Anagram Stock Broking Ltd., Ahmedabad V. The ACIT.,Circle-3, Ahmedabad

ITA 361/AHD/2006

• Counselvise Citation: [2010] 135 COUNSELVISE.COM (IT) 9359 (ITAT-AHMEDABAD)
• Duration Of Justice: 4 year(s) 9 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 23-11-2010
• Assessment Year: 1999-2000
• Appeal Filed On: 14-02-2006
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R K DHANISTA
• Keywords: Speculation loss; Set aside

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BEFORE SHRI G.D.AGRAWAL, VICE-PRESIDENT (AZ) AND SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER DATE OF HEARING : 23/11/2010 DRAFTED ON:23/11/ 2010 1. ITA NO.361/AHD/2006 2. ITA NO.3664/AHD/2007 ASSESSMENT YEAR : 1999-2000 1. ANAGRAM STOCK BROKING LTD. 901, SAKAR-1 OPP.GANDHIGRAM RLY.STN ASHRAM ROAD, AHMEDABAD 2. THE ACIT CIRCLE-3 AHMEDABAD VS. 1. THE ACIT CIRCLE-3 AHMEDABAD 2. ANAGRAM STOCK BROKING LTD. AHMEDABAD PAN/GIR NO. : AABCA 9956 F (APPELLANTS) .. (RESPONDENTS) ASSESSEE BY : SHRI VARTIK CHOKSHI REVENUE BY: SHRI R.K. DHANISTA SR.D.R. O R D E R PER SHRI MUKUL KR. SHRAWAT, JUDICIAL MEMBER : THESE TWO APPEALS OF THE SAME ASSESSEE HAVE BEEN CONSOLIDATED FOR THE SAKE OF CONVENIENCE WHICH ARE RESPECTIVELY ARISING FROM TWO SEPARATE ORDERS OF THE LEARNED CIT(APPEALS)-VII, AH MEDABAD DATED 24/11/2005 AND 21/06/2007. (A) ASSESSEES APPEAL (ITA NO.361/AHD/2006 A.Y. 1999-2000) 2. THE ONLY SUBSTANTIVE GROUND IS ARGUED BEFORE US IS GROUND NO.1 REPRODUCED BELOW:- ITA NOS.361/AHD/2006 (BY ASSESSEE) & ITA NO.3664/AHD/2007(BY REVENUE) ANAGRAM STOCK BROKING LTD. VS. THE ACIT ASST.YEAR 1999 2000 - 2 - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE THE CIT(A) HAS ERRED IN UPHOLDING THE ASSESSING OFFICERS VIEW THAT NET LOSS ARISING ON THE SAUDAFER TRANSACTIONS WAS CAUGH T BY THE MISCHIEF OF EXPLANATION BELOW SECTION 73 AND HENCE WAS LIABLE TO BE TREATED AS SPECULATION LOSS. 2.1. AN IDENTICAL ISSUE HAD COME UP IN THE PAST IN ASSESSEES OWN CASE FOR ASSESSMENT YEAR 2001-02 WHEREIN RESPECTED CO-O RDINATE BENCH B ITAT AHMEDABAD IN ITA NO.521 & 1001/AHD/2005 VI DE ORDER DATED 01/10/2010 HAS RESTORED THE MATTER WITH CERT AIN DIRECTIONS BACK TO THE STAGE OF ASSESSMENT; RELEVANT PARAS REPRODUCED. 5. AFTER HEARING BOTH THE SIDES, WE FIND THAT NON E OF THE AUTHORITIES BELOW HAVE RECORDED THE FACTUAL FINDING IN RESPECT OF THE FACT THAT WHETHER THE TRANSACTIONS ON WHICH LOS S ARISING IS OUT OF ASSESSEES OWN ACCOUNT OF CLIENTS ACCOUNT. IN THE ABSENCE OF ANY FACTUAL FINDING, WE SET ASIDE THIS ISSUE TO THE FILE OF ASSESSING OFFICER TO VERIFY THESE FACTS AND ACCORDINGLY DECID E THE ISSUE AFRESH. SIMILAR ARE THE FACTS IN ALL ABOVEMENTIONED APPEAL AND COS, HENCE TAKING A CONSISTING VIEW, WE SET ASIDE THIS COMMON ISSUE IN ALL APPEAL AND COS, TO THE FILE OF ASSESSING OFFICER AS INDICATIVE ABOVE AND THIS COMMON ISSUE OF ASSESSEES APPEAL AN D COS ARE ALLOWED FOR STATISTICAL PURPOSES. 2.2. FOR THE YEAR UNDER CONSIDERATION, AS WELL, THE FACTS ARE STATED TO BE IDENTICAL, AS ALSO NOTED BY LEARNED CIT(APPEALS) IN PARA-5. THEREFORE, FOLLOWING THE VIEW ALREADY TAKEN AS CITED HEREINABO VE BY THE RESPECTED CO-ORDINATE BENCH IN THE CASE OF THIS APPELLANT , W E ARE OF THE VIEW THAT FOR THIS YEAR, AS WELL, THE MATTER OF APPLICABILITY OF THE PROVISIONS OF ITA NOS.361/AHD/2006 (BY ASSESSEE) & ITA NO.3664/AHD/2007(BY REVENUE) ANAGRAM STOCK BROKING LTD. VS. THE ACIT ASST.YEAR 1999 2000 - 3 - EXPLANATION TO SEC.73 IS IN THE LIKE MANNER TO BE R ESTORED BACK TO THE STAGE OF ASSESSING OFFICER FOR A FRESH ADJUDICATION ON THE SAME LINES AND AS PER THE DIRECTIONS ALREADY SET OUT. THIS GROUND OF THE ASSESSEE, THEREFORE, MAY BE TREATED AS ALLOWED ONLY FOR STATI STICAL PURPOSES. (B) REVENUES APPEAL (ITA NO.3664/AHD/2007 A.Y. 1999-2000) 3. FOR THE YEAR UNDER CONSIDERATION, I.E. ASSESSMEN T YEAR 1999-2000, A PENALTY WAS IMPOSED U/S.271(1)(C) OF THE ACT VID E AN ORDER DATED 28/03/2007 IN RESPECT OF THE BUSINESS LOSS CONSIDE RED AS SPECULATION LOSS. HOWEVER, LEARNED CIT(APPEALS) HAS REVERSED THE PENA LTY ORDER AND DELETED THE PENALTY OF RS.6,44,127/- VIDE ORDER DAT ED 21/06/2007. 4. AFTER HEARING BOTH THE SIDES, ONCE THE APPEAL IN RESPECT OF THE QUANTUM ADDITION HAS ALREADY BEEN RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER, THEREFORE, IN CONSEQUENCE THEREO F THE CONCEALMENT PENALTY AT PRESENT DO NOT SURVIVE. RESULTANTLY, TH E GROUND OF THE REVENUE CHALLENGING THE DELETION OF PENALTY IS HEREBY DISMI SSED. 5. IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES, WHEREAS REVENUES APPEAL IS DISMISSED. ORDER SIGNED, DATED AND PRONOUNCED IN THE COURT ON 26 / 11 /2010. SD/- SD/- ( G.D.AGRAWAL ) ( MUKUL KR. SHRAWAT ) VICE PRESIDENT (AZ) JUDICIAL ME MBER AHMEDABAD; DATED 26/ 11 /2010 ITA NOS.361/AHD/2006 (BY ASSESSEE) & ITA NO.3664/AHD/2007(BY REVENUE) ANAGRAM STOCK BROKING LTD. VS. THE ACIT ASST.YEAR 1999 2000 - 4 - T.C. NAIR, SR. PS COPY OF THE ORDER FORWARDED TO : 1. THE ASSESSEE. 2. THE DEPARTMENT. 3. THE CIT CONCERNED 4. THE LD. CIT(APPEALS)-VII, AHMEDABAD 5. THE DR, AHMEDABAD BENCH 6. THE GUARD FILE. BY ORDER, //TRUE COPY// (DY./ASSTT.REGISTRAR), ITAT, AHMEDABAD 1. DATE OF DICTATION..23/11/2010 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 23/11/2010 OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.P. S./P.S.. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.P .S./P.S 26.11.10 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 26.11.10 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER.. 9. DATE OF DESPATCH OF THE ORDER