M/s Mohan Woolen Mills Limited , Bangalore V. The Income Tax Officer Ward-4(1)(4), Bangalore

ITA 1047/BANG/2018

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 4717 (ITAT-BANGALORE)
• Duration Of Justice: 1 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-06-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 02-04-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK JHA
• Keywords: Opportunity of being heard

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC-B BENCH : BANGALORE BEFORE SHRI ARUN KUMAR GARODIA, ACCOUNTANT MEMBER A ND SHRI LALIET KUMAR, JUDICIAL MEMBER ITA NO. 1047 / BANG/201 8 ASSESSMENT YEAR : 20 08 - 09 M/S. MOHAN WOOLLEN MILLS LTD., 7/1, 1 ST CROSS, 8 TH MAIN, RMV EXTENSION, BANGALORE 560 080. PAN: AABCM3225F VS. THE INCOME TAX OFFICER, WARD 4 (1) (4), BANGALORE. APPELLANT RESPONDENT APPELLANT BY : SHRI NARENDRA SHARMA, ADVOCATE RESPONDENT BY : SHRI D.K. JHA, ADDL. CIT (DR) DATE OF HEARING : 22 .05.2018 DATE OF PRONOUNCEMENT : 01 .0 6 .2018 O R D E R PER SHRI A.K. GARODIA, ACCOUNTANT MEMBER THIS APPEAL IS FILED BY THEASSESSEE WHICH IS DIRECT ED AGAINST THE ORDER OF LD. CIT(A)-4, BANGALORE DATED 29.11.2017 FOR ASSESS MENT YEAR 2008-09. 2. THE GROUNDS RAISED BY THE ASSESSEE ARE AS UNDER. 1. THE APPELLANT DENIES ITSELF LIABLE TO BE ASSESSE D BY ORDER OF ASSESSMENT BY WAY OF INTIMATION U/S.143[1] OF THE A CT OF THE LEARNED I.T.O. IN SO FAR AS THEY ARE AGAINST THE APPELLANT ARE OPPOSED TO LAW, EQUITY, WEIGHT OF EVIDENCE, PROBABILITIES, FACTS AN D CIRCUMSTANCES OF THE APPELLANT'S CASE. 2. THE LEARNED CIT [A] OUGHT TO HAVE APPRECIATED TH AT THE RETURNED INCOME OF THE APPELLANT WAS NIL AND THEREFORE, THER E WAS NO JUSTIFICATION FOR THE LEARNED A.O. TO ADOPT THE SAM E AT RS. 41,59,750/- WHICH WAS THE SHORT TERM CAPITAL LOSS SHOWN BY THE APPELLANT IN THE INTIMATION AND HENCE, THE INCOME ADOPTED IN THE INT IMATION OUGHT TO HAVE BEEN VACATED UNDER THE FACTS AND IN THE CIRCUM STANCES OF THE APPELLANT'S CASE. 3. THE LEARNED CIT[A] OUGHT TO HAVE APPRECIATED THA T THE ASSESSED ITA NO.1047/BANG/2018 PAGE 2 OF 3 INCOME OF RS. 41,59,750/- DETERMINED IN THE INTIMAT ION ACTUALLY REPRESENTS THE SHORT TERM CAPITAL LOSS SUSTAINED BY THE APPELLANT, WHICH WAS SET OFF AGAINST THE LONG TERM CAPITAL GAI NS U/S. 71 OF THE ACT, AND HENCE, THE INTIMATION PASSED BY THE LEARNED A.O . WAS IN TRANSGRESSION OF THE PROVISIONS OF SECTION 143[1] O F THE ACT AND THEREFORE, THE INCOME SO DETERMINED OUGHT TO HAVE B EEN VACATED. 4. WITHOUT PREJUDICE TO THE RIGHT TO SEEK WAIVER, T HE APPELLANT DENIES ITSELF LIABLE TO BE CHARGED TO INTEREST U/S.234-A, 234-6 AND 234-C OF THE ACT, WHICH REQUIRES TO BE CANCELLED UNDER THE F ACTS AND IN THE CIRCUMSTANCES OF THE APPELLANT'S CASE. 5. FOR THE ABOVE AND OTHER GROUNDS THAT MAY BE URGE D AT THE TIME OF HEARING OF THE APPEAL, YOUR APPELLANT HUMBLY PRAYS THAT THE APPEAL MAY BE ALLOWED AND JUSTICE RENDERED AND THE APPELLA NT MAY BE AWARDED COSTS IN PROSECUTING THE APPEAL AND ALSO OR DER FOR THE REFUND OF THE INSTITUTION FEES ASPART OF THE COSTS. 