PODDAR GEMS LTD, MUMBAI V. DCIT 5(2), MUMBAI

ITA 6265/MUM/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 100663 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-08-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 28-10-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: S C TIWARI
• Keywords: Revised return
• Section: 14A; 139(5)

Judgement Text

M/S PODDAR GEMS LTD ITA NO. 626 5 /MUM/20 13 1 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C , MUMBAI . . , , BEFORE SHRI B R BASKARAN , ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA , J UDICIAL MEMBER ITA NO. : 6265 /MUM/20 13 ( ASSESSMENT YEAR: 200 9 - 10 ) M/S PODDAR GEMS LTD , 34/35, RANCHOD BHAVAN, 55 JSS ROAD, GIRGAON, MUMBAI - 400 004 .: PAN: AA ACP 7070 Q VS DY . C OMMISSIONER OF I NCOME T AX , - 5 ( 2 ), AAYKAR BHAVAN, M K ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S C TIWARI RESPONDENT BY : SHRI DURGA DUTT /DATE OF HEARING : 22 - 06 - 201 5 / DATE OF PRONOUNCEMEN T : 05 - 08 - 201 5 ORDER , . . : PER AMIT SHUKLA, AM : THE A FORESAID APPEAL HA S BEEN FILED BY THE ASSESSEE A GAINST IMPUGNED ORDER DATED 05 .0 9 .20 13 , PASSED BY CIT (A) - 9 , MUMBAI FOR THE QUANTUM OF ASSESSMENT PASSED U/S 1 4 3 (3) FOR THE ASSESSMENT YEAR 200 9 - 1 0 , ON THE FOLLOWING GROUNDS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN NOT HOLDING THAT LOSS ARISING TO THE APPELLANT ON PURCHASE AND SALE OF SHARES IN ASSESS ABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN NOT REDUCING THE DISALLOWANCE OF RS. 10,460,632/ - MADE BY THE ASSESSING OFFICER U/ S 14A TO THE SUM OF RS. 491,820/ - ONLY AS PER THE APPELLANTS WORKING. M/S PODDAR GEMS LTD ITA NO. 626 5 /MUM/20 13 2 3. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT AND IN LAW, LD. CIT (APPEALS) HAS ERRED IN TREATING THE APPEAL AS DISMISSED IN SPITE OF THE FACT THAT HE HAS ALLOWED THE APPELLANTS GROUND OF APPEAL NO. 1 BEFORE HIM BY IMPLICATION. 2. B E F ORE US, THE LD. COUNSEL SUBMITTED THAT HERE IN THIS CASE , ORIGINAL RETURN OF INCOME WAS FILED ON 16.07.2009, DECLARING TOTAL LOSS OF RS. 8,07,07,632/ - . SUBSEQUENTLY, THE ASSESSEE HAS FI LED A REVISED RETURN OF INCOME U/S 139(5) ON 16.09.2010 DECLARING TOTAL LOSS OF RS. 9,37,27,507/ - . THE REASON FOR FILING OF THE REVISED RETURN BY THE ASSESSEE WA S THAT , IN THE ORIGINAL RETURN OF INCOME, PURCHASE AND SALE OF SHARES W ERE SHOWN AS INVESTMENT AND LOSS AS LONG TERM CAPITAL LOSS, WHEREAS IN THE REVISED RETURN OF INCOME TH E ASSESSEE HAS TREATED THE SAME ACTIVITY AS TRADING ACTIVITY AND RESULTANT LOSS AS BUSINESS LOSS. THE ASSESSING OFFICER HELD THAT THE SAID REVISED RETURN FILED U/S 139(5) IS NOT CORRECT IN LAW AND TREATED THE SAME AS INVALID RETURN AND THEREAFTER , PROCEEDED TO DECIDE THE ISSUE ON MERITS. BEFORE THE CIT(A), THE ASSES S EE HAD SPECIFICALLY RAISED THIS ISSUE, HOWEVER, THE LD. CIT(A) HAS NOT PROPERLY DEALT THE ISSUE ON VALIDITY OF REVI SED RETURN U/S 139(5), EVEN THOUGH IT GOES TO THE VERY ROOT OF THE ISSUE. IF THE REVISED RETURN HAS BEEN FILED W I THI N STATUTORY TIME FULFILLING ALL THE CONDITIONS LAID THEREIN THEN SUCH A RETURN NEEDS TO BE ACCEPTED AND ONCE THAT IS SO, THEN THERE WOULD NO T BE MUCH CONTROVERSY . THEREFORE, HE SUBMITTED THAT MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT(A) TO DEAL AND DECIDE THE ISSUE ON VALIDITY OF REVISED RETURN U/S 139(5) AFRESH . 3 . ON THE OTHER HAND, LD. DR SUBMITTED THAT IF THE MATTER IS TO SHO ULD BE RESTORED BACK TO THE FILE OF THE CIT(A) TO DECIDE THE ISSUE OF VALIDITY OF FILING OF REVISED RETURN , THEN ALL THE ISSUES ON MERIT SHOULD BE LEFT OPEN TO THE LD. CIT(A) TO BE DECIDED IN ACCORDANCE WITH THE LAW. M/S PODDAR GEMS LTD ITA NO. 626 5 /MUM/20 13 3 4 . AFTER CONSIDERING THE RIVAL CONTENT ION, WE FIND THAT THE ISSUE OF VALIDITY OF REVISED RETURN OF INCOME U/S 139(5) FILED BY THE ASSESSEE GOES TO THE VERY ROOT OF THE ENTIRE ADDITIONS AND THE BASIS OF THE ASSESSMENT MADE BY THE ASSESSING OFFICER. BEFORE THE CIT(A), THE ASSESSEE HAD RAISED THE SPECIFIC GROUND, HOWEVER, THE LD. CIT(A) HAS NOT DECIDED THE SAME EXPRESSLY ABOUT THE VALIDITY OF REVISED RETURN FILED U/S 139(5) AND CONSEQUENCE THEREOF . ACCORDINGLY, WE ARE OF THE OPINION THAT ENTIRE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE CIT (A) TO DEAL AND DECIDE THE ISSUE OF VALIDITY OF REVISED RETURN FILED BY THE ASSESSEE U/S 139(5 ) , IN ACCORDANCE WITH THE LAW AND THEN DECIDE THE ISSUE ON MERITS, IF REQUIRED. WE ORDER ACCORDINGLY. NEEDLESS TO SAY THAT THE LD. CIT(A) WILL GIVE DUE AND EFFECT IVE OPPORTUNITY OF HEARING TO THE ASSESSEE TO EXPLAIN ITS CASE . ACCORDINGLY, THE GROUNDS RAISED BY THE ASSESSEE ARE TREATED AS ALLOWED FOR STATISTICAL PURPOSES. 5 . IN THE RESULT, APPEAL OF THE ASSESSEE STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONO UNCED IN THE OPEN COURT ON 5 TH AUGUST , 2015. SD/ - SD/ - ( . . ) ( ) ( B R BASKARAN ) ( AMIT SHUKLA ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATE: 5 TH AUGUST , 2015 / COPY TO: - 1) / THE APPELLANT. 2) / THE RESPONDENT. 3) THE CIT (A) - 9 , MUMBAI. 4) THE CIT 5 , MUMBAI. 5) , , / THE D.R. C BENCH, MUMBAI. 6) \ COPY TO GUARD FILE. M/S PODDAR GEMS LTD ITA NO. 626 5 /MUM/20 13 4 / BY ORDER / / TRUE COPY / / / , DY. / ASSTT. REGISTRAR I.T.A.T., MUMBAI * . . *CHAVAN, S R.PS