DCIT, Bangalore V. M/s Koeleman India (P) Ltd., Bangalore

ITA 200/BANG/2013

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5354 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-03-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 03-03-2014
• Assessment Year: 2009-2010
• Appeal Filed On: 13-02-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BIJOY KUMAR PANDA
• Assessee Lawyers: P DINESH
• Keywords: Revised return
• Section: 143(3); 72(1); 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, JUDICIAL MEMBER AND SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER ITA NO.200/BANG/2013 ASSESSMENT YEAR : 2009-10 THE DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE 11(5), BANGALORE. VS. M/S. KOELEMAN INDIA (P) LTD., 99, 4 TH CROSS, 2 ND MAIN, 1 ST BLOCK, KORAMANGALA, BANGALORE 560 034. PAN : AABCK 1919L APPELLANT RESPONDENT APPELLANT BY : SHRI BIJOY KUMAR PANDA, ADDL. CIT(DR) RESPONDENT BY : SHRI P. DINESH, ADVOCATE DATE OF HEARING : 03.03.2014 DATE OF PRONOUNCEMENT : 07.03.2014 O R D E R PER N.V. VASUDEVAN, JUDICIAL MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 12.11.2012 OF THE CIT(APPEALS)-II, BANGALORE RELATING TO ASSES SMENT YEAR 2009-10. 2. THE EFFECTIVE GROUNDS OF APPEAL RAISED BY THE RE VENUE READ THUS:- ITA NO.200/BANG/2013 PAGE 2 OF 6 2. THE LEARNED CIT(APPEALS) ERRED IN DIRECTING THE AO TO SET OFF THE BROUGHT FORWARD LOSSES OF RS.39,02,548 PERT AINING TO THE ASST YR 2008-2009 AGAINST THE TOTAL INCOME FOR THE A YR 2009-10 WITHOUT APPRECIATING THE FACT THAT THOUGH THE ASSES SING OFFICER HAD DETERMINED LOSS IN THE COURSE OF THE ASSESSMENT FOR THE AY 2008-09, BUT THE ASSESSING OFFICER DID NOT ISSUE AN INTIMATION UNDER SECTION 157 TO THE ASSESSEE NOTIFYING HIM BY ANY ORDER IN WRITING THAT IT WAS ENTITLED TO CARRY FORWARD AND S ET OFF THE LOSS UNDER SECTION 72(1) OF THE ACT. 3. THE ID CIT(A) ERRED IN ALLOWING APPEAL OF THE A SSESSEE WITHOUT APPRECIATING THE FACT THAT THE ORDER OF ASS ESSMENT FOR A.Y. 2008-09 WAS NOT CHALLENGED BY THE ASSESSEE THO UGH THE ASSESSING OFFICER HAD NOT ALLOWED CARRY FORWARD OF THE LOSSES TO THE ASSESSEE FOR SET OFF IN FUTURE YEARS. 4. THE LD.CIT(A) HAS ERRED IN NOT APPRECIATING THA T THE ASSESSEE HAVING ACCEPTED THE ORDER OF THE ASSESSMEN T FOR A.Y. 2008-09, COULD NOT HAVE CLAIMED THE BENEFIT OF SET OFF IN A.Y. 2009-10. 3. THE ASSESSEE IS A 100% EOU, ENGAGED IN BUSINESS OF EXPORT OF PROCESSED VEGETABLES. RETURN OF INCOME WAS FILED FO R THE ASSESSMENT YEAR 2009-0 DECLARING INCOME OF RS.3,63,30,912/- AFTER A DJUSTING CARRY FORWARD OF LOSSES RELATING TO THE ASSESSMENT YEAR 2008-09 A MOUNTING TO RS.64,95,230/-. IN THE INTIMATION U/S 143(1) OF AC T, THE LOSS CLAIMED WAS NOT CONSIDERED AND INCOME ASSESSED AT RS.4,28,26,14 2/- RESULTING IN DEMAND OF RS.27,86,448. 