Smt. Srabanti Das, Kolkata V. ITO, Ward - 51(4), Kolkata, Kolkata

ITA 176/KOL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 2535 (ITAT-KOLKATA)
• Duration Of Justice: 5 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-06-2010
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Next Hearing Date: 17-06-2010
• Assessment Year: 2006-2007
• Appeal Filed On: 28-01-2010
• Court: TRIBUNAL
• Department Lawyers: A RAJHANS
• Assessee Lawyers: S BANDOPADHYAY
• Keywords: Business income; Revised return

Judgement Text

, SMC (C) , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH - SMC (C) , KOLKATA ( ) BEFORE . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND / I.T.A.NO. 176/KOL/2010 / ASSESSMENT YEAR 2006 - 07 SMT .SRABANTI DAS, C/III/4,MAHABIR VIKASH, SEC.3, H.C.BLOCK, SALT LAKE, KOLKATA 700 016. PAN ACVPD 0197 L - - - VERSUS - . INCOME - TAX OFFICER, WARD 51(4), KOLKATA. ( / A PPELLANT ) ( / RESPONDENT ) / FOR THE APPELLANT : / SHRI S.BANDOPADHYAY, AR / FOR THE RESPONDENT : / SHRI A.RAJHANS, DR / ORDER . . , SHRI B.R.MITTAL, JUDICIAL MEMBER. THE ASSESSEE HAS FILED THIS APPEAL AGAINST ORDER DT.18.8.2009 OF THE COMMISSIONER OF INCOME - TAX (APPEALS) FOR THE ASSESSMENT YEAR 2006 - 07. 2. THE ONLY DISPUTE INVOLVED IN THIS APPEAL AS TO WHETHER LOSS OF RS.3,77,589 RELATING TO THE ASSESSMENT YEAR 2004 - 05 AND RS.412 RELATING TO THE ASSESSMENT YEA R 2005 - 06 (TOTALING TO RS.3,78,001) WHICH WAS ASSESSED AS SHORT TERM CAPITAL LOSS AND BROUGHT FORWARD IN THE ASSESSMENT YEAR UNDER CONSIDERATION CAN BE CONSIDERED AS SHARE TRADING LOSS ON THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE FACTS RELEVANT ARE T HAT DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND THE ASSESSEE TO HAVE DEBITED A SUM OF RS.3,78,001 TO HER PROFIT & LOSS ACCOUNT. IT WAS EXPLAINED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER THAT THE AMOUNT REPRESENTED BROUGHT FORWARD LOS S INCURRED BY THE ASSESSEE IN THE AYS 2004 - 05 OF RS. 3,77,589 AND 2005 - 06 OF RS.412. BUT, THE ASSESSING OFFICER FOUND THAT THE SAID LOSS WAS CLAIMED BY THE ASSESSEE IN THE RETURNS OF THE RESPECTIVE AYS I.E., 2004 - 05 AND 2005 - 06 AS SHORT TERM CAPITAL LOSS. THEREFORE, HE DISALLOWED THE AMOUNT TO BE SET OFF AGAINST CURRENT YEAR S BUSINESS INCOME OF THE ASSESSEE. AGGRIEVED, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE CIT(A) / I.T.A.NO.176/KOL/2010 2 AND THE LEARNED CIT(A) UPHELD THE ACTION OF THE ASSESSING OFFICER AND HENCE, TH E ASSESSEE IS IN APPEAL HERE BEFORE THE TRIBUNAL. 4. DURING THE COURSE OF HEARING THE LEARNED AR REITERATED THE SUBMISSIONS AS WERE MADE BEFORE THE AUTHORITIES BELOW. HE FURTHER CONTENDED THAT THERE WAS NO ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2004 - 05 AND THE ASSESSEE HAD WRONGLY SHOWN IN THE PROFIT & LOSS ACCOUNT THE LOSS FROM SHARE DEALINGS AS CAPITAL LOSS BUT IN FACT IT WAS SHARE TRADING LOSS. HE SUBMITTED THAT THE ASSESSEE IS ALSO DEALING IN SHARE TRADING AND THEREFORE, THE SAME SHOULD BE CONSIDERED AS LOSS FROM TR ADING IN SHARES. IT IS RELEVANT TO STATE THAT THE LEARNED AR OF THE ASSESSEE PLACED RELIANCE ON THE DECISIONS WHICH WERE ALSO CITED BEFORE THE LEARNED CIT(A) AND THEY ARE CIT V. MANMOHAN DAS (59 ITR 699) AND CIT V. WESTERN INDIA OIL DISTRIBUTING CO. LTD ( 126 ITR 497 (WRONGLY MENTIONED AS 249 ITR 517 IN THE APPELLATE ORDER). THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE ASSESSEE ALSO FILED WRITTEN SUBMISSION