The ACIT, Circle-3, Ahmedabad V. Shri Sushil H.Didwania, Ahmedabad

ITA 2460/AHD/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 6590 (ITAT-AHMEDABAD)
• Duration Of Justice: 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 20-05-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 05-08-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: O P BATHEJA
• Assessee Lawyers: PAUMIL SHAH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D. AGARWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 20/05/2011 DRAFTED ON: 20/05 /2011 ITA NO.2460/AHD/2010 ASSESSMENT YEAR : 2001-02 ACIT AHMEDABAD CIRCLE-3 AHMEDABAD VS. SHRI SUSHIL H.DIDWANIA PROP. OF M/S.SUSHIL & CO. 662/13, H.A. MARKET KALUPUR AHMEDABAD PAN/GIR NO. : ABFPD 5968 M (APPELLANT) .. (RESPONDENT) APPELLANT BY : SHRI O.P. BATHEJA, SR.D.R. RESPONDENT BY: SHRI PAUMIL SHAH O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THIS IS AN APPEAL AT THE BEHEST OF THE REVENUE WHI CH HAS EMANATED FROM THE ORDER OF LEARNED CIT(APPEALS)-GANDHINAGAR DATED 26/05/2010 AND THE ONLY SUBSTANTIVE GROUND READS AS UNDER:- 1. THE LD. CIT(A) ERRED IN LAW AND ON FACTS IN DEL ETING THE DISALLOWANCE OF RS.6,76,380/- OUT OF THE TOTAL DISA LLOWANCE OF RS.52,82,031/- MADE IN RESPECT OF LOSS SUSTAINED ON ACCOUNT OF TRANSACTION IN MUTUAL FUNDS. 2. AT THE OUTSET, IT WAS INFORMED THAT THE LEARNED CIT(APPEALS) HAS GRANTED PART RELIEF OUT OF THE TOTAL ADDITION OF R S.52,86,030/- WHICH WAS CLAIMED AS LOSS, A SUM OF RS.46,09,651/- WAS CONFIR MED. THIS WAS CHALLENGED BY THE ASSESSEE. THAT APPEAL OF THE AS SESSEE HAS ALREADY ITA NO. 2460/AHD/2010 ACIT VS. SH.SUSHIL H.DIDWANIA ASST.YEAR - 2001-02 - 2 - BEEN DECIDED BY THE ITAT C BENCH BEARING ITA NO .2294/AHD/2010 (ASSESSMENT YEAR 2001-02) TITLED AS SHRI SUSHIL H.D IDWANIA VS. ASST.CIT, ORDER DATED 11/11/2010, WHEREIN VIDE PAR AGRAPH NO.9 HAS RESTORED THE ISSUE BACK TO THE STAGE OF THE FIRST A PPELLATE; REPRODUCED BELOW:- 9. IN VIEW OF THE FOREGOING, ESPECIALLY WHEN THE LD. CIT(A) COMPLETELY OVERLOOKED THE DIRECTIONS OF THE ITAT IN THE AFORESAID ORDER DATED 7/12/2007 AND MERELY FOLLOWED THE ORDER DATED 29/11/2004 OF HIS PREDECESSOR, WHICH HAD BEEN SET S IDE BY THE ITAT, WE HAVE NO OPTION BUT TO VACATE THE FINDINGS OF THE LEARNED CIT(A) IN THE IMPUGNED ORDER AND RESTORE THE MATTER AGAIN TO HIS FILE WITH THE DIRECTIONS TO READJUDICATE THE ISSUE IN THE LIGHT OF VARIOUS JUDICIAL PRONOUNCEMENTS INCLUDING THE AFORE SAID DECISION OF THE HON'BLE APEX COURT IN WALFORT SHARES AND STO CK BROKERS LTD. (SUPRA) AS ALSO DECISIONS RELIED UPON ON BEHAL F OF THE ASSESSEE AND REFERRED TO IN ITA NO.220/AHD/2007. SINCE THE MATTER RELATES TO AY 2001-02 AND IS QUITE OLD, THE LD. CIT(A) SHA LL DECIDE THE ISSUE EXPEDITIOUSLY WITHIN A PERIOD NOT EXCEEDING T HREE MONTHS. THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH TH E LD. CIT(A) AND AVOID UNNECESSARY ADJOURNMENTS. WITH THESE OBSERVA TIONS, GROUND NOS.1 TO 3 IN THE APPEAL ARE DISPOSED OF. 3. PARTIES APPEARING BEFORE US HAVE INFORMED THAT S INCE THE ISSUE INVOLVED HAS ALREADY BEEN RESTORED BACK FOR RE-ADJU DICATION BEFORE ITA NO. 2460/AHD/2010 ACIT VS. SH.SUSHIL H.DIDWANIA ASST.YEAR - 2001-02 - 3 - THE LEARNED CIT(APPEALS), THEREFORE, THE APPEAL OF THE REVENUE SHALL ALSO BE RESTORED IN IDENTICAL MANNER. WE ORD ER ACCORDINGLY. 4. IN THE RESULT, THE APPEAL OF THE REVENUE IS TRE ATED AS ALLOWED BUT FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 20/ 05 /2011. SD/- SD/- ( G.D. AGARWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 20/ 05 /2011 T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPA RTMENT. 3. THE CIT CONCERNED. 4. THE LD. CIT(A PPEALS)-GANDHINAGAR 5. THE DR, AHMEDABAD BENCH. 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..20/05/2011 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 20/05/2011 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S20/5/2011 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 20/5/2011 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER