2014 (4) TMI 346

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....all take up in seriatim. The assessee's first grievance is qua the disposal by the tribunal of the assessee's ground nos. 3 & 4, which read as under: '3. The learned Commissioner of Income Tax (Appeals) has erred in upholding the action of the Assessing Officer in treating Jobbing loss of Rs.67,51,469/- as being speculation income in terms of the section 43(5) of the Income Tax Act, 1961 without taking into account that the Appellant was covered by the Proviso (c) to sec 43(5), which exempts the Appellant from the provisions of sec 43(5) by stating that the Jobbing Activity carried out by the Appellant is not an ordinary & normal activity carried out by the Stock broker in the ordinary course of his business as a Stock broker....

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....xtent the same is liable to be regarded as a separate business, being consequential and inextricably related, would also stand to be remitted likewise. An ad hoc approach in the matter is though discountenanced, and the allocation is to be based on some measurable, objective criterion, and toward which the assesse is to make out a case in consonance with the facts of its case. We decide accordingly.' 2.2 The assessee's objection is with regard to the non-consideration of the three decisions, as under, which were submitted by way of a compilation: a) Prakash Chand Jain vs. Dy. CIT [2013] 33 taxmann.com 53 (Jaipur-Trib.); b) Komal Exports vs. Asst. CIT [2008] 19 SOT 602 (Del); and c) CIT vs. Darshan Securities (P.) Ltd. [2....

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.... Departmental Representative (DR) did not distinguish nor commented adversely on the said decisions. This is surprising indeed. When the decisions themselves were not referred to nor relied upon during hearing, of which even the Bench was not cognizant of, how could the ld. DR be held responsible for not controverting the same. Further, no doubt the said decisions are placed in a compilation which is placed in the relevant appeal folder. Reference in this regard may be made to Rule 18 of the Appellate Tribunal Rules, 1963, which concerns the preparation and furnishing of the paper-books, etc. before the tribunal, which is clarificatory of this aspect of the matter. The matter is thus well regulated, with clause (vi) of the Rule making it ab....

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....the said decision reveals that the same is with reference to section 73 of the Act and Explanation thereto. However, the decision under reference rests on, as its reading would bear out, the interpretation of section 43(5)(c). As such, the said decision is not applicable in deciding the issue under reference. In fact, toward this, we may also clarify that the matter having been restored by the tribunal back to the file of the A.O., the said 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. 3.3 In view of the foregoing, we do not find any merit in the assessee's objection/s qua the said grounds....