M/s. K.R. Automobiles, Baroda V. The ACIT.,Circle-2(1), Baroda

ITA 1972/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72910 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-02-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Next Hearing Date: 16-12-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 04-09-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Assessee Lawyers: M K PATEL
• Section: 68

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , ! ! ! ! BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.1972/AHD/2012 [ASSTT.YEAR : 2008-2009] M/S. K.R. AUTOMOBILES 1, SUNMARSH COMPLEX NAVDURGA SOCIETY NIZAMPURA, BARODA. PAN : AACFR 1082 K /VS. THE ACIT, CIR.2(1) BARODA. ( (( (#$ #$ #$ #$ / APPELLANT) ( (( (%&#$ %&#$ %&#$ %&#$ / RESPONDENT) '() * + !/ ASSESSEE BY : SHRI M.K. PATEL -. * + !/ REVENUE BY : SHRI D.K. MISHRA, SR.DR ./ * )01/ DATE OF HEARING : 16 TH DECEMBER, 2013 234 * )01/ DATE OF PRONOUNCEMENT : 03-02-2014 !5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-II, BARODA DATED 25.06.2012. 2. THE GROUND NOS.1 AND 2 OF THE APPEAL OF THE ASSE SSEE ARE AS UNDER: 1. THAT ON FACTS AND IN LAW, THE LD.CIT(A) HAS GRI EVOUSLY ERRED IN CONFIRMING THE ADDITION OF ` 3,00,000/- U/S.68 OF THE ACT. 2. THAT ON FACTS AND IN LAW, IT BE HELD THAT THE SA ID GROUND IS NOT PRESSED BEFORE CIT(A) ON BONAFIDE ERROR AND MIS UNDERSTANDING OF LAW AND FACTUAL POSITION. ITA NO.1972/AHD/2012 3. THE LEARNED COUNSEL FOR THE ASSESSEE FAIRLY SUBM ITTED THAT THE ISSUE IN THESE GROUNDS OF THE APPEALS WERE NOT PRESSED BE FORE THE LEARNED CIT(A). THE LEARNED DR SUPPORTED THE SUBMISSION OF THE LEARNED COUNSEL FOR THE ASSESSEE. I HAVE CONSIDERED THE RIVAL SUBM ISSIONS. IN VIEW OF THE SUBMISSIONS OF THE ASSESSEE THAT THIS ISSUE IS NOT PRESSED BEFORE THE CIT(A), I DISMISS THE GROUND NOS.1 AND 2 OF THE ASS ESSEE. 4. THIS LEADS ME TO THE ONLY OTHER GROUND I.E. GROU ND NO.3, WHICH IS REPRODUCED HEREUNDER: 3. THAT ON FACTS AND IN LAW, THE LD.CIT(A) HAS GRI EVOUSLY ERRED IN NOT ALLOWING THE SET OFF OF BUSINESS LOSS AGAINS T THE ADDITION U/S.68 OF THE ACT. 5. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT THE ASSESSEE IS ENTITLED TO SET OFF OF BUSINESS LOSS AGAINST THE AD DITION MADE UNDER SECTION 68 OF THE ACT. HE SUBMITTED THAT THE CIT(A) HAS WR ONGLY RELIED ON THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF FAKIR MOHAMED HAJI HASAN VS. CIT, (2001) 247 ITR 290 (GUJ ), OF WHICH THE FACTS WERE TOTALLY DIFFERENT. HE SUBMITTED THAT TH E ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE WITH THE DECISION OF THE HON BLE GUJARAT HIGH COURT IN CIT VS. SHILPA DYEING & PRINTING MILLS P. LTD., (2013) 39 TAXMANN.COM 3 (GUJARAT). THE LEARNED DR HAS OPPOSE D THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMIT TED THAT THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF CIT V S. SHILPA DYEING & PRINTING MILLS P. LTD., (SUPRA) IS DISTINGUISHABLE ON FACTS. HE REFERRED TO THE RELEVANT PARAS OF THE ORDERS OF THE AO AND THE CIT(A). HE HAS RELIED ON THE ORDERS OF THE AO AND THE CIT(A). 6. I HAVE CONSIDERED RIVAL SUBMISSIONS. I FIND THA T THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF FA KIR MOHAMED HAJI ITA NO.1972/AHD/2012 HASAN VS. CIT (SUPRA) IS DISTINGUISHABLE ON FACTS. IN THIS CASE THE ISSUE WAS THAT THE ASSESSEE HAS CLAIMED THAT THE ENTIRE Q UANTITY OF UNACCOUNTED GOLD CONFISCATED BY THE DEPARTMENT OF CUSTOM SHOULD BE ALLOWED AS DEDUCTION TO THE ASSESSEE OUT OF ITS INCOME CHARGEA BLE TO TAX. I FIND THAT THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN T HE CASE OF CIT VS. SHILPA DYEING & PRINTING MILLS P. LTD., (SUPRA) IS APPLICABLE TO THE FACTS OF THE CASE OF THE ASSESSEE. IN THIS CASE, THE DEC ISION OF THE HONBLE GUJARAT HIGH COURT IN THE CASE OF FAKIR MOHAMED HAJ I HASAN (SUPRA) WAS ALSO DISCUSSED. IN THIS CASE IT WAS HELD THAT ONCE LOSS IS DETERMINED, THE SAME SHOULD BE SET OFF AGAINST THE INCOME DETERMINE D UNDER ANY OTHER HEAD OF INCOME INCLUDING UNDISCLOSED INCOME. RESPE CTFULLY FOLLOWING THE DECISION OF THE HONBLE GUJARAT HIGH COURT IN T HE CASE OF CIT VS. SHILPA DYEING & PRINTING MILLS P. LTD., (SUPRA), TH E ISSUE IS DECIDED IN FAVOUR OF THE ASSESSEE AND THE GROUND NO.3 OF THE A SSESSEE IS ALLOWED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS PAR TLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) /VICE-PRESIDENT C OPY OF THE ORDER FORWARDED TO: 1) : APPELLANT 2) : RESPONDENT 3) : CIT(A) 4) : CIT CONCERNED 5) : DR, ITAT. BY ORDER DR/AR, ITAT, AHMEDABAD