I.T.O Wd - 2(1),kolkata, Kolkata V. M/s Mircro Nirwat Ltd., Kolkata

ITA 2405/KOL/2013

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 9174 (ITAT-KOLKATA)
• Duration Of Justice: 3 year(s) 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-03-2017
• Appeal Filed By: Department
• Bench Allotted: B
• Next Hearing Date: 01-11-2016
• Assessment Year: 2005-2006
• Appeal Filed On: 27-09-2013
• Court: TRIBUNAL
• Department Lawyers: DEBASISH BANERJEE
• Assessee Lawyers: N O N E
• Keywords: Speculation loss

Judgement Text

1 ITA NO.2405/KOL/2013 MICRO NIRYAT LTD.., AY 2005-06 IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH: KOL KATA [BEFORE SHRI A. T. VARKEY, JM & SHRI WASEEM AHMED, AM] I.TA NO. 2405/KOL/2013 ASSESSMENT YEAR: 2005-06 INCOME-TAX OFFICER, WD-2(1), KOLKATA VS. M/S. MICRO NIRYAT LTD. (PAN: AABCM7974R) APPELLANT RESPONDENT DATE OF HEARING 07.02.2017 DATE OF PRONOUNCEMENT 29.03.2017 FOR THE APPELLANT SHRI DEBASISH BANERJEE, JCIT, SR. DR FOR THE RESPONDENT N O N E ORDER PER SHRI A.T.VARKEY, JM THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF LD. CIT(A)-XX, KOLKATA DATED 17.06.2013 FOR AY 2005-06. 2. NONE APPEARED FOR THE ASSESSEE, HOWEVER, AFTER P ERUSAL OF THE RECORDS, WE ARE OF THE OPINION THAT WITHOUT HEARING THE ASSESSEE, WE C AN ADJUDICATE THE ISSUE RAISED BY THE REVENUE AFTER HEARING THE LD. DR. 3. AT THE OUTSET ITSELF, THE LD. DR DREW OUR ATTENT ION TO THE FIRST GROUND RAISED BY THE REVENUE WHICH IS AGAINST THE ACTION OF THE LD. CIT(A) IN ADMITTING FRESH EVIDENCE IN VIOLATION OF RULE 46A OF THE I. T. RULES, 1962 (HER EINAFTER REFERRED TO AS THE RULES). 4. THE BRIEF FACTS OF THE CASE AS NOTED BY THE LD. CIT(A) IS THAT THE ASSESSEE HAD SHOWN INCOME OF RS.1,38,622/- AFTER SETTING OFF TH E SPECULATION LOSS IN SHARE TRADING AMOUNTING TO RS.49,59,859/- AGAINST SPECULATION PRO FIT EARNED IN PHARMACEUTICALS, TEXTILES ITEMS DEALT THROUGH COMMODITIES EXCHANGE. THE AO TREATED THE PROFIT DERIVED FROM PHARMACEUTICALS, TEXTILES ITEMS AS BUSINESS PR OFIT AND THE SAME WAS NOT ALLOWED TO 2 ITA NO.2405/KOL/2013 MICRO NIRYAT LTD.., AY 2005-06 BE SET OFF AGAINST SPECULATION LOSS ON SHARE DEALIN G AND MADE AN ADDITION OF RS.49,59,859/- BY DISALLOWING THE SPECULATION LOSS CLAIMED BY THE ASSESSEE. AGGRIEVED, THE ASSESSEE PREFERRED AN APPEAL BEFORE THE LD. CIT (A), WHO WAS PLEASED TO DELETE THE ADDITION BY ALLOWING THE ASSESSEES APPEAL. AGGRIEV ED BY THE ORDER OF THE LD. CIT(A) THE REVENUE IS BEFORE US. 5. WE HAVE HEARD SUBMISSIONS OF THE LD. DR AND PERU SED THE MATERIAL AVAILABLE ON RECORD. THE LD. DR DREW OUR ATTENTION TO PAGE 2 O F THE IMPUGNED ORDER WHEREIN IN PARA 4.1, THE LD. CIT(A) HAS REPRODUCED THE SUBMISS ION OF THE LD. AR AND DREW OUR ATTENTION TO THE MIDDLE OF THE PARA WHERE IT IS STA TED THAT ONLY THE DIFFERENCE AMOUNT I.E. AMOUNTING TO RS.46,86,196/- AND RS.3,10,669/- HAS BEEN RECEIVED BY ACCOUNT PAYEE CHEQUE FROM THE SAID BROKER . A COPY OF THE SAID BANK STATEMENT IS BEING PRODU CED FOR YOUR KIND PERUSAL WHICH IS ON ACCOUNT OF SPECULATIO N PROFIT DERIVED FROM THE TRANSACTION DEALT BY THE SAID BROKER. THE LD. DR CONTENDED THAT THE LD. AR OF THE ASSESSEE HAS FOR THE FIRST TIME PRODUCED THE COPY O F THE BANK STATEMENT TO PROVE THAT THE DIFFERENCE AMOUNT HAS BEEN PAID TO THE BROKER B Y ACCOUNT PAYEE CHEQUE TO SHOW THAT IT WAS SPECULATION TRANSACTION. ACCORDING TO L D. DR, THE LD. CIT(A) HAS ADMITTED THE SAID FRESH EVIDENCE AND HAS MADE A FINDING WHIC H IS REPRODUCED HEREUNDER: THE BILLS RECEIVED FROM THE BROKER SHOWED THAT ON LY THE DIFFERENCE AMOUNT WAS PAID TO THE APPELLANT. A COPY OF BANK STATEMENT FILED BY THE APPELLANT WAS PERUSED IN THIS REGARD WHICH CONFIRMS THE SUBMISSION OF THE APPELLA NT. WE NOTE THAT FROM THE AFORESAID FINDING RECORDED BY THE LD. CIT(A) WHICH HAS BEEN REPRODUCED ABOVE AND THE SUBMISSIONS OF THE LD . DR HAVE SHOWN THAT THE EVIDENCE IN THE FORM OF THE BANK STATEMENT WERE FIL ED BEFORE THE LD. CIT(A) WHICH HAS BEEN ADMITTED BY HIM WITHOUT RESORTING TO THE PROCE DURE LAID DOWN IN RULE 46A OF THE RULES AND BASED ON THE SAID BANK STATEMENT FINDING OF FACT HAS BEEN RECORDED BY THE LD. CIT(A) WITHOUT CALLING FOR REMAND REPORT FROM THE A O AS ENVISAGED UNDER RULE 46A OF THE RULES, IS IN VIOLATION OF THE SAID RULE. THERE FORE, WE FIND FORCE IN THE CONTENTION OF THE LD. DR AND IN THE INTEREST OF JUSTICE, WE SET A SIDE THE ORDER OF THE LD. CIT(A) AND 3 ITA NO.2405/KOL/2013 MICRO NIRYAT LTD.., AY 2005-06 REMIT THE MATTER BACK TO THE FILE OF THE AO TO DECI DE THE ISSUE DE NOVO AFTER GIVING OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 29.03.201 7. SD/- SD/- (WASEEM AHMED) (ABY. T. VARKEY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 29TH MARCH, 2017 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPELLANT INCOME-TAX OFFICER, WD-2(1), KOLKATA. 2 RESPONDENT M/S. MICRO NIRYAT LTD., 156A, LENIN SA RANI, KOLKATA-700 013. 3 . THE CIT(A), KOLKATA 4. 5. CIT , KOLKATA DR, KOLKATA BENCHES, KOLKATA / TRUE COPY, BY ORDER, ASSTT. REGISTRAR .