ACIT, CORP CIR-5(1), CHENNAI V. REYMOUNT COMMODITIES PV LTD, CHENNAI

MA 323/CHNY/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3724 (ITAT-CHENNAI)
• Duration Of Justice: 2 year(s) 10 month(s) 23 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 06-08-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Audit objection; Tax effect; Speculation loss; Tax effect
• Section: 43(5); 73(1)

Judgement Text

Miscellaneous Application No.323/Chny/2019 (in ITA No.3444/Chny/2018) िनधा रण वष /Assessment Year: 2010-11 The Dy. Commissioner- of Income Tax, Corporate Circle-5(1), Chennai. v. M/s.Reymount Commodities- Pvt. Ltd., No.935, GKS Towers, 5 th Floor, Poonamallee High Road, Chennai. [PAN: AACCR 4892 C] (अपीलाथ /Appellant) ( यथ /Respondent) Department by : Mr. AR.V.Sreenivasan, Addl.CIT Assessee by : None सुनवाई क तारीख/Date of Hearing : 24.06.2022 घोषणा क तारीख /Date of Pronouncement : 30.06.2022 आदेश / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: The Revenue has filed present Miscellaneous Application u/s.254(2) of the Income Tax Act, 1961, against the order of the Tribunal in ITA No.3444/Chny/2018 dated 20.03.2019 and relevant assessment year 2010-11. 2. The ld.Sr.AR present for the Revenue narrated the facts and mistakes stated to be apparent on record from the order of the Tribunal dated आयकर अपीलीय अिधकरण, ‘ए’ यायपीठ, चे ई। IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH: CHENNAI ी वी. दुगा राव, माननीय ाियक सद एवं ी जी. मंजूनाथा, माननीय लेखा सद के सम BEFORE SHRI V. DURGA RAO, HON’BLE JUDICIAL MEMBER AND SHRI G. MANJUNATHA, HON’BLE ACCOUNTANT MEMBER MA No.323/Chny/2019 (in ITA No.3444/Chny/2018) :: 2 :: 20.03.2019 and relevant contents of the Miscellaneous Application filed by the Revenue are reproduced as under: The appeal in ITA No.3444/Chny/2018 in the said case is a Revenue's appeal and the grounds of appeal of the Revenue before the Tribunal pertained to the issues regarding adjustment of speculation loss against house property income. The assessee was carrying on speculation business in as much as he was doing business of Commodity & Currency trading and the assessee was also a registered member of NCX and NCDEX. As per the provisions of Section 43(5) of the I.T. Act, 1961, the business of the assessee is to be treated as speculative business and as per section 73(1) of the Act, speculation loss can be set off only against profit and gains, if any from another speculation business. Hence, the assessee's claim of treating the loss incurred as a normal business loss and setting off the same against income from house property was not in order. This being the fact, the Hon'ble Tribunal has adjudicated the appeal by not considering the merits involved and the appeal of the Revenue has been dismissed considering the low tax effect involved. The Hon 'ble Tribunal has not taken in to account the fact that this case falls under one of the exception clause prescribed by the Board and that the appeal filed is maintainable irrespective of low tax effect involved. 3. The ld.Sr.AR referring to Miscellaneous Application submitted that the Tribunal has disposed off appeal filed by the Revenue in light of CBDT Circular No.3 of 2018 dated 11.07.2018 and observed that tax effect involved in the present appeal filed by the Revenue is less than the monetary limit fixed by the CBDT for filing of the appeal before the Tribunal. However, it was subsequently noticed that the issue involved in the present appeal comes under exception as provided under the above CBDT Circular and thus, even if monetary limit involved in the present appeal is less than the amount fixed for filing of the appeal, which needs to be contested on merits and thus, said findings of the Tribunal constitutes a mistake apparent on record, which can be rectified u/s.254(2) of the Act. 4. None appeared for the assessee. We have heard the ld.Sr.AR and considered the Miscellaneous Application filed by the Revenue in light of order of the Tribunal dated 20.03.2019 and we find that although the Revenue seeks to recall the order of the Tribunal in light of CBDT Circular MA No.323/Chny/2019 (in ITA No.3444/Chny/2018) :: 3 :: No.3 of 2018 and more particularly exception as provided therein on the ground that the assessment has been framed on the basis of Revenue audit objection and thus, even if tax effect involved in the present appeal is less than same needs to be contested on merits in light of above CBDT Circular. However, when the Bench directed the ld.DR to produce necessary evidences to prove that the Revenue audit objection has been accepted by the AO, but the ld.DR failed to file any evidences except a letter addressed by the AO stating that the objection pointed out by the Audit will be looked into. In over considered view, the letter addressed by the AO does not show any light on the stand of the Revenue in accepting Revenue audit objection. Therefore, we are of the considered view that the Revenue has failed to make out a case of exception as provided under CBDT Circular No.3 of 2018 to contest the issue involved in the present appeal on merits irrespective of tax effect. Thus, we are of the considered view that there is no merit in Miscellaneous Application filed by the Revenue and hence, the same is dismissed. 5. In the result, the Miscellaneous Application filed by the Revenue is dismissed. Order pronounced on the 30 th day of June, 2022, in Chennai. Sd/- (वी. दुगा राव) (V. DURGA RAO) याियक सद य/JUDICIAL MEMBER Sd/- (जी. मंजूनाथा) ( G. MANJUNATHA) लेखा सद य/ACCOUNTANT MEMBER MA No.323/Chny/2019 (in ITA No.3444/Chny/2018) :: 4 :: चे ई/Chennai, दनांक/Dated: 30 th June, 2022. TLN आदेश क ितिलिप अ ेिषत/Copy to: 1. अपीलाथ /Appellant 4. आयकर आयु"/CIT 2. यथ /Respondent 5. िवभागीय ितिनिध/DR 3. आयकर आयु" (अपील)/CIT(A) 6. गाड फाईल/GF