ITO 4(3)(3), MUMBAI V. MAHAKOSH HOLDINGS P.LTD, MUMBAI

ITA 3272/MUM/2013

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 9481 (ITAT-MUMBAI)
• Duration Of Justice: 6 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2009-2010
• Appeal Filed On: 29-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Speculation loss; Tax effect; Set aside
• Section: 201; 73

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES B , MUMBAI BEFORE S HRI S. RIFAUR RAHMAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 3272/MUM/2013 ASSESSMENT Y EAR: 2009 - 2010 THE INCOME TAX OFFICER - 4(3)(3), R. NO. 637, 6 TH FLOOR, AAYAKAR BHAVAN, M.K. RO AD, MUMBAI - 400020 VS. M /S MAHAKOSH HOLDINGS PVT. LTD., 202, HEMLOK, KILACHAND ROAD, KANDIVALI (WEST), MUMBAI - 400067 PAN: AAACM3739M (APPELLANT) (RESPONDENT) REVENUE BY : MS. KAVITA KAUSHIK (SR. DR ) ASSESSEE BY : SHRI POOJAN MEHTA ( A R ) DATE OF HEARING: 14/11 /201 9 DATE OF PRONOUNCEMENT: 14 / 11 /201 9 O R D E R PER RAM LAL NEGI, JM THIS APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER DATED 04.02.2013 PASSED BY THE COMMISSIONE R OF INCOME TAX (APPEALS) - 8 (FOR SHORT THE CIT(A) , MUMBAI, FOR THE ASSESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT(A) HAS PARTLY ALLOWED T HE APPEAL FILED BY THE ASSESSEE AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) OF THE INCOME TAX ACT, 1961 (FOR SHORT T HE ACT). 2 . T HE REVENUE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) , ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN NOT TREATING LOSS OF RS. 63,63,773/ - IN DEL IVERY BASED TRADING AS SPECULATION LOSS APPLYING PROVISIONS OF EXPLANATION TO SECTION 73 OF THE ACT. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) ERRED IN NOT APPORTIONING ADMINISTRATIVE EXPENSES TO THE EXTENT OF RS. 30,65, 751/ - TREATING THE SAME AS HAVING BEEN INCURRED TOWARDS SPECULATION ACTIVITY. 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE IMPUGNED ORDER OF THE LD. CIT (A) IS CONTRARY TO LAW AND 2 ITA NO. 3272 / MUM/2013 ASSESSMENT YEAR: 2009 - 1 0 CONSEQUENTLY MERITS TO BE SET ASIDE AND THAT OF THE AS SESSING OFFICER BE RESTORED. 3 . AT THE OUTSET, THE LD. COUNSEL FOR THE RESPONDENT/ASSESSEE POINTED OUT THAT THE TAX EFFECT OF THE RELIEF GRA NTED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IS BELOW RS. 5 0 LACS AND AS PER C IRCULAR NO. 17 OF 2019 DATE D 08.08.2019 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES (CBDT) , DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA , THE CBDT HAS REVISED THE MONETARY LIMIT FOR FILING APPEAL S BEFORE THE ITAT FROM THE EXISTING LIMIT OF RS. 20 LACS TO RS. 50 LA CS . IN THE LIGHT OF THE AFORESAID FACTS, THE LD. COUNSEL SUBMITTED THAT THIS APPEAL IS NOT MAINTAINABLE AND LIABLE TO BE DISMISSED. 4 . THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FAIRLY CONCEDED THAT TH IS APPEAL IS NOT MAINTAINABLE IN LIGHT OF THE AFORESAID C IRCULAR ISSUED BY THE CBDT , HOWEVER , SUBMITTED THAT THE DEPARTMENT MAY BE GIVEN LIBERTY TO FILE MISCELLANEOUS APPLICATION IN CASE IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE C IRCULAR. 5 . WE HAVE GONE THROUGH THE IMPUGNED O RDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS) AND THE GROUNDS OF APPEALS. AS POINTED OUT BY THE LD. COUNSEL, THE TAX EFFEC T IN THIS APPEAL IS LESS THAN RS. 5 0 LACS. ACCORDINGLY, W E DISMISS THE AFORESAID APPEAL FILED BY THE REVENUE AS NOT MAIN TAINABLE/WITHDRAWN . HOWEVER, IN CASE , IT IS FOUND THAT THE CASE FALLS UNDER ANY OF THE EXCEPTIONS PROVIDED IN THE CIRCULAR, THEN THE REVENUE IS AT LIBERTY TO FILE MISCELLANEOUS APPLICATION FOR RECALLING THE ORDER OF THE TRIBUNAL. IN THE RESULT, APPEAL F ILED BY THE REVENUE FOR ASSESSMENT YEAR 2009 - 2010 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 14 TH NOVEMBER , 2019 . SD/ - SD/ - ( S. RIFAUR RAHMAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 14 / 11 / 201 9 ALINDRA, PS 3 ITA NO. 3272 / MUM/2013 ASSESSMENT YEAR: 2009 - 1 0 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLA NT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI