2014 (4) TMI 346 - AT - Income Tax

Rectification of order u/s 254 of the Act Recall of order - Jobbing loss treated as speculation income u/s 43(5) of the Act Held that - The contention of the assessee challenges the order on its merits, and which is even otherwise outside the scope of the rectification proceedings u/s 254(2), so that the same would stand ousted on that ground as well - The decision under reference rests on the interpretation of section 43(5)(c) - the decision is not applicable in deciding the issue under reference - the matter having been restored by the tribunal back to the file of the AO - the decision, if and to the extent relevant, would become binding in-as-much as there is no estoppel against law - The onus to show that the same is applicable though would only be on the assessee there is no merit in the assessee s contention Decided against Assessee. Non-disposal of grounds by the Tribunal Non-grant of depreciation on BSE card Held that - The assessee s contention is correct, and the ground was pleaded by the assessee with reference to Techno Shares and Stocks Ltd. vs. CIT 2010 (9) TMI 6 - SUPREME COURT OF INDIA - There is no mention of not pressing the ground in the order thus, the recall of appeal is allowed Decided in favuor of Assessee.

Summary

Issues involved:
1. Disposal of jobbing loss and expenses as speculation income.
2. Non-consideration of three decisions submitted by the assessee.
3. Disposal of the fifth ground of appeal regarding depreciation on Mumbai Stock Exchange card.

Detailed Analysis:

1. Disposal of Jobbing Loss and Expenses:
The Appellate Tribunal dealt with the issue of jobbing loss and expenses being treated as speculation income in the case. The tribunal decided to restore the matter back to the Assessing Officer for the assessee to present its case regarding jobbing transactions. The tribunal emphasized the need for definite findings of fact and a proper allocation of expenses based on measurable criteria. The tribunal rejected the contention that jobbing transactions should be considered falling under a specific clause of the Income Tax Act solely based on regular business activities without proper substantiation.

2. Non-Consideration of Submitted Decisions:
The assessee raised an objection regarding the non-consideration of three decisions submitted as part of the appeal. However, the tribunal found that these decisions were not referred to or relied upon during the hearing, and thus, they were not part of the tribunal's record. The tribunal clarified that only documents referred to during arguments are considered part of the record. The contention that the tribunal's decision went against the submitted judgments was dismissed as the decisions were not part of the record and did not impact the tribunal's decision-making process.

3. Disposal of Fifth Ground of Appeal:
The tribunal acknowledged the non-disposal of the fifth ground of appeal concerning depreciation on the Mumbai Stock Exchange card. Upon consultation and verification, it was found that the ground was not addressed in the impugned order. The tribunal decided to recall the appeal for further adjudication on this specific ground. The tribunal highlighted the importance of addressing all grounds raised by the appellant during the hearing to ensure a comprehensive and fair decision-making process.

In conclusion, the Appellate Tribunal's judgment addressed the issues raised by the assessee regarding jobbing loss, expenses, consideration of submitted decisions, and the disposal of the fifth ground of appeal. The tribunal emphasized the need for proper substantiation, adherence to procedural rules, and comprehensive adjudication of all grounds raised during the appeal process.