BEFORE THE LEARNED CIT(A) EXPLAINING THE ABOVE FACTS AND THE LEARNED CIT(A) SHOULD HAVE CONSIDE RED THE SAME INSTEAD OF RELYING ON THE RETURN FILED BY THE ASSESSEE WHEREIN THE ASSESSEE HAS SHOWN INADVERTENTLY THE SAID LOSS AS SHORT TERM CAPITAL LOSS. 5. ON THE OTHER HAND, THE LEARNED DR SUPPORTED THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. HE SUBM ITTED THAT IN THE RETURN FOR THE ASSESSMENT YEAR 2004 - 05 WITH COMPUTATION OF INCOME (COPY PLACED AT PAGE 38 OF THE PAPER BOOK), THE ASSESSEE HAS SHOWN THE ABOVE LOSS AS SHORT TERM CAPITAL LOSS APART FROM SHOWING SHARE TRADING PROFIT OF RS.1,457.25. HE FUR THER SUBMITTED THAT THE ASSESSEE HAD NOT FILED REVISED RETURN IF SHE CLAIMS THAT THERE IS INADVERTENT MISTAKE IN THE RETURN. HE FURTHER SUBMITTED THAT IN THE AY 2006 - 07 , THE ASSESSEE CANNOT CLAIM TO RECTIFY THE RETURN FILED FOR THE ASSESSMENT YEAR 2004 - 05 AND TO CLAIM THAT THE SHORT TERM CAPITAL LOSS SHOULD BE TREATED AS SHARE TRADING LOSS AND ALLOW SET OFF OF THE SAME IN THE ASSESSMENT YEAR 2006 - 07. HE SUBMITTED THAT THE ACTION OF THE AUTHORITIES BELOW BE UPHELD. 6. HAVING HEARD THE RIVAL CONTENTIONS OF TH E REPRESENTATIVES OF BOTH PARTIES, THERE IS NO DISPUTE TO THE FACT THAT THE ASSESSEE HAS SHOWN LOSS IN QUESTION AS SHORT TERM CAPITAL LOSS, WHICH IS ALSO CLEARLY EVIDENT FROM THE RETURN FOR THE ASSESSMENT YEAR 2004 - 05 WITH COMPUTATION OF INCOME, COPY OF WH ICH ARE PLACED AT PAGE 38 OF / I.T.A.NO.176/KOL/2010 3 THE PAPER BOOK. IT IS THE CONTENTION OF THE LEARNED AR OF THE ASSESSEE THAT THE LOSS WAS ACTUAL LY TRADING LOSS IN SHARE DEALINGS BUT THE SAME HAS INADVERTENTLY BEEN SHOWN IN THE RETURN OF THE ASSESSMENT YEAR 2004 - 05 AS SHORT T ERM CAPITAL LOSS. IN MY CONSIDERED VIEW, IF THERE IS SOMETHING WRONG IN THE RETURN OF INCOME, THE BEST RE COURSE LEFT WITH THE ASSESSEE WAS TO FILE A REVISED RETURN STATING THE CORRECT AFFAIRS. BUT ADMITTEDLY THE ASSESSEE HAS NOT FILED ANY REVISED RETURN F OR THE ASSESSMENT YEAR 2004 - 05. THEREFORE, THE CLAIM OF THE ASSESSEE MADE IN THE ASSESSMENT YEAR 2006 - 07 TO ALLOW SET OFF OF THE AMOUNT IN QUESTION RELATING TO THE ASSESSMENT YEAR S 2004 - 05 AND 2005 - 06, IN MY CONSIDERED VIEW, HAS RIGHTLY BEEN DISCARDED BY THE AUTHORITIES BELOW IN ABSENCE OF ANY REVISED RETURN FILED BY THE ASSESSEE CLAIMING THE LOSS AS SHARE TRADING LOSS AS AGAINST SHORT TERM CAPITAL LOSS SHOWN IN THE RETURN FILED BY THE ASSESSEE. THE DECISIONS CIT V. MANMOHAN DAS (59 ITR 699) AND CIT V. WES TERN INDIA OIL DISTRIBUTING CO. LTD (126 ITR 497 (WRONGLY MENTIONED AS 249 ITR 517 IN THE APPELLATE ORDER), CITED BY THE LEARNED AR OF THE ASSESSEE, IN MY CONSIDERED VIEW, HAVE RIGHTLY BEEN DISTINGUISHED BY THE LEARNED CIT(A) ON FACTS . THUS, I DO NOT FIND ANY INFIRMITY IN THE IMPUGNED ORDERS OF THE AUTHORITIES BELOW. I CONFIRM THE SAME AND DISMISS THE APPEAL OF THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISMISSED. THIS ORDER IS PRONOUNCED IN OPEN COURT ON DT. 30.6.2010 SD/ - ( . . ), ( B.R.MITTAL ), JUDICIAL MEMBER ( ) DATE : 30.06.2010 ( /) H.K.PADHEE / SNR.PRIVATE SECRETARY . / I.T.A.NO.176/KOL/2010 4 - COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT : SMTR.SRABANTI DAS, C/III/4,MAHABIR VIKASH, SEC.3, H.C.BLOCK, SALT LAKE, KOLKATA 700 016. 2 / THE RESPONDENT - INCO ME - TAX OFFICER, WARD 51(4), KOLKATA. 3. / THE CIT, 4. ( )/ THE CIT(A), 5. / DR, KOLKATA BENCH 6. GUARD FILE . / TRUE COPY , / BY ORDER , / DEPUTY REGISTRAR .