T.jayachandran v. Assistant Commissioner Of Income Tax,Business Circle Viii,Chennai – 600 006

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal No.803 of 2010 and M.P.No.1 of 2010 T.Jayachandran ... Appellant Vs. Assistant Commissioner of Income Tax,Business Circle VIII,Chennai – 600 006. ... Respondent Tax Case Appeal filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras "D" Bench, dated 18.12.2009 passed inI.T.A.No.1074/Mds/2009. And against the order of the commissioner of Income Tax(Appeals)-IX, Chennai-34, dated 05/03/2009 in ITA No.196/08-09and against the order of the Assistant Commissioner of IncomeTax, Business Circle-VIII, Chennai-6, dated 31/12/2008, inPAN/GIR No.AABPJ8430G. For Appellant : Mr.M.P.Senthil KumarFor Respondent : Ms.S.Pushpa, Standing Counsel This appeal filed by the assessee under Section 260A of theIncome Tax Act, 1961 ('the Act' for brevity), is directedagainst the order dated 18.12.2009 passed by the Income TaxAppellate Tribunal, Madras “A” Bench, Chennai ('the Tribunal'for brevity) in I.T.A.No.1074/Mds/2009 for the Assessment Year2006-07. The assessee has raised the following SubstantialQuestion of Law for consideration: “ 1) Whether the Income Tax Appellate Tribunalwas right in holding that the purchase and sale ofderivatives fall within the meaning of Speculative https://hcservices.ecourts.gov.in/hcservices/ transaction under Section 43(5) of the Income Tax Act,1961? 2)Whether the Income Tax Appellate Tribunal wasright in law in holding that the derivatives which areintangibles fall within the meaning of 'commodity'occurring in Section 43(5) of the Income Tax Act,1961? 3)Whether the Income Tax Appellate Tribunal wasright in law in holding that clause (d) of Section 43(5) introduced by the Finance Act, 2005 with effectfrom 01.04.2006 was not clarificatory in nature? 4)Whether the Income Tax Appellate Tribunal wasright in law in not allowing the carried forwardlosses from the earlier years to set off against theprofit for the year 2006-07? 2. We have heard Mr.M.P.Senthil Kumar, learned counsel forthe appellant/assessee and Ms.V.Pushpa, learned Standing Counselfor the respondent/ Revenue. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 4. We are informed by the learned counsel for theappellant/assessee that the assessee has already filed thedeclaration on 28.12.2020 under Section 4 of the Act. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 4. We are informed by the learned counsel for theappellant/assessee that the assessee has already filed thedeclaration on 28.12.2020 under Section 4 of the Act. 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping this appeal pending. At the same time,safeguarding the interest of the assessee in the event the orderto be passed by the Department under the Act is not in favour ofthe assessee. Accordingly, the Tax Case Appeal stands disposedof on the ground that the assessee has already filed adeclaration and the Department shall process the application atthe earliest in accordance with the said Act and communicate thedecision to the assessee at the earliest. As observed, theassessee is given liberty to restore this appeal in the eventthe ultimate decision to be taken on the declaration filed bythe assessee under Section 4 of the said Act is not in favour ofthe assessee. If such a prayer is made, the Registry shallentertain the prayer without insisting upon any application tobe filed for condonation of delay in restoration of the appealand on such request made by the assessee by filing aMiscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders. 6. With this observation, the Tax Case Appeal standsdisposed of with the aforementioned liberty and consequently,the Substantial Questions of Law are left open. No costs.Consequently, the connected miscellaneous petition is closed. Sd/- Assistant Registrar //True Copy// Sub Assistant Registrar vaTo 1.Income Tax Appellate Tribunal, Madras "D" Bench, Chennai.2.The Assistant Commissioner of Income Tax, Business Circle VIII, Chennai – 600 006.3.The Commissioner of Income Tax (Appeals)-IXChennai-34.Copy to :The Sub Assistant Registrar, Appeal Examiner main Section, High Court Madras-104.Tax Case Appeal No.803 of 2010and M.P.No.1 of 2010BR(CO)RMP(26/02/2021)