M/s. Sukarma Finance (P) Ltd., New Delhi V. JCIT, New Delhi

ITA 1743/DEL/2015

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 0746 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-09-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Assessment Year: 2009-2010
• Appeal Filed On: 27-03-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Principle of natural justice; Revised return
• Section: 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G , NEW DELHI BEFORE S H. R.K. PANDA , ACCOUNTANT MEMBER AND MS. SUCHITRA KAMBLE , JUDICIAL MEMBER ITA NO. 1743 /DEL/201 5 ASSESSMENT YEAR: 20 0 9 - 1 0 M/S. SUKARMA FINANCE (P) LTD. C/O 4832/24, CHAMBER NO.104, PRAHLAD HOUSE, ANSARI ROAD, DARYA GANJ, NEW DELHI - 110002 PAN AAACS3512L VS JCIT CIRCLE 9 (1) C. R. BUILDING NEW DELHI - 110002 (APPELLANT) (RESPONDENT) APPELLANT BY NONE RESPONDENT BY SH. ANOOP SINGH, SR DR DATE OF HEARIN G: 1 2 /09/2018 DATE OF PRONOUNCEMENT: 12 / 0 9 /2018 ORDER PER R.K. PANDA, AM: THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 28.01.2014 OF THE CIT (A) - II, NEW DELHI RELATING TO A. Y. 2009 - 10. 2. NONE APPEARED ON BEHALF OF T HE ASSESSEE AT THE TIME OF HEARING DESPITE SERVICE OF NOTICE. THEREFORE, THIS APPEAL IS BEING DECIDED ON THE BASIS OF MATERIAL AVAILABLE ON RECORD AND AFTER HEARING THE LD. DR. ITA NO. 1743 /DE L/20 1 5 2 3. FACTS OF THE CASE, IN BRIEF , ARE THAT THE ASSESSEE IS A COMPANY AND ENGAGE D IN THE BUSINESS OF SHARE TRADING . IT FILED ITS RETURN OF INCOME ON 30.09.2009 DECLARING LOSS OF RS.1,18,49,427/ - . SUBSEQUENTLY THE ASSESSEE FILED A REVISED RETURN ON 26.09.2010 DECLARING A LOSS OF RS.90,76,803/ - . THE ASSESSING OFFICER COMPLETED THE ASSES SMENT U/S 143 (3) DETERMINING THE TOTAL LOSS AT LOSS OF RS.89,68,900/ - WHEREIN HE MADE ADDITION OF RS.1,07,918/ - U/S 14 A AND TREATED THE SHORT TERM CAPITAL OF RS.27,72,622/ - AS BUSINESS INCOME. SINCE NOBODY APPEARED BEFORE THE CIT (A), HE PASSED EXPARTE ORDER AND DISMISS ED THE APPEAL FILED BY THE ASSESSEE BY UPHOLDING THE ORDER OF THE ASSESSING OFFICER. 4. AGGRIEVED WITH SUCH ORDER OF THE CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL BY RAISING THE FOLLOWING GROUNDS OF APPEAL : - 1 . THE ORDER IS BA D IN LAW, AS IT HAS BEEN PASSED IN GROSS VIOLATION OF PRINCIPLES OF NATURAL JUSTICE. 2 . LEARNED ASSESSING OFFICER HAS ERRED IN ADDING SUM OF RS.1,07,918/ - U/S 14A UNDER THE GIVEN FACTS AND CIRCUMSTANCES. 3 . LEARNED ASSESSING OFFICER HAS ERRED IN TREATING SHORT TERMS CAPITAL GAIN AS BUSINESS INCOME AND ADDING SUM OF RS.27,72,622/ - TO THE INCOME OF THE ASSESSEE. 4 . THE LEARNED ASSESSING OFFICER HAS ERRED IN LEVYING THE PENALTY U/S 271(1) (C ) UNDER THE GIVEN FACTS AND CIRCUMSTANCES. 5 . THE APPELLANT MAY BE PERMITTED T O ADD, ALTER OR AMEND ANY OF THE FOREGOING GROUNDS OF APPEAL. 5. WE HAVE HEAR D THE LD. DR AND PERUSED THE MATERIAL AVAILABLE ON RECORD. IT IS AN ADMITTED FACT THAT DESPITE NUMBER OF OPPORTUNITIES GIVEN BY THE CIT (A), THE ASSESSEE CHOSE NOT TO APPEAR BEF ORE THE CIT (A) FOR WHICH THE LD. CIT(A) PASSED THE EXPARTE ORDER DISMISSING THE APPEAL OF THE ASSESSEE. HOWEVER, CONSIDERING THE TOTALITY OF THE FACTS OF THE CASE AND IN ITA NO. 1743 /DE L/20 1 5 3 THE INTEREST OF JUSTICE WE DEEM IT PROP ER TO RESTORE THE MATTER BACK TO THE FILE OF THE CIT (A) WITH THE DIRECTION TO GRANT ONE FINAL OPPORTUNITY TO THE ASSESSEE TO SUBSTANTIATE ITS CASE . T HE ASSESSEE IS ALSO HEREBY DIRECT ED TO APPEAR BEFORE THE CIT(A) WITHOUT SEEKING ANY ADJOURNMENT UNDER ANY PRETEXT FAILING WHICH THE LD. CIT (A) IS AT L IBERTY TO PASS APPROPRIATE ORDER AS PER LAW. WE HOLD AND DIRECT ACCORDINGLY . T HE GROUNDS RAISED BY THE ASSESSEE ARE ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. P RONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ITSELF I.E. ON 1 2 .09.2018. SD/ - SD/ - ( SUCHITRA KAMBLE ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER *NEHA* DATE: - 12 .0 9 .2018 COPY FORWARDED TO: 1 . APPELLANT 2 . RESPONDENT 3 . CIT 4 . CIT(APPEALS) 5 . DR: ITAT ASSISTANT REGISTRAR ITAT NEW DELHI ITA NO. 1743 /DE L/20 1 5 4 DATE OF DICTATION 1 2 .09.2018 DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 12.09.2018 DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS 12.09.2018 DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT 12.09.2018 DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. PS/ PS 12.09.2018 DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT 12.09.2018 DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH FILE GOES TO THE HEAD CLERK. THE DATE ON WHICH FILE GOES TO THE ASSISTA NT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER