M/s DMA Investment Pvt. Ltd., New Delhi V. ACIT, New Delhi

ITA 5963/DEL/2010

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 0333 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-03-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 03-03-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 28-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: H K LAL
• Assessee Lawyers: S K AGGARWAL
• Keywords: Rule 8D
• Section: 234B; 14A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH B DELHI) BEFORE SHRI A.D. JAIN AND SHRI K.D. RANJAN ITA NO. 5963(DEL)2010 ASSESSMENT YEAR: 2007-08 M/S. DMA INVESTMENT PVT. LTD. THE ASSTT.C OMMISSIONER OF I. TAX, 910 ANSAL BHAWAN, KG MARG, V. CIR.10(1), N EW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI S.K. AGGARWAL, ADVOCATE RESPONDENT BY: SHRI H.K. LAL, SR. DR ORDER PER A.D. JAIN, J.M. THIS IS ASSESSEES APPEAL FOR THE ASSESSMENT YEAR 2 007-08, TAKING THE FOLLOWING EFFECTIVE GROUNDS:- 1. THAT THE ORDER OF THE COMMISSIONER OF INCOME TA X(APPEALS)XVIII, NEW DELHI DATED 09.12.2010, IS WRONG ON FACTS AND B AD IN LAW. 2. THAT THE CIT(A) ERRED IN NOT GRANTING ANOTHER O PPORTUNITY OF HEARING ON 8.12.2010 AND DECIDING THE APPEAL. 3. THAT THE CIT(A) ERRED IN CONFIRMING THAT THE GAI N OF ` 63,82,746/- FROM SALES OF SHARES WAS BUSINESS PROFIT AND NOT CA PITAL GAIN, LONG/SHORT TERM. ITA 5963(DEL)2010 2 4. THAT THE CIT(A) ERRED IN CONFIRMING THAT THE APP ELLANT HAD BEEN CARRYING ON THE BUSINESS OF DEALING IN SHARES. HE FAILED TO APPRECIATE THAT THE SHARES WERE PURCHASED TO MAKE INVESTMENTS AND THE APPELLANT HAD NO INTENTION TO CARRY ON THE BUSINESS OF DEALIN G IN SHARES. 5. THAT THE CIT(A) ERRED IN CONFIRMING THE DISALLO WANCE OF ` 83,609/- U/S 14A OF THE ACT. 5.1. THAT THE CIT(A) FAILED TO APPRECIATE THAT THE ENTIRE EXPENDITURE WAS INCURRED FOR THE PURPOSES OF ITS BUSINESS AND N OT FOR EARNING THE DIVIDEND INCOME AND AS SUCH NO EXPENDITURE WAS TO B E DEDUCTED U/S 14A OF THE ACT. 5.2 THAT THE CIT(A) FAILED TO APPRECIATE THAT THE AO ERRED IN APPLYING RULE 8D OF THE RULES. 6. THAT THE CIT(A) ERRED IN NOT ALLOWING REBATE IN RESPECT OF THE SECURITIES TRANSACTION TAX OF ` 1,84,934/- U/S 88E OF THE ACT. 7. THAT THE CIT(A) ERRED IN CONFIRMING THE CHARGIN G OF INTEREST U/SS 234A AND 234B OF THE ACT. 8. THAT THE CIT(A) ERRED IN OBSERVING, THE APPELL ANT HAS NOT MADE ANY SUBMISSIONS WHATSOEVER IN SUPPORT OF THE GROUND S OF APPEAL. 9. THAT THE CONCLUSIONS AND INFERENCES OF THE AO A ND/OR CIT(A) ARE BASED ON SUSPICIOUS, CONJECTURES, SURMISES AND EXTR ANEOUS AND IRRELEVANT CONSIDERATIONS. 2. THE ASSESSEES APPEAL WAS DECIDED EX-PARTE QUA T HE ASSESSEE VIDE THE IMPUGNED ORDER DATED 9.12.2010. THE LEARNED COUNS EL FOR THE ASSESSEE SUBMITS THAT AN APPLICATION FOR ADJOURNMENT HAD BEE N FILED BY THE ASSESSEE ITA 5963(DEL)2010 3 BEFORE THE LD. CIT(A) ON 8.12.2010; THAT HOWEVER, T HE LD. CIT(A) REFUSED TO GRANT AN ADJOURNMENT TO THE ASSESSEE. 3. A PERUSAL OF THE IMPUGNED ORDER SHOWS THAT INDEE D, NUMEROUS OPPORTUNITIES WERE GRANTED TO THE ASSESSEE BEFORE A DJOURNING THE CASE, AS A LAST CHANCE, TO 8.12.2010, ON WHICH DATE, THE LD. C IT(A) REJECTED THE ASSESSEES APPLICATION FOR ADJOURNMENT AND DECIDED THE ASSESSEES APPEAL EX- PARTE QUA THE ASSESSEE. 4. ON BEHALF OF THE ASSESSEE, A COPY OF THE ADJOURN MENT APPLICATION DATED 8.12.2010 HAS BEEN FILED BEFORE US. THE CONTENTS THEREOF ARE AS FOLLOWS:- SHRI SANJAY GARG, FCA AND AUTHORISED REPRESEN TATIVE OF THE APPELLANT BEING NOT WELL AND BUSY WITH THE TIME BARRING ASSESSMENTS COULD NOT GET THE PAPER BOOKS CONTAININ G THE RELEVANT PAPERS AND WRITTEN SUBMISSIONS PREPARED. IT IS NOT POSSIBLE TO EXPLAIN THE MATTERS IN THE ABSENCE OF PAPER BOOKS. IT IS, THEREFORE, REQUESTED THAT THE ABOVE HEARING MAY KINDLY BE ADJOURNED TO S OME OTHER DATE. I TRUST THAT MY REQUEST SHALL BE ACCEDED TO. THE IN CONVENIENCE CAUSED IS REGRETTED.. 5. THE LD. CIT(A) HAS OBSERVED IN THE ORDER THAT TH E ADVOCATE FOR THE ASSESSEE HAD FILED AN ADJOURNMENT APPLICATION ON TH E GROUND THAT THE AR OF THE APPELLANT WAS BUSY AND HAD NOT PREPARED THE CAS E. THE ABOVE CONTENTS OF THE APPLICATION FILED BY THE ASSESSEE, HOWEVER, SHOW THAT DUE TO THE TIME ITA 5963(DEL)2010 4 BARRING ASSESSMENTS, THE FCA AND AUTHORISED REPRESE NTATIVE OF THE ASSESSEE, WHO WAS ALSO UNWELL, COULD NOT GET THE PAPER BOOKS AND WRITTEN SUBMISSIONS PREPARED AND THAT IN THE ABSENCE OF THE PAPER BOOKS , IT WOULD NOT BE POSSIBLE TO EXPLAIN THE MATTERS. 6. IN VIEW OF THE ABOVE, IN OUR CONSIDERED OPINION, THE MATTER REQUIRES TO BE REMITTED TO THE FILE OF THE LD. CIT(A), TO BE DE CIDED AFRESH IN ACCORDANCE WITH LAW, ON AFFORDING ANOTHER OPPORTUNITY OF HEARI NG TO THE ASSESSEE. THE ASSESSEE, NO DOUBT, SHALL CO-OPERATE WITH THE LD. C IT(A). 7. IN THE RESULT, FOR STATISTICAL PURPOSES, THE APP EAL OF THE ASSESSEE IS TREATED AS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 03.03.2011. SD/- SD/- (K.D. RANJAN) (A.D. JAIN) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 03.03.2011 *RM COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR TRUE COPY ITA 5963(DEL)2010 5 BY ORDER DEPUTY REGISTRAR