ITO, Gwalior V. Shri Praveen Gupta,L/H Late Sh. Mohan Lal Gupta, Gwalior

ITA 219/AGR/2006

• Counselvise Citation: [2010] 137 COUNSELVISE.COM (IT) 0244 (ITAT-AGRA)
• Duration Of Justice: 3 year(s) 6 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-01-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 05-01-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 22-06-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S R SAHU
• Keywords: Speculation loss
• Section: 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AGRA BENCH, SMC, AGRA BEFORE SHRI P.K. BANSAL, ACCOUNTANT MEMBER ITA NO.219/AGR/2006 ASST. YEAR: 2001-02 INCOME-TAX OFFICER, WARD 2(2), VS. SHRI PRAVEEN GUPTA, GWALIOR. L/H. LATE SHRI MOHAN LAL GUPTA, LOHIY BAZAR, GWALIOR. (PAN : ACOPG 5407 D) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.R. SAHU, JR. D.R. RESPONDENT BY : NONE ORDER THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 10.03.2006 BY TAKING THE FOLLOWING EFFECTIVE GROUND S OF APPEAL :- (1) THE LD. CIT(A) HAS ERRED, IN LAW AND FACTS, BY ACCEPTING THE CLAIM OF RS.1,59,55,183/- AS SHORT TERM CAPITAL LOSS INST EAD OF SPECULATION LOSS AND THE SAME CAN BE SET OFF AGAINST ANY INCOME IN S UBSEQUENT YEARS. (2) THE DUE DATE FOR FILING OF RETURN OF INCOME WAS 31.7.01 WHEREAS THIS HAS BEEN FILED ON 31.10.01. AS PER PROVISIONS OF SECTION 80 OF THE INCOME TAX ACT 1961 FOR ANY LOSS TO BE CARRIED FORW ARD THE RETURN HAS TO BE WITHIN DUE DATE AS PER PROVISIONS OF SECTION 139 (3). AS THIS RETURN IS BEYOND DUE DATE, THE LOSS SHOULD NOT BE CARRIED FOR WARD AS PER PROVISIONS OF SECTION. 2. THIS APPEAL WAS HEARD AND DISPOSED OF BY THIS TR IBUNAL VIDE ORDER DATED 12.03.2008. SUBSEQUENTLY, THE REVENUE MOVED AN APPLICATION BEIN G MISCELLANEOUS APPLICATION. NO.96/AGR/2008 POINTING OUT THAT GROUND NO.2 HAS NO T BEEN DISPOSED OF BY THIS TRIBUNAL VIDE ORDER DATED 12.03.2008. THE M.A. OF THE REVENUE WA S ALLOWED BY THIS TRIBUNAL VIDE ORDER DATED 15.10.2009 AND ORDER OF THIS TRIBUNAL DATED 12.03.2 008 WAS RECALLED TO DISPOSE OF GROUND NO.2 WHICH WAS NOT DECIDED EARLIER BY THIS TRIBUNAL. TH E CASE WAS FIXED FOR HEARING FOR DISPOSING OF 2 THE GROUND NO.2. THE NOTICE WAS DULY SENT TO THE A SSESSEE THROUGH REGISTERED POST WHICH WAS RETURNED WITH THE REMARK ADDRESSEE NOT FOUND. I, THEREFORE, DECIDED TO DISPOSE OF THIS APPEAL AFTER HEARING THE LD. D.R. 3. LD. D.R. VEHEMENTLY CONTENDED THAT IN THIS CASE THE ASSESSEE HAS NOT SUBMITTED THE RETURN WITHIN THE DUE DATE. THE DUE DATE FOR FILING THE R ETURN WAS 31.07.2001. THEREFORE, THE ASSESSEE WAS NOT ENTITLED TO CARRY FORWARD THE LOSS IN VIEW OF THE PROVISIONS OF SECTION 139(3) OF THE INCOME-TAX ACT, 1961 (THE ACT HEREINAFTER) READ W ITH SECTION 80 OF THE ACT. 4. I HAVE CAREFULLY CONSIDERED THE SUBMISSIONS MADE BY THE LD. D.R. ALONGWITH THE ORDERS OF THE TAX AUTHORITIES BELOW. I NOTED THAT THIS ISSUE DOES NOT ARISE OUT OF THE ORDER OF THE ASSESSING OFFICER. THE ASSESSING OFFICER HAS NOWHERE STATED THAT THE ASSESSEE WILL NOT BE ENTITLED TO CARRY FORWARD THE LOSS IN VIEW OF THE PROVISIONS OF SECTI ON 139 AND THE ASSESSEE HAS NOT SUBMITTED THE RETURN IN ACCORDANCE WITH THE PROVISIONS OF SECTION 139(3) OF THE ACT. EVEN NO SUCH ISSUE HAS ARISEN BEFORE THE CIT(A) WHO HAS THE POWER TO ENHAN CE THE ASSESSMENT. THE TRIBUNAL UNDER SECTION 254(1) DOES NOT HAVE THE POWER TO ADJUDICAT E THE ISSUE WHICH DOES NOT ARISE OUT OF THE ASSESSMENT ORDER. I, THEREFORE, DISMISS THE GROUND TAKEN BY THE REVENUE. 5. IN THE RESULT, APPEAL OF THE REVENUE STANDS DISM ISSED SO FAR IT RELATES TO GROUND NO.2. (ORDER PRONOUNCED IN THE OPEN COURT ON 05.01.2010) SD/- (P.K. BANSAL) ACCOUNTANT MEMBER PLACE: AGRA DATE: 5 TH JANUARY, 2010. 3 PBN/* COPY OF THE ORDER FORWARDED TO: 1. APPELLANT 2. RESPONDENT BY ORDER 3. CIT CONCERNED 4. CIT (APPEALS) CONCERNED 5. DR, ITAT, AGRA BENCH, AGRA 6. GUARD FILE ASSIST ANT REGISTRAR INCOME-TAX APPELLATE T RIBUNAL, AGRA TRUE COPY