ITO 7(1)(1), MUMBAI V. NANDKISHORE FINVEST P.LTD, MUMBAI

ITA 2339/MUM/2014

• Counselvise Citation: 233919914 RSA 2014
• Duration Of Justice: 1 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-06-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2006-2007
• Appeal Filed On: 07-04-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Tax effect
• Section: 43(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'SMC' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT ITA NO. 2339/MUM/2014 (ASSESSMENT YEAR: 2006-07) INCOME TAX OFFICER - 7(1)(1) M/S. NANDKISHORE FINV EST P. LTD. ROOM NO. 623, 6TH FLOOR AAYAKAR BHAVAN, M.K. ROAD MUMBAI 400020 VS. 112, ASHIRWAD, AHMEDABAD STREET CARNAC BUNDER, MUMBAI 400009 PAN - AAACN2245D APPELLANT RESPONDENT APPELLANT BY: SHRI JAVED AKHTAR RESPONDENT BY: NONE DATE OF HEARING: 03.062014 DATE OF PRONOUNCEMENT: 03.06.2014 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORD ER DATED 03.02.2014 PASSED BY THE CIT(A)-13, MUMBAI AND IT PERTAINS TO A.Y. 2006-07. 2. REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPE AL: - 1. THE LEARNED CIT(A) HAS ERRED ION FACTS AND IN L AW IN DIRECTING THE ASSESSING OFFICER TO TREAT THE TRADING LOSS ARISING FROM FUTURE & OPTIONS TRANSACTIONS IN THE ENTIRE PREVIOUS YEAR RE LEVANT TO A.Y. 2006-07 AS BUSINESS LOSS AND TO SET OFF THE SAME AG AINST BUSINESS INCOME WITHOUT PROPERLY APPRECIATING THE F ACTUAL AND LEGAL MATRIX AS CLEARLY BROUGHT OUT BY THE ASSESSIN G OFFICER. 2. THE LEARNED CIT(A) HAS ERRED ION FACTS AND IN LA W IN DIRECTING THE ASSESSING OFFICER TO TREAT THE LOSS ARISING FROM FU TURE & OPTIONS TRANSACTIONS AS BUSINESS LOSS FOR THE ENTIRE PREVIO US YEAR RELEVANT TO A.Y. 2006097 WITHOUT APPRECIATING THE F ACT THAT THE NSE WAS RECOGNIZED FOR THE PURPOSE OF SECTION 43(5) (D) W.E.F. 25.01.2006 AND HENCE THE PROVISIONS OF SECTION 43(5 )(D) WERE NOT APPLICABLE PRIOR TO 25.01.2006. 3. THOUGH NOTICE WAS SENT THROUGH RPAD NONE APPEARE D ON BEHALF OF THE ASSESSEE ON THE DATE OF HEARING NOR THERE ANY APPLI CATION FOR ADJOURNMENT. I, THEREFORE, PROCEED TO DISPOSE OF THE APPEAL EXPARTE , QUA ASSESSEE. ITA NO. 2339/MUM/2014 M/S. NANDKISHORE FINVEST P. LTD. 2 4. AT THE TIME OF HEARING IT WAS NOTICED THAT THE TAX EFFECT IN THE INSTANT CASE IS LESS THAN THE LIMIT PRESCRIBED BY THE CBDT. AS PER CIRCULAR NO. 3 DATED 09.02.2011 AN APPEAL SHOULD NOT BE PREFERRED BY REVENUE UNLESS THE TAX EFFECT IS ABOVE ` 3,00,000/- OR THE ISSUE ARISING OUT OF THE ORDER OF THE FIRST APPELLATE AUTHORITY IS EXCEPTIONAL IN NATURE AND IT IS SPECIFICALLY MENTIONED IN THE AUTHORISATION. 5. THE LEARNED D.R. COULD NOT SUBSTANTIATE THAT THE ISSUE ARISING OUT OF THE ORDER OF THE FIST APPELLATE AUTHORITY IS EXCEPT IONAL IN NATURE. THEREFORE, IN THE LIGHT OF THE CIRCULAR ISSUED BY THE CBDT (SU PRA), WHICH IS BINDING UPON THE REVENUE AUTHORITIES, THIS APPEAL DESERVES TO BE DISMISSED AS UNADMITTED FOR WANT OF TAX EFFECT AND WE ORDER ACCO RDINGLY. ORDER PRONOUNCED IN THE OPEN COURT ON 3 RD JUNE, 2014. SD/- (D. MANMOHAN) VICE PRESIDENT MUMBAI, DATED: 3 RD JUNE, 2014 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 13, MUMBAI 4. THE CIT 7, MUMBAI CITY 5. THE DR, SMC BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.