Vimsen Palace, Jajpur V. ITO, Cuttack

ITA 160/CTK/2015

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 7606 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 6 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-10-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 15-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SUVENDU DUTTA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CUTTACK SMC BENCH, CUTTACK BEFORE SHRI N. S SAINI, ACCOUNTANT MEMBER ITA NO.160 /CTK/2015 ASSESSMENT YEAR : 2009 - 2010 VIMSEN PALACE, JAJPUR ROAD, JAJPUR. VS. ITO, WARD - 1(2), CUTTACK PAN/GIR NO. AAEFV 6736 E (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : NONE REVENUE BY : SHRI SUVENDU DUTTA , DR DATE OF HEARING : 1 9 /10 / 2016 DATE OF PRONOUNCEMENT : 1 9 /10 / 2016 O R D E R THIS I S AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF CIT(A) - CUTTACK, DATED 9.1.2015, FOR THE ASSESSMENT YEAR 2009 - 2010. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE LD CIT(A) WAS NOT JUSTIFIED IN NOT ALLOWING DEDUCTION FOR CARRY FORWARD BUSINESS LOSS OF RS.5,66,971/ - FOR THE A SSESSMENT YEAR 2008 - 09 AGAINST THE INCOME OF THE PRESENT ASSESSMENT YEAR 2009 - 2010 OF RS.2,73,927/ - . 3. NONE APPEARED ON BEHALF OF THE ASSESSEE WHEN THE CASE WAS CALLED FOR HEARING. NOTICE OF HEARING SENT BY SPEED POST ON 13.10.2016 AND SERVED ON THE ASSE SSEE ON 14.10.2016 IS EVIDENCED BY TRACK CONSIGNMENT REPORT OF INDIA POST. NO ADJOURNMENT 2 ITA NO.160 /CTK/2015 ASSESSMENT YEAR : 2009 - 2010 APPLICATION HAS ALSO BEEN FILED BY THE ASSESSEE. THE BENCH WAS OF THE VIEW THAT THE APPEAL OF THE ASSESSEE CAN BE DISPOSED OFF IN THE ABSENCE OF THE ASSESSEE AND, T HEREFORE, THE BENCH PROCEEDED TO DISPOSE OF THE APPEAL OF THE ASSESSEE ON THE BASIS OF MATERIAL AVAILABLE ON RECORD.. 4. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED RETURN OF INCOME ONLINE FOR THE FIRST TIME DURING THE YEAR UNDER CONSIDERATION AND DUE TO CLERICAL MISTAKE, OMITTED TO CLAIM DEDUCTION OF BROUGHT FORWARD BUSINESS LOSS OF RS.5,66,971/ - OF THE ASSESSMENT YEAR 2008 - 09. THE RETURN WAS PROCESSED BY ACIT, CPC U/S.143(1) OF THE ACT ON 7.1.2011, WHEREIN, NO SET OFF OF BROUGHT FORWARD BUSINESS LOSS OF RS.5,66,971/ - WAS ALLOWED TO THE ASSESSEE. 5. THE ASSESSEE FILED APPEAL BEFORE THE LD CIT(A), WHO DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT THERE IS NO SCOPE OF CLAIMING ANY CARRY FORWARD LOSS WHEN THE SAME IS NOT MENTIONED BY THE AS SESSEE IN THE RETURN OF INCOME AND, THEREFORE, HE DID NOT FIND ANY ERROR IN THE INTIMATION U/S.143(1) ISSUED BY CPC. 6. I AM OF THE CONSIDERED VIEW THAT IT IS THE DUTY OF THE ASSESSING AUTHORITY TO DETERMINE THE INCOME AS PER THE INCOME TAX ACT, 1961. IT IS THE DUTY OF THE ASSESSING AUTHORITY TO ALLOW THE SET OFF OF INCOME AGAINST CARRY FORWARD BUSINESS LOSS IF THE SAME IS ALLOWABLE TO THE ASSESSEE AS PER THE PROVISIONS OF SECTION 72 OF THE I.T.ACT, 1961 EVEN IF THE ASSESSEE FAILS TO CLAIM THE SAME IN THE RETURN OF INCOME AND BRING THE SAME TO THE NOTICE OF THE ASSESSING AUTHORITY EITHER DURING THE COURSE OF ASSESSMENT PROCEEDINGS BEFORE THE AO OR DURING THE APPEAL PROCEEDINGS BEFORE THE LD CIT(A). THE ENDEAVOUR 3 ITA NO.160 /CTK/2015 ASSESSMENT YEAR : 2009 - 2010 SHOULD BE TO ASSESS THE CORRECT INCOME OF T HE ASSESSEE. I, THEREFORE, SET ASIDE THE ORDER OF LD CIT(A) AND REMAND THE MATTER BACK TO THE FILE OF THE AO, WHO IS DIRECTED TO VERIFY FROM RECORDS WHETHER THE ASSESSEE IS HAVING BROUGHT FORWARD BUSINESS LOSS OF RS.5,66,971/ - FOR ASSESSMENT YEAR 2008 - 09 AND WHICH IS ALLOWABLE TO BE SET OFF AGAINST THE INCOME OF THE CURRENT YEAR AS PER THE PROVISIONS OF INCOME TAX ACT. IF HE FINDS THAT THE SAME IS ALLOWABLE TO THE ASSESSEE THEN HE SHOULD ALLOW AFTER VERIFICATION. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCE D IN THE OPEN COURT ON 1 9 /10 /2016 . SD/ - ( N. S SAINI ) A CCOUNTANT MEMBER CUTTACK; DATED 1 9 /10 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, ASST.REGISTRAR, ITAT, CUTTACK 1. THE APPELLANT : VIMSEN PALACE, JAJPUR ROAD, JAJPUR 2. THE RESPONDENT. ITO, WARD - 1(2), CUTTACK 3. THE CIT(A), CUTTACK 4. CIT , CUTTACK 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//