Anil Nandiram Ahuja, Kolhapur V. ITO, Ward 1(3), Kolhapur

ITA 2092/PUN/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 2510 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 4 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 19-10-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 29-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HITENDRA NINAWE
• Keywords: Unexplained cash credit; Unexplained investment; Unexplained expenditure; Income from undisclosed sources; Salary income; Period of limitation; Deemed to accrue or arise in india; Question of law; Speculation loss; Wrong claim; Surrender of tenancy right; Condonation of delay
• Section: 69C; 68; 69; 56; 15

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B, PUNE . . , ! , # $ BEFORE SHRI R.K. PANDA, AM AND SHRI VIKAS AWASTHY, JM . / ITA NO.2092/PN/2012 #& & / ASSESSMENT YEAR : 2008-09 SHRI ANIL NANDIRAM AHUJA, DIVYA GARMENTS MAIN ROAD, GANDHINAGAR,KOLHAPUR DISTRICT : KOLHAPUR PAN NO.AAPPA2020B . / APPELLANT V/S ITO, WARD-1(3), KOLHAPUR . / RESPONDENT C.O. NO.66/PN/2014 #& & / ASSESSMENT YEAR : 2008-09 ITO, WARD - 1(3), KOLHAPUR CROSS OBJECTOR V/S SHRI ANIL NANDIRAM AHUJA, DIVYA GARMENTS MAIN ROAD, GANDHINAGAR,KOLHAPUR DISTRICT : KOLHAPUR PAN NO.AAPPA2020B APPELLANT IN THE APPEAL / APPELLANT BY : SHRI SUNIL GANOO / REVENUE BY : SHRI HITENDRA NINAWE / DATE OF HEARING :19.01.2016 / DATE OF PRONOUNCEMENT: 18.03.2016 2 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 / ORDER PER R.K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 13-08-2012 OF THE CIT(A), KOLHAPUR RELATING TO ASSESSMENT YEAR 2008-09. THE REVENUE HAS ALSO FILED CR OSS OBJECTION AGAINST THE APPEAL FILED BY THE ASSESSEE. 2. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESSEE IS A N INDIVIDUAL AND FILED HIS RETURN OF INCOME ON 04-12-2008 DECLA RING TOTAL INCOME AT RS.1,21,750/-. DURING THE COURSE OF ASSESS MENT PROCEEDINGS THE AO ON VERIFICATION OF THE BANK ACCOUNT EX TRACT OF THE ASSESSEE MAINTAINED WITH KOLHAPUR MAHILA SAHAKARI BANK LIMITED NOTICED THAT THE ASSESSEE HAD MADE TRANSACTIONS TOTALING TO RS.58,34,629/-. THE AO ASKED THE ASSESSEE TO EXPLAIN THE SOURCE OF THE DEPOSITS MADE WITH THE BANK. HOWEVER, NO REPLY WAS RECEIVED FROM THE ASSESSEE. THEREAFTER THE AO ISSUED SUMMON U/S.131 OF THE I.T. ACT AND THE STATEMENT OF THE ASSESSEE WAS RECORDED IN THE PRESENCE OF HIS AUTHORIZED REPRESENTATIVE. THE ASSESSEE IN HIS REPLY TO QUESTION N O.7 EXPLAINED ABOUT THE TOTAL TRANSACTIONS AS UNDER : SR.NO. PARTICULARS AMOUNT (RS.) 1 TOTAL TRANSACTION WITH THE BANK 58,36,420 2 LESS : AMOUNT RECEIVED FROM JOINDRE CAPITAL SERVICES LTD FOR SALE OF SHARES BY CHEQUE 20,51,839 BALANCE 37,84,458 3 LESS HAND LOAN TAKEN FROM VANDANA SAREES BY CHEQUE 2,80,000 TOTAL CASH DEPOSITED 35,04,581 4 LESS : AMOUNT WITHDRAWN IN CASH (SELF) UTILISED FOR DEPOSITING IN THE ACCOUNT 6,10,000 5 NET CASH DEPOSITED IN BANK 28,94,581 3 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 2.1 THE ASSESSEE EXPLAINED THAT HE UTILIZED THE CASH DEP OSITED IN THE BANK ACCOUNT FOR PAYMENT TOWARDS SHARE TRADING TRANSACTIONS WITH JOINDRE CAPITAL SERVICES LTD. 2.2 THE AO NOTED THAT THE ASSESSEE WAS REPEATEDLY AS KED ABOUT THE SOURCE OF CASH DEPOSITED IN THE BANK VIDE QU ESTION NOS. 7, 8, 11 & 12. IT WAS EXPLAINED BY THE ASSESSEE THA T HE HAD TAKEN HAND LOANS FROM RELATIVES BUT HE EXPRESSED HIS INAB ILITY TO STATE THE NAMES OF THE PERSONS FROM WHOM HE HAD TAKEN THE LOANS. THE ASSESSEE WAS SPECIFICALLY ASKED VIDE QUESTION N O.12 AS TO WHY THE AMOUNT DEPOSITED INTO BANK SHOULD NOT BE TREATED AS HIS UNEXPLAINED INVESTMENT. SINCE HE WAS UNABLE TO STA TE THE NAMES OF THE PERSONS FROM WHOM HE HAD TAKEN HAND LOANS THE AO ASKED THE ASSESSEE TO EXPLAIN AS TO WHY CASH DEPOS ITED IN THE BANK SHOULD NOT BE TREATED AS HIS OWN MONEY. IN REPLY TO THIS QUESTION THE ASSESSEE ANSWERED THAT HE SUFFERED HEAVY LOSS OF RS.13,86,925/- IN SHARE TRADING AND HIS MONETARY CONDITION WAS AFFECTED. IT WAS ARGUED THAT HE HAD TAKEN HAND LOANS FR OM RELATIVES AND DEPOSITED THE CASH IN THE BANK BUT HE WAS UNABLE TO STATE THE NAMES OF THE PERSONS FROM WHOM HE HAD TA KEN HAND LOANS. IT WAS FURTHER STATED THAT IT IS TRUE THAT HE SH OULD HAVE DISCLOSED THE TRANSACTIONS IN THE INCOME TAX RETURN BUT IT REMAINED TO BE DISCLOSED DUE TO LOSS SUFFERED IN SHARE T RADING FOR WHICH HE REQUESTED FOR EXCUSE. 3. HOWEVER, THE AO WAS NOT SATISFIED WITH THE EXPLANATION GIVEN BY THE ASSESSEE. HE NOTICED THAT THE ASSESSEE IS SILENT REGARDING THE NAMES OF THE PERSONS FROM WHOM HE HAD TA KEN 4 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 HAND LOANS AND NO SATISFACTORY EXPLANATION WAS OFFERED. TH E ONUS FOR FURNISHING THE EVIDENCE AND PROVING THE HAND LOAN S AS GENUINE IS ON THE ASSESSEE. SINCE THE ASSESSEE DID NOT DISCHARGE THE RESPONSIBILITY, THE AO TREATED THE CASH DEPOSITED AMO UNTING TO RS.28,94,581/- IN THE BANK ACCOUNT AS HIS UNEXPLAINED M ONEY U/S.69A OF THE INCOME TAX ACT. HE ACCORDINGLY MADE ADDIT ION OF RS.28,94,581/- TO THE TOTAL INCOME OF THE ASSESSEE. 4. BEFORE CIT(A) THE ASSESSEE REITERATED THE SAME SUBMIS SIONS AS MADE BEFORE THE AO. IN ADDITION IT WAS SUBMITTED THAT THE LOSS SUFFERED BY THE ASSESSEE FROM SHARE TRADING BUSINESS WAS EVIDENT FROM THE CHEQUE PAYMENTS MADE TO THE BROKER. IT WAS ARGUED THAT THIS FACT WAS BROUGHT TO THE NOTICE OF THE AO IN ANSWER TO QUESTION NOS. 6,9,10 AND 12 OF STATEMENT RECO RDED. IT WAS ARGUED THAT DURING ASSESSMENT PROCEEDINGS IT WAS S UBMITTED THAT THE ASSESSEE HAD SUFFERED LOSS OF RS.13,86,925/- IN SH ARE TRADING IN THE TRADING OF FUTURES. THUS, THERE IS BUSINES S LOSS SUFFERED BY THE ASSESSEE. RELYING ON THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF G.K. ANAND BUILDERS PVT . LTD. VS. ITO WHERE IT HAS BEEN HELD THAT LOSS EMANATING FR OM FUTURES OPTION TRANSACTIONS IN A RECOGNIZED STOCK EXCHA NGE IS TO BE TREATED AS BUSINESS LOSS AND NOT AS A LOSS FROM SPEC ULATIVE TRANSACTIONS, IT WAS ARGUED THAT THE LOSS SUFFERED BY THE ASSESSEE OUGHT TO HAVE BEEN SET OFF AGAINST THE INCOME ASSESSED ON ACCOUNT OF UNEXPLAINED MONEY AS THE BUSINESS LOSS CAN B E SET OFF AGAINST THE OTHER INCOME. VARIOUS DECISIONS WERE ALSO BRO UGHT TO THE NOTICE OF THE CIT(A). 5 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 5. HOWEVER, THE CIT(A) WAS ALSO NOT CONVINCED WITH THE EXPLANATION GIVEN BY THE ASSESSEE AND UPHELD THE ACTION OF THE AO BY OBSERVING AS UNDER : 7. I HAVE CONSIDERED THE SUBMISSION OF THE APPELLANT W ITH REFERENCE TO THE FACTS ON RECORD. FROM THE COPY OF STATEMENT ISSUED BY JOINDRE CAPITAL SERVICES LTD., IT IS SEEN THAT THE APPELLANT HAD SUFFERED SHARE TRADING (OF FUTURES OPTIONS TRANSACTION) LOSS OF RS.13,86,925/-. THE APPELLANT HAD FUNDED THESE TRANSA CTIONS THROUGH HAND LOANS AGGREGATING TO RS.28,94,581/- RAISE D FROM RELATIVES, WHICH REMAINED UNEXPLAINED. THE AO TREAT ED IT AS APPELLANTS INCOME U/S.69A OF THE I.T. ACT. THE APPE LLANT ALSO SUFFERED A LOSS OF RS.13,86,925/- WHICH WAS NOT ALLOWED TO BE SET OFF AGAINST THE INCOME TAXED U/S.69A OF THE I.T. ACT. 8. THE ISSUE IS WHETHER THE LOSS OF RS. 13,86,925/ - SUFFE RED BY THE APPELLANT CAN BE SET OFF AGAINST INCOME OF RS.28,9 4,581/- WHICH WAS BROUGHT TO TAX U/S.69A OF THE ACT. I FIND THAT T HE HONBLE CHANDIGARH TRIBUNAL, 'A' BENCH, HAS RECENTLY HAD THE OCCASION TO DELIBERATE ON THIS ISSUE IN THE CASE ITO, WARD V(1) LU DHIANA V. DULARI DIGITAL PHOTO SERVICES (P.) LTD IN ITA NO. 98 4 (CHD.] IN THEIR ORDER DOTTED 09-03-2012. THE ASSESSEE-COMPANY, DULARI D IGITAL, WAS ENGAGED IN THE BUSINESS OF PHOTOGRAPHY. THE ASSESSING OFFI CER NOTICED THAT CERTAIN SUM FROM S WAS CREDITED IN THE BOOKS OF ACCOUNT AS COMMODITY PROFIT. THE ASSESSING OFFICER HELD THAT THE IMPUGNED TRANSACTIONS SHOWING GENERATION OF COMMODITY PROFIT WAS SHAM AND BOGUS AND, CONSEQUENTLY, ASSESSED IT AS UNEXPLAIN ED CASH CREDIT UNDER SECTION 68. THE ASSESSEE CONTENDED THAT TH E IMPUGNED SUM TAXED UNDER SECTION 68 SHOULD BE TREATED AS INCOME FROM OTHER SOURCES UNDER SECTION 56 AND THE SAME SHOULD BE SET-OFF A GAINST THE LOSSES UNDER OTHER HEADS OF INCOME IN TERMS OF SECTION 71 . THE ASSESSING OFFICER REJECTED AFORESAID CLAIM. THE APPELLAN T SUCCEEDED IN FIRST APPEAL. THE DEPARTMENT APPEALED BEFORE THE ITAT. THE ISSUE BEFORE THE TRIBUNAL WAS WHETHER UNEXPLAINED CASH CRED ITS, CAN BE CONSIDERED FOR SET-OFF AGAINST LOSSES UNDER VARIOUS HEADS O F INCOME UNDER SECTION 14. THE TRIBUNAL WENT INTO THE SCHEME O F TAXATION UNDER THE INCOME-TAX ACT, THE SCOPE OF CHAPTER VI OF THE INCOME-TAX ACT IN GENERAL AND THE PROVISIONS OF SECTION 68 IN PA RTICULAR. WHILE DOING SO THEY ALSO CONSIDERED THE FACT THAT SECTIONS 69, 69A, 69B AND 69C ARE ALSO CONTAINED IN CHAPTER VIA. IT WAS HELD- 14. THE AFORESAID VIEW IS SUPPORTED BY THE SCHEME O F TAXATION UNDER THE INCOME-TAX ACT. SECTION 2(45) DEFINES 'TO TAL INCOME' AS 'THE TOTAL INCOME REFERRED TO IN SECTION 5, COMP UTED IN THE MANNER LAID DOWN IN THIS ACT'. IT IS RELEVANT TO NO TE THAT THE PRINCIPAL CHARGING SECTION 4 MAKES THE 'TOTAL INCOM E OF THE PREVIOUS YEAR' SUBJECT TO THE CHARGE OF INCOME-TAX. SECTION 5 DEFINES THE SCOPE OF TOTAL INCOME REFERRED TO IN TH E PRINCIPAL CHARGING SECTION. SECTION 14 CLASSIFIES THE HEADS O F INCOME WHILE SECTIONS 15 TO 59 PROVIDE FOR ITS QUANTIFICAT ION. CHAPTER VI OF THE INCOME-TAX ACT PROVIDES FOR AGGREGATION OF I NCOME AND SET OFF OR CARRY FORWARD OF LOSS. THUS CHAPTER VI I S IN TWO PARTS; FIRST PART DEALS WITH AGGREGATION OF INCOME WHILE T HE SECOND PART DEALS WITH SET OFF OR CARRY FORWARD OF LOSSES. CHAP TER VI HAS 6 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 BEEN PLACED AFTER CHAPTER IV AND V. IT COMES INTO P LAY ONLY AFTER THE COMPUTATION OF TOTAL INCOME UNDER VARIOUS HEADS OF INCOME IN TERMS OF CHAPTER IV HAS BEEN DONE. INCOME FALLI NG UNDER CHAPTER VI IS TAXED BY AGGREGATING THE SAME WITH TH E INCOME QUANTIFIED IN TERMS OF CHAPTER IV. CHAPTER VI IS N OT SUBSERVIENT TO CHAPTER IV. BESIDES, SECTION 14 ALLOWS THE TAXA BILITY OF INCOME UNDER SPECIFIC PROVISIONS OF THE I.T. ACT OU TSIDE CHAPTER IV. FOR THE REASONS AFORESTATED, THE INCOME ASSESS ABLE U/S.68 CANNOT BE ASSESSED AS INCOME FROM OTHER SOURCES U/S .56. 15. THUS WHAT IS TAXED UNDER CHAPTER IV IS INCOME FROM A KNOWN SOURCE INCLUDING INCOME FROM OTHER SOURCES. A SOURCE OF INCOME MEANS A SPECIFIC SOURCE FROM WHICH A PARTICULAR INCOME SPRINGS OR ARISES. ONCE A SOURCE GIVING RISE TO A PARTICULAR INCOME IS IDENTIFIED, IT HAS THEN TO BE PLACED UNDER A PARTICULAR HEAD OF INCOME AS SPECIFIED IN SECTION 14. THUS INCOME CAN BE TAXED UNDER A SPECIFIC HEAD OF INCOME AS ENUMERATED IN SECTION 14 ONLY WHEN IT IS POSSIBLE TO PEG THE SAME TO A KNOWN SOURCE/HEAD OF INCOME. IF THE NATUR E AND SOURCE OF A PARTICULAR RECEIPT IS NOT KNOWN, IT CANNOT THEN BE PEGGED TO A KNOWN SOURCE/HEAD OF INCOME. CHAPTER IV CONTEMPLATES COMPUTATION OF INCOME ARISING FROM KNOWN SOURCES/HEADS OF INCOME WHEREAS CHAPTER VI, ON THE OTHER HAND, CONTEMPLATES AGGREGATION OR THE ENTIRE SUM THE NATURE AND SOURCES OF WHICH ARE NOT KNOWN. THE AFORESAID TWO CHAPTERS ARE COMPLETELY DIFFERENT IN THEIR NATURE, SCOPE AND EFFECT. THOUGH THE INCOMES ASSESSABLE UNDER THEM ARE PART OF TOTAL INCOME AS DEFINED IN SECTIONS 2(45)/4/5/ OF THE I. T ACT YET THAT DOES NOT MEAN THAT THE INCOME ASSESSABLE UNDER SECTION 68 HAS TO BE ASSESSED U/S 56. IN THE CASE BEFORE US, SOURCE OF UNEXPLAINED CASH CREDITS IS NOT KNOWN AND HENCE THEY CANNOT BE LINKED TO ANY KNOWN SOURCE/HEAD OF INCOME INCLUDING INCOME FROM OTHER SOURCES. IN ORDER TO CONSTITUTE INCOME FROM 'OTHER SOURCES', THE SOURCE, NAMELY, THE 'OTHER SOURCES', HAS TO BE IDENTIFIED. INCOME FROM UNEXPLAINED OR UNKNOWN SOURCES CANNOT THEREFORE BE CONSIDERED OR TAXED AS INCOME FROM OTHER SOURCES. THE AFORESAID VIEW IS FORTIFIED BY THE JUDGMENT OF THE HONBLE GUJARAT HIGH COURT IN FAIR MOHMED HAJI HASAN V. CIT (2001) 247 ITR 290/(2002) 120 TAXMAN 11 IN WHICH THE HONBLE HIGH COURT HAS HELD AS UNDER : THE SCHEME OF SECTIONS 69, 69A, 69B AND 69C OF THE INCOME- TAX ACT, 1961, WOULD SHOW THAT IN CASES WHERE THE N ATURE AND SOURCE OF INVESTMENTS MADE BY THE ASSESSEE OR THE N ATURE AND SOURCE OF ACQUISITION OF MONEY, BULLION, ETC., OWNE D BY THE ASSESSEE OR THE SOURCE OF EXPENDITURE INCURRED BY T HE ASSESSEE ARE NOT EXPLAINED AT ALL, OR NOT SATISFACTORILY EXP LAINED, THEN, THE VALUE OF SUCH INVESTMENTS AND MONEY OR THE VALUE OF ARTICLES NOT RECORDED IN THE BOOKS OF ACCOUNT OR THE UNEXPLAINED EXPENDITURE MAY BE DEEMED TO BE THE INCOME OF SUCH ASSESSEE. IT FOLLOWS THAT THE MOMENT A SATISFACTORY EXPLANATION IS GIVEN ABOUT SUCH NATURE AND SOURCE BY THE ASSESSEE, THEN THE SOURCE WOULD STAND DISCLOSED AND WILL, THEREFORE, BE KNOWN AND THE INC OME WOULD BE TREATED UNDER THE APPROPRIATE HEAD OF INCOME FOR AS SESSMENT AS PER THE PROVISIONS OF THE ACT. HOWEVER, WHEN THESE PROVISIONS APPLY BECAUSE NO SOURCE IS DISCLOSED AT ALL ON THE BASIS OF WHICH THE INCOME CAN BE CLASSIFIED UNDER ONE OF THE HEADS OF INCOME UNDER SECTION 14 OF THE ACT, IT WOULD NOT BE POSSIB LE TO CLASSIFY SUCH DEEMED INCOME UNDER ANY OF THESE HEADS INCLUDI NG INCOME FROM 'OTHER SOURCES' WHICH HAVE TO BE SOURCE S KNOWN OR EXPLAINED. WHEN THE INCOME CANNOT BE SO CLASSIFIED UNDER ANY 7 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 ONE OF THE HEADS OF INCOME UNDER SECTION 14, IT FOL LOWS THAT THE QUESTION OF GIVING ANY DEDUCTIONS UNDER THE PROVISI ONS WHICH CORRESPOND TO SUCH HEADS OF INCOME WILL NOT ARISE. IF IT IS POSSIBLE TO PEG THE INCOME UNDER ANY ONE OF THOSE H EADS BY VIRTUE OF A SATISFACTORY EXPLANATION BEING GIVEN, T HEN THESE PROVISIONS OF SECTIONS 69, 69A, 69B AND 69C WILL NO T APPLY, IN WHICH EVENT, THE PROVISIONS REGARDING DEDUCTIONS, E TC., APPLICABLE TO THE RELEVANT HEAD OF INCOME UNDER WHI CH SUCH INCOME FALLS WILL AUTOMATICALLY BE ATTRACTED. THE OPENING WORDS OF SECTION 14 'SAVE AS OTHERWISE PROVIDED BY THIS ACT' CLEARLY LEAVE SCOPE FOR 'DEEMED INCOME ' OF THE NATURE COVERED UNDER THE SCHEME OF SECTIONS 69, 69A , 69B AND 69C BEING TREATED SEPARATELY, BECAUSE SUCH DEEMED I NCOME IS NOT INCOME FROM SALARY, HOUSE PROPERTY, PROFITS AND GAINS OF BUSINESS OR PROFESSION, OR CAPITAL GAINS, NOR IS IT INCOME FROM 'OTHER SOURCES' BECAUSE THE PROVISIONS OF SECTIONS 69, 69A, 69B AND 69C TREAT UNEXPLAINED INVESTMENTS, UNEXPLAINED MONEY, BULLION, ETC., AND UNEXPLAINED EXPENDITURE AS DEEME D INCOME WHERE THE NATURE AND SOURCE OF INVESTMENT, ACQUISIT ION OR EXPENDITURE, AS THE CASE MAY BE, HAVE NOT BEEN EXPL AINED OR SATISFACTORILY EXPLAINED. THEREFORE, IN THESE CASES , THE SOURCE NOT BEING KNOWN, SUCH DEEMED INCOME WILL NOT FALL E VEN UNDER THE HEAD 'INCOME FROM OTHER SOURCES'. THEREFORE, TH E CORRESPONDING DEDUCTIONS WHICH ARE APPLICABLE TO TH E INCOMES UNDER ANY OF THESE VARIOUS HEADS, WILL NOT BE ATTRA CTED IN THE CASE OF DEEMED INCOMES WHICH ARE COVERED UNDER THE PROVISIONS OF SECTIONS 69, 69A, 69B AND 69C OF THE ACT IN VIEW OF THE SCHEME OF THOSE PROVISIONS. 16. IN VIEW OF THE FOREGOING, WE ARE UNABLE TO HOLD THAT UNEXPLAINED CASH CREDITS ASSESSED U/S.68 ARE TO BE ASSESSED AS INCOME FROM OTHER SOURCES U/S.56. 9. IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT THE AP PELLANT IS NOT ENTITLED TO HAVE SET OFF OF SO-CALLED BUSINESS LOSS AG AINST THE DEEMED INCOME BROUGHT TO TAX U/S.69A OF THE ACT. 10. THE APPELLANT HAS ALSO RELIED ON THE CERTAIN CASE LAWS AND A CIRCULAR OF THE DEPTT. THEY ARE DISCUSSED HEREUNDER. 11. THE APPELLANT HAS RELIED ON THE DECISION GIVEN BY THE HONBLE ITAT, DELHI IN THE CASE OF G.K. ANAND BUILDERS (P) L TD. VS. ITO 132 SOT 439, WHEREIN IT IS HELD THAT LOSS EMANATING FROM FUTURE OPTIONS TRANSACTIONS IN A RECOGNIZED STOCK EXCHANGE IS TO BE TR EATED AS BUSINESS LOSS AND NOT LOSS FROM SPECULATIVE TRANSACTION. T HUS, IT WAS SUBMITTED THAT THE LOSS SUFFERED BY THE APPELLANT IS A BUSINESS LOSS AND NOT A SHORT TERM CAPITAL LOSS. THE CONTENTION RAISED BY THE APPELLANT IS ACCEPTED AND THE A.O. IS DIRECTED TO TRE AT THE LOSS AS A BUSINESS LOSS. 12. NEXT, THE APPELLANT QUOTED THE DECISION OF THE H ONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. CHENSING VENTURES, 29 1 ITR 258 (2007) IN WHICH IT IS HELD AFTER SETTING OFF LOSSES AGAINST THE INCOME UNDER THE SAME HEAD, IF THE NET RESULT IS STILL A LOSS, THE ASSESS EE CAN SET OFF THE SAID LOSS UNDER S. 71 AGAINST INCOME OF THE SAME Y EAR UNDER ANY OTHER HEAD, EXCEPT FOR LOSSES WHICH ARISE UNDER THE HEAD 8 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 'CAPITAL GAINS'. THE INCOME TAX IS ONLY ONE TAX AND LEVIED ON THE SUM TOTAL ON THE INCOME CLASSIFIED AND CHARGEABLE U NDER THE VARIOUS HEADS. SEC. 14 HAS CLASSIFIED DIFFERENT HEA DS OF INCOME AND INCOME UNDER EACH HEAD IS SEPARATELY COMPUTED. INCOME WHICH IS COMPUTED IN ACCORDANCE WITH LAW IS ONE INC OME AND IT IS NOT A COLLECTION OF DISTINCT TAX LEVIED SEPARATE LY ON EACH HEADS OF INCOME AND IT IS NOT AN AGGREGATE OF VARIOUS TAX ES COMPUTED WITH REFERENCE TO EACH OF THE DIFFERENT SOURCES SEP ARATELY. THERE IS ONLY ONE ASSESSMENT AND THE SAME IS MADE AFTER T HE TOTAL INCOME HAS BEEN ASCERTAINED. THE ASSESSEE IS SUBJEC T TO INCOME-TAX ON HIS TOTAL INCOME THOUGH HIS INCOME UN DER EACH HEAD MAY BE WELL BELOW THE TAXABLE LIMIT. HENCE THE LOSS SUSTAINED IN ANY YEAR UNDER ANY HEAD OF INCOME WILL HAVE TO BE SET OFF AGAINST INCOME UNDER ANY OTHER HEAD. THE A .O. MADE ADDITION OF RS.28,50,000/- AS UNDISCLOSED INCOME UN DER S.69. ONCE THE LOSS IS DETERMINED, THE SAME SHOULD BE SET OFF AGAINST THE INCOME DETERMINED UNDER ANY OTHER HEAD OF INCOM E. IN THE ASSESSMENT, NO REASONS WERE GIVEN BY THE A.O. TO DE NY THE BENEFIT OF S.71. THE BENEFIT PROVIDED UNDER S. 71 CANNOT BE DENIED. THE REASONS GIVEN BY THE TRIBUNAL ARE BASED ON VALID MATERIALS AND EVIDENCE AND THE SAME IS IN ACCORDANC E WITH THE PROVISIONS OF S.71. THERE IS NO ERROR OR LEGAL INFI RMITY IN THE IMPUGNED ORDER. UNDER THESE CIRCUMSTANCES, NO SUBST ANTIAL QUESTION OF LAW ARISES FOR CONSIDERATION. 