DCIT CIR 3, THANE V. VASUDEVAN RANGARAJAN, THANE

ITA 2902/MUM/2012

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2530 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 6 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-11-2015
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 17-11-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 30-04-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: A K DHONDIAL
• Keywords: Salary income; Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 2902 / MUM/20 1 2 ( / ASSESSMENT YEA R : 200 7 - 2008 ) ASSISTANT COMMIS SIONER OF INCOME TAX , CIRCLE - 3, VARDAAN, LOWER GROUND FLOOR, MIDC, WAGLE INDL. ESTATE, THANE / VS. SHRI V ASUDEVAN RANGARAJAN, SHARANAGATI, 20, SHREESH CHS LTD, HAJURI DARGA ROAD, THANE - 400604. ( / APPELLANT ) .. ( / RESPON DENT ) ./ ./PAN. : AAABPV2385A / REVENUE BY SHRI A K DHONDIAL / ASSESSEE BY NONE / DATE OF HEARING : 17 .11 . 201 5 / DATE OF PRO NOUNCEMENT: 17 .11. 201 5 / O R D E R P ER B R BASKARAN, AM : THE APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER DA T ED 24.1.2012 PASSED BY THE LD CIT(A) - 1, THANE AND IT RELATES TO THE ASSESSMENT YEAR 2007 - 08. 2. THE PENALTY OF R S.8,64,300/ - LEVIED BY THE AO UNDER SECTION 271(1)(C) OF THE INCOME TAX ACT, 1961, HAVING BEEN DELETED BY THE LD. CIT(A), THE REVENUE HAS FILED THIS APPEAL BEFORE US. ITA NO. 2902 / MUM/20 1 2 2 3. NONE APPEARED ON BEHALF OF THE ASSESSEE EVEN THOUGH THE NOTICES WERE ISSUED BY RPAD ON SEVERAL OCCASIONS. HENCE, WE PROCEED TO DISPOSE OF THE APPEAL EX - PARTE, WITHOUT THE PRESENCE OF THE ASSESSEE. 4. WE HEARD THE LD. DR AND PERUSE D THE RECORD . T HE ASSESSEE HAS DERIVED SALARY INCOME FROM M/S ACC LTD. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE SUFFERED A LOSS OF RS.25,24,716 / - FROM SHARE TRADING ACTIVITIES. IN THE RETURN OF INCOME, THE ASSESSEE SET OFF OF SHARE TRADING LOSS AGAINST THE SALARY INCOME AND ACCORDINGLY COMPUTED THE TOTAL INCOME. IT IS PERTINENT TO NOTE THAT THE INCOM E TAX PROVISIONS DO NOT PERMIT SET OFF OF SHARE TRADING LOSS AGAINST SALARY INCOME. HOWEVER, IN THE ASSESSMENT PROCEEDINGS, THE ASSESSEE ACCEPTED THE MISTAKE IN CLAIMING SET OFF OF LOSS FROM SHARE TRADING ACTIVITY AGAINST SALARY INCOME. ACCORDINGLY, THE A O COMPLETED THE ASSESSMENT DISALLOWING THE SET OFF CLAIMED BY THE ASSESSEE. THE AO LEVIED PENALTY OF RS.8,64,300/ - BY HOLDING THAT THE ASSESSEE HAS FURNISHED INACCURATE PARTICULARS OF INCOME BY CLAIMING SET OFF OF LOSS SUFFERED IN SHARE TRADING ACTIVITIES AGAINST THE SALARY INCOME. THE LD. CIT(A), HOWEVER, DELETED THE ADDITION BY FOLLOWING THE DECISION OF HONBLE SUPREME COURT RENDERED IN THE CASE OF CIT VS . RELIANCE PETRO PRODUCTS (2010) 322 ITR 158 ( SC). 5 . THE LD. DR SUBMITTED THAT THE DECISION RENDER ED BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPRODUCT (SUPRA) IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE . HE SUBMITTED TH AT THE DECISION RENDERED BY THE HONBLE SUPREME COURT IN THE CASE OF RELIANCE PETROPROUDCT (SUPRA) SHALL BE APPL ICABLE IN RESPECT OF DEDUCTION S WHICH ARE NOT SUSTAINABLE IN LAW. HE SUBMITTED THAT THE ASSESSEE , IN THE INSTANT CASE, HAS CLAIMED SET OFF SHARE TRADING LOSS AGAINST THE SALARY INCOME ITA NO. 2902 / MUM/20 1 2 3 WHICH IS NOT PERMISSIBLE UNDER THE PROVISIONS OF INCOME TAX ACT. FURTH ER, HE HAS AVAILED SERVICES OF CHARTERED ACCOUNTANT FOR FILING RETURN OF INCOME AND HENCE THE ASSESSEE HAS DELIBERATELY FURNISHED INACCURATE PARTICULARS OF INCOME. 6 . WE FIND MERIT IN THE CONTENTIONS OF THE LD.DR THAT THE DECISION RENDERED IN THE CASE OF RELIANCE PETRO PRODUCTS LTD (SUPRA) MAY NOT BE APPLICABLE TO THE FACTS OF THE PRESENT CASE. WE HAVE NOTICED THAT THE LD CIT(A) HAS GRANTED RELIEF BY FOLLOWING THE SAID DECISION. ACCORDINGLY, WE ARE OF THE VIEW THAT THE DECISION HAS BEEN RENDERED BY THE LD.CIT(A) UNDER INCORRECT APPRECIATION OF LAW. ACCORDINGLY , WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LD.CIT(A). ACCORDINGLY, WE SET ASIDE THE ORDER OF LD.CIT(A) AND RESTORE THE MATTER TO HIS FILE WITH A DIRECTION TO ADJUDICATE THE SAME AFRESH AFTER PROVIDING NECESSARY OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7 . IN THE RESULT, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 17TH NOVEMBER , 2 015. 17TH NOV , 2 015 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICI AL MEMBER ACCOUNTANT MEMBER MUMBAI: 17TH NOV , 2 015. . . ./ SRL , SR. PS ITA NO. 2902 / MUM/20 1 2 4 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDE NT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI