I.T.O.-4(1), Agra V. Sh. Ajay Kumar Gupta, Agra

ITA 321/AGR/2012

• Counselvise Citation: 32120314 RSA 2012
• Duration Of Justice: 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Next Hearing Date: 23-07-2012
• Assessment Year: 2006-2007
• Appeal Filed On: 12-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K SHARMA
• Keywords: Business income; Audit objection; Question of law; Speculation loss; Tax effect
• Section: 154; 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, AGRA(SMC) BENCH, AGRA BEFORE : SHRI BHAVNESH SAINI, JUDICIAL MEMBER ITA NO. 321/AGRA/2012 ASST. YEAR : 2006-07 INCOME-TAX OFFICER, VS. SHRI AJAY KUMAR GUPTA, 4(1), AGRA. 3/19, MANPARA, AGRA. (PAN : ABEPG 9703 B) (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI A.K. SHARMA, JR. D.R. RESPONDENT BY : NONE DATE OF HEARING : 23.07.2012 DATE OF PRONOUNCEMENT OF ORDER : 23.07.2012 ORDER THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-II, AGRA DATED 01.03.2012 FOR THE ASSESSMENT YEAR 2006- 07, CHALLENGING THE DELETION OF ADDITION OF RS.2,22,012/- U/S. 154 OF THE IT ACT. 2. NONE IS PRESENT ON BEHALF OF THE ASSESSEE DESPIT E NOTIFYING THE DATE OF HEARING THROUGH REGISTERED POST. THE LD. CIT(A) NOTED THAT THE ASSESSMENT IN THIS CASE WAS COMPLETED U/S. 143(3) AT NIL INCOME ON 07.11.2008. THE AO PROCEEDED WITH THE PROVISION OF SECTION 154 OF THE IT ACT AND RECOMPUT ED THE INCOME, WHICH WAS CHALLENGED BEFORE THE LD. CIT(A), IN WHICH THE ASSE SSEE CONTENDED THAT THE AO WAS WRONG AND UNJUST IN CONSIDERING THE DERIVATIVE LOSS AS SPECULATION LOSS OF RS.2,22,014/- AND THE SAME HAS NOT BEEN SET OFF AGA INST OTHER BUSINESS INCOME OF THE ITA NO. 321/AGRA/2012 2 ASSESSEE. THEREFORE, THE LD. CIT(A) RIGHTLY HELD TH AT THE AO HAS WRONGLY ASSUMED JURISDICTION TO PASS THE IMPUGNED ORDER U/S. 154 OF THE IT ACT INVOLVING THE CONTENTIOUS ISSUE. FURTHER THE LD. DR ADMITTED THAT THE TAX EFFECT IS BELOW RS.3,00,000/- IN THE DEPARTMENTAL APPEAL, WHICH IS FILED AGAINST THE CBDT INSTRUCTION NO. 3 OF 2011 DATED 09.02.2011. ACCORDING TO THIS C BDT INSTRUCTION, IT HAS BEEN PRESCRIBED THAT THE DEPARTMENTAL APPEAL SHALL NOT B E FILED BEFORE THE TRIBUNAL WHERE THE TAX EFFECT DOES NOT EXCEED RS.3,00,000/-. THUS, THE DEPARTMENTAL APPEAL IS FILED IN CONTRAVENTION OF ABOVE CIRCULAR, WHICH IS APPLICABL E TO THE PRESENT APPEAL, WHICH IS FILED AFTER THE ABOVE CIRCULAR WAS ISSUED ON 09.02. 2011. NO QUESTION OF LAW OR ANY AUDIT OBJECTION ARISES IN THE DEPARTMENTAL APPEAL. THEREFORE, THE DEPARTMENTAL APPEAL IS LIABLE TO BE DISMISSED. 3. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 23.07.2012. SD/- (BHAVNESH SAINI) JUDICIAL MEMBER *AKS/- COPY OF THE ORDER FORWARDED TO : 1. APPELLANT 2. RESPONDENT 3. CIT(A), CONCERNED BY ORDER 4. CIT, CONCERNED 5. DR, ITAT, AGRA 6. GUARD FILE ASSISTANT REGISTRAR TRUE COPY