13. THIS DECISION IS APPLICABLE IN CASES WHERE THERE IS S OME INCOME AVAILABLE UNDER THE HEADS ENUMERATED IN SECTI ON 14 OF THE ACT FOR THE PURPOSE OF SET OFF AND NOT IN CASES WHERE THERE IS NO INCOME WHICH CAN BE TAXED UNDER A PARTICULAR HEAD E NUMERATED IN SECTION 14 OF THE ACT. THEREFORE, THE DECISION DOES NOT COME IN AID OF THE APPELLANT. 14. THEREAFTER, THE APPELLANT CITED THE DECISION GI VEN BY HONBLE ITAT, AHMEDABAD BENCH D IN THE CASE OF ITO VS. HYTA ISUM MAGNATICS LTD., IN ITA NO.2897, 2898/AHD/2008 FOR A. Y. 1997-98, IN WHICH THE HONBLE TRIBUNAL OBSERVED IN PARA 11 TH AT FURTHER, THERE IS NO PROVISION UNDER THE INCOME TA X ACT TO PROHIBIT SET OFF OF CURRENT YEARS BUSINESS LOSS AG AINST INCOME OF THE ASSESSEE WHICH IS ASSESSABLE UNDER THE HEAD IN COME FROM OTHER SOURCES. SECTION 70 DOES NOT PROHIBIT SUCH SET OFF. 15. IN THIS CASE, AMOUNTS WERE ADDED U/ S 69 OF THE I. T. A CT AGAINST WHICH EARLIER YEAR'S BUSINESS LOSSES WERE NOT ALLOW ED TO BE SET OIL. THE HON'BLE TRIBUNAL ACCEPTED THE CONTENTIO N OF THE APPELLANT THAT THE BROUGHT FORWARD BUSINESS LOSS ARE ALLOWED TO BE SET OFF AGAINST THE INCOME ASSESSED U/S.69 BECAUSE OF THE FACT TH AT THE APPELLANT'S INCOME WAS ASSESSED UNDER THE HEAD 'INCOME FR OM OTHER SOURCES' U/S 56 OF THE ACT. IN THESE CIRCUMSTANCES THE B USINESS LOSS FOR CURRENT YEAR WAS ALLOWED TO BE SET OFF AGAINST CUR RENT YEAR'S INCOME FROM OTHER SOURCES. IN THE INSTANT CASE OF THE APPELLANT, I FIND THAT THE A.O. HAS RIGHTLY NOT ASSESSED THE AFORESAID INC OME AS INCOME FROM OTHER SOURCES U/S. 56 OF THE ACT, BUT HAD SIMPLY A DDED AS UNACCOUNTED INCOME OF THE APPELLANT WHICH IS LIABLE TO BE TAXED U/S. 69A OF THE ACT. THEREFORE, THE CASE LAWS RELIED UPON BY THE APPELLANT IS OF NO CONSEQUENCE AND ON THE CONTRARY, AS IT IS STATE D IN PARA 7 TO 10 ABOVE, THE BUSINESS LOSS CANNOT BE SET OFF AGAINST THE INCOME WHICH IS BROUGHT TO TAX UNDER CHAPTER VI OF THE L. T . ACT. 9 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 16. THE APPELLANT HAS RELIED ALL CIRCULAR NO. 14 (XL -35) DT.11/04/1995 IN WHICH THE BOARD HAS ISSUED INSTRUCTIO NS THAT 'OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ONE OF THEIR DU TIES TO ASSIST A TAX PAYER IN EVERY REASONABLE WAY, PARTICULARLY IN THE MATTER OF CLAIMING GILD SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SH OULD TAKE THE INITIATIVE IN GUIDING A TAX PAYER WHERE PROCEEDINGS OR OTHER P ARTICULARS BEFORE THEM INDICATE THAT SOME REFUND OR RELIEF IS DUE TO HIM .... ' I AM UNABLE TO FIGURE OUT AS TO HOW THIS CIRCULAR COMES OUT IN FA VOUR OF THE APPELLANT WHILE DECIDING THE ISSUE OF WHETHER INCOMES DESCRIBED UNDER CHAPTER VI ARE AVAILABLE FOR SET OFF U/S.71 OF THE I.T. ACT. 17. IN VIEW OF THE ABOVE DISCUSSION, I HOLD THAT THE A PPELLANT IS NOT ENTITLED TO HAVE SET OFF OF SO-CALLED BUSINESS LOSS A GAINST THE DEEMED INCOME BROUGHT TO TAX U/S.69A OF THE ACT. IN THE RESULT, THE GROUNDS OF APPEAL STANDS DISMISSED. 6. AGGRIEVED WITH SUCH ORDER OF THE CIT(A) THE ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS : 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW THE LD.CIT(A) IS NOT JUSTIFIED IN REJECTING THE CLAIM OF SET OFF OF BUSINESS LOSS AGAINST THE INCOME DETERMINED. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW THE LD.CIT(A) FAILED TO APPRECIATE THAT ONCE LOSS IS D ETERMINED THE SAME SHOULD BE SET OFF AGAINST THE INCOME DETERMINED AN D THE BENEFIT GIVEN BY STATUTE CANNOT BE DENIED. 7. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT DURIN G THE YEAR UNDER CONSIDERATION, THE ASSESSEE SUFFERED LOSS OF RS.13,86,925/- IN SHARE TRADING OF FUTURES AND OPTIONS. IN H IS RETURN OF INCOME FILED, BY MISTAKE, INADVERTENCE AND LACK OF PROPER KNOWLEDGE, THE ASSESSEE DID NOT DISCLOSE THIS LOSS AND DID NOT CLAIM SET OFF OF THE SAME AGAINST HIS OTHER INCOME. HOWE VER DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESS EE POINTED OUT THIS FACT TO THE ASSESSING OFFICER. HOWEVER T HE ASSESSING OFFICER CONVENIENTLY IGNORED THIS FACT AND DID NOT ALLOW THE SET OFF OF THE SAID LOSS AGAINST OTHER INCOME. THIS ACT ION OF THE 10 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 ASSESSING OFFICER IS CONTRARY TO THE CIRCULAR NO.14 [XL-35] DT.11/04/1955 ISSUED BY CBDT. 8. HE SUBMITTED THAT DURING THE ASSESSMENT PROCEEDINGS AS WELL AS APPELLATE PROCEEDINGS, THE ASSESSEE HAS FILED ALL THE NECESSARY DOCUMENTS IN SUPPORT OF HIS CLAIM OF LOSS SUFFERED IN SHARE TRADING TRANSACTIONS. THE CIT(A) VIDE PARA NO.11 OF HIS APPELLATE ORDER HAS DIRECTED THE A.O. TO TREAT THE SAID LO SS AS BUSINESS LOSS, BUT HAS REJECTED THE PRAYER OF THE ASSES SEE TO SET OFF THE SAID LOSS AGAINST THE ADDITIONS MADE U/S. 69A BY PLA CING RELIANCE ON FOLLOWING DECISIONS: I] ITO WARD VS. DULARI DIGITAL PHOTO SERVICES [P] LTD REPORTED IN 53 SOT 210 [CHANDIGARH] II] FAKIR MOHMED HAJI HASAN VS. CIT REPORTED IN 247 I TR. PAGE 290 [GUJ] 9. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHILPA D YEING & PRINTING MILLS [P] LTD REPORTED IN [2013] 39 TAXMANN.COM 3 HAS DISTINGUISHED AND EXPLAINED THE DECISION IN THE CASE OF FAKIR MOHD. REFERRED ABOVE AND HAS HELD THAT THE LOSS CAN BE SET OFF UNDER ANY HEAD OF INCOME INCLUDING UNDISCLOSED INCOME. THE HON. MADRAS HIGH COURT IN THE CASE OF CIT VS CHENSING VE NTURES REPORTED IN 291 ITR PAGE 258 HAS ALSO HELD THAT LOSS CA N BE SET OFF UNDER ANY HEAD OF INCOME INCLUDING UNDISCLOSED INCOME. 9.1 REFERRING TO THE DECISION OF THE DELHI BENCH OF THE TRIB UNAL IN THE CASE OF G.K. ANAND BROTHERS AND BUILDWELL PVT. LTD. VS . ITO REPORTED IN 34 SOT 439 HE SUBMITTED THAT THE HON BLE TRIBUNAL IN THE SAID DECISION HAS HELD THAT LOSS ARISING IN FU TURE 11 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 AND OPTION TRANSACTION CARRIED OUT IN A RECOGNIZED STOCK EXCHANGE IS TO BE TREATED AS A BUSINESS LOSS AND NOT A LOSS IN SPECULATION BUSINESS. HE ALSO RELIED ON THE DECISION OF HON BLE GUJARAT HIGH COURT IN THE CASE OF DCIT VS. RADHE DEVELOP ERS INDIA LTD. REPORTED IN 329 ITR 1. HE ACCORDINGLY SUBM ITTED THAT THE LOSS TO THE TUNE OF RS.13,86,925/- BE SET OFF FROM THE INCOME OF RS.28,94,581/- ADDED BY THE AO U/S.69A OF THE INCOME T AX ACT, 1961. 10. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND HEAVILY RELIED ON THE ORDER OF THE AO AND THE CIT(A). HE SUBMITTED THAT THE ASSESSEE HAS NOT DISCLOSED THE LOSS FROM SHAR E TRADING OF FUTURES IN THE RETURN OF INCOME. THE ONLY INCO ME SHOWN WAS FROM INTEREST INCOME AND INCOME FROM DIVYA GARMENTS. HE SUBMITTED THAT NO SUCH TRANSACTION IN SHA RE TRADING OF FUTURES WAS THERE IN THE PRECEDING YEAR OR S UCCEEDING YEAR. THEREFORE, THE CLAIM OF LOSS FROM SHARE TRADING OF FUTURES IS A BOGUS CLAIM AND SHOULD NOT BE ACCEPTED. EVEN OTHERWIS E ALSO, IN VIEW OF THE DECISION OF HONBLE CHATTISGRAH HIGH COURT IN THE CASE OF DHANUSH GENERAL STORES VS. CIT REPORTED IN 339 ITR 651 THE ASSESSEE IS NOT ENTITLED TO GET THE BENEFIT OF SET OFF SINCE THE SAME WAS NOT DECLARED IN THE RETURN OF INCOME. HE ALSO RELIED ON THE DECISIONS RELIED ON BY THE CIT(A). 11. THE LD. COUNSEL FOR THE ASSESSEE IN HIS REJOINDER SUBM ITTED THAT THE RELIANCE PLACED BY THE LD. DEPARTMENTAL REPRESE NTATIVE ON THE DECISION OF HONBLE CHATTISGARH HIGH COURT IN THE C ASE OF DHANUSH GENERAL STORES (SUPRA) IS CLEARLY MISPLACED. WITHO UT PREJUDICE TO THE ABOVE AND BY WAY OF AN ALTERNATE SUBM ISSION THE 12 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 LD. COUNSEL FOR THE ASSESSEE SUBMITTED THAT IT IS A WELL S ETTLED LAW THAT IN CASE 2 COMPARABLE CONSTRUCTIONS OF STATUTE A RE POSSIBLE, THEN THE CONSTRUCTION WHICH IS FAVOURABLE TO THE ASSESSEE IS TO BE ADOPTED. FOR THE ABOVE PROPOSITION, H E RELIED ON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF CIT VS. VEGETABLE PRODUCTS LTD. REPORTED IN 88 ITR 192. 12. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY BOTH THE SIDES, PERUSED THE ORDERS OF THE AO AND CIT(A) AND THE P APER BOOK FILED ON BEHALF OF THE ASSESSEE. WE HAVE ALSO CONSIDER ED THE VARIOUS DECISIONS CITED BEFORE US. WE FIND THE AO MAD E ADDITION OF RS.28,94,581/- TO THE TOTAL INCOME OF THE ASSES SEE U/S.69A OF THE I.T. ACT ON THE GROUND THAT THE ASSESSE E WAS UNABLE TO EXPLAIN THE SOURCE OF CASH DEPOSITED IN THE BAN K ACCOUNT MAINTAINED WITH KOLHAPUR MAHILA SAHAKARI BANK LTD. WE FIND THE LD.CIT(A) UPHELD THE ACTION OF THE AO WHICH HAS ALREADY BEEN REPRODUCED IN PARA 5 OF THIS ORDER. IT IS T HE GRIEVANCE OF THE ASSESSEE THAT DURING THE COURSE OF ASS ESSMENT PROCEEDINGS THE ASSESSEE HAD EXPLAINED BEFORE THE AO TH AT IT HAS SUFFERED A LOSS OF RS.13,86,925/- IN SHARE TRADING IN TRADING OF FUTURES. HOWEVER, INADVERTENTLY THE SAME WAS NOT DECLA RED IN THE RETURN OF INCOME. THEREFORE, THE LOSS TO THE EXTENT O F RS.13,86,925/- SHOULD BE SET OFF AGAINST THE ADDITION MADE U/S.69A OF THE ACT. WE FIND ALTHOUGH THE CIT(A) DIRECTED TH E AO TO TREAT THE LOSS OF RS.13,86,925/- AS BUSINESS LOSS, HOWE VER, HE HELD THAT ASSESSEE IS NOT ENTITLED TO HAVE SET OFF THE SO CALLED BUSINESS LOSS AGAINST THE DEEMED INCOME BROUGHT TO TAX U/S.69A OF THE I.T. ACT. ALTHOUGH THE REVENUE HAS FILED A CROSS OBJECTION 13 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 AGAINST THE ABOVE FINDING OF THE CIT(A) THE SAID CROSS OBJE CTION HAS BEEN REJECTED BY US IN THE LATER PART OF THIS ORDER FOR THE REASONS GIVEN THEREIN. THUS, THE QUESTION THAT ARISES IS AS TO WHETHER SUCH BUSINESS LOSS CAN BE SET OFF AGAINST THE IN COME ADDED BY THE AO U/S.69A OF THE I.T. ACT. 13. WE FIND IDENTICAL ISSUE HAD COME UP BEFORE THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT VS. SHILPA DYEING & PRINTING MILLS PVT. LTD. IN THAT CASE THE ASSESSEE COMPANY WAS ENGAGED IN THE BUSINESS OF DYEING AND PRINTING. DURING THE COURSE OF SCRUTINY THE AO NOTED THAT THE ASSESSEE HAD DECLARED A SUM OF RS.100.98 LAKHS ON ACCOUNT OF EXCESS STOCK DURIN G THE COURSE OF SURVEY. HOWEVER, IN THE RETURN OF INCOME, THE A SSESSEE HAD SET OFF THE SAID INCOME FROM THE LOSS OF CURRENT YEAR. THE AO HELD THAT INCOME FROM UNDISCLOSED SOURCE WOULD NOT FALL UNDE R ANY OF THE HEADS OF THE INCOME AND THE SAME HAS TO BE TAXED SEPARATELY. HE THEREFORE REJECTED THE CLAIM OF SET OFF O F SUCH INCOME FROM THE LOSS OF CURRENT YEAR. THE CIT(A) ALLOWED TH E CLAIM OF THE ASSESSEE BY DIRECTING THE AO TO SET OFF CURRE NT YEARS BUSINESS LOSS AGAINST SUCH ADDITIONAL INCOME DECLARED DURING THE COURSE OF SURVEY. THE TRIBUNAL DISMISSED THE APPEAL FILED BY THE REVENUE. ON FURTHER APPEAL BY THE REVENUE, THE HO NBLE HIGH COURT DISMISSED THE APPEAL FILED BY THE REVENUE BY OBSERVING AS UNDER: 7. BEFORE US, LEARNED COUNSEL FOR THE REVENUE PLACED STRONG RELIANCE ON THE DECISION IN CASE OF FAKIR MOHMED HAJI HASAN VS. COMMISSIONER OF INCOME TAX (SUPRA) AND SUBMITTED THAT W HEN THE INCOME FROM UNDISCLOSED SOURCE DOES NOT FALL IN ANY OF THE HEADS SPECIFIED IN SECTION 14 OF THE ACT, THE BUSINESS LOSS OF THE CURRENT YEAR COULD NOT HAVE BEEN SET OFF AGAINST SUCH INCOME. HE SUBMITTED THAT IN DEPUTY COMMISSIONER OF INCOME TAX VS. RADHE D EVELOPERS 14 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 INDIA LTD. AND ANR (SUPRA) THIS COURT HAD NOT, IN AN Y MANNER, DISAGREED WITH THE VIEW IN CASE OF FAKIR MOHMED HAJI HASAN VS. COMMISSIONER OF INCOME TAX(SUPRA) AND THUS, SUCH RATIO S TILL HOLD THE FIELD. 8. WE, HOWEVER, FIND THAT SECTION 71 OF THE ACT PER MITS AN ASSESSEE TO SET OFF LOSS OTHER THAN THAT OF CAPITAL GAINS AGAINST INCOME FROM OTHER HEAD. THIS VERY ISSUE CAME-UP FOR CO NSIDERATION BEFORE THE MADRAS HIGH COURT IN CASE OF COMMISSIONER OF INCOME TAX VS. CHENSING VENTURES (SUPRA). THE DIVISION BENCH O F THE COURT CONSIDERED THE ISSUE IN FOLLOWING MANNER: 6. HEARD COUNSEL. THE ASSESSING OFFICER HAS NOT GIVEN ANY REASON WHATSOEVER TO DENY THE SET OFF OF THE BUSINESS L OSS AGAINST THE INCOME DECLARED UNDER THE HEAD & OTHER SO URCES . SECTION 71 DEALS WITH SET OFF OF LOSS AGAINST INCOME U NDER ANY OTHER HEAD. AFTER SETTING OFF LOSSES AGAINST THE INC OME UNDER THE SAME HEAD, IF THE NET RESULT IS STILL A LOSS , THE ASSESSEE CAN SET OFF THE SAID LOSS UNDER SECTION 71 OF THE ACT AGAINST INCOME OF THE SAME YEAR UNDER ANY OTHER HEAD, EXCEPT FOR LOSSES WHICH ARISE UNDER THE HEAD CAPITAL GA INS . THE INCOME TAX IS ONLY ONE TAX AND LEVIED ON THE SUM TOTAL OF THE INCOME CLASSIFIED AND CHARGEABLE UNDER THE VARIOU S HEADS. SECTION 14 HAS CLASSIFIED THE DIFFERENT HEADS OF INCOME AND INCOME UNDER EACH HEAD IS SEPARATELY COMPUTED. IN COME WHICH IS COMPUTED IN ACCORDANCE WITH LAW IS ONE INCOM E AND IT IS NOT A COLLECTION OF DISTINCT TAX LEVIED SEPARATE LY ON EACH HEAD OF INCOME AND IT IS NOT AN AGGREGATE OF VARIOUS TAXES COMPUTED WITH REFERENCE TO EACH OF THE DIFFERENT SOU RCES SEPARATELY. THERE IS ONLY ONE ASSESSMENT AND THE SAME IS MADE AFTER THE TOTAL INCOME HAS BEEN ASCERTAINED. TH E ASSESSEE IS SUBJECT TO INCOME-TAX ON HIS TOTAL INCOME THOU GH HIS INCOME UNDER EACH HEAD MAY BE WELL BELOW THE TAX ABLE LIMIT. HENCE THE LOSS SUSTAINED IN ANY YEAR UNDER ANY HEADS OF INCOME WILL HAVE TO BE SET OFF AGAINST INCOME UNDER A NY OTHER HEAD. IN THIS CASE, THE ASSESSING OFFICER MADE ADDITION O F RS.28,50,000/- AS UNDISCLOSED INCOME UNDER SECTION 69 O F THE ACT. ONCE THE LOSS IS DETERMINED, THE SAME SHOULD BE SET OFF AGAINST THE INCOME DETERMINED UNDER ANY OTHER HE AD OF INCOME. IN THE ASSESSMENT, NO REASONS WERE GIVEN BY THE ASSESSING OFFICER TO DENY THE BENEFIT OF SECTION 71 OF THE ACT. THE BENEFIT PROVIDED UNDER SECTION 71 OF THE ACT CA NNOT BE DENIED AND THE LEARNED STANDING COUNSEL APPEARING FO R THE REVENUE IS ALSO UNABLE TO EXPLAIN OR GIVE REASONS WHY T HE ASSESSEE IS NOT ENTITLED TO THE BENEFIT OF SECTION 71 OF THE ACT. THE REASONS GIVEN BY THE TRIBUNAL ARE BASED ON VALID MATERIALS AND EVIDENCE AND THE SAME IS IN ACCORDANCE W ITH THE PROVISIONS OF SECTION 71 OF THE ACT. WE FIND NO E RROR OR LEGAL INFIRMITY IN THE IMPUGNED ORDER. 9. WE MAY FURTHER NOTICE THAT THE DECISION IN CASE OF FAKIR MOHMED HAJI HASAN VS. COMMISSIONER OF INCOME TAX (SUPRA ) CAME- UP FOR CONSIDERATION IN CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. RADHE DEVELOPERS INDIA LTD. AND ANR (SUPRA),IT WAS OBSERVED AS UNDER: 15 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 THE DECISIONS OF THIS COURT IN THE CASE OF FAKIR MOHM ED HAJI HASAN (SUPRA) AND KRISHNA TEXTILES (SUPRA) ARE NEITHER RELEVANT NOR GERMANE TO THE ISSUE CONSIDERING THE FAC T THAT IN NONE OF THE DECISIONS THE LEGISLATIVE SCHEME EMANATING FROM CONJOINT READING OF PROVISIONS OF SECTIONS 14 &56 OF TH E ACT HAVE BEEN CONSIDERED. THE APEX COURT IN THE CASE OF D.P.SANDU BROS.CHEMBUR P. LTD.,(SUPRA) HAS DEALT WITH THIS VERY ISSUE WHILE DECIDING THE TREATMENT TO BE GIVEN T O A TRANSACTION OF SURRENDER OF TENANCY RIGHT. THE EARLIE R DECISIONS OF THE APEX COURT COMMENCING FROM CASE OF UN ITED COMMERCIAL BANK LTD.VS. CIT (1957) 32 ITR 688 (SC) H AVE BEEN CONSIDERED BY THE APEX COURT AND, HENCE, IT IS NOT NECESSARY TO REPEAT THE SAME. SUFFICE IT TO STATE THAT THE ACT DOES NOT ENVISAGE TAXING ANY INCOME UNDER ANY HEAD NO T SPECIFIED IN SECTION 14 OF THE ACT. IN THE CIRCUMSTANC ES, THERE IS NO QUESTION OF TRYING TO READ ANY CONFLICT IN THE TWO JUDGMENTS OF THIS COURT AS SUBMITTED BY THE LEARNED COU NSEL FOR THE REVENUE. 10. IN OUR OPINION, THE STATUTORY PROVISIONS CONTAINED IN SECTION 71 WAS APPLICABLE IN THE PRESENT CASE. BY APPLYING THE DECISION IN CASE OF FAKIR MOHMED HAJI HASAN VS. COMMISSIONER OF INCO ME TAX (SUPRA) AS EXPLAINED IN CASE OF DEPUTY COMMISSIONER OF INCOME TAX VS. RADHE DEVELOPERS INDIA LTD. AND ANR, THE SAME CANN OT BE DECLINED. IN THE RESULT, NO QUESTION OF LAW ARISES. TAX APPEAL IS, THEREFORE, DISMISSED. 14. AS REGARDS THE VARIOUS DECISIONS RELIED ON BY THE LD. DEPARTMENTAL REPRESENTATIVE IS CONCERNED, WE FIND NONE OF THE DECISIONS ARE OF THE JURISDICTIONAL HIGH COURT. UNDER THESE CIRCUMSTANCES WE FIND FORCE IN THE SUBMISSION OF THE LD. COUNSEL FOR THE ASSESSEE THAT WHEN TWO VIEWS ARE POSSIBLE ON TH E SAME ISSUE THE VIEW WHICH IS FAVOURABLE TO THE ASSESSEE SHOULD BE FOLLOWED IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF VEGETABLE PRODUCTS LTD. (SUPRA). IN THIS VIEW OF THE MATTER, WE HOLD THAT THE ASSESSEE IS ENTITLED TO GET SE T OFF OF RS.13,86,925/- OUT OF THE ADDITION OF RS.28,94,581/- MADE BY THE AO U/S.69A OF THE I.T. ACT. GROUNDS RAISED BY THE A SSESSEE ARE ACCORDINGLY ALLOWED. 16 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 CO NO.66/PN/2014 : 15. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS IN THE C ROSS OBJECTION : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A), KOLHAPUR HAD ERRED BY CONSIDERING THE LOSS EMANATING FROM FUTURE OPTION TRANSACTIONS IN A RECOGNIZED STOCK EXCHANGE AS BUSINESS LOSS AND NOT LOSS FROM SPECULATIVE TRANSACTIONS IN P ARA 11 OF THE APPELLATE ORDER ON THE ONE HAND WHILE HOLDIN G THAT THE APPELLANT WAS NOT ENTITLED TO SET-OFF SO CALLED BUSINESS LOSS AGAINST THE DEEMED INCOME BROUGHT TO TAX U/S.69A OF THE ACT IN PARAS 9 AND 17 OF THE SAID ORDER, THEREBY GIVING A CONTRADICTORY FINDING FOR THE LOSS CLAIMED BY THE ASSESSEE DURING THE COURSE OF ASSESSMENT PROCEEDINGS, WHICH REMAINED TO BE CLAIMED IN THE RET URN OF INCOME FILED. 2. THAT THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A), KOLHAPUR HAD ERRED IN DIRECTING THE ASSESSING OFFICER TO TREAT THE LOSS EMANATING FROM FUTURE OPTION TRANSAC TIONS IN A RECOGNIZED STOCK EXCHANGE AS BUSINESS LOSS AND NOT LOSS FROM SPECULATIVE TRANSACTIONS WHEN FINDINGS WERE GIVEN BY H IM THAT THE ASSESSEE WAS NOT ENTITLED TO SET-OFF SUCH BUSINESS LOSS AGAINS T THE DEEMED INCOME BROUGHT TO TAX U/S.69A OF THE ACT. 3. THAT THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD.CIT(A), KOLHAPUR HAD ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW THE BUSINESS LOSS TO THE ASSESSEE WHEN SUCH BUSINESS LOSS WAS NOT AT ALL CLAIMED IN THE RETURN OF INCOME FILED BUT CLAIMED DURING THE COURSE OF ASSESSMENT PROCEEDINGS. 4. THAT ANY OTHER GROUND(S) THE DEPARTMENT INTENDS TO TAKE FOR THE ABOVE DURING THE COURSE OF APPELLATE PROCEEDINGS. 16. THE LD. COUNSEL FOR THE ASSESSEE AT THE OUTSET RAISE D HIS OBJECTION REGARDING THE MAINTAINABILITY OF THE CROSS OBJECT ION FILED BY THE DEPARTMENT. HE SUBMITTED THAT THE ASSESSEE HA S FILED THE APPEAL ON 13-08-2012. THE HEARING OF THE APPEAL WAS FIX ED FOR THE FIRST TIME ON 31-10-2013. ASSUMING THAT THE DEPARTM ENT RECEIVED THE NOTICE OF HEARING ON 30-10-2013, EVEN THEN THE CROSS OBJECTION IS REQUIRED TO BE FILED WITHIN 30 DAYS FROM THE DA TE OF SUCH NOTICE INTIMATING THE DATE OF HEARING OF THE APPEA L WHICH IN 17 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 THE INSTANT CASE IS 29-11-2012. HOWEVER, THE CROSS OB JECTION HAS BEEN FILED BY THE REVENUE ON 20-05-2014. THUS, THERE IS A DELAY OF 184 DAYS IN FILING OF THIS CROSS OBJECTION BY THE REVENUE . THEREFORE, THE CROSS OBJECTION IS BARRED BY LIMITATION. FUR THER, THE CROSS OBJECTION IS FILED WITHOUT ANY APPLICATION FOR CONDONATION OF DELAY IN FILING OF THE CROSS OBJECTION. THIS IS A SERIOUS LAPSE ON THE PART OF THE DEPARTMENT. HE SUBMITT ED THAT THE APPLICATION FOR CONDONATION OF DELAY IS SIGNED BY THE CI T-I, KOLHAPUR ON 15-05-2014 AND FILED BEFORE THE TRIBUNAL. REFE RRING TO PROVISIONS OF SECTION 253(4) OF THE I.T. ACT HE SUBMITTED THAT THE RIGHT TO FILE THE CROSS OBJECTION VESTS WITH THE AO A ND THEREFORE IT IS THE AO WHO ALONE HAS TO MOVE AN APPLICATIO N FOR CONDONATION OF DELAY IN FILING THE CROSS OBJECTION. SINCE IN THE INSTANT CASE, THE CONDONATION PETITION HAS BEEN SIGNED BY THE CIT AND NOT BY THE AO, THEREFORE, THE CROSS OBJECTION FILED BY THE REVENUE BEING BARRED BY LIMITATION DESERVES TO BE DISMISSED. 17. HE SUBMITTED THAT THE REVENUE HAS ALSO NOT DEMONST RATED SUFFICIENT CAUSE FOR NOT FILING THE CROSS OBJECTION WITHIN THE STATUTORY TIME LIMIT. REFERRING TO THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF O/O. CHIEF POST MASTER GENERAL AND OTHERS VS. LIVING MEDIA INDIA LTD. AND ANOTHER REPORTED IN 348 IT R 7 AND UNION OF INDIA VS. TATA YODOGAWA LTD. REPORTED IN 198 8 (SC- 1)-GJX-0610-SC HE SUBMITTED THAT THE CROSS OBJECTION H AS TO BE DISMISSED BEING BARRED BY LIMITATION AS THE REVENUE HAS NO T EXPLAINED SUFFICIENT CAUSE FOR THE UNDUE DELAY IN FILING OF THE CROSS OBJECTION. 18 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 18. THE LD. DEPARTMENTAL REPRESENTATIVE ON THE OTHER HA ND SUBMITTED THAT THE DELAY IN FILING OF THE CROSS OBJECTION SH OULD BE CONDONED AND A LENIENT VIEW SHOULD BE TAKEN. 19. WE HAVE CONSIDERED THE PRELIMINARY ISSUE REGARDING THE MAINTAINABILITY OF THE CROSS OBJECTION FILED BY THE REVENUE. ADMITTEDLY, THE HEARING OF THE APPEAL WAS FIXED FOR THE FIR ST TIME ON 31-10-2013. THE CROSS OBJECTION HAS BEEN FILED BY THE REVENUE ON 20-05-2014. WE FIND ALONG WITH THE CROSS OBJ ECTION AN APPLICATION FOR CONDONATION OF THE DELAY HAS BEEN FILED WH ICH HAS BEEN SIGNED BY THE CIT-I, KOLHAPUR AND WHICH READS AS UNDER : NO.KOP/CIT-I/ITO (HQ-I)/ITAT/2014-15/350 DATE: 05-05-2015 TO THE INCOME TAX APPELLATE TRIBUNAL, PUNE BENCH A, PUNE SIR, SUB : REQUEST TO ITAT, PUNE FOR CONDONATION OF DELA Y IN FILING CROSS OBJECTIONS IN THE CASE OF SHRI ANIL NANDIRAM AHUJA, PROP. DIVYA GARMENTS, MAIN ROAD, GANDHINAGAR, TAL : PANHALA, DI ST : SANGLI A.Y. 2008-09 REG. KINDLY REFER TO THE ABOVE, 1. THE PRESENT APPEAL WAS INITIALLY DIRECTED AGAINST T HE ORDER U/S.143(3) PASSED BY THE AO BEFORE THE CIT(A), KOLHAPUR. THE CIT(A), KOLHAPUR HAD DISMISSED THE APPEAL OF THE ASSESSEE VIDE ORDER DATED 13-08-2012 RECEIVED IN THE CIT-I, KOLHAPURS OFFICE ON 05-09-2 012. 2. SINCE THE APPEAL WAS PRIMA FACIE IN FAVOUR OF THE R EVENUE, THE DEPARTMENT WAS NOT REQUIRED TO PREFER AN APPEAL BEF ORE ITAT. HOWEVER, THE ASSESSEE BEING AGGRIEVED BY THE ORDER OF THE CIT(A), KOLHAPUR PREFERRED AN APPEAL BEFORE ITAT, PUNE. 3. HOWEVER, LATER ON THE AO OBSERVED THAT THE CIT(A), KOLHAPUR IN THE PARA 11 OF THE ORDER HAS ACCEPTED THE ASSESSEES CO NTENTION IN RESPECT OF TREATING THE LOSS EMANATING FROM THE FUTURE OPTI ONS TRANSACTIONS IN A RECOGNIZED STOCK EXCHANGE TO BE BUSINESS LOSS EVEN THOUGH THE SAME WAS NOT CLAIMED IN THE RETURN OF INCOME BY THE ASSE SSEE AND ALSO NOT ALLOWED BY THE AO. FURTHER THE AO ALSO HAS OBSERVE D THAT IN PARA 17 OF THE ORDER, THE CIT(A) HAS HELD THAT THE APPELLANT A SSESSEE IS NOT 19 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 ENTITLED TO HAVE SET OFF SO CALLED BUSINESS LOSS AG AINST THE DEEMED INCOME - - - 4. ON GOING THROUGH THE ABOVE DECISION OF THE CIT(A) W HICH IS CONTRARY TO HIS OWN OBSERVATION IN THE SAME ORDER, THE AO THOUG H THAT CROSS OBJECTIONS IN THE CASE NEED TO BE FILED BEFORE THE HONBLE ITAT IN THE INTEREST OF REVENUE. HENCE, THE CROSS OBJECTIONS W ERE FILED ON 24-04- 2014. AS THE SAME WAS FILED IN RESPONSE TO THE ASS ESSEES APPEAL, THE SAME COULD NOT BE FILED WITHIN THE STIPULATED TIME. BUT IT IS SUBMITTED THAT THE DELAY IN FILING THE CROSS OBJECTIONS IS NO T INTENTIONAL ONE AND IT MAY BE TREATED AS BONAFIDE BEING IN THE INTEREST OF REVENUE. HENCE, IT IS REQUESTED TO KINDLY CONDONE THE DELAY. YOURS FAITHFULLY, SD/- (N.P.SINGH) COMMISSIONER OF INCOME TAX-I, KOLHAPUR 20. FROM THE ABOVE, IT IS NOTED THAT THE CROSS OBJECTION HAS BEEN FILED BELATEDLY AND THE CONDONATION PETITION WAS FILED B Y THE CIT-I, KOLHAPUR AND THE AO WHO HAS FILED THE CROSS OBJECTION DULY SIGNED BY HIM HAS NOT FILED ANY CONDONATION PETITION. ALTHOU GH PARA 4 OF THE ORDER OF THE CIT SAYS THAT THE CROSS OB JECTION WAS FILED ON 24-04-2014, HOWEVER, THE ORDER SHEET ENTRY MAINT AINED BY THE TRIBUNAL SHOWS THAT THE CROSS OBJECTION WAS FILED ON 20- 05-2014. EVEN ASSUMING THAT THE SAME HAS BEEN FILED ON 24-04- 2014 THE REASONS FOR SUCH INORDINATE DELAY FROM THE MON TH OF NOVEMBER 2013 (AFTER THE STATUTORY PERIOD OF 30 DAYS FRO M THE DATE OF FIRST HEARING, I.E. ON 31-10-2013) TILL THE DATE OF FILING OF THE CROSS OBJECTION HAS NOT BEEN PROPERLY EXPLAINED. 