HASASARAM INVESTMENT & FINANCE P.LTD, MUMBAI V. DCIT 2(1), MUMBAI

ITA 214/MUM/2012

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 71746 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Next Hearing Date: 20-11-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 10-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PITAMBER DAS
• Assessee Lawyers: S G DANDAWATE
• Keywords: Revised return
• Section: 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL H HH H BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . . . !' !' !' !' , # # # # $% $% $% $% BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA N. K. BILLAIYA, AM , AM , AM , AM ./ I.T.A I.T.A I.T.A I.T.A. NO. . NO. . NO. . NO.214/MUM/2012 214/MUM/2012 214/MUM/2012 214/MUM/2012 ( & & & & ' ' ' ' / ASSESSMENT YEAR :2008-09) HASSARAM INVESTMENT & FINANCE PVT. LTD., 613, COMMERCE HOUSE, NAGINDAS MASTER RD., FORT, MUMBAI / VS. DY. COMMISSIONER OF INCOME TAX, CIR. 2(1) MUMBAI %( # ./ ) ./ PAN/GIR NO. :AAACH5290C ( (* / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( +,(* / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) & && & -. -. -. -. 0 1 0 1 0 1 0 1 /ASSESSEE BY : SHRI S. G. DANDAWATE % % % % 0 1 0 1 0 1 0 1 / REVENUE BY : SHRI PITAMBER DAS 0 00 0 .# .# .# .# / DATE OF HEARING : 20 TH NOVEMBER 2013 23' 23' 23' 23' 0 00 0. .. .# ## # /DATE OF PRONOUNCEMENT: 22 ND NOVEMBER 2013 $4 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 3.10.2011 OF COMMISSIONER OF INCOME TAX(APPEALS) FO R THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. THE LEARNED ASSESSING OFFICER ERRED IN DISALLOW ING THE CARRIED FORWARD LOSS OF ` 92,21,643/- SINCE RETURN FILED U/S 139(1) OF I. T. ACT WAS NOT ACCOMPANIED BY THE AUDI TED ACCOUNTS. 2. THE LEARNED ASSESSING OFFICER ERRED IN UNDERSTAN DING SECTION 139(1) OF I. T. ACT STATES IF THE PRESCRIBE D DETAILS ARE NOT ANNEXED WITH RETURN, THE RETURN IS DEFECTIVE AN D NOT INVALID. IT IS THE OBLIGATION OF ASSESSING OFFICER TO INTIMATE ITA NO.214/M/2012 HASSARAM INVESTMENT & FINANCE PVT. LTD. 2 THE DEFECT TO ASSESSEE WHO IS GIVEN OPPORTUNITY TO RECTIFY THE SAID DEFECTS IN OBSERVANCE OF SUCH NOTICE. THE RETURN SO FILED IS VALID AND SUBSEQUENT RETURN FILED U/S 139( 5) OF I. T. ACT, IS VALID RETURN AND RELATES BACK TO THE DATE O R ORIGINAL RETURN. 3. THE ASSESSEE FILED RETURN OF INCOME ON 13.9.2008 DE CLARING RETURN INCOME OF ` 25,65,000/-. THE ASSESSEE CLAIME D CARRY FORWARD OF LOSSES OF ` 69,74,712/-. THE A.O NOTED THAT THE RETURN OF INCOME WAS NOT ACCOMPANIED BY PROPER FINAL ACCOUNTS IN THE FORM OF PROFIT AND LOSS ACCOUNT AND BALANCE SHEET. IN RESPONSE TO NOTICE U/S 143(2) THE ASSESSEE REVISED ITS RETURN OF INCOME ON 31.3.2 010 AND CLAIMED CARRY FORWARD LOSSES OF ` 94,50,470/- ALONG WITH AU DITED ACCOUNTS. THE A.O REJECTED THE CLAIM OF CARRY FORWARD LOSSES BY TREATING THE ORIGINAL RETURN AS NOT VALID AND THEREFORE, THE REV ISED RETURN WAS TREATED HAS NOT FILED WITHIN TIME. ON APPEAL, THE C IT(A) HAS CONFIRMED THE ACTION OF THE A.O. 4. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. A.R HAS SU BMITTED THAT WHEN THE ASSESSEE HAS FILED THE REVISED RETURN WITHIN TH E TIME PERIOD STIPULATED UNDER THE PROVISIONS U/S 139 THEN THE DE FECTS IF ANY IN THE ORIGINAL RETURN STANDS REMOVED. IN SUPPORT OF HIS C ONTENTION HE HAS RELIED UPON THE FOLLOWING DECISIONS: CIT VS SOHAN LAL CHHAJAN MAL (2008) 307 ITR 53/222 CTR (PUNJ. & HAR) 190 ITA NO.214/M/2012 HASSARAM INVESTMENT & FINANCE PVT. LTD. 3 MORGAN STANLEY ASSET MANAGEMENT INC. VS DY. CIT (20 09) 33 SOT 452/(2010) 130 TTJ 636/39 DTR 240/5 ITR 393 (MU M.) (TRIB.) 5. THUS, THE LD. A.R HAS SUBMITTED THAT WHEN THE OR IGINAL RETURN AS WELL AS THE REVISED RETURN HAS BEEN FILED WITHIN TIME LIMIT PRESCRIBED U/S 139 OF THE INCOME TAX ACT THEN THE C LAIM OF THE ASSESSEE CANNOT BE REJECTED BY TREATING THE RETURN AS INVALID. ON THE OTHER HAND, THE LD. D.R HAS RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RECORD WE NOTE THAT THE RETURN OF INCOME WAS E- FILED BY THE ASSESSEE ON 30.9.2008. THIS FACT OF E-FILING HAS BE EN DULY RECORDED BY THE ASSESSING OFFICER IN THE ASSESSMENT ORDER. I T IS PERTINENT TO NOTE THAT WHEN THE ORIGINAL RETURN WAS E-FILED THEN THERE WAS NO OCCASION FOR THE ASSESSEE TO FILE THE FINAL ACCOUNT S I.E. PROFIT AND LOSS ACCOUNT AND BALANCE SHEET ALONG WITH E-FILING. WHEN THE ASSESSEE HAS FILED THE REVISED RETURN WITHIN THE TIME PERIOD PRESCRIBED U/S 139 ALONG WITH THE FINAL ACCOUNTS THEN THE RETURN FILED UNDER E-FILING CANNOT BE TREATED AS INVALID OR DEFECTIVE FOR WANT OF FINAL ACCOUNTS. IN VIEW OF THE ABOVE FACTS AND CIRCUMSTANCES OF THE CASE WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW AND REMAN D THE MATTER TO THE RECORD OF THE A.O TO DECIDE THE CLAIM OF THE AS SESSEE OF CARRY FORWARD LOSSES ON MERITS. NEEDLESS TO SAY THE ASSES SEE BE GIVEN A PROPER OPPORTUNITY OF HEARING BEFORE PASSING THE FR ESH ORDER. ITA NO.214/M/2012 HASSARAM INVESTMENT & FINANCE PVT. LTD. 4 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF NOVEMBER 2013 SD/- SD/- ( . . !' ) # $% (N. K. BILLAIYA) ACCOUNTANT MEMBER ( ) & $% (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 22 ND NOVEMBER 2013 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI