S. NARENDRAKUMAR & CO.,MUMBAI vs. PR. CIT. CIRCLE- 27, MUMBAI, MUMBAI
What did the Tribunal hold?
The Tribunal found that the PCIT had reproduced the assessee's submissions but failed to address or reject them, rendering the revision order non-speaking. Therefore, the matter was remitted back to the PCIT for a proper finding on the submissions.
What were the facts?
The assessee claimed a loss of Rs. 1,28,39,534/- in commodity derivatives. The Principal Commissioner (PCIT) invoked Section 263, holding the Assessing Officer's (AO) order erroneous for not verifying if the transactions met the criteria under Section 43(5) of the Income Tax Act. The assessee contended that the AO had made inquiries and accepted the claim.
What were the issues?
Whether the PCIT's order under Section 263 was valid when it failed to consider the assessee's submissions and address them in the revision order. The core issue is the AO's verification of commodity derivative transactions as non-speculative.
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(5)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- Malabar Industrial Co. Ltd. v. CIT2,943 citing243 ITR 83 · 2000 · SC · Read judgment
- Rampyari Devi Saraogi v. CIT616 citing88 ITR 323 · 1968 · SC
- Madras in Venkatakrishna Rice Co. v. CIT95 citing163 ITR 129 · 1987 · HC
- Indian Textile vs CIT (157 ITR 112) (Mad.), Gee Vee Enterprises v. Addl. CIT (75 citing101 ITR 1 · 1975 · HC
- Nabha Investments Pvt. ltd. v. UOI65 citing248 ITR 292 · 2001 · HC
Income Tax Appellate Tribunal, “G” Bench, Mumbai
O R D E R Per Shamim Yahya (AM) :- This appeal by the assessee is directed against the order of learned Principal Commissioner of Income Tax dated 18.3.2020 under section 263 for A.Y. 2015-16.
The grounds of appeal read as under :
I. ORDER PASSED U/S 263 IS BAD IN LAW:-
1. 1. The Learned Pr. CIT 27 erred in treating the order passed by A.O. u/s 143(3) dated 27.12.2017 as erroneous and prejudicial to the interest of the revenue and thereby setting aside the order of the A.O. u/s 263.
2. The Learned Pr CIT 27 erred in drawing conclusions that : i. The AO has failed to verify whether the transactions in commodity derivatives are carried out in recognized stock exchanges and thereby whether the criteria u/s 43(5) have been fulfilled at the time of completion of assessment u/s 143(3).
3. The learned Pr. CIT-27 ought not to have treated order passed u/s. 143(3) as erroneous or prejudicial to the interest of revenue.
4. The order passed u/s. 263 is bad in law and requires to be quashed.
2 S. Narendrakumar & Co.
Brief facts of the case are that in the above case, the assessee had filed return of income for A.Y. 2015-16 on 28.09.2015 declaring total income of Rs.46,38,53,870/-. The assessment was completed u/s. 143(3) of the I.T.Act,1961 on 27.12.2017 at an assessed income of Rs.56,81,76,120/-. On perusal of the return of income, profit and loss account and other details, learned CIT observed that during the year assessee had claimed loss of Rs. 1,28,39,534/- in commodity derivatives. That assessee had submitted only name of the broker and statement of transactions. That as per section 43(5)(e) of the I. T. Act, transaction shall not be deemed to be a speculative transaction if it is carried out in a recognised exchange and which is chargeable to commodities transaction tax. That assessee had not furnished the copy of contract notes relating to the said transaction in commodity derivatives. That in absence of any contract notes it is not ascertainable whether these transactions have been carried out in a recognised exchange as defined in Explanation-2 to section 43(5) of the I.T. Act. That in absence of any evidence suggesting the fulfillment of criteria mentioned in the section 43(5) of the Act, the aforesaid loss of Rs. 1,28,39,534/- incurred in commodity derivatives transactions, cannot be allowed as 'business loss' for the year ended on 31.03.2015. Hence, learned CIT opined that the Assessing Officer has not verified the details gathered during the course of assessment proceedings. Hence, he observed that the aforesaid assessment order passed u/s. 143(3) of the Income-tax Act, 1961 is erroneous in so far as it is prejudicial to the interest of revenue within the meaning of Sec.263 of the Income-tax Act, 1961. Accordingly, notice under section 263 was issued to the assessee.
Assessee responded as under : - Transactions in agricultural commodities are exempt from levy of Commodities Transaction Tax as specified in Chapter II of Finance Bill 2013 and as notified on 19.06.2013. - As per details submitted, all the transactions in commodities derivatives are through Angel Commodities Broking Pvt. Ltd. who are member of both the exchanges i.e. NCDEX and MCX. We are enclosing herewith copies of Certificate of Membership.
3 S. Narendrakumar & Co.
- We are submitting herewith detailed note on loss on trading in commodity derivatives and section 43(5) of I.T.Act, 1961 with various judgements. Accordingly, the loss on trading agricultural commodities is also non- speculative and deductible against normal business profit. - At the time of assessment proceedings, the assessee had submitted letter dated 14.12.2017 along with sample copies of bills of non-agricultural commodity like silver and agriculture commodity like Jeeru. The assessment completed u/s 143(3) on 27.12.2017 after considering the said details and also after due examination of financials, records and other submission with documents. Therefore, considering various judgements now fresh assessment is nothing but change of opinion, which is not permitted by law.