21. THE HONBLE SUPREME COURT IN THE CASE OF O/O. CHIEF P OST MASTER GENERAL AND OTHERS VS. LIVING MEDIA INDIA LTD. AND ANOTHER (SUPRA) HAS OBSERVED AS UNDER (SHORT NOTES) : THE RESPONDENT, A COMPANY PUBLISHING MAGAZINES REGISTE RED AS NEWSPAPERS WITH THE DEPARTMENT OF POSTS AND ENTITLED TO TRANSMIT ITS PUBLICATIONS BY POST UNDER CONCESSIONAL RATE OF POSTA GE, WAS DENIED PERMISSION TO POST ISSUES OF TWO OF ITS MAGAZINES CO NTAINING ADVERTISEMENTS AT CONCESSIONAL RATES. THE COMPANY FILED WRIT PETITIONS WHICH A SINGLE JUDGE OF THE HIGH COURT ALL OWED AND, ON 20 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 APPEAL BY THE POSTAL DEPARTMENT, THIS WAS AFFIRMED BY A DIVISION BENCH OF THE HIGH COURT BY ORDER DATED SEPTEMBER 11 , 2009. THE POSTAL DEPARTMENT PREFERRED APPEALS TO THE SUPREME CO URT BY WAY OF SPECIAL LEAVE WITH A DELAY OF 427 DAYS WITH APPLIC ATIONS FOR CONDONATION OF DELAY IN FILING THE PETITIONS FOR SPE CIAL LEAVE : HELD, DISMISSING THE APPLICATIONS, THE DEPARTMENT HAD I TSELF MENTIONED IN ITS AFFIDAVIT AND WAS AWARE OF THE DATE OF THE JUDGMENT OF THE DIVISION BENCH OF THE HIGH COURT AS SEPTEMBER 11, 2009. EVEN, ACCORDING TO THE DEPONENT, ITS COUNSEL HAD APP LIED FOR THE CERTIFIED COPY OF THE JUDGMENT ONLY ON JANUARY 8, 2 010, AND THE COPY WAS RECEIVED BY THE DEPARTMENT ON THE VERY SAME DAY. THERE WAS NO EXPLANATION FOR NOT APPLYING FOR CERTIFIED COPY OF THE JUDGMENT ON SEPTEMBER 11, 2009, OR AT LEAST WITHIN A REASONABLE T IME. THE FACT REMAINS THAT THE CERTIFIED COPY WAS APPLIED FOR ONLY ON JANUARY 8, 2010, I.E. AFTER A PERIOD OF NEARLY FOUR MONTHS. NE ITHER THE DEPARTMENT NOR THE PERSON IN-CHARGE HAD FILED AN EXP LANATION FOR NOT APPLYING FOR THE CERTIFIED COPY WITHIN THE PRESC RIBED PERIOD. THE OTHER DATES MENTIONED IN THE AFFIDAVIT CLEARLY SHOWE D THAT THERE WAS DELAY AT EVERY STAGE AND THERE WAS NO EXPLANATION AS T O WHY SUCH DELAY HAS OCCASIONED. THE DEPARTMENT OR THE PERSON CO NCERNED HAD NOT EVINCED DILIGENCE IN PROSECUTING THE MATTER TO T HE COURT BY TAKING APPROPRIATE STEPS. THE PERSONS CONCERNED WERE W ELL AWARE OR CONVERSANT WITH THE ISSUES INVOLVED INCLUDING THE PR ESCRIBED PERIOD OF LIMITATION FOR TAKING UP THE MATTER BY WA Y OF FILING A SPECIAL LEAVE PETITION IN THE SUPREME COURT. IN THE ABSENCE OF PLAUSIBLE AND ACCEPTABLE EXPLANATION, THE DELAY COUL D NOT BE CONDONED MECHANICALLY MERELY BECAUSE THE GOVERNMENT OR A WING OF THE GOVERNMENT WAS A PARTY BEFORE THE COURT. THO UGH IN A MATTER OF CONDONATION OF DELAY WHEN THERE WAS NO GROSS NEGLIG ENCE OR DELIBERATE INACTION OR LACK OF BONAFIDE, A LIBERAL CONCESSION HAD TO BE ADOPTED TO ADVANCE SUBSTANTIAL JUSTICE, IN THE FACTS A ND CIRCUMSTANCES, THE CLAIM ON ACCOUNT OF IMPERSONAL MACH INERY AND INHERITED BUREAUCRATIC METHODOLOGY OF MAKING SEVERAL NOTES COULD NOT BE ACCEPTED IN VIEW OF THE MODERN TECHNOLOGIES B EING USED AND AVAILABLE. CONSIDERING THE FACT THAT THERE WAS NO PR OPER EXPLANATION OFFERED BY THE DEPARTMENT FOR THE DELAY EXCEPT MENT IONING OF VARIOUS DATES, THE DEPARTMENT HAD FAILED TO GIVE ACCE PTABLE AND COGENT REASON SUFFICIENT TO CONDONE SUCH A HUGE DELAY. BY THE COURT : UNLESS GOVERNMENT BODIES, THEIR AGENCIE S AND INSTRUMENTALITIES HAVE REASONABLE AND ACCEPTABLE EXPLA NATION FOR THE DELAY AND THERE WAS BONAFIDE EFFORT, THERE IS NO NEED TO ACCEPT THE USUAL EXPLANATION THAT THE FILE WAS KEPT PENDING FOR SEVERAL MONTHS OR YEARS DUE TO CONSIDERABLE DEGREE OF PROCEDUR AL RED-TAPE IN THE PROCESS. GOVERNMENT DEPARTMENTS ARE UNDER A SPE CIAL OB LIGATION TO ENSURE THAT THEY PERFORM THEIR DUTIES WIT H DILIGENCE AND COMMITMENT. CONDONATION OF DELAY IS AN EXCEPTION AN D SHOULD NOT BE USED AS AN ANTICIPATED BENEFIT FOR GOVERNMENT DEPA RTMENTS. THE LAW SHELTERS EVERYONE UNDER THE SAME LIGHT AND SHOULD N OT BE SWIRLED FOR THE BENEFIT OF A FEW. THE LAW OF LIMITA TION BINDS EVERYBODY INCLUDING THE GOVERNMENT. 21 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 22. FURTHER, AS PER THE PROVISIONS OF SECTION 253(4) THE AO OR THE ASSESSEE AS THE CASE MAY BE, ON RECEIPT OF NOTICE T HAT AN APPEAL AGAINST THE ORDER OF THE CIT(A) HAS BEEN PREFERRE D BY THE OTHER PARTY, MAY, NOTWITHSTANDING THAT HE MAY NOT HAVE APPEALED AGAINST SAID ORDER OR ANY PART THEREOF, WITHIN 30 DAYS O F THE RECEIPT OF THE NOTICE, FILE A MEMORANDUM OF CROSS OBJECTION, VERIFIED IN THE PRESCRIBED MANNER, AGAINST ANY PART OF THE ORDER OF THE CIT(A). THEREFORE, UNDER THE FACTS AND CIRCUMSTANCES OF THE CASE SINCE THE AO HAS FILED THE CROSS OBJECTION, THEREFORE , HE ONLY SHOULD HAVE FILED THE PETITION FOR CONDONATION OF DELAY. HOWE VER, IN THE INSTANT CASE THE AO HAS NOT FILED ANY CONDONATION PETITION AND THE SAME HAS BEEN FILED BY THE CIT-I, KOLHAPUR. THU S, FROM THE FACTS NARRATED ABOVE, THERE IS NO VALID PETITION FILED FO R CONDONATION OF DELAY. UNDER THESE CIRCUMSTANCES AND IN A BSENCE OF ANY JUSTIFIABLE REASONS EXPLAINING THE DELAY IN FILING THE CR OSS OBJECTION, THE SAME DESERVES TO BE DISMISSED. ACCORDINGL Y, THE CROSS OBJECTION FILED BY THE REVENUE IS DISMISSED BEING BA RRED BY LIMITATION. SINCE WE ARE DISMISSING THE CROSS OBJECTION ON T HIS PRELIMINARY ISSUE, THE GROUNDS OF THE CROSS OBJECTION ARE NOT BEING ADJUDICATED BEING ACADEMIC IN NATURE. 23. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWE D AND THE CROSS OBJECTION FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 18-03-2016. SD/- SD/- ( VIKAS AWASTHY ) ( R.K. PANDA ) JUDICIAL MEMBER ACCOUNTANT MEMBER PUNE ; DATED :18 TH MARCH, 2016. 22 ITA NO.2092/PN/2012 AND CO NO.66/PN/2014 ) *#,! -! / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. THE CIT(A ) - I , KOLHAPUR 4. 5. 6. THE CIT-I, KOLHAPUR $ ''(, (, / DR, ITAT, B PUNE; - / GUARD FILE. / BY ORDER , // TRUE COPY // /0 ' ( / SR. PRIVATE SECRETARY (, / ITAT, PUNE