C.D. Equisearch Pvt. Ltd., Kolkata V. DCIT, Circle-7, Kolkata, Kolkata

MA 13/KOL/2015

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 3695 (ITAT-KOLKATA)
• Duration Of Justice: 9 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-11-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Next Hearing Date: 18-09-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 23-02-2015
• Court: TRIBUNAL
• Keywords: Business income
• Section: 43(5); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA [BEFORE SHRI P. M. JAGTAP, AM & SHRI MAHAVIR SINGH , JM] M. A. NO. 13/KOL/2015 IN I.T.A NO. 559/KOL/2012 ASSESSMENT YEAR: 2007-08 C. D. EQUISEARCH PVT. LTD. VS. DEPUTY COMMISSIO NER OF INCOME-TAX, (PAN: AABCC0795N) CIRCLE-7, KOLKATA. ( APPLICANT ) ( RESPONDENT ) DATE OF HEARING : 06.11.2015 DATE OF PRONOUNCEMENT: 06.11.2015 FOR THE APPLICANT: SHRI D. S. DAMLE, FCA FOR THE RESPONDENT: SMT. RANU BISWAS, JCIT, SR. DR ORDER PER MAHAVIR SINGH, JM: BY WAY OF THIS MISCELLANEOUS APPLICATION, THE ASSES SEE HAS STATED THAT THERE IS MISTAKE APPARENT FROM RECORD IN THE ORDER OF THE TR IBUNAL DATED 13.12.2013 WHEREIN THE TRIBUNAL HAS CONFIRMED THE REVISION ORDER PASSED BY CIT U/S. 263 OF THE ACT. 2. LD. COUNSEL FOR THE ASSESSEE DREW OUR ATTENTION TO PARA 13, 9 TH LINE FROM THE BELOW, WHEREIN THE TRIBUNAL HAS CONSIDERED THE DEC ISION OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. DLF COMMERCIAL DEVELOPERS LTD., ITA NO. 94/DEL/2013 DATED 11.07.2013 AND OBSERVED AS UNDER: HOWEVER, AS ALREADY POINTED OUT BY US, NOTHING WA S PLACED BY THE ASSESSEE BEFORE THE ASSESSING OFFICER TO SHOW THAT LOSS ARISING IN SHAR E TRADING AND PROFIT ARISING IN DERIVATIVE TRADING WERE BOTH PART OF AN INTEGRATED BUSINESS OF PURCHASE AND SALE OF SHARES. HONBLE DELHI HIGH COURT IN THE CASE OF CI T VS. DLF COMMERCIAL DEVELOPERS LTD. (ITA NO.94/DEL/2013 ORDER DATED 11.07.2013, CO PY OF WHICH HAS BEEN PLACED AT PAGES 219 TO 231 OF THE PAPER BOOK HAS CLEARLY HELD THAT LOSS ARISING OUT OF DERIVATIVE TRADING, DESPITE DEFINITION OF A DERIVATIVE UNDER S ECTION 43(5) OF THE ACT; CAME WITHIN THE PURVIEW OF EXPLANATION TO SECTION 73. IT WAS ALSO HELD BY THEIR LORDSHIPS THAT DERIVATIVES WHEN EXCLUDED FROM THE DEFINITION OF SP ECULATIVE TRANSACTIONS IN COMPUTATION OF BUSINESS INCOME, SUCH EXCLUSION WAS LIMITED TO T HE PURPOSE OF SUCH COMPUTATION AND NOT FOR APPLICATION OF SECTION 73 OF THE ACT. THIS DECISION OF HONBLE DELHI HIGH COURT WAS NEITHER AVAILABLE WITH THE ASSESSING OFFICER NO R WITH THE CIT, AND AS POINTED OUT BY US, NO EFFORT WHATSOEVER WAS MADE BY THE ASSESSING OFFICER TO VERIFY THE INTEGRAL NATURE OF ASSESSEES BUSINESS. FURTHER, HE DREW OUR ATTENTION TO LAST PAGE OF THE ORDER, WHEREIN THE TRIBUNAL HAS CONFIRMED THE REVISION ORDER PASSED BY CIT U/S. 263 OF THE ACT. LD. COUNSEL FOR THE ASSESSEE STATED THAT ASSESSEES AVENUES FOR CONTEST ING THE ISSUE ON MERITS ARE CLOSED 2 MA NO.13/K/2015, C.D. EQUISEARCH PVT. LTD. A. Y 2007-08 BECAUSE THE DIRECTION OF CIT U/S. 263 OF THE ACT AR E LIMITED REGARDING APPLICABILITY OF SECTION 43(5) OF THE ACT AND NOT ON MERITS. IT IS ALSO A FACT, ACCORDING TO LD. COUNSEL THAT, NONE OF THE AUTHORITIES BELOW HAS OCCASIONED TO DEAL WITH THE JUDGMENT OF HONBLE DELHI HIGH COURT IN THE CASE OF DLF COMMERCIAL DEVE LOPERS LTD., SUPRA. HENCE, LD. COUNSEL FOR THE ASSESSEE MADE A LIMITED REQUEST TO THE BENCH THAT A DIRECTION MAY BE GIVEN TO THE AO TO CONSIDER THE PLEA OF THE ASSESSE E ON MERITS ALSO AND DECIDED THE ISSUE ACCORDINGLY. ACCORDINGLY, HE STATED THAT ONLY A LI MITED RECTIFICATION IS REQUIRED BECAUSE THIS IS A MISTAKE APPARENT FROM RECORD IN THE ORDER OF TRIBUNAL. 3. ON THE OTHER HAND, LD. SR. DR CONCEDED THE POSIT ION. 4. AFTER HEARING THE RIVAL CONTENTIONS, WE FIND TH AT THE PLEA OF THE ASSESSEES COUNSEL IS QUITE REASONABLE AND ACCORDINGLY, WE DIRECT THE AO TO CONSIDER THE ISSUE ON MERITS AND ALSO CONSIDERING THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF DLF COMMERCIAL DEVELOPERS LTD., SUPRA. WE DIRECT ACCOR DINGLY. 5. IN THE RESULT, MISC. APPLICATION OF ASSESSEE IS ALLOWED. ORDER IS PRONOUNCED IN THE OPEN COURT. SD/- SD/- (P. M. JAGTAP) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 26TH NOVEMBER, 2015 JD.(SR.P.S.) COPY OF THE ORDER FORWARDED TO: 1 . APPLICANT : C. D. EQUISEARCH PVT. LTD., 37, SHAKEAS EARE SARANI, KOLKATA-700 017 2 RESPONDENT DCIT, CIRCLE-7, KOLKATA. 3 . THE CIT(A) , KOLKATA 4. ACIT, KOLKATA 5 . DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, ASSTT. REGISTRAR .