3. THE LD. AR OF ASSESSEE REITERATED THE SAME CONTE NTIONS WHICH WERE RAISED BEFORE CIT (A). HE ALSO SUBMITTED THAT ON PAGE 26 OF PAPER BOOK IS THE COPY OF COMPUTATION OF INCOME FOR THE PRESENT YEAR AS PER T HE ASSESSEE AND FROM THE SAME, IT CAN BE SEEN THAT THE ASSESSEE IS REPORTING SHORT TERM CAPITAL LOSS OF RS. 41,59,750/- AND AFTER SET OFF OF THE SAME AGAIN ST THE LONG TERM CAPITAL GAIN, NET INCOME COMPUTED BY ASSESSEE IS RS. 69,03,861/- AND THEREAFTER, THE ASSESSEE HAS CLAIMED SET OFF OF BROUGHT FORWARD UNA BSORBED LOSS TO THE EXTENT OF SAME AMOUNT AND THE RETURN WAS FILED AT NIL INCO ME. HE SUBMITTED THAT AS AGAINST THE ASSESSEES CLAIM OF SHORT TERM CAPITAL LOSS OF RS. 41,59,750/-, THE DEPARTMENT HAS CONSIDERED IT AS THE TOTAL ASSESSED INCOME FOR THE SAME AMOUNT OF RS. 41,59,750/- WHICH IS NOT PROPER. THE LD. DR OF REVENUE SUPPORTED THE ORDER OF CIT(A). 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. FIRST OF ALL, WE REPRODUCE PARA 6 FROM THE ORDER OF CIT (A) WHERE THE CIT (A) HAS DEC IDED THE ISSUE IN DISPUTE. THIS PARA READS AS UNDER. 6. THE SUBMISSIONS OF THE APPELLANT HAVE BEEN DULY CONSIDERED. THE AO HAS TREATED THE CLAIM OF SHORT TERM CAPITAL LOSS OF RS. 41,59.750/- AS TOTAL ASSESSED INCOME OF THE APPELLANT AND COMPU TED TAX THEREON AT SPECIAL RATES, IN HIS INTIMATION U/S. 143(1) DATED 09.03.2011. THE ISSUE REGARDING THE CLAIM OF SHORT TERM CAPITAL LOSS SET- OFF AGAINST THE LONG TERM CAPITAL GAINS IS A MATTER OF VERIFICATION WITH THE RECORDS. THE ASSESSEE'S GROUNDS OF APPEAL ARE THEREFORE PRIMA-FA CIE ALLOWABLE, IN VIEW OF THE SUBMISSIONS (EXTRACTED ABOVE) AND THE C OMPUTATION, WORKED OUT THEREIN. THE AO IS ACCORDINGLY DIRECTED TO TAKE ITA NO.1047/BANG/2018 PAGE 3 OF 3 APPROPRIATE RECTIFICATORY ACTION, AFTER DUE VERIFIC ATION AND AFTER PROVIDING NECESSARY OPPORTUNITY TO THE ASSESSEE, WH O SHALL SUBMIT REQUISITE DOCUMENTARY-PROOF IN THIS REGARD, DURING THE APPEAL-EFFECT PROCESS. THE GROUNDS OF APPEAL ARE THEREFORE ALLOWE D, SUBJECT TO ABOVE DIRECTIONS. 5. FROM THE ABOVE PARA REPRODUCED FROM THE ORDER OF CIT (A), IT IS SEEN THAT LEARNED CIT (A) SAYS THAT THE ASSESSEES GROUNDS OF APPEAL ARE THEREFORE PRIMA-FACIE ALLOWABLE AND HE DIRECTED THE AO TO TAK E APPROPRIATE RECTIFICATORY ACTION AFTER DUE VERIFICATION AND AFTER PROVIDING N ECESSARY OPPORTUNITY TO THE ASSESSEE, WHO SHALL SUBMIT REQUISITE DOCUMENTARY-PR OOF IN THIS REGARD, DURING THE APPEAL-EFFECT PROCESS. HENCE IT IS SEEN THAT A PPEAL OF THE ASSESSEE IS IN PRINCIPLE ALLOWED BY CIT (A) AND HENCE, THERE SHOUL D NOT BE ANY GRIEVANCE OF THE ASSESSEE. IN THIS VIEW OF THE MATTER, WE HOLD T HAT APPEAL FILED BY THE ASSESSEE IS INFRUCTUOUS. BUT SINCE THE CIT (A) HAS NO POWER TO RESTORE THE MATTER BACK TO THE FILE OF AO, I DO THE SAME AND RE STORE THE MATTER BACK TO THE FILE OF AO FOR PROPER COMPUTATION OF INCOME IN THE PRESENT CASE AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO ASSESSEE. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE MENT IONED ON THE CAPTION PAGE. SD/- SD/- (LALIET KUMAR) (ARUN KUMAR GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 01 ST JUNE, 2018. /MS/ COPY TO: 1. APPELLANT 4. CIT(A) 2. RESPONDENT 5. DR, ITAT, BANGALORE 3. CIT 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY, INCOME TAX APPELLATE TRIBUNAL, BANGALORE.