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TMI Blog2020 (5) TMI 451X X X X Extracts X X X X X X X X Extracts X X X X ..... ording to Ld. CIT(A), it cannot be said that AO has not verified this fact. Since the assessee has filed a copy of Board Resolution and workings of long term capital gain before the AO in the original assessment itself and it substantiates the findings of Ld. CIT(A) that all this information were very much available for the AO in the original assessment to complete. Therefore, in our considered view that the findings of Ld. CIT(A) seems to be in order. In the reasons for reopening, AO has not nowhere indicated that the business loss suffered by the assessee can be treated speculation loss and only in the revised assessment order, AO came to the conclusion that this loss can only be speculation loss. Therefore, we are inclined to accept the finding of Ld. CIT(A) that the re-assessment order is only a change of opinion. Accordingly, grounds raised by the revenue stands dismissed. - I.T.A. No. 5298/Mum/2017 And C.O. No. 176/Mum/2019 - - - Dated:- 22-1-2020 - Shri Mahavir Prasad, JM And Shri S. Rifaur Rahman, AM For the Appellant : Shri Anandi Varma, DR For the Respondent : Shri Mandar Vaidya, AR ORDER PER S. RIFAUR RAHMAN (ACCOUNTANT MEMBER): The prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... caused, cannot be condoned. Non-filing of app2al before the APPELLATE AUTHORITY, before the end of limitation period, creates a vested right in favour of the Revenue. As a result of not filing of an appeal by an assessee, Department, gets a legitimate and undisputed right over the tax-revenue accruing to it in pursuance of the order of the AO. This right cannot be disturbed in a light-hearted manner. Condonation of delay, though an equitable relief, however, cannot be accorded merely on sympathy or compassion and the grounds offered have to be evaluated to test whether the party in default had been guilty of conscious and deliberate inaction, culpable negligence and inexcusable indifference to the period of limitation mandatorily prescribed by law. Adopting a liberal view in condoning delay is one of the guiding principles in the realm of belated appeals, but liberal approach cannot be equated with a licence to file appeals at will-disregarding the time limits fixed by the statutes. No doubt that assessees are entitled to wait until the last date of the limitation for filing of the appeal, but when they allow the limitation to expire and come forward with a explanation enumer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich had been fully liquidated in the AY 2009-10. It is further noticed that assesse had debited a sum of ₹ 1,25,05,47,463/- as loss on the sale of shares of stock-in-trade and claimed the loss as business loss. AO observed that assessee has converted its investment held in shares amounting to ₹ 1,84,93,52,185/- into stock-in-trade and declared a long term capital gain of ₹ 98,07,816/- on such conversion which it set off against the short term capital loss incurred by it. Subsequently, the assessee sold these shares which are stock-in-trade and incurred a loss ₹ 1,25,05,47,463/-, which it treated as business loss. According to the AO, assessee is eligible to treat the loss incurred by the assessee as long term capital loss and assessee is not eligible to treat this transaction as business loss and further he observed that the gross total income of the assessee is a loss of which 99% loss due to sale /purchase of other business shares. Therefore, it is speculation loss which cannot be allowed as business loss. Accordingly, he disallowed the claim of loss claimed by the assessee. 9. Aggrieved by the above order of AO, assessee preferred appeal before Ld. CI ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee and the objection raised for reopening was also disposed off. 3. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition made without discussing the same on merit. 4. The Appellant prays that the order of the CIT (Appeals) on the above grounds be set aside and that of the AO be restored. 5. The Appellant craves leave to amend or alter any ground or to submit additional new ground, which may be necessary. 11. The grounds raised by the department is mainly on reopening of assessment and the same are considered for adjudication. 12. Before us, Ld. DR brought to our notice the finding of Ld. CIT(A) at para no. 6.2 of its order and submitted that Ld. CIT(A) observed that all the details relevant for assessment were submitted at the time of original assessment for verification and further he observed that the reasons for reopening being different than the show cause notice issued during re-assessment proceedings, he submitted that both the above observations are without appreciating the fact that particular issue when brought to the notice of AO and the same was found to be valid ground for reopening. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Since the assessee can set off of loss only in the subsequent years. In this respect, he relied upon the following judgments:- i) CIT vrs. Manmohan Das (Deceased) (1966) 59 ITR 699 (SC) and ii) State Bank of India vrs. ACIT (WP No. 271 of 2018 alongwith WP No. 278 of 2018) (Bom). 14. He further brought to our notice page no. 165 of the paper book in which AO observed as below while rejecting the issue of notice u/s 148 of the Act. For the sake of clarity, which is reproduced below:- It is bring to your notice that, the quality of the reason recorded is not to be questioned or analysed by the assessee in the guise of such an objection. The very jurisdiction under sec. 147 of the Act is open for challenge by the assessee in the regular appellate channels. Therefore, the assessee's present objection seeking a judicial review of the issue which is yet to hatch through the re-assessment proceedings, cannot be accepted. I may refer to the following decisions of the Hon. Supreme Court in regard to the point at issue as under: In Chhugmal Raj Pal v. S.P. Chaliha Ors. (1971) 79 ITR 603 (SC), which was decided against the Revenue, the Apex Court has held that AO mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at all this information of conversion of shares into stock-in-trade were brought to the notice of the AO in the original assessment itself. Considering the fact that all this information was very much available on assessment records and now the AO reopen the assessment on the same set off of information and we rightly notice that Ld. CIT(A) clearly observed that assessee has furnished the details of capital gain which are also on account of treatment of investment into stock-in-trade vide letter dated 31.10.11 before the AO. Therefore, according to Ld. CIT(A), it cannot be said that AO has not verified this fact. Since the assessee has filed a copy of Board Resolution and workings of long term capital gain before the AO in the original assessment itself and it substantiates the findings of Ld. CIT(A) that all this information were very much available for the AO in the original assessment to complete. Therefore, in our considered view that the findings of Ld. CIT(A) seems to be in order. 18. With regard to other observation of Ld. CIT(A) that in the reasons for reopening, AO has not nowhere indicated that the business loss suffered by the assessee can be treated speculation loss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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