BHUPESH S.SHAH PROP KHUSHBU IMPEX, MUMBAI V. ASST CIT 17(1), MUMBAI

ITA 3892/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0221 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2012-2013
• Appeal Filed On: 08-06-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M C OMI NINGSHEN LD
• Assessee Lawyers: P P JAYRAMAN LD
• Keywords: Speculation loss
• Section: 143(3)

Judgement Text

ITA.NO.3892/MUM/2016 BHUPESH S. SHAH ASSESSMENT YEAR 2012-13 IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI , , BEFORE SHRI MAHAVIR SINGH, JM AND SHRI MANOJ KUMAR AGGARWAL, AM ./I.T.A. NO. 3892/MUM/2016 ( / ASSESSMENT YEAR: 2012-13) BHUPESH S . SHAH (PROP.-KHUSHBU IMPEX) OFFICE NO.410, ANAND BUILDING, 4 TH FLOOR, 82/84 KAZI SAYED STREET MASJID (W), MUMBAI 400 003 / VS. ASSISTANT COMMISSIONER OF INCOME-TAX 17(1) ROOM NO.117, AAYKAR BHAVAN M.K.ROAD, MUMBAI-400 020 ./ ./PAN/GIR NO. AAGPS-1076-C ( /APPELLANT ) : ( !' / RESPONDENT ) ASSESSEE BY : P.P.JAYRAMAN , LD. AR REVENUE BY : M.C.OMI NINGSHEN, LD. DR / DATE OF HEARING : 15/02/2018 / DATE OF PRONOUNCEMENT : 21 /02/2018 / O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2012-13 CONTEST THE ORDER OF LD. COMMISSIONER OF IN COME-TAX (APPEALS)-28 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-28/IT-936/AC- 17(1)/2014-15 DATED 13/04/2016 BY RAISING THE FOLLOWING GROUND OF APPEAL: - ITA.NO.3892/MUM/2016 BHUPESH S. SHAH ASSESSMENT YEAR 2012-13 2 LOSS IN TRADING OF COMMODITIES TREATED AS SPECULATI VE LOSS IN PLACE OF BUSINESS LOSS . MCX & NCDEX AS SPECULATIVE LOSS INSTEAD OF AS BUSIN ESS LOSS. THE SAME WAS EXPLAINED TO AO THROUGH CASE LAW ABOUT RETROSPE CTIVE APPLICABILITY OF NOTIFICATION FROM 2006 NOTIFICATION 46/2009 OF CBDT DATED 22/05/2009. THE LEARNED AO IS OF THE OPINION THAT MCX DIFFER FROM M CX-SX, MEANS THAT TRADING IN STOCK EXCHANGE DIFFERS, THUS RESULTING L OSS IS SPECULATIVE ONE. THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. ASSISTANT COMMISSIONER OF INCOME TAX-CIRCLE 17(1), MUMBAI [AO ] U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 18/03/2015 WHEREIN THE INCOME OF THE ASSESSEE WAS DETERMINED AT RS.95.32 LACS AS AGAINST RETURNED INCOME OF RS.83.74 LACS FILED BY THE ASSESSE ON 25/09/2012 . DURING ASSESSMENT PROCEEDINGS, IT WAS NOTED THAT THE ASSES SEE SUFFERED LOSS OF RS.11.58 LACS ON COMMODITY DERIVATIVES IN MCX AND NCDEX WHICH WAS SPECULATIVE IN NATURE AND THEREFORE COULD NOT BE AL LOWED TO BE SET-OFF FROM OTHER HEADS OF INCOME. THE ASSESSEE PLACED REL IANCE ON CBDT NOTIFICATION DATED 22/05/2009, HOWEVER, THE SAME WAS FOUND TO BE MISPLACED SINCE THE SAID NOTIFICATION ONLY COVERED MCX STOCK EXCHANGE LIMITED [MCX-SX] WHICH DEALT WITH CURRENCY FUTURES. THE STAND OF LD. AO, UPON CONFIRMATION BY LD. FIRST APPELLATE AUTHOR ITY, HAS BEEN CONTESTED BEFORE US. 2. THE LD. AUTHORISED REPRESENTATIVE FOR ASSESSEE [ AR] FAIRLY CONCEDED THAT THE TRANSACTIONS CARRIED OUT BY THE A SSESSEE WERE NOT COVERED BY THE SAID NOTIFICATION AND THEREFORE, THE BENEFIT OF THE SAID NOTIFICATION WAS NOT AVAILABLE TO THE ASSESSEE. 3. IN VIEW OF THE ADMITTED POSITION, WE DISMISS ASS ESSEES APPEAL. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST FEBRUARY, 2018 ITA.NO.3892/MUM/2016 BHUPESH S. SHAH ASSESSMENT YEAR 2012-13 3 SD/- SD/- (MAHAVIR SINGH) ( MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 21. 02.2018 SR.PS:- THIRUMALESH / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. !' / THE RESPONDENT 3. * ( ) / THE CIT(A) 4. * / CIT CONCERNED 5. !$- , - , / DR, ITAT, MUMBAI 6. ./ / GUARD FILE / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI