M/s. Dreamland Buildtech Pvt. Ltd., New Delhi V. DCIT, New Delhi

ITA 5693/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87009 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 27-07-2017
• Assessment Year: 2006-2007
• Appeal Filed On: 22-10-2013
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P OONAM K SIDHU
• Keywords: Business income
• Section: 153A; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH B , NEW DELHI BEFORE SH. N. K. SAINI, AM AND SH. GEORGE GEORGE K. JM ITA NO S . 5 693 TO 5697 /DEL/2013 : ASSTT. YEAR S : 200 6 - 0 7 TO 2010 - 11 M/S DREAMLAND BUILDTECH (P) LTD. 910, ANSAL BHAWAN, K.G. MARG, NEW DELHI - 1100 01 VS DCIT CENTRAL CIRCLE - 1 4 , NEW DELHI. (APPELLANT) (RESPONDENT) PAN NO. AAC CD 0809M ASSESSEE BY : NONE REVENUE BY : SMT. P OONAM K. SIDHU , CIT . DR DATE OF HEARING : 13.03.2015 DATE OF PRONOUNCEMENT : 17 .03.2015 ORDER PER BENCH : TH E S E FIVE APPEAL S BY THE ASSESSEE ARE DIRECTED AGAINST THE CONSOLIDATED ORDER DATED 26 .0 7.2013 OF LD. CIT(A) XXXIII, NEW DELHI . 2. IN THESE APPEALS, THE COMMON ISSUES ARE INVOLVED, THE ONLY DIFFERENCE IS IN THE AMOUNT INVOLVED FOR DIFFERENT ISSUES. THE GROUND S RAISED IN ITA NO. 5693/DEL/2013 READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN UPHOLDING THE VALIDITY OF ORDER PASSED BY THE ASSESSING OFFICER U/S 153A ON 29.10.2012. 2. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN HOLDING THAT GAIN/LOSS OF RS.36,09,941/ - ON ACCOUNT OF SHARE TRANSACTION WHERE THE HOLDING PERIOD IS LESS THAN 30 DAYS CONSTITUTES BUSINESS INCOME/LOSS, AS AGAINST THE CAPITAL G AIN/LOSS CLAIMED BY THE APPELLANT. ITA NOS. 5693 TO 5697/DEL/2013 2 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) ERRED IN UPHOLDING ADHOC DISALLOWANCE OF RS.50,000/ - , MADE BY THE ASSESSING OFFICER U/S 14A, WHILE NO SUCH DISALLOWANCE WAS MADE IN ORIGINAL ASSESSM ENT FRAMED U/S143(3) ON 22.12.2008, AND NO INCRIMINATING MATERIAL WHATSOEVER WAS FOUND IN THE COURSE OF SEARCH 4. THE APPELLANT MAY KINDLY BE ALLOWED TO RAISE ANY ADDITIONAL GROUND IN THE COURSE OF HEARING OF THE APPEAL. 3 . D URING THE COURSE OF HEARING, NEITHER ANYBODY WAS PRESENT ON BEHALF OF THE ASSESSEE NOR THE ADJOURNMENT WAS SOUGHT. THE NOTICE OF HEARING WAS SENT VIDE REGISTERED POST ON 28.02.2014 WHICH WAS NOT RETURN ED BY THE POSTAL AUTHORITY , THEREFORE, I T IS PRESUMED THAT THE NOTICE OF HEARING HAS BEEN SERVED UPON THE ASSESSEE. IN THE PRESENT CASE , THE ASSESSEE HAD NEITHER GIVEN POWER OF ATTORNEY IN THE NAME OF ANY AUTHORIZE D PERSON NOR APPEAR ED IN PERSON , THEREFORE, IT APPEARS THAT THE ASSESSEE IS NOT INT ERESTED TO PROSECUTE ITS CASE . 4 . THE LAW AIDS THOSE WHO ARE VIGILANT, NOT THOSE WHO SLEEP UPON THEIR RIGHTS. THIS PRINCIPLE IS EMBODIED IN WELL KNOWN DICTUM, VIGILANTIBUS ET NON DORMIENTIBUS JURA SUB VENIUNT . CONSIDERING THE FACTS AND KEEPING IN VIE W THE PROVISIONS OF RULE 19(2) OF THE INCOME - TAX APPELLATE TRIBUNAL RULES AS WERE CONSIDERED IN THE CASE OF CIT VS. MULTIPLAN INDIA LTD., (38 ITD 320)(DEL), WE TREAT THIS APPEAL AS UNADMITTED. 5 . SIMILAR VIEW HAS BEEN TAKEN BY THE HON BLE MADHYA PRADESH HIGH COURT IN THE CASE OF ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480) WHEREIN IT HAS BEEN HELD AS UNDER: IF THE PARTY, AT WHOSE INSTANCE THE REFERENCE IS MADE, FAILS TO APPEAR AT THE HEARING, OR FAILS IN TAKING STEPS FOR PREPARATION OF THE PAPER BOOKS SO AS TO ENABLE HEARING OF THE REFERENCE, THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. ITA NOS. 5693 TO 5697/DEL/2013 3 6 . SIMILARLY, HON BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF NEW DIWAN OIL MILLS VS. CIT (2008) 296 ITR 495) RETURNED THE REFERENCE UNANSWERED SIN CE THE ASSESSEE REMAINED ABSENT AND THERE WAS NOT ANY ASSISTANCE FROM THE ASSESSEE. 7 . THEIR LORDSHIPS OF HON BLE SUPREME COURT IN THE CASE OF CIT VS. B. BHATTACHARGEE & ANOTHER (118 ITR 461 AT PAGE 477 - 478) HELD THAT THE APPEAL DOES NOT MEAN, MERE FILI NG OF THE MEMO OF APPEAL BUT EFFECTIVELY PURSUING THE SAME. 8 . SO BY RESPECTFULLY FOLLOWING THE VIEW TAKEN IN THE CASES CITED SUPRA, WE DISMISS THE APPEAL FOR NON - PROSECUTION. 9 . IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. (ORDER PR ONOUNCED IN THE OPEN COURT ON 17 /03/2015). SD/ - SD/ - ( GEORGE GEORGE K . ) (N. K. SAINI) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 17 /03/2015 A.K. VERMA COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASSISTANT REGISTRAR ITA NOS. 5693 TO 5697/DEL/2013 4 DATE INITIAL 1. DRAFT DICTATED ON 16 .03.2015 PS 2. DRAFT PLACED BEFORE AUTHOR 16 .03.2015 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 18/03/15 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 18/03/15 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK.