ACIT, Circle - 50, Kolkata, Kolkata V. Shri Kamal Kishore Gandhi, Kolkata

ITA 605/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 54612 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 12 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-11-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 19-04-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Assessee Lawyers: A K TULSIYAN
• Keywords: Speculation loss
• Section: 143(3)

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , . ! . , '# ) [BEFORE SRI MAHAVIR SINGH, JM & SHRI C. D. RAO, AM] $ $ $ $ / I.T.A NO. 605/KOL/2011 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEAR : 2006-07 ASSISTANT COMMISSIONER OF INCOME-TAX, VS. SHRI KAM AL KISHORE GANDHI CIRCLE-50, KOLKATA. (PAN-ADXPG 2396 K) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. ROY FOR THE RESPONDENT: SHRI A. K. TULSIYAN DATE OF HEARING: 01.11.2011 DATE OF PRONOUNCEMENT: 01.11.2011 '. / ORDER PER MAHAVIR SINGH, JM ( , , , , ) THIS APPEAL BY REVENUE IS ARISING OUT OF ORDER OF C IT(A)-XXXII, KOLKATA IN APPEAL NO.172/CIT(A)-XXXII/08-09/CIR-50/KOL DATED 18.10.20 10. ASSESSMENT WAS FRAMED BY ACIT, CIRCLE-50, KOLKATA U/S. 143(3) OF THE INCOME TAX AC T, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FOR ASSESSMENT YEAR 2006-07 VIDE HIS ORDER DA TED 31.12.2008. 2. THE ONLY ISSUE IN THIS APPEAL OF THE REVENUE IS AGAINST THE ORDER OF CIT(A) IN ALLOWING CARRY FORWARD OF SPECULATION LOSS OF RS.14,38,477/- . 3. WE HAVE HEARD RIVAL CONTENTIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESSEE HAS INCURRED SPECULATION LOSS OF RS.14,38,472/- IN FUTURES AND OPTIONS ON ACCOUNT OF SHARE TRADING AND SOUGHT TO CARRY FOR WARD THE SAME FOR ADJUSTMENT AGAINST FUTURE SPECULATION PROFITS, IF ANY, IN SUBSEQUENT YEARS. ASSESSING OFFICER DENIED THE CARRY FORWARD OF SUCH SPECULATION LOSS FOR THE REASON THAT ASSESSEE HAS NOT PROVED THAT IT WAS IN THE BUSINESS OF SHARE TRADING BY DOCUMENTARY EVIDENCES. CIT(A) ALL OWED THE CLAIM OF ASSESSEE BY GIVING FOLLOWING FINDING: EVEN IF, THE ASSESSEE HAS NOT INDULGED IN SPECULAT IVE TRANSACTIONS IN SHARES IN SUBSEQUENT YEARS, THE POSSIBILITY THAT HE MAY INCUR SOME FORM OF SPECULATIVE GAMES IN SUBSEQUENT YEARS CANNOT BE RULED OUT AND I F THE ASSESSEE DOES NOT MAKE ANY SPECULATION LOSS THE BENEFIT OF SET OFF OF THE BROUGHT FORWARD SPECULATION LOSS WILL CEASE FROM THE EXPIRY OF FOUR YEARS FROM THE E ND OF THE ASSESSMENT YEAR IN WHICH SUCH SPECULATION LOSS OCCURRED. FOR THE ABOV E REASON THE DENIAL OF CARRY FORWARD OF THE IMPUGNED SPECULATION LOSS BY THE A.O . IS UNJUSTIFIED. THEREFORE, THE ASSESSEE IS ALLOWED TO CARRY FORWARD OF SPECULA TION LOSS OF RS.14,38,477/-. ACCORDINGLY, THIS ISSUE IN THIS APPEAL IS ALLOWED. 2 ITA 605/K/2011 SHRI KAMAL KISHORE GANDHI A.Y. 06-07 4. WE FIND THAT THE ASSESSING OFFICER HAS MADE DISA LLOWANCE ONLY ON THE PREMISE THAT ASSESSEE IS UNABLE TO PROVE TRADING IN SUBSEQUENT Y EARS IN RESPECT TO SHORT TERM SPECULATION BY ANY DOCUMENTARY EVIDENCE. WE ARE OF THE VIEW THAT CAN THE ASSESSING OFFICER DISALLOW THIS LOSS BY GIVING THIS FINDING? IN OUR VIEW, NO HE CAN NOT, REASON BEING IT CAN BE DISALLOWED IN ANY FUTURE YEAR IF THERE IS NO SPECULATION GAIN IN ANY OF THE SUBSEQUENT YEARS TILL THE EXPIRY OF FOUR YEARS FROM THE END OF THE RELEVANT ASSESSMENT YEAR IN WHICH SUCH SPECULATION LOSS WAS INCURRED. WE CONFIRM THE FINDINGS OF CIT(A) AS REVENUE COULD NOT POINT OUT ANY INFIRMITY IN THE ORDER AND HENCE, APPEAL OF REVENUE IS DISMISSED. 5. IN THE RESULT, APPEAL OF REVENUE IS DISMISSED. 6. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . ! ! ! ! . '# , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED : 1ST NOVEMBER, 2011 /0 %12 3 JD.(SR.P.S.) '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT ACIT, CIRCLE-50, KOLKATA. 2 ,-*+ / RESPONDENT, SHRI KAMAL KISHORE GANDHI, BLOCK CF-3 05, SALT LAKE CITY, SECTOR-1, KOLKATA-700 064. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%@/ BY ORDER, 2 /ASSTT. REGISTRAR .