Ratan Lal Banerjii, Kolkata V. ACIT, Circle-29, Kolkata

ITA 238/KOL/2014

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 78234 (ITAT-KOLKATA)
• Duration Of Justice: 1 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-04-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 10-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BISWANATH DAS
• Assessee Lawyers: K M ROY
• Keywords: Principle of natural justice; Application of stay

Judgement Text

I.T.A. NO.: 238-KOL-2014 & S.A. NO. 28-KOL-2014 (IN ITA NO. 238-KOL-2 014) ASSESSMENT YEAR : 2007-2008 PAGE 1 TO 4 1 IN THE INCOME TAX APPELLATE TRIBUNAL, KOLKATA B BENCH, KOLKATA CORAM : SHRI MAHAVIR SINGH (JUDICIAL MEMBER) AND SHRI SHAMIM YAHYA (ACCOUNTANT MEMBER) I.T.A. NO.: 238/KOL./ 2014 ASSESSMENT YEAR: 2007-2008 RATAN LAL BANERJI,................................. ........................... .APPELLANT CK-148, SECTOR-II, SALT LAKE CITY, KOLKATA-700 098 [PAN : AEAPB 6206 P] -VS.- ASSISTANT COMMISSIONER OF INCOME TAX,............. .. RESPONDENT CIRCLE-29, KOLKATA, AAYAKR BHAVAN, DAKSHINAPAN, DHAKURIA, KOLKATA-700 068 & S.A. NO. 28/KOL/2014 (ARISING OUT OF I.T.A. NO. 238/KOL./2014 ASSESSMENT YEAR : 2007-2008 RATAN LAL BANERJI,................................. ...........................APPLICANT CK-148, SECTOR-II, SALT LAKE CITY, KOLKATA-700 098 [PAN : AEAPB 6206 P] -VS._ ASSISTANT COMMISSIONER OF INCOME TAX,.......... RESPONDENT CIRCLE-29, KOLKATA, AAYAKR BHAVAN, DAKSHINAPAN, DHAKURIA, KOLKATA-700 068 APPEARANCES BY: SHRI K.M. ROY, A.R., FOR THE ASSESSEE SHRI BISWANATH DAS, JCIT, SR. D.R., FOR THE DEPARTM ENT DATE OF CONCLUDING THE HEARING : APRIL 04, 2014 DATE OF PRONOUNCING THE ORDER : APRIL 04, 2014 I.T.A. NO.: 238-KOL-2014 & S.A. NO. 28-KOL-2014 (IN ITA NO. 238-KOL-2 014) ASSESSMENT YEAR : 2007-2008 PAGE 1 TO 4 2 O R D E R PER SHAMIM YAHYA : ITA NO. 238/KOL./2014 1. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. COMMISSIONER OF INCOME TAX (APPEALS) DATED 20 TH NOVEMBER, 2013 FOR THE ASSESSMENT YEAR 2007-08. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN THIS APPEAL READ AS UNDER :- (1) THAT THE LOWER AUTHORITIES HAVE ERRED BACK IN DISALLOWING RS.1,73,256/- TOWARDS PORTFOLIO MANAGEM ENT FEES PAID BY ASSESSEE WHILE COMPUTING CAPITAL GAIN. (2) THAT REJECTION OF LOSS ON ACCOUNT OF FURNITURE TRADING IS UNJUST SINCE AUDITED ACCOUNTS WERE AVAILABLE. (3) THAT COMPUTATION OF INTEREST IS ERRONEOUS. (4) THAT COMPUTATION OF TAX ON SHORT-TERM CAPITAL G AIN IS ERRONEOUS. 3. IN THIS CASE, ASSESSEE FILED RETURN OF INCOME ON 31.01.2008 DECLARING TOTAL INCOME OF RS.18,15,960/-. THE CASE WAS LATER SELECTED FOR SCRUTINY AND NOTICES UNDER SECTION 143(2) AND 142(1 ) OF THE INCOME TAX ACT WERE ISSUED. AS AGAINST THE RETURNED INCOME OF RS.18,15,960/-, ASSESSING OFFICER MADE SEVERAL ADDITIONS AND DETERM INED INCOME AT RS.24,84,617/-. 