WERE GIVEN ONLY FOR ACQUIRING CAPITAL ASSETS AND NOT FOR TRADING ASSETS. 2.3 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE LOSS WRITTEN OFF AND CLAIMED BY THE ASSESSEE AS LO NG TERM CAPITAL LOSS WERE NOT PROVED WITH ANY VERIFIAB LE EVIDENCES BEFORE THE AO. 2.4 THE LD. CIT(A) OUGHT TO HAVE APPRECIATED THAT THE DETAILS OF THE LAND ADVANCES WRITTEN OFF FURNISHED BEFORE THE CIT(A) WERE AT VARIANCE WITH THAT OF THE INFOR MATION PRODUCED BEFORE THE AO. 3. THE FACTS OF THE CASE ARE THAT THE ASSESSEE CLAIME D CAPITAL LOSS ` 76,08,450/- IN ITS RETURN OF INCOME. IN ITS P&L ACCOUNT OF THE FINANCIAL YEAR 2009-10, RELEVANT TO THE A.Y.2010-11 , IT DEBITED A SUM OF ` 76,08,450/- BY WAY OF LAND ADVANCES WRITTEN OFF. I N THE COMPUTATION OF TAXABLE INCOME STATEMENT, THE ASSESS EE ADDED BACK THE SAME TO THE NET PROFIT WHILE ARRIVING AT THE IN COME UNDER THE HEAD 'BUSINESS INCOME', BUT CLAIMED THE SAME AS LONG TER M CAPITAL LOSS, UNDER THE HEAD 'CAPITAL GAINS'. THE ASSESSING OFFIC ER IN HIS ORDER U/S .143(3) OF THE ACT, HAS NOT CONSIDERED THE SAID CLA IM OF LONG TERM CAPITAL LOSS OF ` 76,08,450/-. THE ASSESSING OFFICER IGNORED THE ASSESSEE'S CLAIM OF LONG TERM CAPITAL LOSS OF ` 76,08,450/-, WITHOUT DISCUSSING ANYTHING ABOUT THE CLAIM IN HIS ORDER. ITA NO.1704/15 :- 3 -: 4. ON APPEAL, THE LD. CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE U/S 28 OF THE ACT AFTER CONSIDERING VARIOU S DOCUMENTS PRODUCED BEFORE HIM WITHOUT OBTAINING REMAND REPORT FROM THE ASSESSING OFFICER. IN OUR OPINION, THERE IS A CLE AR VIOLATION OF RULE 46A OF THE INCOME-TAX RULES. BEING SO, IN THE INTE REST OF JUSTICE, WE ARE INCLINED TO REMIT THE ENTIRE ISSUE BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSEE IS DIRECTED TO FILE ALL NECES SARY DOCUMENTS BEFORE THE ASSESSING OFFICER. THE ASSESSING OFFICER SHALL DECIDE THE ISSUE AFRESH IN ACCORDANCE WITH LAW AFTER GIVING ADEQUATE OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWE D FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER, 2015, AT CHENNAI. SD/- SD/- ( . ! '# ) ( V. DURGA RAO ) $ / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER !' / CHENNAI #$ / DATED: 16 TH OCTOBER, 2015 RD $%&& '(&)( / COPY TO: & 1 . / APPELLANT 4. & * / CIT 2. / RESPONDENT 5. (+,& - / DR 3. & *&./ / CIT(A) 6. ,0&1 / GF