D. KRISHNARAM, CHENNAI V. ITO, NCW - 7 (3), CHENNAI

ITA 3215/CHNY/2019

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 3715 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-02-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2015-2016
• Appeal Filed On: 25-11-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R. ANITHA
• Keywords: Speculation loss; Futures and options; Speculative transactions
• Section: 201; 20

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH: CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./ ITA NO. 3215 /CHNY/ 201 9 / ASSESSMENT YEAR: 201 5 - 1 6 SHRI . DWARAKNATH KRISHNARAM SAI SRI SARASWATHI FLAT NO.5, VIVEK APA RTMENTS, 3 RD FLOOR, BUILDING NEW NO.9, I - BLOCK, 1 ST MAIN ROAD, ANNA NAGAR EAST, CHENNAI 600 102 [PAN: AHVPK 3978P ] VS. INCOME TAX OFFICER, NON CORPORATE WARD 7(3) , NUNGAMBAKKAM HIGH ROAD, C HENNAI 600 034. ( /APPELLANT) ( /RESP ONDENT) / APPELLANT BY : MR. R. VIJAYARAGHAVAN, ADVOCATE /RESPONDENT BY : M S . R. ANITHA, JCIT / DATE OF HEARING : 2 5 .02 .2020 / DATE OF PRONOUNCEMENT : 25 .02 .20 20 / O R D E R PER GEORGE MATHAN, JUDICIAL MEMBER : THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED COMMIS SIONER OF INCOME TAX (APPEALS) - 7 , CHENNAI I N ITA NO. 7 /CIT(A) - 7 / 20 18 - 19 DATED 30.09 . 2019 FOR THE ASSESSMENT YEAR 201 5 - 16 CONFIRMING THE LEVY OF PENALTY U/S.271B OF THE INCOME TAX ACT, 1961. ITA NO. 3215 / CHNY / 201 9 : - 2 - : 2. MR. R. VIJAYARAGHAVAN, ADVOCATE REPRESENTED ON BEHALF OF THE ASSESSEE AND MS. R. ANITHA, JCIT REPRE SENTED ON BEHALF OF THE R EVENUE . 3. IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT THE ASSESSEE IS AN INDIVIDUAL WHO WAS DOING S PECULATIVE T RANSACTIONS IN D ERIVATIVES AND S ECURIT IES T RANSACTIONS. IT WAS A SUBMISSION THAT IN THE COURSE OF THE ASSESSMENT, THE ASSESSING OFFICER TREATED THE LOSS AS SUFFERED BY THE ASSESSEE IN FUTURES AND OPTIONS TRANSACTIONS WHICH WAS CLAIMED BY THE ASSESSEE AS SPECULATIVE TRANSACTIONS , AS TREATED AS B USINESS T RANSACTIONS OF THE ASSESSEE. CONSEQUENT TO THE SAME, THE ASSESSING OFFICER HELD THAT THE TURNOVER OF THE ASSESSEE REQUIRED THE ASSESSEE TO GET HIS ACCOUNTS AUDITED AS PROVIDED U/S.44A B OF THE INCOME TAX ACT, 1961, AS THE ASSESSEE HAD TREATED THE TRANSACTION IN FUTURES AND OPTIONS AS SPECULATIVE TRANSACTIONS. THE ASSESSEE HAD PRAYED THAT THE SAME WAS NOT LIABLE TO BE CONSIDERED AS THE TURNOVER , IN SO FAR AS THERE WAS NO OUTFLOW OF FUNDS. IT WAS A SUBMISSION THAT THE SUBMISSION OF THE ASSESSEE WAS REJECTED AND P ENALT Y LEVIED. IT WAS SUBMITTED BY THE LEARNED AUTHORIZED REPRESENTATIVE THAT IN SIMILAR CIRCUMSTANCES, THE CO - ORDINATE BENCH OF THIS TRIB UNAL, PUNE BENCHES IN THE CASE OF BANWARI SITARAM PASARI [HUF] VS. ASSISTANT COMMISSION OF INCOME TAX REPORTED IN 140 ITD 320 HAS HELD THAT THE TRANSACTIONS OF ITA NO. 3215 / CHNY / 201 9 : - 3 - : BUYING AND SELLING OF COMMODITIES IS A SPECULATIVE ACTIVITY WHERE NO PHYSICAL DELIVERY IS TAKEN OR GIVEN AND CONSEQUENTLY THERE WAS NO TURNOVER CONSTITUTED FOR THE PURPOSE OF CONSIDERING THE LIABILITY OF THE ASSESSEE TO GET HIS ACCOUNTS AUDITED. CONSEQUENTLY, NO PENALTY U/S.271B WAS LIABLE TO BE LEVIED ON THE ASSESSEE. 4. IN REPLY, THE LEARNED DE PARTMENTAL REPRESENTATIVE VEHEMENTLY SUPPORTED THE ORDER OF THE LEARNED ASSESSING OFFICER AND THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. 6. IN THE PRESENT C ASE , IT IS CLEAR FROM THE ASSESSMENT ORDER WHICH SHOWS THAT THE ASSESSMENT WAS SELECTED FOR LIMITED SCRUTINY TO VERIFY THE DERIVATIVES, (FUTURES TRANSACTIONS AND SECURITIES TRANSACTIONS). THE ASSESSEE HAS DISCLOSED THE LOSS AGAINST THE F UTURE S AND O PTIONS AS A SPECULATIVE LOSS. HOWEVER, THE ASSESSING OFFICER TREATED THE SAME AS A BUSINESS TRANSACTION. A PERUSAL OF THE DECISION OF THE CO - ORDINATE BENCH OF THIS TRIBUNAL, PUNE BENCHES IN THE CASE OF BANWARI SITARAM PASARI [HUF] VS. ASSISTANT COMMISSION OF INCOME TAX SHOWS THAT THE CO - ORDINATE BENCH HAS HELD THAT WHEN NO PHYS ICAL DELIVERY IS TAKEN OR GIVEN, THE TRANSACTION OF BUYING ITA NO. 3215 / CHNY / 201 9 : - 4 - : AND SELLING OF COMMODITIES IS TO BE CONSIDERED AS SPECULATIVE TRANSACTION AND CONSEQUENTLY THERE IS NO TURNOVER CONSTITUTED FOR THE PURPOSE OF THE ASSESSEE TO GET HIS ACCOUNTS AUDITED U/S.44AB. AS THE FACTS IN THIS ASSESSEES CASE ARE IDENTICAL, APPLYING THE PRINCIPLES LAID DOWN BY THE CO - ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF BANWARI SITARAM PASARI [HUF] VS. ASSISTANT CO MMISSION OF INCOME TAX, IT IS HELD THAT THE ASSESSEES ACCOUNTS IS NOT LIABLE FOR AUDIT U/S.44AB. CONSEQUENTLY, THE PENALTY LEVIED U/S.271B OF THE INCOME TAX ACT, 1961 AS LEVIED BY THE ASSESSING OFFICER AND AS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) STANDS DELETED. 7 . IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 2 5 TH FEBRUARY , 20 20 IN CHENNAI. SD/ - ( ) (INTURI RAMA RAO) / ACCOUNTANT MEMBER / CHENNAI, / DATED: 2 5 TH FEBRUARY , 2 020 IA, SR. PS SD/ - ( ) (GEORGE MATHAN) /JUDICIAL MEMBER / COPY TO: 1. / APPELLANT 2. / RESPONDENT 3. ( ) / CIT(A) 4. / CIT 5. / DR 6. / GF