Shri Jagdish R.Acharya, Ahmedabad V. The ACIT.,Circle-10, Ahmedabad

MA 99/AHD/2013

• Counselvise Citation: [2014] 124 COUNSELVISE.COM (IT) 2238 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 26 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 26-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 05-09-2014
• Assessment Year: 2005-2006
• Appeal Filed On: 30-04-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Reopening of assessment; Speculation loss

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, AHMEDABAD , , BEFORE SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER MA NO. 99 /AHD/201 3 - AY 20 0 5 - 0 6 (IN ./ IN I.T.A. NO . 160 /AHD/201 3 AY 200 5 - 0 6 ) JAGDISH R.ACHARYA 289 - B, MANEKBAUG SOCIETY NR.MANEKBAUG HALL AMBAWADI AHMEDABAD - 380 015 / VS. THE ACIT CIRCLE - 10 NARAYAN CHAMBERS AHMEDABAD ./ ./ PAN/GIR NO. : AAQPA 0437 R ( APPL IC ANT ) .. ( / RESPONDENT ) ASSESSEE B Y : SHRI R.T. SHAH, A.R. REVENUE B Y : SHRI NIMESH YADAV , SR.DR / DATE OF HEARING : 0 5 / 0 9 / 2014 / DATE OF PRONOUNCEMENT : 26/09/2014 / O R D E R PER SHRI KUL BHARAT, JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION IS FILED BY THE ASSESSEE PRAYING TO RECTIFY THE MISTAKE CREPT IN THE ORDER DATED 12 / 04 /201 3 PASSED BY THE ITAT B BENCH, AHMEDABAD IN ITA NO. 160 /AHD/201 3 FOR AY 200 5 - 0 6 . 2. THE LD.COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAD RAISED THREE GROUNDS OF APPEAL; OUT OF THEM, TWO ARE PERTAINING TO VALIDITY OF THE REOPENING OF THE ASSESSMENT. HE SUBMITTED THAT INADVERTENTLY, TWO GROUNDS OF APPEAL HAVE NOT BEEN DECIDED BY THE TRIBUNAL RESULTING INTO APPARENT MISTAKE ON RE CORD. HE SUBMITTED THAT THE MISTAKE IS REQUIRED TO BE RECTIFIED IN THE INTEREST OF JUSTICE. MA NO. 99 /AHD/201 3 (IN ITA NO. 160 /AHD/201 3 ) JAGDISH R.ACHARYA VS. A CIT ASST.YEAR 200 5 - 0 6 - 2 - 3. ON THE CONTRARY, LD.SR.DR VEHEMENTLY OPPOSED THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND SUBMITTED THAT THERE IS NO MISTAKE APPARENT FROM THE RECO RD. 4 . WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEALS: - (1) IN THE FACTS OF THE CASE AND IN LAW REOPENING OF ASSESSMENT U/S.148 BEING BASED ON WRONG PREMISES THAT BUSINESS IN GUAR SEEDS IS OF SPECULATIVE NATURE DONE THROUGH MULTI COMMODITY EXCHANGE (MCX) IS BAD IN LAW AND BE SET ASIDE. THE APPELLANT SUBMITS THAT BUSINESS IS IN GUAR SEEDS IS NOT DONE THROUGH MCX BUT IT IS A TRADING BUSINESS OF PURCHASE AND SALE OF GUAR SEEDS FROM DIFFERENT PARTIES AS EXAMINED BY ACIT CIR.10, AHMEDABAD AS PER HIS REMAND REPORT DT.05.01.2012 SENT TO CIT(A) XVI, AHMEDABAD. (2) THE A.O./CI T(A) HAVE NOT CONSIDERED THE FACT THAT COMPLETE DETAILS OF PURCHASES/SALES OF GUAR SEEDS WERE FILED AT PAGE NO.31 AND 37 OUT OF 151 PAGES FILED IN ORIGINAL ASSESSMENT PROCEEDINGS U/S.143(3) AND DULY ACCEPTED THAT IT IS A TRADING BUSINESS. REOPENING OF ASS ESSMENT THUS BASED ON WRONG PREMISES THAT THE SAID BUSINESS IS DONE THROUGH MCX IS BAD IN LAW AND BE CANCELLED. (3) WITHOUT PREJUDICE TO THE ABOVE EVEN OTHERWISE BUSINESS IN GUAR SEEDS IS ADMITTED A TRADING BUSINESS AS PER REMAND REPORT DT.05.01.2012 AND 22.06 .2012 SENT BY A.O. TO CIT(A) AND THEREFORE ALSO DISALLOWANCE OF TRADING LOSS TREATING IT AS SPECULATION LOSS RS.1670258/ - BE DELETED AND CONSEQUENTIAL RELIEF BE GRANTED. 4.1. HOWEVER, THE TRIBUNAL HAS DEALT WITH ONLY GROUND NO.3 ABOVE. THEREFORE, IN OU R CONSIDERED VIEW, NON - ADJUDICATION OF GROUND NOS.1 & 2 ABOVE IS APPARENT FROM THE RECORD. THEREFORE, THE ORDER PASSED BY THE TRIBUNAL VIDE ORDER DATED 1 2/04/2013 (SUPRA) REQUIRES TO BE MODIFIED. THEREFORE, WE FEEL THAT TWO OTHER GROUNDS OF THE ASSESSEE S APPEAL NEED MA NO. 99 /AHD/201 3 (IN ITA NO. 160 /AHD/201 3 ) JAGDISH R.ACHARYA VS. A CIT ASST.YEAR 200 5 - 0 6 - 3 - ADJUDICATION. ACCORDINGLY, WE AMEND OUR EARLIER ORDER DATED 12/04/2013 AND REGISTRY IS DIRECTED TO FIX THE ASSESSEE S APPEAL FOR ADJUDICATING THE OTHER TWO GROUNDS. THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED IN THE TE RMS INDICATED ABOVE. THE REGISTRY IS DIRECTED TO FIX THE APPEAL FOR HEARING THE ASSESSEE S APPEAL IN ITA NO.160/AHD/2013 FOR AY 2005 - 06 IN DUE COURSE, AFTER ISSUING THE NECESSARY NOTICE OF HEARING TO BOTH THE PARTIES. 5 . IN THE LIGHT OF THE ABOVE, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED AS INDICATED ABOVE. ORDER PRONOUNCED IN COURT ON THE DATE MENTIONED HEREINABOVE AT CAPTION PAGE SD / - SD/ - ( ) ( ) ( ANIL CHATURVEDI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER . . , . . ./ T.C. NAIR, SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APP LICANT. 2. / THE RESPONDENT. 3. / CONCERNED CIT. 4. ( ) / THE CIT (A) - XVI, AHMEDABAD 5. , , / DR, ITAT, AHMEDABAD 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / ( DY./ASSTT.REGISTRAR) , / ITAT, AHMEDABAD