ACIT, Central Circle-3(1), Hyd, Hyderabad V. Highgrace Investments Pvt Ltd, Hyd, Hyderabad

MA 53/Hyd/2017

• Counselvise Citation: [2017] 124 COUNSELVISE.COM (IT) 5871 (ITAT-HYDERABAD)
• Duration Of Justice: 1 month(s) 13 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 17-10-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 04-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUMAN MALIK
• Keywords: Speculation loss; Tax effect

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A, HYDERABAD BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI S. RIFAUR RAHMAN, ACCOUNTANT MEMBER M.A. NO. 53/HYD/2017 (IN M.A. NO. 90/H/2016 AND IN ITA NO. 670/HYD/2015 ASSESSMENT YEAR: 2004-05) ASST. COMMISSIONER OF INCOME- TAX, CENTRAL CIRCLE 3(1), HYDERABAD. VS. M/S HIGHGRACE INVESTMENTS PVT. LTD., HYDERABAD. PAN AAACH5018G (APPLICANT) (RESPONDENT) REVENUE BY : SMT. SUMAN MALIK ASSESSEE BY : SHRI K.C. DEVDAS DATE OF HEARING 15-09-2017 DATE OF PRONOUNCEMENT 17-10-2017 O R D E R PER S. RIFAUR RAHMAN, A.M.: THIS MA FILED BY THE REVENUE IS AGAINST THE ORDER OF THE TRIBUNAL DATED 15/03/2017 PASSED IN MA NO. 90/HYD/ 2016 (ITA NO. 670/HYD/2015) WHEREIN THE TRIBUNAL HAS DISMISSED TH E MA OBSERVING THAT IN THE CONSEQUENTIAL ORDER OF THE AO PURSUANT TO THE DIRECTION OF THE CIT(A), THE ASSESSED INCOME OF THE ASSESSEE IS NEGATIVE, AND THEREFORE, THE QUESTION OF TAXABLE INCOME DOES NOT ARISE IN THIS CASE, THUS, THE MA FILED BY THE REVENUE WAS DISMISSED. 2. IN THE PRESENT M.A., THE REVENUE SUBMITS AS UNDE R: 1) THE A.O. ASSESSED THE INCOME/LOSS FROM BUSINESS DECLARED BY THE ASSESSEE AS SPECULATION LOSS, WHICH IS ALLOW ED TO BE CARRIED FORWARD AND THE INTEREST INCOME OF RS. 29,6 1,593/- WAS TREATED AS INCOME FROM OTHER SOURCES RESULTING IN A DEMAND OF 2 M.A. NO. 90/HYD/2016 HIGHGRACE INVESTMENTS P. LTD. RS. 10,62,471/- EXCLUDING THE INTEREST LEVIED U/S 2 34B OF THE I.T. ACT. 2) IT IS SPECIFIED IN THE BOARD'S INSTRUCTION NO. 2 1 OF 2015, UPON WHICH THE ITAT RELIED, THAT THE TAX WOULD INCLUDE N OTIONAL TAX ON DISPUTED ADDITIONS AS PER THE PARA 4 OF THE SAID CI RCULAR. 3) EVEN IF THE AGGREGATE TAX EFFECT IS BELOW THE LI MIT PRESCRIBED FOR FILING APPEAL BEFORE THE HON'BLE HIGH COURT, IN CBDT INSTRUCTION NO.3 OF 2011, THE CASE FALLS IN EXCEPTI ONS LAID DOWN IN THE SAID INSTRUCTION AS THERE WAS AN RAP OBJECTI ON WHICH WAS ACCEPTED BY THE DEPT. AS THESE ARE A MISTAKE APPARENT FROM RECORD, IT IS PRAYED THAT THE SAME MAY BE RECTIFIED BY THE HON'BLE ITAT U/S 2 54(2) OF THE INCOME TAX ACT BY PASSING SUITABLE ORDERS. 3. LD. DR SUBMITTED THAT AS THERE IS A MISTAKE APPA RENT FROM RECORD IN THE ORDER THE TRIBUNAL IN M.A. NO. 90/HYD /2016 AND PRAYED THAT THE SAME MAY BE RECTIFIED BY PASSING SUITABLE ORDERS. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED MATE RIAL ON RECORD. ADMITTEDLY THIS IS THE MA FILED BY THE REV ENUE AGAINST THE ORDER IN M.A. NO. 90/HYD/2016 WHICH CANNOT BE ENTER TAINED U/S. 254(2) OF THE ACT. THE TRIBUNAL HAS REJECTED THE FI RST MA FILED BY THE REVENUE U/S. 254(2) OF THE ACT ON THE GROUND THAT T HERE WAS NO MISTAKE APPARENT ON THE FACE OF THE RECORD IN THE O RDER OF THE TRIBUNAL. IT IS NOT OPEN TO THE TRIBUNAL TO ENTERTA IN THE SECOND APPLICATION WHICH WAS FILED ON THE SAME SET OF FACT S AND TO RECALL ITS APPELLATE ORDER ON THE ALLEGED PREMISE THAT THERE W AS AN ERROR APPARENT IN THE ORDER OF THE TRIBUNAL. U/S 254(2) O F THE ACT, ONLY AN ORDER PASSED U/S 254(1) CAN BE RECTIFIED AND NOT AN ORDER PASSED U/S 254(2) OF THE ACT AS HELD IN THE CASE OF CIT VS. IT AT REPORTED IN [1992] 196 ITR 838, 840 (ON). 3 M.A. NO. 90/HYD/2016 HIGHGRACE INVESTMENTS P. LTD. 5. IN THE RESULT, THE MA FILED BY THE REVENUE IS D ISMISSED. PRONOUNCED IN THE OPEN COURT ON 17 TH OCTOBER, 2017. SD/- SD/- (P. MADHAVI DEVI) (S. RIFAUR RAH MAN) JUDICIAL MEMBER ACCOU NTANT MEMBER HYDERABAD, DATED: 17 TH OCTOBER, 2017 KV COPY TO:- 1) ACIT, CENTRAL CIRCLE 3(1), 3 RD FLOOR, POSNETT BHAVAN, TILAK ROAD, HYDERABAD. 2) M/S HIGHGRACE INVESTMENTS PVT. LTD., RK RESIDENC Y, H.NO. 8-3-229/D/32, 1 ST FLOOR, VENKATAGIRI, YOUSUFGUDA, HYD. 3) CIT(A) - 12, HYDERABAD 4) CIT (CENTRAL), HYDERABAD 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T., HYDE RABAD. 6) GUARD FILE