The Commissioner Of Income Tax vs M/S Varren Financial Services Ltd on 13 November, 2009

     IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                             CHANDIGARH.


                                           I.T.A. No.569 of 2009 (O&M)
                                           Date of decision: 13.11.2009


The Commissioner of Income Tax.
                                                           -----Appellant
                                     Vs.
M/s Varren Financial Services Ltd.
                                                        -----Respondent

CORAM:- HON'BLE MR. JUSTICE ADARSH KUMAR GOEL
            HON'BLE MR. JUSTICE GURDEV SINGH

Present:-   Ms. Urvashi Dhugga, Standing Counsel
            for the revenue.
                  -----
ORDER:

1. This appeal has been preferred by revenue under

Section 260A of the Income Tax Act, 1961 (for short, “the Act”)

against the order dated 25.3.2009 of the Income Tax Appellate

Tribunal, Chandigarh Bench ‘A’ in I.T.A. No.763/Chd/2008 for the

assessment year 1998-99, proposing to raise following

substantial questions of law:-

“(i) Whether in the facts and circumstances of the
case, the ITAT was justified in taking the rate of
Rs.88 per share i.e. the minimum at which the
said shares were traded on that day, ignoring
the fact that the said shares had been traded at
the highest rate of Rs.92.90 per share and that
ITA No.569 of 2009 2

the assessee had failed to substantiate the rate
at which the shares were actually traded, which
fact was in its exclusive knowledge.

(ii) Whether in the facts and circumstances of the
case, the ITAT was justified in not giving the
benefit of the provisions of Section 114 of the
Indian Evidence Act to the Revenue by applying
the highest rate at which the impugned shares
had been traded on that day.

(ii) Whether in the facts and circumstances of the
case, the ITAT was justified in not disposing of,
by passing a speaking order, the specific ground
taken before it by the Revenue, questioning the
failure of CIT(A) to invoke the provisions of
Section 114 of the Indian Evidence Act and in
not applying the highest rate at which the
impugned shares had been traded on that day.”

2. The assessee made claim for business loss and

speculation loss in the business of shares but the said claim was

turned down by the Assessing Officer by making best judgment

assessment, in absence of books of account. On appeal, the CIT

(A) partly allowed relief to the assessee by holding that rate per

share should have been taken to be Rs.88/-, as against the rate

of Rs.92.90 per share, assessed by the Assessing Officer. The

Tribunal upheld the view of the CIT(A) by giving reasons.

3. Learned counsel for the revenue submits that the CIT

(A) as well as the Tribunal should have assessed the rate at

Rs.92.90 per share.

ITA No.569 of 2009 3

4. We find that the Tribunal has given reasons for

accepting the view of CIT(A). Relevant observations of the

Tribunal are as under:-

“……..Though, there is a force in the question to the
effect that when the rate was between Rs.88/- to
Rs.99.90 per share, then why the assessee sold at
the lower rate, still, we are in agreement with the
conclusion drawn in the impugned order in taking the
actual sale of shares @ Rs.88/- per share which was
the lowest quoted rate prevailing in the stock market
and no sale brokerage was paid by the appellant. In
view of these facts, we have not found any infirmity in
the impugned order, consequently upheld.”

5. The matter is clearly in the realm of appreciation of

evidence. No substantial question of law arises.

6. The appeal is dismissed.

                                      (ADARSH KUMAR GOEL)
                                              JUDGE


November 13, 2009                           ( GURDEV SINGH )
ashwani                                          JUDGE