From the above and as per attached detail note it is very much clear that the transactions in commodity derivatives are carried out in recognized association, which is chargeable to commodity transaction tax where applicable, through recognized broker Mj/s Angel Commodity Broking Pvt. Ltd."
However, learned CIT was not satisfied. He referred to following case laws :- • Malabar Industrial Co. Ltd. v. CIT [2000] 243 ITR 83 (SC), • Bismillah Trading Co. v. Intelligence Officer [2001] 248 ITR 292 (Ker.) • Venkatakrishna Rice Co. Vs. CIT (1987) 163 ITR 129 (Mad) • Smt. Tara Devi Aggarwal Vs. CIT (1973) 88 ITR 323(SC) • Thalibai F. Jain Vs. ITO (1975) 101 ITR 1 (Kar.)
He referred to Explanation 1 below subsection (1) of section 263 and held as under :- “In view of the above and also in light of the facts and circumstances of the case, it is clear that the Assessing officer had allowed loss of Rs.1,28,39,534/-incurred in commodity derivatives transactions as 'business loss' without carrying out proper verification as to whether the assessee had fulfilled the criteria mentioned in the section 43(5) of the Act or not. Hence, on the facts & circumstances of the case, allowing of aforesaid "business loss' without proper verification has rendered the assessment order erroneous in so far as it is prejudicial to the interests of the revenue. Therefore, it is held that the order dated 27.12.2017 passed u/s. 143(3) of the Income-tax Act, 1961 is erroneous in so far as it is prejudicial to the interests of the revenue within the meaning of Sec. 263 of the Income-tax Act, 1961 and, as the Assessing Officer failed to conduct proper inquiries, investigation and examination, the assessment order is set aside to the Assessing Officer with the direction to pass a fresh assessment order considering the issues raised in the notice u/s 263, in accordance with law and after affording an opportunity of being heard to the assessee. The order
4 S. Narendrakumar & Co. shall be passed under the supervision and guidance of the Jt. CIT, Range- 27(3), Mumbai.”
Against the above order assessee is in appeal before us.
We have heard both the parties and perused the records. We find that on the issue of loss on commodity derivation amounting to Rs. 1,28,39,534/- learned CIT was of the opinion that the Assessing Officer has not made any inquiry and has allowed the assessee’s claim hence, the assessment order is erroneous in so far as it is prejudicial to the interest of the Revenue. We note that in the assessment order there is no discussion whatsoever on the subject. However, it is the submission of the assessee that the Assessing Officer has made the inquiry and assessee had submitted sample contract notes and upon satisfaction the Assessing Officer has allowed the claim. Learned Counsel of the assessee further submits that due submissions were given to the learned CIT. That though learned CIT has reproduced the submission he has not at all addressed the submission. We note that the assessee has given the following submission before learned CIT, who has reproduced the same in his order :- 1) The assessee received notice u/s 263 of the I.T.Act-1961 on 28.11.2019 and submitted reply dated 11.12.2019 with supporting details. We are enclosing herewith copies of the said letter with details for your honour's ready reference. 2) The assessee again received notice u/s 263 on 15.01.2019 giving one more opportunity to furnish explanation along with details on or before 24.01 2020.
3) The commodity derivative transactions are carried on through recognized exchanges MCX (Multi Commodity exchange) and NCDEX (National Commodity & Derivatives Exchange). 4) Transaction in agricultural commodities are exempt from levy of Commodities Transaction Tax as specified in Chapter II of Finance Bill 2013 and as notified on 19.06.2013.
5) As per details submitted, all the transactions in commodities derivatives are through Angel Commodities Broking Pvt. Ltd. who are member of both the exchanges i.e. NCDEX and MCX. We are enclosing herewith copies of Certificate of Membership.
6) We are submitting herewith detailed note on loss on trading in commodity derivatives and section 43(5) of I.T.Act, 1961 with various
5 S. Narendrakumar & Co. judgements. Accordingly, the loss on trading agricultural commodities is also non-speculative and deductible against normal business profit.
7) At the time of assessment proceedings, the assessee had submitted letter dated 14.12.2017 along with sample copies of bills of non-agricultural commodity like silver and agriculture commodity like Jeeru. The assessment completed u/s 143(3) on 27.12.2017 after considering the said details and also after due examination of financials, records and other submission with documents. Therefore, considering various judgements now fresh assessment is nothing but change of opinion, which is not permitted by law.
From the above and as per attached detail note it is very much clear that the transactions in commodity derivatives are carried out in recognized association, which is chargeable to commodity transaction tax where applicable, through recognized broker M/s Angel Commodity Broking Pvt. Ltd."
We note that learned CIT in his order after reproducing the submission has not at all referred or considered those submission, leave alone reject them. He has only referred to case laws and provisions of law and his powers to pass revision order. No case law or provision of Act mandate the learned CIT to not even consider the submission and pass a non-speaking order. Hence, in the interest of justice, we remit the issue to the file of learned CIT. Learned CIT shall give his finding on the assessee’s submission and thereafter pass the order in accordance with law. Needless to add assessee should be granted adequate opportunity of being heard.
In the result, assessee’s appeal is allowed for statistical purposes.
Pronounced in the open court on 15.4.2021.
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