Star Laser Offset Private Limited , Kolkata V. ITO, Ward - 7(3) , Kolkata

ITA 2694/KOL/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 7769 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2019
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 26-06-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 31-12-2018
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SANKAR HALDER JCITSRDR
• Assessee Lawyers: S M SURANA
• Keywords: Earning of tax free income; Rule 8D
• Section: 143(3); 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH SMC KOLKATA BEFORE SHRI S.S, GODARA, JUDICIAL MEMBER ITA NO.2694/KOL/2018 ASSESSMENT YEAR:2012-13 STAR LASER OFFSET PVT. LTD., 2E, JADULAL MULLICK ROAD, GROUND FLOOR, KOLKATA- 700069 [ PAN NO. AAECS 2132 G ] / V/S . INCOME TAX OFFICER WARD-7(3), AAYAKAR BHAWAN, 5 TH FLOOR, P- 7, CHOWRINGHEE SQUARE, KOLKATA-69 /APPELLANT .. /RESPONDENT /BY APPELLANT SHRI S.M. SURANA, ADVOCATE /BY RESPONDENT SHRI SANKAR HALDER, JCIT-SR-DR /DATE OF HEARING 26-06-2019 /DATE OF PRONOUNCEMENT 24-07-2019 /O R D E R THIS ASSESSEES APPEAL FOR ASSESSMENT YEAR 2012-13 , ARISES AGAINST THE COMMISSIONER OF INCOME-TAX (APPEALS)-3, KOLKATAS O RDER DATED 08.08.2018 PASSED IN CASE NO.2020/CIT(A)-3/WD7(3)/14-15, INVOLVING PROC EEDINGS U/S. 143(3) OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT. HEARD BOTH THE PARTIES. CASE FILE PERUSED. 2. THAT THE ASSESSEES FORMER SUBSTANTIVE GRIEVANCE CHALLENGES CORRECTNESS OF BOTH THE LOWER AUTHORITIES ACTION TREATING ITS DERIVATIV E LOSS OF 9,82,147/- TO BE BOGUS FOLLOWED BY DISALLOWANCE OF DERIVATIVE TRANSACTION CHARGES OF 20,353/-. IT APPEARS TO HAVE CLAIMED IMPUGNED LOSS FROM DERIVATIVE TRANSACT ION CARRIED OUT IN NATIONAL STOCK EXCHANGE THROUGH A REGISTERED BROKER M/S VINIT ENTE RPRISES. CASE FILE INDICATES THAT THE ASSESSING OFFICER HAD SOUGHT TO VERIFY THE SAME FROM BOTH THE SAID PARTIES WHO ITA NO.2694/KOL/2018 A.Y. 2012-13 STAR LASRE OFFSET PVT. LTD. VS. ITO WD-7 (3) KOL. PAGE 2 DECLINED TO SUPPORT THE ASSESSEES CASE. ALL THIS R ESULTED IN THE IMPUGNED DISALLOWANCE THEREFORE. 3. I HAVE GIVEN MY THOUGHTFUL CONSIDERATION TO RIVA L CONTENTIONS AGAINST AND IN SUPPORT OF THE IMPUGNED DISALLOWANCE. LEARNED DEPAR TMENTAL REPRESENTATIVE VEHEMENTLY CONTENDS THAT THE ASSESSEES BROKER M/S VINIT ENTERPRISES HAD DECLINED TO HAVE CARRIED OUT ANY TRANSACTION AT THE ASSESSEES BEHEST. HIS CASE THEREFORE IS THAT ASSESSEE HAS FAILED TO PROVE GENUINENESS OF ITS DER IVATIVE LOSS RESULTING IN THE IMPUGNED DISALLOWANCE. I FIND NO REASON TO AGREE WI TH THE REVENUES ARGUMENTS IN PRINCIPLE. CASE FILE REVEALS THAT THE ASSESSEE HAD PLACED ON RECORD ITS BANK STATEMENT EVIDENCING THE CORRESPONDING PAYMENTS MADE TO THE M/S VINIT ENTERPRISES AS WELL AS THE LATTERS CONTRACT NOTES ISSUED IN LIEU THEREOF. THERE IS NO MATERIAL BEFORE ME WHICH COULD SUGGEST THAT THE ASSESSING OFFICER HAD CONFRO NTED ALL THESE DETAILS TO M/S VINIT ENTERPRISE. I THEREFORE DEEM IT APPROPRIATE TO REST ORE THE INSTANT FORMER ISSUE BACK TO THE CIT(A) TO PASS A DETAILED ORDER AFRESH AFTER GE TTING THE NECESSARY FACTUAL VERIFICATION QUA THE ABOVE CLINCHING MATERIAL FROM THE ASSESSING OFFICER. I MAKE IT CLEAR THAT THE MAIN REASONING FORM ME TO RESTORE TH E INSTANT ISSUE BACK TO THE CIT(A) THAN ASSESSING OFFICER IS THAT MUCH WATER HAS FLOWN SINCE THE IMPUGNED ASSESSMENT YEAR 2012-13. THE ASSESSEE SHALL BE AFFORDED THREE EFFECTIVE OPPORTUNITIES OF HEARING IN CONSEQUENTIAL PROCEEDINGS. THIS FIRST SUBSTANTIV E GROUND IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 4. NEXT COMES SEC. 14A R.W.S. RULE 8D DISALLOWANCE OF 91,050/- RELATING TO ITS ALLEGED EXEMPT INCOME. SUFFICE TO SAY, I FIND THAT THE ASSESSING OFFICER IS HIMSELF VERY CLEAR THAT THE ASSESSEE HAS NOT DERIVED ANY EX EMPT INCOME IN THE IMPUGNED ASSESSMENT YEAR. HON'BLE JURISDICTIONAL HIGH COURT IN CIT VS. ASIKA GLOBAL LOGISTIC SECURITIES LTD. APPEAL NO. 100/2014 GA NO.2122/2014 DATED 11.06.2 014 HOLDS THAT THE DISALLOWANCE PROVISION IN ISSUE DOES NOT COME I NTO PLAY IN ABSENCE OF ANY EXEMPT INCOME. I ACCORDINGLY DELETE THE IMPUGNED DISALLOWA NCE OF 91,050/-. ITA NO.2694/KOL/2018 A.Y. 2012-13 STAR LASRE OFFSET PVT. LTD. VS. ITO WD-7 (3) KOL. PAGE 3 5. MR. SURANA DOES NOT PRESS FOR THIRD SUBSTANTIVE GROUND REGARDING INCOME TAX REFUND OF 2,380/- KEEPING IN MIND IN SMALLNESS OF AMOUNT. THI S GROUND IS TREATED AS DISMISSED. 6. THIS ASSESSEES APPEAL IS PARTLY ALLOWED IN ABOV E TERMS. ORDER PRONOUNCED IN OPEN COURT ON 24/07/2019 SD/- (S.S. GODARA) JUDICIAL MEMBE R KOLKATA, *DKP/SR.PS - 24/07/2019 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-STAR LASER OFFSET PVT. LTD., 2E, JADULAL MULLICK ROAD, GROU ND FLOOR, KOLATKA-69 2. /RESPONDENT-ITO WD-7(3), AAYAKAR BHAWAN, 5 TH FLOOR. P-7, CHOWRINGHEE SQUARE, KOLKATA -69 3. ' % / CONCERNED CIT 4. % - / CIT (A) 5. & ))' , ' / DR, ITAT, KOLKATA 6. + / GUARD FILE. BY ORDER/ , /TRUE COPY/ ',