ANC Securities Ltd., Kolkata V. ACIT, Circle-4, Kolkata, Kolkata

ITA 1873/KOL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 1809 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 3 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-01-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2010-2011
• Appeal Filed On: 26-09-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ARINDAM BHATTACHARJEE
• Assessee Lawyers: V K AGARWAL
• Keywords: Business income; Revised return
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH : KOLKATA [BEFORE HONBLE SHRI M.BALAGANESH, AM & HONBLE S HRI S.S.VISWANETHRA RAVI, JM] I.T.A NO. 1873/KOL/20 16 ASSESSMENT YEAR : 2010-1 1 ANC SECURITIES LTD. -VS- ACIT, CIRCLE- 4, KOLKATA [PAN: AACCA 2684 B] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI V.K.AGARWAL, FCA FOR THE RESPONDENT : SHRI ARINDAM BHATTACHARJ EE, ADDL. CIT DATE OF HEARING : 10.01.2018 DATE OF PRONOUNCEMENT : 12.01.2018 ORDER PER M.BALAGANESH, AM 1. THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE O RDER OF THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-16, KOLKATA [IN SHORT THE LD CIT(A)] IN APPEAL NO.500/CIT(A)-16/KOL/2015-16/W-4(3) DATED 13 .05.2016 AGAINST THE ORDER PASSED BY THE ACIT, CIRCLE-4, KOLKATA [ IN SH ORT THE LD AO] UNDER SECTION 143(3) OF THE INCOME TAX ACT, 1961 (IN SHORT THE A CT) DATED 14.01.2013 FOR THE ASSESSMENT YEAR 2010-11. 2. THE ONLY ISSUE TO BE DECIDED IN THIS APPEAL IS A S TO WHETHER THE LD. CIT(A) WAS JUSTIFIED IN NOT CONSIDERING THE BROUGHT FORWARD BU SINESS LOSS OF RS. 79,97,483/- WHICH WAS ASSESSED AS SUCH FOR ASSESSMENT YEAR 2009 -10 U/S 143(3) OF THE ACT, 2 ITA NO.1873/KOL/2016 ANC SECURITIES LTD. A.YR. 2010-11 2 FOR CONSEQUENTIAL SET OFF WITH THE INCOME OF ASSESS MENT YEAR 2010-11, IN THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. THE BRIEF FACTS OF THIS ISSUE IS THAT THE ASSESS EE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2010-11 ON 22.09.2010 DECLARING TOT AL INCOME OF RS. 51,47,410/- . IN THE SAID RETURN, THE ASSESSEE DID NOT CLAIM TH E BENEFIT OF SET OFF BROUGHT FORWARD LOSSES OF ASSESSMENT YEAR 2009-10. THE ASSE SSMENT WAS COMPLETED U/S 143(3) OF THE ACT ON 14.01.2013 DETERMINING THE TOT AL INCOME OF THE ASSESSEE AT RS. 65,16,832/-. THE LD. AO WHILE DETERMINING THE T OTAL INCOME FOR THE ASSESSMENT YEAR 2010-11, DID NOT GIVE THE BENEFIT O F SET OFF OF BROUGHT FORWARD LOSSES FOR ASSESSMENT YEAR 2009-10. THE ASSESSEE RA ISED A GROUND OF APPEAL SEEKING FOR THE SAME BEFORE THE LD. CIT(A) AND ALSO BY PLACING RELIANCE ON VARIOUS DECISIONS. THE LD. CIT(A) OBSERVED THAT THE ASSESSEE HAD NOT MADE ANY CLAIM OF SET OFF OF BROUGHT FORWARD LOSSES OF ASSES SMENT YEAR 2009-10 EITHER IN THE ORIGINAL RETURN OR IN THE REVISED RETURN FILED BY IT. HENCE, BY PLACING RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA VS. CIT REPORTED IN 284 ITR 323(S C), HE UPHELD THE ACTION OF THE LD. AO IN NOT ALLOWING THE SET OFF OF BROUGHT FORWARD LOSS OF ASSESSMENT Y EAR 2009-10 IN THE SUM OF RS. 79,97,483/-. AGGRIEVED, THE ASSESSEE IS IN APPEAL B EFORE US ON THE FOLLOWING GROUNDS: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, FOR THAT THE LD. CIT(APPEALS) HAS ERRED IN NOT CONSIDERING BROUGHT FORWARD BUSINE SS LOSS OF RS. 79,97,483/- WHICH WAS ASSESSED U/S 143(3) FOR ASSES SMENT YEAR 2009-10 WHICH IS AGAINST THE LAW AND ILLEGAL. 2. FURTHER THE LD. CIT(APPEALS) HAS ERRED IN NOT CO NSIDERING THE FACT THAT THE ISSUE WAS RAISED BEFORE THE LD. ASSESSING OFFIC ER, ACIT, CIRCLE-4, KOLKATA IN COURSE OF HEARING OF THE CASE. IN SPITE OF THE FACT, THE LD. AO & LD. CIT(A) DID NOT CONSIDER THE BROUGHT FORWARD BUS INESS LOSS OF RS. 3 ITA NO.1873/KOL/2016 ANC SECURITIES LTD. A.YR. 2010-11 3 79,97,483/- ASSESSED U/S 143(3) RELATING TO A.Y. 20 09-10. FOR THAT THE LD. CIT(APPEALS) WAS WRONG IN NOT CONSIDERING BROUGHT F ORWARD BUSINESS LOSS. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS. AT THE OUTS ET, THE LD. AR PLACED ON RECORD THE COPY OF THE ASSESSMENT ORDER FOR THE ASS ESSMENT YEAR 2009-10 FRAMED IN THE HANDS OF THE ASSESSEE U/S 143(3) OF THE ACT DATED 22.12.2011 WHEREIN THE LD. AO CATEGORICALLY HAD MENTIONED THE BUSINESS LOS S OF RS. 79,97,483/- , AS BEING ELIGIBLE TO BE CARRIED FORWARD FOR FUTURE ADJ USTMENT. HENCE, IT IS VERY CLEAR THAT THE ASSESSEE HAS GOT ASSESSED BUSINESS LOSS OF RS. 79,97,483/- OF ASSESSMENT YEAR 2009-10 WHICH IS ELIGIBLE TO BE SET OFF AGAINS T FUTURE BUSINESS INCOME IN ACCORDANCE WITH PROVISION OF SECTION 72 OF THE ACT. EVEN THOUGH THE ASSESSEE HAS NOT MADE THIS CLAIM EITHER IN ITS ORIGINAL RETURN O F INCOME OR IN THE REVISED RETURN OF INCOME, IT IS INCUMBENT ON THE PART OF THE LD. C IT(A) TO DIRECT THE LD. AO TO CONSIDER THE LEGITIMATE CLAIM OF SET OFF OF BROUGHT FORWARD BUSINESS LOSS SO AS TO DETERMINE THE TRUE AND CORRECT INCOME OF THE ASSESS EE. THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE INDIA REPORTED IN 284 ITR 323(SUPRA) CLEARLY SHOWS THAT THE SAID DECISION IS LIMITED ONLY TO ASS ESSING AUTHORITY AND DOES NOT IMPINGE UPON THE POWER OF THE INCOME TAX APPELLATE TRIBUNAL U/S 254 OF THE ACT. IN OTHER WORDS, THE APPELLATE AUTHORITY COULD ENTER TAIN FRESH CLAIM MADE BY THE ASSESSEE EVEN THOUGH THE SAME HAD NOT BEEN MADE BY WAY OF A VALID RETURN. ACCORDINGLY, WE HOLD THAT THE LD. CIT(A) OUGHT TO H AVE CONSIDERED THE LEGITIMATE CLAIM OF SET OFF OF BROUGHT FORWARD LOSS OF ASSESSM ENT YEAR 2009-10 IN THE SUM OF RS.79,97,483/-, IN THE FACTS AND CIRCUMSTANCES OF T HE CASE. ACCORDINGLY, GROUND NOS. 1 AND 2 RAISED BY THE ASSESSEE ARE ALLOWED. 5. GROUND NO. 3 RAISED BY THE ASSESSEE WAS STATED TO BE NOT PRESSED BY THE LD. AR AT THE TIME OF HEARING BEFORE US. THE SAME IS RECKO NED AS A STATEMENT FROM THE BAR 4 ITA NO.1873/KOL/2016 ANC SECURITIES LTD. A.YR. 2010-11 4 AND ACCORDINGLY THE GROUND NO. 3 RAISED BY THE AS SESSEE IS DISMISSED AS NOT PRESSED. 6. GROUND NOS. 4 AND 5 RAISED BY THE ASSESSEE ARE GENERAL IN NATURE AND DOES NOT REQUIRE ANY SPECIFIC ADJUDICATION. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN THE COURT ON .01.2018 SD/- SD/- [S.S. VISWANETHRA RAVI] [ M.BAL AGANESH ] JUDICIAL MEMBER ACCOUNTANT MEM BER DATED : 12.01.2018 SB, SR. PS COPY OF THE ORDER FORWARDED TO: 1. ANC SECURITIES LTD., 7, LYONS RANGE, 3 RD FLOOR, ROOM NO. 13C, KOLKATA-700001 2. ACIT, CIRCLE-4, KOLKATA, P-7, CHOWRINGHEE SQUAR E, KOLKATA-700069. 3..C.I.T.- 4. C.I.T.- KOLKATA. 5. CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER SENIOR PRIVAT E SECRETARY HEAD OF OFFICE/D.D.O., ITAT, KOLKATA BENCHE S 5 ITA NO.1873/KOL/2016 ANC SECURITIES LTD. A.YR. 2010-11 5