K.Jawarilal, Gudiyatham V. ACIT, Vellore

MA 15/CHNY/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 5335 (ITAT-CHENNAI)
• Duration Of Justice: 1 month(s) 9 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 25-03-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2005-2006
• Appeal Filed On: 15-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: TAPAS KUMAR DUTTA
• Assessee Lawyers: SANJIV KUMAR SHAH
• Keywords: Retrospective amendment; Futures and options
• Section: 43(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH A CHENNAI (BEFORE SHRI U.B.S. BEDI, JUDICIAL MEMBER AND SHRI ABRAHAM P. GEORGE, ACCOUNTANT MEMBER) .. M.P. NO. 15/MDS/2011 (IN I.T.A. NO. 974/MDS/2009) ASSESSMENT YEAR : 2005-06 SHRI K. JAWARILAL, NO.89, SANTHAPET, GUDIYATHAM 632 602. PAN : AADPJ3814C (PETITIONER) V. THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE I, VELLORE. (RESPONDENT) PETITIONER BY : SHRI SANJIV KUMAR SHAH RESPONDENT BY : SHRI TAPAS KUMAR DUTTA O R D E R PER ABRAHAM P. GEORGE, ACCOUNTANT MEMBER : IN THIS MISCELLANEOUS PETITION, ASSESSEE PLEADS FO R RECALL OF THE ORDER OF THIS TRIBUNAL DATED 22.10.2010 IN I.T.A. N O. 974/MDS/09. AS PER THE MISCELLANEOUS PETITION, AUTHORIZED REPRESEN TATIVE OF THE ASSESSEE WAS ADMITTED IN APOLLO HOSPITAL AND COULD NOT ATTEND THE HEARING. THEREFORE, IT IS PLEADED THAT IN THE INTE REST OF JUSTICE, THE ORDER SHOULD BE RECALLED, ASSESSEE HAVING NOT BEEN HEARD. M.P. NO. 15/MDS/11 2 2. WE HAVE HEARD CONTENTIONS OF BOTH THE PARTIES. THE ISSUE RAISED IN THE APPEAL WAS REGARDING TREATMENT OF LOS S OF RS.24,78,733/- INCURRED BY THE ASSESSEE IN FUTURES AND OPTIONS TRADING AS BUSINESS LOSS. ASSESSEE HAD SUCCEEDED B EFORE THE CIT(APPEALS) FOR A REASON THAT CIT(APPEALS) CONSIDE RED AMENDMENT TO SECTION 43(5) OF INCOME-TAX ACT, 1961 (HEREINAFT ER CALLED THE ACT) BY FINANCE ACT, 2005, TO BE RETROSPECTIVE FOR COMIN G TO A CONCLUSION THAT LOSS IN FUTURE AND OPTIONS TRANSACTIONS WERE T O BE CONSIDERED ONLY AS BUSINESS LOSS. HOWEVER, THIS TRIBUNAL AFTE R CONSIDERING THE ORDER OF THE SPECIAL BENCH OF THIS TRIBUNAL IN THE CASE OF SRI CAPITAL SERVICES LTD. V. ACIT (2009) (318 ITR (AT) 1) HELD THAT SUB-CLAUSE (D) TO SECTION 43(5) INSERTED BY FINANCE ACT, 2005 WOUL D BE APPLICABLE ONLY FROM ASSESSMENT YEAR 2006-07 AND WOULD NOT HAV E ANY RETROSPECTIVE EFFECT. NOTHING WAS BROUGHT BEFORE U S BY THE LEARNED A.R. WHEREBY ANY ERROR WAS POINTED OUT IN THIS VIEW TAKEN BY THE SPECIAL BENCH OF THIS TRIBUNAL AND FOLLOWED BY US. THOUGH IT WAS STATED THAT THERE WAS A DECISION OF CO-ORDINATE BEN CH OF THIS TRIBUNAL IN FAVOUR OF ASSESSEE, WE ARE OF THE OPINION THAT T HE VIEW TAKEN BY THE SPECIAL BENCH WILL HAVE PRIMACY. THEREFORE, WE DO NOT FIND ANY ERROR IN THE ORDER OF THIS TRIBUNAL. THOUGH RULE N O.25 OF APPELLATE M.P. NO. 15/MDS/11 3 TRIBUNAL RULES, 1963 STATES THAT AN ORDER PASSED EX PARTE NEEDS TO BE RECALLED, IN A CASE WHERE MERITS HAVE BEEN CONSI DERED AND NO ERROR HAS BEEN POINTED OUT, IN OUR OPINION, A RECAL L WILL NOT BE NECESSARY. THUS WE FIND NO MERIT IN THE MISCELLANE OUS PETITION OF THE ASSESSEE. 3. IN THE RESULT, THE MISCELLANEOUS PETITION FILED BY THE ASSESSEE STANDS DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 25 TH MARCH, 2011. SD/- SD/- (U.B.S. BEDI) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER CHENNAI, DATED THE 25 TH MARCH, 2011. KRI. COPY TO: (1) PETITIONER (2) RESPONDENT (3) CIT(A) (4) CIT (5) D.R. (6) GUARD FILE