M/S. OSIAN STOCK BROKING PVT. LTD.,KOLKATA vs. I.T.O., WARD - 6(1), KOLKATA, KOLKATA

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ITA 128/KOL/2023Status: DisposedITAT Kolkata24 July 2023AY 2012-20134 pages
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What did the Tribunal hold?

The Tribunal admitted the new legal grounds as they could be raised for the first time. Due to the need to examine facts and submissions related to reopening, these grounds, along with the ground on business loss, were restored to the CIT(A) for adjudication.

What were the facts?

The assessee's appeal was heard ex-parte as no one appeared on their behalf. The assessee raised new legal grounds challenging the assessment proceedings and also a ground challenging the disallowance of business loss.

What were the issues?

Whether new legal grounds challenging the assessment proceedings can be raised before the ITAT, and whether the disallowance of business loss was justified based on the facts.

Which sections of the Income-tax Act were involved?

Section 250,Section 151

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Income Tax Appellate Tribunal, “SMC” BENCH, KOLKATA

Before: DR. MANISH BORAD, HON’BLE

Hearing: 10/07/2023Pronounced: 24/07/2023

PER DR. MANISH BORAD, ACCOUNTANT MEMBER :

The present appeal is directed at the instance of the assessee against the order of the National Faceless Appeal Centre, Delhi (hereinafter the “ld. CIT(A)”) dated 03/02/2023, passed u/s 250 of the Income Tax Act, 1961 (“the Act’), for Assessment Year 2012-13. 2. None appeared on behalf of the assessee despite issuance of notice. There is no petition for adjournment either. Under these circumstances, we dispose off the case ex-parte on merits qua the assessee after hearing the ld. Departmental Representative.

3.

The ld. D/R, vehemently argued supporting the order of the lower authorities.

4.

We have heard the ld. D/R and perused the material available on record.

M/s. Osian Stock Broking Pvt. Ltd.

5.

Ground No. 1 raised by the assessee is general in nature, which needs no adjudication.

6.

Ground Nos. 2, 3, 4 & 5, have been raised for the first time before this Tribunal. Through these grounds the assessee has challenged the legality of the assessment proceedings. These being legal grounds can be raised before the Tribunal even if not raised before the lower authorities in view of the judgement of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT (1998) 229 ITR 383 (SC). We, therefore, admit Ground Nos. 2 to 5 four adjudication. However, since these grounds were not raised before the ld. CIT(A) and for dealing with these grounds facts of the case need to be examined including the reasons recorded for reopening and the submissions made by the assessee against all such reasons for reopening. It is also claimed by the assessee that copies of the reasons recorded were not provided along with the copy of sanction under section 151 of the Act and also copy of the investigation report and statements relied upon were not provided for cross examination. Under these given facts and circumstances, we deem it proper to restore the issue raised in Ground Nos. 2 to 5 to the file of the ld. CIT(A) for necessary adjudication and if necessary call for the remand report from the Assessing Officer or in the alternative call for the assessment records and decide the issues accordingly.

7.

Ground No. 6, has been raised by the assessee on merits challenging the finding of the ld. CIT(A) making disallowance of M/s. Osian Stock Broking Pvt. Ltd.

business loss of Rs.29,33,726/- treating it as bogus. We notice that the assessee has not filed any details about the alleged loss before us. The ld. CIT(A) has summarily dismissed the grounds placing reliance on the judgement of the Hon’ble Calcutta High Court in the case of PCIT vs. Swati Bajaj and Ors. in ITA No. 6 of 2022, dated 14.06.2022. Through this ground, the assessee is contending that its case is not of claiming exemption of Long term capital gain but it is a case of business loss incurred in the share trading business. We find, that the ld. CIT(A) has given a non-speaking finding and the facts of the case has not been discussed while deciding the issue. Since Ground Nos. 2 to 5 have already been restored to the ld. CIT(A), we deem it proper to restore Ground No. 6 also to the file of the ld. CIT(A). The ld. D/R is fair enough in not opposing the set aside of the issues to the file of the ld. CIT(A). Accordingly, Ground No. 6 raised by the assessee is also allowed for statistical purposes.

8.

In the result, appeal of the assessee is allowed for statistical purposes. Order pronounced in the Court on 24th July, 2023 at Kolkata. (DR. MANISH BORAD) ACCOUNTANT MEMBER Kolkata, Dated 24/07/2023 *SC SrPs M/s. Osian Stock Broking Pvt. Ltd.

आदेश क" "ितिलिप अ"ेिषत/Copy of the Order forwarded to : 1. अपीलाथ" / The Appellant

2.

""यथ" / The Respondent 3. संबंिधत आयकर आयु" / Concerned Pr. CIT 4. आयकर आयु" अपील ( ) / The CIT(A)- 5. िवभागीय "ितिनिध ,आयकर अपीलीय अिधकरण, कोलकाता/DR,ITAT, Kolkata, 6. गाड" फाईल /Guard file.

आदेशानुसार/ BY ORDER,

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