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TMI Blog2014 (4) TMI 346X X X X Extracts X X X X X X X X Extracts X X X X ..... nding 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. - MA No. 01/Mum/2014 (Arising out of ITA No.1824/Mum/2008) - - - Dated:- 4-4-2014 - Shri I. P. Bansal, JM And Shri San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his business and also without appreciating the fact that such Jobbing activity can never be carried by the broker for his clients and that no such loss incurred by the client would appear in his books. 4. The learned Commissioner of Income Tax (Appeals) has erred in upholding the action of the Assessing Officer in treating 50% of the expenses incurred during the year amounting to Rs.1,82,05,259/- the year as being expenses incurred towards Speculation income and disallowing the same.' The same stands dealt with by the tribunal vide paras 3 to 5 (at pgs. 2 to 7) of its order, summing up its conclusion per the last para (No. 5), reading as under: '5. In view of the foregoing, we only consider it fit and proper that the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gainst the grain of the said judgments, so that once the assessee carries out a jobbing transaction, i.e., in the regular course of its business, the same must necessarily be considered as falling under clause (c) of sub-section (5) of section 43 of the Act. 3. We have heard the parties, and perused the material on record. 3.1 The log books as maintained by both the members constituting the Bench which heard the captioned appeal, who are the same as hearing the instant petition, were called for in the court room and examined for the relevant date, i.e., 04.09.2013. In both, even as clarified in the open court, there is no mention of any of the three decisions being now adverted to by the assessee or of any reference thereto during hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... record, despite the said decisions being placed in file and, accordingly, there is no justifiable reason for alluding to the same in the present proceedings in-as-much as there has been no mistake by the tribunal in not referring thereto or meeting the same. 3.2 As regards the assessee's contention with regard to the tribunal's decision going against the grain of the said decisions, the same again is rendered of no moment in view of the said decisions not forming part of the tribunal's record, so that, as clarified, no infirmity in not taking judicial notice thereof by it can be inferred or contended. In fact, the said contention challenges the impugned order on its merits, and which is even otherwise outside the scope of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciation to the appellant on the Mumbai Stock Exchange card held by it. On a consultation by the members of their respective log books during the hearing itself, it was found that the assessee's contention is correct, and the said ground was pleaded by the ld. AR with reference to the decision by the apex court in the case of Techno Shares and Stocks Ltd. vs. CIT [2010] 327 ITR 323 (SC). There is in fact also no mention of 'not pressing' the said ground in the impugned order, which is generally the case, as is also so with regard to grounds 1 and 2 and the additional ground (refer para 2 of the impugned order). We, accordingly, have no hesitation in recalling the assessee's appeal for being heard in respect of the said ground ..... X X X X Extracts X X X X X X X X Extracts X X X X
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