Phool Singh, New Delhi V. ITO, New Delhi

ITA 5556/DEL/2012

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7050 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 10 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 20-09-2016
• Assessment Year: 2009-2010
• Appeal Filed On: 02-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: F R MEENA
• Assessee Lawyers: VED JAIN SHRI ASHISH CHADHA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH F, NEW DELHI BEFORE SHRI N. K. SAINI, ACCOUNTANT MEMBER AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER I.T.A. NO.5556/DEL/2012 (ASSESSMENT YEAR 2009-10) PHOOL SINGH, VS. ITO, WARD 39(4), 147, HARSUKH APARTMENT, NEW DELHI SECTOR 7, DWARKA, NEW DELHI-110 075 GIR / PAN :AATPS3016K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI VED JAIN, ADVOCATE SHRI ASHISH CHADHA, ADV. RESPONDENT BY : SHRI F R MEENA, SR. DR DATE OF HEARING: 20.09.2016 DATE OF PRONOUNCEMENT: 21.09.2016 ORDER PER BEENA A. PILLAI, JM: THE PRESENT APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST ORDER DATED 23.08.2012 PASSED BY LD. CIT(A) - XVIII, NEW DELHI FOR THE ASSESSMENT YEAR 2009-10 ON THE FOLLOWING GROUNDS OF APPEAL: 1) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXVIII, NEW DELHI HAS ERRED IN DECIDING T HE APPELLATE PROCEEDINGS BY CONFIRMING THE ADDITIONS MADE BY THE LEARNED ASSESSING OFFICER WITHOUT PROVIDING A REASONABLE OPPORTUNITY TO THE APPELLANT TO SUBMIT AND SUBSTANTIATE HIS CLAIM ON THE ADDITIONS MADE BY THE LEARNED ASSESSING. 2) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXVIII, NEW DELHI HAS ERRED IN CONFIRMING AN ADDITION A SUM OF RS.54,58,406.00 ON ACCOUNT OF 2 I.T.A.NO.5556/DEL/2012 LOSS CLAIMED ON TRADING OF MUTUAL FUNDS BEING DISALLOWED BY THE LEARNED ASSESSING OFFICER CONSIDERING THE SAME TO BE SHORT TERM CAPITAL LOSS INSTEAD OF BUSINESS LOSS. 3) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) XXVIII, NEW DELHI HAS ERRED IN CONFIRMING AN ADDITION A SUM OF RS.2,71,571.00 ON ACCOUNT OF LOSS CLAIMED ON TRADING OF SHARES BEING DISALLOWED BY THE LEARNED ASSESSING OFFICER CONSIDERING THE SAME TO BE LOSS FROM SPECULATIVE ACTIVITY INSTEAD OF BUSINE SS LOSS. 4) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN CONFIRMING AN ARBITR ARY ADDITION OF RS.L,00,000.00 BEING PART OF SITE EXPEN SES CLAIMED BY THE APPELLANT WITHOUT CONSIDERING THE EXPLANATIONS SUBMITTED BY THE APPELLANT. 5) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN CONFIRMING AN ARBITR ARY ADDITION OF RS.1,00,000.00 OUT OF VEHICLE AND CONVEYANCE EXPENSES CLAIMED BY THE APPELLANT WITHOUT APPRECIATING THE FACT THAT THE ENTIRE EXPEN SES HAS BEEN INCURRED FOR IN THE NATURE OF AND FOR THE PURPOSE OF THE APPELLANTS BUSINESS. 6) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN CONFIRMING AN ARBITR ARY ADDITION OF RS.50,000.00 OUT OF TELEPHONE EXPENSES CLAIMED BY THE APPELLANT WITHOUT APPRECIATING THE F ACT THAT THE ENTIRE EXPENSES HAS BEEN INCURRED FOR IN T HE NATURE OF AND FOR THE PURPOSE OF THE APPELLANTS BUSINESS . 7. ) THAT THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS FURTHER ERRED IN CONFIRMING AN ARBITR ARY ADDITION OF RS.10,000.00 OUT OF BUSINESS PROMOTION TELEPHONE EXPENSES CLAIMED BY THE APPELLANT WITHOUT APPRECIATING THE FACT THAT THE ENTIRE EXPENSES HAS 3 I.T.A.NO.5556/DEL/2012 BEEN INCURRED FOR IN THE NATURE OF AND FOR THE PURP OSE OF THE APPELLANTS BUSINESS .. 8) THAT IT IS ACCORDINGLY -PRAYED THAT THE ADDITIO NS CONFIRMED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) MAY KINDLY BE DELETED. 2. BRIEF FACTS OF THE CASE ARE AS UNDER: 2.1 THE ASSESSEE IS IN THE BUSINESS OF CIVIL FOUNDA TION FOR INSTALLATION OF TELECOMMUNICATION TOWERS. DURING TH E YEAR UNDER CONSIDERATION, THE ASSESSEE HAD DERIVED INCOM E FROM CONTRACTUAL ACTIVITIES AND SALES/PURCHASE OF S HARES AND MUTUAL FUNDS APART FROM INCOME FROM OTHER SOURC ES AND HOUSE PROPERTY. THE ASSESSEE FILED ITS RETURN ON 30.09.2009 DECLARING INCOME AT RS.1,50,03,792/-, WH ICH WAS PROCESSED U/S 143(1) OF THE ACT AND THE CASE WA S SELECTED FOR SCRUTINY. ACCORDINGLY, NOTICE U/S 143 (2) WAS ISSUED TO THE ASSESSEE. DURING THE ASSESSMENT PROCEEDINGS, LD. A.O. OBSERVED THAT THE ASSESSEE HA D CLAIMED LOSS ON SALE OF SHARES AND MUTUAL FUNDS, AMOUNTING TO RS.71,92,177/-, THE BREAK OF WHICH IS AS UNDER: LOSS ON SALE OF MUTUAL FUNDS RS.54,58,406/- LOSS ON ACCOUNT OF NORMAL SHARE TRADING RS.15,00,911/- LOSS CLAIMED ON ACCOUNT OF TRADING IN DERIVATIVES RS.2,32,860/- 2.2 LD. A.O. HELD THAT THE LOSS CLAIMED BY THE ASSE SSE ON SALE OF MUTUAL FUNDS AMOUNTING TO RS.54,58,406/- HA S TO 4 I.T.A.NO.5556/DEL/2012 BE TREATED AS CAPITAL GAIN LOSS. LD. A.O. FURTHER MADE DISALLOWANCES WHICH ARE AS UNDER: SITE EXPENSES RS.1,00,000/- VEHICLE & CONVEYANCE EXPENSES RS.1,00,000/- TELEPHONE EXPENSES RS.50,000/- BUSINESS PROMOTION EXPENSES RS.10,000/- 2.3 AGGRIEVED BY THE ORDER OF LD. A.O., ASSESSEE PR EFERRED AN APPEAL BEFORE LD. CIT(A). 2.4 LD. CIT(A) PASSED AN EX-PARTE ORDER AS UNDER: DURING THE APPEAL PROCEEDINGS THE APPELLANT SOUGHT ADJOURNMENT AGAINST NOTICE DATED 24.04.2012, CASE WAS ADJOURNED SEVERAL TIMES ON 07.05.2012, 10.05.2012. HOWEVER NONE APPEARED. ANOTHER NOTICE WAS ISSUED ON 17.07.2012, APPELLANT SOUGHT ADJOURNMENT ON 25.07.2012. CASE WAS ADJOURNED FOR HARING ON 03.08.2012. NONE APPEARED NOR FILED ANY WRITTEN SUBMISSION. I DO NOT FIND ANY REASON TO INTERFERE WITH THE ORDER PASSED BY THE ASSESSING OFFICER. THE ORDER OF THE ASSESSING OFFICER IS THEREFORE SUSTAINED. APPEAL ON THIS GROUND IS DISMISSED. 2.5 AGGRIEVED BY THE ORDER OF LD. CIT(A), THE ASSES SEE IS IN APPEAL BEFORE US NOW. 3. LD. A.R. SUBMITTED THAT LD. CIT(A) HAS CONFIRMED THE DISALLOWANCE WITHOUT GIVING ANY FINDINGS ON MERITS. HE THUS REQUESTED THE IMPUGNED ORDER TO BE SET ASIDE B ACK TO THE FILE OF LD. CIT(A) FOR DECIDING THE ISSUE ON ME RITS. 4. LD. D.R. DOES NOT OBJECT TO THE SUBMISSIONS MADE BY LD. A.R. 5 I.T.A.NO.5556/DEL/2012 5. WE HAVE PERUSED THE RECORDS PLACED BEFORE US AND THE IMPUGNED ORDER PASSED BY LD. CIT(A). FROM THE CONCLUSION DRAWN BY LD. CIT(A) REPRODUCED HEREINABO VE, WE FIND THAT HE HAS JUST CONFIRMED THE ACTION OF LD . A.O. WITHOUT PROPERLY DISCUSSING THE CASE ON MERITS. WE ACCORDINGLY, SET ASIDE THE IMPUGNED ORDER TO LD. CIT(A)WITH THE DIRECTIONS TO DISPOSE OF THE APPEAL OF THE ASSESSEE AFRESH AFTER ALLOWING PROPER OPPORTUNITY O F BEING HEARD TO THE ASSESSEE IN ACCORDANCE WITH LAW. NEED LESS TO SAY THAT WHILE REDECIDING THE APPEAL. LD. CIT(A) S HOULD PASS SPEAKING ORDER KEEPING IN MIND THE MANDATE OF THE PROVISIONS OF SECTION 250(6) OF THE ACT. ACCORDING LY, THE APPEAL FILED BY THE ASSESSEE STANDS ALLOWED FOR STA TISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 21 ST SEP., 2016. SD./- SD./- (N. K. SAINI) (BEENA A. PILLAI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE: 21.09.2016 SP. COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DELHI. TRUE COPY. BY ORDER (ITAT, NEW DELHI) 6 I.T.A.NO.5556/DEL/2012 S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 21/9/16 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 21/9 SR. PS/PS 7 FILE SENT TO BENCH CLERK 21/9 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER