Pradeepkumar Babaulal Solanki, Mumbai vs Department Of Income Tax
- CitationI.T.A. No. 5705/Mum/2013
Ratio decidendi
The rule this decision rests on
The Tribunal's reasoning rests on the following principles, in the order taken: Where the Tribunal has, in an earlier round, restored a matter to the Assessing Officer to decide afresh in light of documentary evidence to be filed by the assessee, the Assessing Officer is bound to consider that evidence on the merits and cannot decline the claim merely by reference to a decision of the Supreme Court in another case. A decision of the Supreme Court in another case, relied upon by the Assessing Officer to deny a claimed loss without examining the assessee's evidence, does not preclude the appellate authorities from examining the claim on its merits and allowing it where the provisions of the statute are satisfied.
Written by Miss Lucy from the judgment below, not taken from a headnote.
Judgment
As delivered
सव[ौी जोगींि िसंह, Ûयाियक सदःय एवं नरे Ûि कुमार ǒबãलैáया, लेखा सदःय के सम¢
BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND
SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER
आयकर अपील सं./I.T.A. No. 5705/Mum/2013 िनधा[रण वष[ / Assessment Year : 2008-09 (िनधा[
The ITO 25(2)(2), बनाम Shri Pradeepkumar Babulal बनाम/ C-11 Bldg., Solanki, Vs. Pratyakshkar Bhavan, Shop No.2, Santok Chawal, Bandra Kurla Complex, Main Carter Road, Bandra (E), Borivali(E), Mumbai-400,051 Mumbai-400,066 ःथायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAHPS 7241L (अपीलाथȸ /Appellant) .. (ू×यथȸ / Respondent) अपीलाथȸ ओर से/ Appellant by: Shri Akhilendra Yadav ू×यथȸ कȧ ओर से/Respondent by: Shri K. Shivaram
सुनवाई कȧ तारȣख / Date of Hearing :22.01.2015 घोषणा कȧ तारȣख /Date of Pronouncement :22.01.2015
आदे श / O R D E R
PER N.K. BILLAIYA, AM:
This appeal by the Revenue is directed against the order of the Ld. CIT(A)-35, Mumbai dt.18.7.2013 pertaining to A.Y.2008-09.
2 ITA No. 5705/M/2013 2. The sole grievance of the Revenue is that the Ld. CIT(A) erred in allowing speculation loss of Rs. 19,39,543/- .
3. Briefly stated the facts of the case are that in the first round of litigation, assessee's claim of loss of Rs. 19,39,543/- was denied by the AO vide assessment order dt. 16.12.2010 made u/s. 143(3) of the Act. The main reason for denying the claim of loss was that the assessee had not claimed the same in his return of income, the same was claimed in the revised computation of income without furnishing supporting documentary evidences. The matter travelled upto the Tribunal and the Tribunal in ITA No. 3511/M/2011 restored the matter to the file of the AO to decide the issue afresh in the light of the documents as may be filed by the assessee before him. Pursuant to the directions of the Tribunal, the assessee filed related documents in the second round of litigation. However, once again the AO denied the claim of loss as the same was not claimed in the original return of Income. The AO relied upon the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd. Vs CIT 284 ITR 323.
4. Aggrieved, assessee carried the matter before the Ld. CIT(A). Before the Ld. CIT(A), it was strongly contended that the assessee has filed all the necessary evidences in support of the claim of the loss of Rs. 19,39,543/-. It was pointed out to the Ld. CIT(A) that the loss from Futures & Options is not speculative in nature and can be claimed as a set off against income from other sources. The Ld. CIT(A) after considering the facts and the submissions was convinced that the F&O transactions are squarely covered by the proviso to Sec. 43(5) of the Act. The Ld. CIT(A) further held that the ratio of the decision of the Hon'ble Supreme Court is not to impinge to the power of the Appellate 3 ITA No. 5705/M/2013
authorities. After considering the facts and the submissions, the Ld. CIT(A) allowed the claim of loss of Rs. 19,39,543/-.
5. Aggrieved by this, Revenue is before us.
6. The Ld. Departmental Representative strongly supported the assessment order.
7. The Ld. Counsel for the assessee reiterated what has been submitted before the lower authorities.
8. We have carefully perused the orders of the authorities below. We have also the benefit of going through the order of the Tribunal in the first round of litigation. It is an undisputed fact that in the first round of litigation, the Tribunal restored the matter to the file of the AO to decide the issue afresh in the light of the documentary evidences filed by the assessee in support of his claim of loss of Rs. 19,39,543/-. It is also an undisputed fact that in the fresh assessment proceedings, the assessee filed complete evidences in support of the claim of loss. It is also an undisputed fact that the AO declined to allow the claim of loss simply because he drew support from the decision of the Hon'ble Supreme Court in the case of Goetze (India) Ltd (supra). However, the Ld. CIT(A) has rightly observed that the ratio of the decision of the Hon'ble Supreme Court in the case of Goetze India (supra) does not impinge the power of the Appellate authorities. Therefore, the Ld. CIT(A) has rightly allowed the claim of loss as per provisions of the law. We, therefore, decline to interfere with the findings of the Ld. CIT(A).
4 ITA No. 5705/M/2013 9. In the result, the appeal filed by the Revenue is dismissed.
Order pronounced in the open court at the time of hearing on 22nd January, 2015.
Sd/- Sd/- (JOGINDER SINGH ) (N.K. BILLAIYA) Ûयाियक सदःय/JUDICIAL MEMBER लेखा सदःय / ACCOUNTANT MEMBER मुंबई Mumbai; Ǒदनांक Dated : 22.01.2015 व.िन.स./ RJ , Sr. PS
आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to : 1. अपीलाथȸ / The Appellant 2. ू×यथȸ / The Respondent. 3. आयकर आयुƠ(अपील) / The CIT(A)- 4. आयकर आयुƠ / CIT
5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai
6. गाड[ फाईल / Guard file.
आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai
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