4. THE RETURN OF INCOME HAD BEEN FILED ELECTRONICAL LY. THE RETURN SO FILED HAS SEVERAL SCHEDULES. IN SCHEDULE-CFL TO TH E RETURN DETAILS OF LOSSES TO BE CARRIED FORWARD TO FUTURE YEARS HAVE TO BE GIVEN. IN SCHEDULE- ITA NO.200/BANG/2013 PAGE 3 OF 6 BFLA WHICH MEANS BROUGHT FORWARD LOSSES ADJUSTMENT , DETAILS OF BROUGHT FORWARD LOSSES ADJUSTMENT SOUGHT FOR SHOULD BE GIVEN. 5. IN THE ASSESSMENT FOR THE A.Y. 2008-09 COMPLETE D U/S. 143(3) OF THE ACT RESULTED IN ALLOWANCE OF LOSS OF RS.39,02,548/- AND THE BALANCE LOSS WAS NOT ALLOWED AMOUNTING TO RS.25,92,682 FOR A.Y. 2009-10. THE ASSESSEE FILED RECTIFICATION PETITION ON 29.06.2011 FOR ALLOWANCE OF ASSESSED LOSS FOR A.Y. 2008-09 AMOUNTING TO RS.39,0 2,548 AGAINST INCOME FOR THE A.Y. 2009-10. COPY OF THE ASSESSMENT ORDER U/S. 143(3) OF THE ACT WAS ALSO FILED ALONG WITH THE RECTIFICATION PETITIO N. HOWEVER, SET OFF OF LOSS WAS NOT CONSIDERED IN THE ORDER U/S. 154 OF THE ACT ON THE GROUND THAT NO DETAILS WERE FURNISHED REGARDING THE DETAILS OF BRO UGHT FORWARD LOSS IN THE SCHEDULE CFL OF THE RETURN OF INCOME. THE FOLLOWI NG WERE THE REASONS GIVEN AS PER COMMUNICATION REFERENCE NO.CPC/0910/T1 3/1009632247 IN RESPONSE TO THE APPLICATION U/S.154 OF THE ACT :- AS SEEN FROM SCH CFL OF THE RETURN OF INCOME FILED BY THE ASSESSEE, NO DETAILS HAVE BEEN GIVEN AS TO T HE DETAILS OF BROUGHT FORWARD LOSS. THE SYSTEM HAS CORRECTLY NOT ALLOWED THE SAME FOR SETOFF. HENCE TH ERE IS NO MISTAKE APPARENT FROM THE RECORDS TO BE RECTIFIED. 6. BEFORE THE CIT(APPEALS), THE ASSESSEE IN PARTICU LAR SUBMITTED THAT SET OFF OF LOSS HAS BEEN CLAIMED IN SCHEDULE BFLA A ND THE DETAILS OF LOSSES TO BE CARRIED FORWARD TO FUTURE YEARS HAD NOT BEEN ENTERED IN SCHEDULE CFL ITA NO.200/BANG/2013 PAGE 4 OF 6 BY OVERSIGHT. THE ASSESSEE SUBMITTED THAT SINCE TH E RETURN OF INCOME HAS BEEN FILED WITHIN THE DUE DATE, THE CLAIM OF SET OF F OF LOSS WAS IN ORDER. 7. THE CIT(APPEALS) ON CONSIDERING THE ABOVE SUBMI SSIONS NOTICED THAT THE ASSESSEES APPLICATION U/S.154 OF THE ACT WAS REJECTED ON THE GROUND THAT NO DETAILS WERE GIVEN IN SCHEDULE-CFL R ELATING TO BROUGHT FORWARD LOSSES. HE FOUND THAT THE HEADING AGAINST T HE SCHEDULE-CFL WAS RELATING TO DETAILS OF LOSSES TO BE CARRIED FORWAR D TO FUTURE YEARS. WHEREAS IN THE INSTANT CASE THE ASSESSEE REQUEST FOR SET OF F OF BROUGHT FORWARD LOSSES OF EARLIER YEAR OF 2008-09 WAS CLAIMED IN SC HEDULE-BFLA. HE HELD THAT SCHEDULE-CFL HAS NOTHING TO DO WITH THE SET OF F OF BROUGHT FORWARD LOSSES OF EARLIER YEARS. THE SCHEDULE-CFL CAN BE FI LLED UP ONLY WHERE THERE ARE ANY LOSSES TO BE CARRIED FORWARD TO FUTURE YEAR S AFTER SETTING OFF OF BROUGHT FORWARD LOSSES OF EARLIER YEARS OR IF THERE ARE ANY LOSSES OF CURRENT YEAR. THEREFORE THE REASON GIVEN BY THE AO WERE INC ORRECT AND HAS NO RELEVANCE TO THE ISSUE. 8. THE CIT(A) FOUND THAT FOR A.Y. 2008-09 IN THE A SSESSMENT COMPLETED U/S 143(3) OF THE ACT ON 31/12/2010 THERE WAS LOSS OF RS.39,02,548/-. IN VIEW OF THIS FACTUAL POSITION T HE ASSESSING OFFICER WAS DIRECTED TO SET OFF THE BROUGHT FORWARD LOSSES OF R S.39,02,548/- RELATING TO THE ASSTT. YEAR 2008-09 AS PER THE ASSESSMENT ORDER AGAINST THE TOTAL INCOME FOR THE ASSTT. YEAR 2009-10 AND REVISE HIS O RDER. ITA NO.200/BANG/2013 PAGE 5 OF 6 9. AGGRIEVED BY THE ORDER OF THE CIT(APPEALS), THE REVENUE HAS PREFERRED THE PRESENT APPEAL BEFORE THE TRIBUNAL. 10. WE HAVE HEARD THE SUBMISSIONS OF THE LD. DR, WH O REITERATED THE STAND OF THE REVENUE AS STATED IN THE GROUNDS OF AP PEAL. WE ARE OF THE VIEW THAT THE PRESENT APPEAL BY THE REVENUE IS WITH OUT ANY MERIT WHATSOEVER. THE ORDER OF ASSESSMENT FOR THE A.Y. 2 008-09 HAS BEEN PLACED ON RECORD. A PERUSAL OF THE SAME SHOWS THAT THE ASSESSEE FILED A RETURN OF INCOME FOR THE A.Y. 2008-09 ON 29.9.2008 DECLARING A LOSS OF RS.40,07,163 WHICH WAS REVISED BY DECLARING A LOSS OF RS.64,95,234. THE REVISED RETURN WAS TREATED AS VALID BY THE AO. IN THE ASSESSMENT CONCLUDED FOR THE A.Y. 2008-09 ON 31.12.2010 U/S. 1 43(3) OF THE ACT, THE AO DETERMINED THE TOTAL LOSS AT RS.39,02,548. IT I S THIS LOSS WHICH THE ASSESSEE SEEKS TO SET OFF IN THE A.Y. 2009-10 AGAIN ST THE INCOME FOR THE A.Y. 2009-10. THE DETAILS HAD BEEN GIVEN IN SCHEDU LE BFLA CORRECTLY. WE FAIL TO SEE AS TO HOW SUCH SET OFF WHICH IS PERMISS IBLE UNDER THE PROVISIONS OF THE ACT CAN BE DENIED TO THE ASSESSEE. IN THE L IGHT OF THE ORDER OF ASSESSMENT FOR THE A.Y. 2008-09, THERE COULD BE NO DISPUTE WITH REGARD TO THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD AND SET OFF OF LOSS U/S. 72(1) OF THE ACT. IN THAT VIEW OF THE MATTER, WE ARE OF THE VIEW THAT THE CIT(APPEALS) WAS JUSTIFIED IN ALLOWING THE APPEAL OF THE ASSESSE E. WE FIND NO GROUNDS TO INTERFERE WITH THE ORDER OF THE CIT(APPEALS). CONS EQUENTLY, THE APPEAL BY THE REVENUE IS DISMISSED. ITA NO.200/BANG/2013 PAGE 6 OF 6 11. IN THE RESULT APPEAL BY THE REVENUE IS DISMISSED . PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF MARCH , 2014 . SD/- SD/- ( D. KARUNAKARA RAO ) ( N.V. VASU DEVAN ) ACCOUNTANT MEMBER JUDICIAL MEMBER BANGALORE, DATED, THE 7 TH MARCH , 2014 . /D S/ COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY ITAT, BANGALORE.