4. UPON ASSESSEES APPEAL, LD. CIT(APPEALS) NOTED I N AN EX-PARTE ORDER THAT FOLLOWING GROUNDS OF APPEAL HAS BEEN RAISED IN THIS APPEAL :- (1) THAT UNDER THE FACTS AND CIRCUMSTANCES OF THE C ASE, THE LD. ACIT HAS ERRED IN FACTS AND LAW IN ADDING BACK RS.1,73,256/- TO HIS INCOME NOTWITHSTANDING THE FAC T THAT SUCH EXPENSES ARE WHOLLY CONNECTED IN CONNECTION WI TH TRANSFER OF SHARES AND HENCE FULLY ALLOWABLE U/S. 4 8. I.T.A. NO.: 238-KOL-2014 & S.A. NO. 28-KOL-2014 (IN ITA NO. 238-KOL-2 014) ASSESSMENT YEAR : 2007-2008 PAGE 1 TO 4 3 (2) THAT THE ALLOCATION OF SHORT-TERM CAPITAL GAIN BETWEEN CONCESSIONAL RATE AND NON-CONCESSIONAL RATE IS ERRO NEOUS BECAUSE ALL THE TRANSACTIONS WERE CHARGEABLE TO STT . (3) THAT THE REJECTION OF LOSS ON ACCOUNT OF FURNIT URE TRADING IS UNJUST, ILLEGAL, ARBITRARY AND DEHORS TH E PROVISION OF THE ACT SINCE THE ASSESSEE HAS DULY OB TAINED THE AUDIT REPORT U/S. 44AF OF THE ACT WHICH PRESUPP OSES THE MAINTENANCE OF BOOKS OF ACCOUNTS. (4) THAT THE CHARGING OF INTEREST IS ERRONEOUS BECA USE THE DUE DATE FOR FILING THE RETURN WAS UPTO 31 ST OCTOBER, 2007 AND HENCE INTEREST U/S. 234A SHOULD BE CHARGED ONLY FOR 3 MONTHS INSTEAD OF 7 MONTHS AS DONE IN THE ORDER. (5) THE APPELLANT CRAVES LEAVE TO ADD AND/OR AMEND ANY GROUNDS OF THIS APPEAL. 5. AFTER NOTING THE GROUNDS AS ABOVE, LD. CIT(APPEA LS) OBSERVED THAT ASSESSEE HAS FAILED TO OFFER ANY EXPLANATION OR SUB MISSION IN SUPPORT OF THE GROUNDS RAISED. REFERRING TO THE HONBLE APEX C OURT DECISION IN THE CASE OF H.M. ESUFALI H.M. ABDULALI (1973) 90 ITR 27 1, LD. CIT(APPEALS) NOTED THAT THE APPELLATE AUTHORITY CANNOT SUBSTITUT E ITS OWN JUDGMENT IN PLACE OF THE JUDGMENT OF THE ASSESSING OFFICER UNLE SS IT IS SHOWN THAT THE JUDGMENT OF THE ASSESSING OFFICER WAS BIASED, IRRAT IONAL, VINDICTIVE OR CAPRICIOUS. FOLLOWING THE ABOVE, LD. CIT(APPEALS) H ELD THAT THERE IS NO REASON TO INTERFERE WITH THE DECISION OF THE ASSESS ING OFFICER. 6. AGAINST THE ABOVE ORDER OF LD. CIT(APPEALS), ASS ESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 7. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT AS INDICATED HERE INABOVE, LD. CIT(APPEALS) HAS PASSED A NON-SPEAKING ORDER. IT IS A SETTLED LAW THAT EVEN ADMINISTRATIVE ORDER HAS TO BE CONSISTENT WITH THE RULE OF NATURAL JUSTICE. LD. CIT(APPEALS) SHOULD HAVE PASSED A SPEA KING ORDER DISCUSSING PROPERLY AND COGENTLY WHY HE IS UPHOLDING THE ASSES SING OFFICERS ORDER. HENCE, IN OUR CONSIDERED OPINION, THE ISSUES IN THI S APPEAL NEED TO BE I.T.A. NO.: 238-KOL-2014 & S.A. NO. 28-KOL-2014 (IN ITA NO. 238-KOL-2 014) ASSESSMENT YEAR : 2007-2008 PAGE 1 TO 4 4 REFERRED BACK TO THE FILE OF ASSESSING OFFICER TO C ONSIDER THE ISSUE AFRESH. WE HOLD AND DIRECT ACCORDINGLY. 8. IN THE RESULT, APPEAL FILED BY THE ASSESSEE STAN DS ALLOWED FOR STATISTICAL PURPOSES. 9. S.A. NO. 28/KOL./2014 (IN ITA NO. 238/KOL./2014 BY WAY OF THIS STAY APPLICATION, ASSESSEE HAS SOUG HT STAY OF DEMAND FOR TAX AND INTEREST IN I.T.A. NO. 238/KOL./2014 DE ALT WITH HEREINABOVE. 10. SINCE WE HAVE ALREADY REMITTED THE ISSUES RAISE D IN THE SAID APPEAL TO THE FILE OF ASSESSING OFFICER FOR FRESH ADJUDICA TION, THIS STAY APPLICATION FILED BY THE ASSESSEE HAS BECOME INFRUC TUOUS. ACCORDINGLY, THE STAY APPLICATION IS DISMISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN THE OPEN COURT ON 4 TH DAY OF APRIL, 2014. SD/- SD/- MAHAVIR SINGH SHAMIM YAHYA (JUDICIAL MEMBER) (ACC OUNTANT MEMBER) KOLKATA, THE 4 TH DAY OF APRIL, 2014 COPIES TO : (1) RATAN LAL BANERJI, CK-148, SECTOR-II, SALT LAKE CITY, KOLKATA-700 098 (2) ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-29, KOLKATA, AAYAKR BHAVAN, DAKSHINAPAN, DHAKURIA, KOLKATA-700 068 (3) CIT (4) CIT(A) (5) THE DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER ETC ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCHES, KOLKATA LAHA/SR. P.S.