Sales Emporium (ULG), Kolkata V. I.T.O., Ward-41(2), Kolkata, Kolkata

ITA 486/KOL/2010

• Counselvise Citation: [2011] 119 COUNSELVISE.COM (IT) 6809 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-06-2011
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 06-06-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 09-03-2010
• Court: TRIBUNAL
• Department Lawyers: B R PURKAYASTHA
• Assessee Lawyers: V N DATTA
• Keywords: Business income

Judgement Text

, , , IN THE INCOME TAX APPELLATE TRIBUNAL, BEN CH B, KOLKATA () BEFORE . .. . . .. . , , , , , SHRI B.R.MITTAL, JUDICIAL MEMBER. /AND . .. .!' !'!' !'. .. . , #$ SHRI C.D.RAO, ACCOUNTANT MEMBER %& %& %& %& ' ' ' ' / ITA NO . 486/KOL/2010 () *+/ ASSESSMENT YEAR : 2004-05 (-. / APPELLANT ) SALES EMPORIUM (ULG), KOLKATA (PAN: AAKFS 8098 N) - ( - - VERSUS - . (01-./ RESPONDENT ) I.T.O.WARD-41(2), KOLKATA -. 2 3 #/ FOR THE APPELLANT: SHRI V.N.DATTA 01-. 2 3 #/ FOR THE RESPONDENT: SHRI B.R.PURKAYASTHA #4 / ORDER ( (( ( . .. .!' !'!' !'. .. . ) )) ), , , , #$ PER SHRI C.D.RAO, AM THIS APPEAL IS FILED BY THE ASSESSEE AGAINST THE O RDER DATED 26.11.2009 OF THE CIT(A)-XII, KOLKATA PERTAINING TO A.YR. 2004-05. 2. GROUND NO.1 AND 4 BEING GENERAL IN NATURE DO NOT REQUIRE ANY ADJUDICATION. 3. THE TWO EFFECTIVE GROUNDS RAISED BY THE A SSESSEE ARE AS UNDER :- 2. FOR THAT THE ADDITION OF RS.1,37,340/- UNDER T HE HEAD FOREIGN TOUR BY THE AUTHORITIES BELOW IS UNJUSTIFIED AND UNWARRANTED ON ACCOUNT OF THE APPLICATION OF SECTION 28(IV) OF THE ACT FOR RS.89,000/- AND DI SALLOW THE EXPENSES OF FOREIGN TOUR RS.48,340/-. 3. FOR THAT THE ACTION OF AUTHORITIES BELOW IS UNJU STIFIED, OPPOSED TO REQUIREMENT OF LAW AND BAD IN LAW FOR NOT ALLOWING TO ADJUST THE SHARE TRADING LOSS OF RS.9,45,025/-, TREATING IT THE SHORT TERM C APITAL LOSS, TO THE BUSINESS INCOME. 2 4. AT THE TIME OF HEARING THE LD. COUNSEL AP PEARING ON BEHALF OF THE ASSESSEE BY REFERRING TO GROUND NO.2 IN RESPECT OF ADDITION UND ER THE HEAD FOREIGN TOUR CONTENDED THAT IN SIMILAR SET OF FACTS THE TRIBUNAL IN THE C ASE OF THE SISTER CONCERN OF THE ASSESSEE I.E.CITY ELECTRONICS VIDE ITA NO.1944/KOL/2004 DATE D 5 TH AUGUST, 2005 HAS ALLOWED THE APPEAL OF THE ASSESSEE. THEREFORE, HE REQUESTED TO ALLOW THE ASSESSEES CLAIM. HE FURTHER CONTENDED THAT THE LD. CIT(A) IS NOT JUSTIF IED IN RESTRICTING THE FOREIGN TOUR TO THE EXTENT OF RS.48,340/-. 5. ON THE OTHER HAND, THE LD. DR RELIED ON T HE ORDERS OF THE REVENUE AUTHORITIES AND FURTHER CONTENDED THAT THOUGH THE TRIBUNALS ORDER DATED 5 TH AUGUST, 2005 I.E. OF THE SISTERS CONCERN WAS NOT PLACED BEFORE THE REVENUE AUTHORITIES NEITHER BEFORE THE AO NOR BEFORE THE LD. CIT(A) THEREFORE, HE REQUESTED T O RESTORE THE MATTER TO THE FILE OF THE AO TO VERIFY THE SAME AND ALLOW THE CLAIM OF THE AS SESSEE. 6. AS REGARDING GROUND NO.3 THE LD. COUNSEL APPEARING ON BEHALF OF THE ASSESSEE HAS CONTENDED THAT THE ASSESSEE IS TREATING THE SHA RE TRADING LOSS AS BUSINESS INCOME IMMEDIATELY IN THE PRECEDING TWO ASSESSMENT YEARS A LSO AND THE REVENUE HAS ACCEPTED THE SAME U/S 143(1) OF THE ACT. IN SUPPORT OF THIS HE FILED COPIES OF THE PROFIT AND LOSS ACCOUNT, BALANCE SHEET AND THE ASSESSMENT ORDER U/S 143(1) OF THE ACT. IN VIEW OF THIS HE CONTENDED THAT THE REVENUE SHOULD HAVE TREATED T HE INCOME FROM SHARE TRADING AS INCOME FROM BUSINESS. THEREFORE HE REQUESTED TO SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES AND TREAT THE SHARE LOSS AS BUSINESS L OSS. 7. THE LD. DR APPEARING ON BEHALF OF THE REVE NUE CONTENDED THAT IN THE TAX AUDIT REPORT ITSELF THE TAX AUDITOR HAS PHYSICALLY MENTIO NED THAT AT COL.8A THE NATURE OF BUSINESS OR PROFESSION IS WRITTEN AS DEALING IN ELE CTRICALS AND ELECTRONIC GOODS AND GADGETS ON CASH, CREDIT AND HIRE PURCHASE SYSTEM WH ICH WAS SPECIFICALLY MENTIONED IN THE ASSESSMENT ORDER. THEREFORE IT IS NOT JUSTIFIED ON THE PART OF THE ASSESSEE TO SAY THAT HIS BUSINESS IS THAT OF TRADING IN SHARES. THEREFOR E, HE REQUESTED TO UPHELD THE ACTION OF THE REVENUE AUTHORITIES . 3 8. IN THE REBUTTAL STAGE, THE LD. AR BY REFERR ING TO THE RESOLUTION PAGE NO.27 CONTENDED THAT THE PARTNERSHIP FIRM HAS INTENDED TO DO BUSINESS IN SHARE TRADING BY RESOLVING CLAUSE NO.5 OF THE DEED OF PARTNERSHIP W. E.F 27 TH APRIL, 1990. ACCORDINGLY THE FIRM IS CARRYING ON THE BUSINESS OF THE SHARE T RADING. THEREFORE, HE REQUESTED TO SET ASIDE THE ORDERS OF THE REVENUE AUTHORITIES. 9. HAVING HEARD THE RIVAL SUBMISSIONS AND ON C AREFUL PERUSAL OF THE MATERIALS AVAILABLE ON RECORD, IN RESPECT OF GROUND NO.2 SINC E THE ORDER OF THE TRIBUNAL IS DATED 5 TH AUGUST, 2005 WE CONSIDER IT TO SET ASIDE THE MATTE R TO THE FILE OF THE AO TO RE- DECIDE THE ISSUE AFRESH IN THE LIGHT OF THE TRIBUNA LS ORDER. 9.1. AS REGARDING GROUND NO.3 KEEPING IN VIEW O F THE FACT THAT THE ASSESSEE HAS FILED THE COPIES OF THE ASSESSMENT ORDERS IN THE PRECEDIN G TWO ASSESSMENT YEARS WHERE THE REVENUE HAS ACCEPTED THE INCOME FROM SHARE TRADING AS BUSINESS INCOME. WE FIND NO REASON TO TREAT THE SAME AS INCOME FROM SHARE TRADI NG AS SHORT TERM CAPITAL LOSS FOR THE YEAR UNDER DISPUTE. THEREFORE, WE ALLOW THIS GROUND OF THE ASSESSEE. 10. IN THE RESULT THE APPEAL OF THE ASSESSEE IS PA RTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE COURT ON 24.06.2011. SD/- SD/- . .. . . .. . , , , , B.R.MITTAL, JUDICIAL MEMBER . .. .!' !'!' !'. .. . , ,, , #$ #$ #$ #$ , C.D.RAO, ACCOUNTANT MEMBER. ( (( ('$ '$ '$ '$) )) ) DATE: 24.06.2011. R.G.(.P.S.) 4 #4 2 0& 5#&*6- COPY OF THE ORDER FORWARDED TO: 1. M/S.SALES EMPORIUM (ULG), 85-D, D.ULTADANGA MAIN RO AD, KOLKATA- 700067. 2 THE I.T.O., WARD-41(2), KOLKATA 3. THE CIT, 4. THE CIT(A)-XII, KOLKATA 5. DR, KOLKATA BENCHES, KOLKATA 1& 0/ TRUE COPY, #4(;/ BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES