I.T.O. 6(2)(1), MUMBAI V. M/S. CANDY HOLDINGS PVT.LTD., THANE

ITA 5559/MUM/2007

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3931 (ITAT-MUMBAI)
• Duration Of Justice: 8 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-02-2016
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 11-02-2016
• Assessment Year: 2003-2004
• Appeal Filed On: 23-08-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: B D NAIK
• Keywords: Opportunity of being heard

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL H BENCH, MUMBAI BEFORE S/SHRI B.R.BASKARAN, AM AND PAWAN SINGH, JM ./ I.T.A. NO . 5559 / MUM/ 20 07 AND ITA NO.1332/MUM/2008 ( / ASSESSMENT YEA R : 20 0 3 - 04 AND 2004 - 05 ) INCOME TAX OFFICER 6(2)(1), ROOM NO.510, AAYAKAR BHAVAN, M K ROAD, MUMBAI - 400020 / VS. M/S CANDY HOLDINGS PVT LTD., 105, CHURGATE CHAMBERS, NEW MARINE LINES, MUMBAI - 400020 ( / APPELLANT ) .. ( / RESPONDEN T ) ./ ./PAN. : AAA CC2733M / A PPELLANT BY SHRI B D NAIK / R ESPONDENT BY NONE / DATE OF HEARING : 11 .2 . 201 6 / DATE OF PR ONOUNCEMENT: 11.2. 201 6 / O R D E R P ER B R BASKARAN, AM : BOTH THE APPEALS FILED BY THE REVENUE ARE DIRECTED AGAINST THE ORDERS PASSED BY THE LD.CIT(A) - 6, MUMBAI AND THEY RELATE TO THE ASSESSMENT YEARS 2003 - 04 AND 2004 - 05. 2. NONE APPEARED ON BEH ALF OF THE ASSESSEE EVEN THOUGH THE NOTICE WA S SERVED TO THE ASSESSEE THROUGH THE REVENUE AND HENCE, WE PROCEED TO DISPOSE OF THE APPEALS EX - PARTE , WITHOUT THE PRESENCE OF THE ASSESSEE. 3. THE C OMMON ISSUE URGED IN BOTH THE APPEALS RELATES TO THE DECISION OF LD.CIT(A) IN ALLOWING THE LOSS ARISING FROM SALE OF SHARES AS TRADING LOSS . I.T.A. NO. 5559 / MUM/ 20 07 AND OTHER ONE APPEAL 2 4. WE HEARD THE LD.DR AND PERUSED THE RECORD. WE NOTICE THAT THE ASSESSEE HAS SOLD UNQUOTED SHARES HELD BY IT IN SOME RELATED CONCERN AND INCURRED LOSS . THE ASSESSEE CLAIM ED THE SAME AGAINST OTHER INCOME, TREATING THE LOSS AS TRADING LOSS. THE AO TOOK THE VIEW THA T THE ASSESSEE HAS SOLD THE SHARES ONLY TO GENERATE LOSS AND SET OFF THE SAME AGAINST THE OTHER INCOME AND ACCORDINGLY TOOK THE VIEW THAT THE SAME IS NON - GENUINE . ACCORDINGLY, HE DISALLOWED THE CLAIM OF LOSS ARISING FROM SALE OF SALE OF SHARES. THE LD. CIT(A), HOWEVER, TOOK THE VIEW THAT THE LOSS ARIS ING T O THE ASSESSEE IS A TRADING LOSS. ACCORDINGLY, HE DIRECTED THE AO TO ALLOW THE CLAIM OF THE ASSESSEE. 5. WE NOTICE THAT THE AO HAS TREATED THE LOSS AS NON - GENUINE, WHERE AS THE LD. CIT(A) HAS ADJUDICATED THE ISSUE BY TREATING THE LOSS AS TRADING LOSS. IN EFFECT, WE NOTICE THAT THE LD. CIT ( A) HAS NOT ADDRESSED THE VIEW EXPRESSED BY THE AO. ACCORDINGLY, I N OUR V IEW, THIS ISSUE REQUIRES FRESH EXAMINATION AT THE END OF THE LD.CIT(A) IN BOTH THE YEARS . ACCORDINGLY, WE SET ASIDE THE ORDER OF LD. CIT(A) PASSED IN BOTH THE YEARS UNDER CONSIDERATION AND RESTORE THE MATTERS TO HIS FILE WITH A DIRECTION TO ADJUDICATE TH E SAME AFRESH AFTER PROVIDING AN ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE . 6 . IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENUE ARE ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 11 TH FEB , 2 01 6 . 11 TH FEB 2 01 6 SD SD ( PAWAN SINGH ) ( B.R. BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI: 11 TH FEB , 2 01 6 . . . ./ SRL , SR. PS I.T.A. NO. 5559 / MUM/ 20 07 AND OTHER ONE APPEAL 3 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - CONCERNED 4. / CIT CONCERNED 5. , , / DR, ITAT, MUMBAI CONCERNED 6. / GUARD FILE. / BY ORDER, TRUE COPY (ASSTT. REGISTRAR) , /ITAT, MUMBAI