M/S. JHUMJHUMWALA DISTRIBUTORS (P) LTD, MUMBAI V. THE ITO 8(3)(1), MUMBAI

ITA 5264/MUM/2007

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 0881 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Next Hearing Date: 05-07-2010
• Assessment Year: 2001-2002
• Appeal Filed On: 03-08-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: HARIGOVIND SINGH
• Keywords: Opportunity of being heard; Speculation loss

Judgement Text

ITA NO.5264/MUM/2007 ASSESSMENT YEAR : 2001-02 PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI J BENCH, MUMBAI BEFORE SHRI D.K. AGARWAL, (JUDICIAL MEMBER) AND SHRI PRAMOD KUMAR (ACCOUNTANT MEMBER) ITA NO. 5264/MUM./2007 ASSESSMENT YEAR : 2001-02 DATE OF HEARING : 6.7.2010 JHUNJHUNWALA DISTRIBUTORS P. LTD. ...... APPELLANT F-20, ANSA INDUSTRIAL ESTATE SAKI VIHAR ROAD MUMBAI 400 020 PAN AAACJ9152D VS. INCOME TAX OFFICER, WARD 8(1)(3) .. RES PONDENT AAYAKAR BHAVAN, M.K ROAD MUMBAI 400 020 APPELLANT BY : SHRI PRAMOD KUMAR PARIDA RESPONDENT BY : SHRI HARI GOVIND SINGH O R D E R PER PRAMOD KUMAR: 1. BY WAY OF THIS APPEAL, THE ASSESSEE HAS CALLED INTO QUESTION CORRECTNESS OF LD. CIT(A)S ORDER DATED 15 TH MAY 2007, FOR ASSESSMENT YEAR 2001-02. ITA NO.5264/MUM/2007 ASSESSMENT YEAR : 2001-02 PAGE 2 OF 4 2. THE GRIEVANCES RAISED BY THE ASSESSEE, ARE AS FOLLO WS:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE & LA W ON THE SUBJECT THE LD. CIT(A) ERRED IN PASSING THE ORDER E XPARTE. 2. ON THE FACTS & CIRCUMSTNCES OF THE CASE & LAW ON THE SUBJECT THE LD. ASSESSING OFFICER ERRED IN TREATING THE LOSS OF RS.6351054/- FROM TRADING IN SHARES AS SPECULATION LOSS BY INVOKING THE PROVISION OF EXPLANATION TO SEC. 73 OF THE ACT AND IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE THE LD. CIT(A) ERRED IN UPHOLDING THE SAME. IN VIEW OF THE FACTS & CIRCUMSTANCES OF THE CASE AND LAW ON THE SUBJECT TH ELOSS OF RS.6351054/- BE ALLOWED AS BUSINESS LOSS AND THE AD DITION MADE BE DELETED. 2. ON GOING THROUGH THE RECORDS AVAILABLE BEFORE US, W E FIND THAT THE ASSESSEE HAS NOT APPEARED BEFORE THE LD. CIT(A) AT ALL. BEFORE US, LEARNED COUNSEL FOR THE ASSESSEE UNDERTAKES TO APPEAR NOW B EFORE THE LD. CIT(A) AND PRAYS THAT THE APPEAL BE RESTORED TO THE FILE O F THE LD. CIT(A) FOR ADJUDICATION AFRESH. 3. LEARNED DEPARTMENTAL REPRESENTATIVE, ON THE OTHER H AND, DID NOT OBJECT TO THE SUBMISSIONS MADE BY THE ASSESSEE. 4. HAVING HEARD THE RIVAL CONTENTIONS AND HAVING PERUS ED THE MATERIAL ON RECORD AND DULY CONSIDERED FACTUAL MATRIX OF THE CA SE AS ALSO THE APPLICABLE LEGAL POSITION, WITH CONSENT OF BOTH THE PARTIES, WE REST ORE THIS APPEAL BACK TO THE FILE OF THE LD. CIT(A) FOR ADJUDICATION AFRESH AFTER GIVING REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. ITA NO.5264/MUM/2007 ASSESSMENT YEAR : 2001-02 PAGE 3 OF 4 5. IN THE RESULT, ASSESSEES APPEAL STANDS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT TODAY ON 30 TH DAY OF JULY, 2010. SD/XX SD/XX (D.K. AGARWAL) (PRAMOD KUMAR) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI; 30 TH DAY OF JULY, 2010. COPY FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. COMMISSIONER OF INCOME TAX, MUMBAI 4. COMMISSIONER (APPEALS) , MUMBAI 5. DEPARTMENTAL REPRESENTATIVE, J BENCH, ITAT, MU MBAI 6. GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR PRADEEP J. CHWODHURY INCOME TAX APPELLATE TRIBUNAL SR. PRIVATE SECRETARY MUMBAI BENCHES, M UMBAI ITA NO.5264/MUM/2007 ASSESSMENT YEAR : 2001-02 PAGE 4 OF 4 DATE INITIAL 1. DRAFT DICTATED ON 27.7.2010 SR.PS 2. DRAFT PLACED BEFORE AUTHOR 28.7.2010 SR.PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER 28.7.2010 JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 28.7.2010 JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 28.7.2010 SR.PS/PS 6. DATE OF PRONOUNCEMENT 30.7.2010 SR.PS 7. FILE SENT TO THE BENCH CLERK SR.PS 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER