Orissa State Cooperative Marketing Federation Limited, Bhubaneswar V. ACIT, Circle-1(1), Bhubaneswar

ITA 255/CTK/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 4359 (ITAT-CUTTACK)
• Duration Of Justice: 1 year(s) 7 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 15-02-2018
• Assessment Year: 2008-2009
• Appeal Filed On: 05-07-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K PRADHAN
• Assessee Lawyers: P R MOHANTY
• Keywords: Depreciation

Judgement Text

1 ITA NO.255/CTK/2016 ASSESSMENT YEAR : 2008 - 2009 IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE S/SHRI N.S SAINI, ACCOUNTANT MEMBER AND PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA NO. 255 /CTK/201 6 ASSESSMENT YEAR : 20 08 - 2009 ORISSA STATE CO - OPERATIVE MARKETING FEDERATION LTD., OLD STATION ROAD, BHUBANESWAR VS. ACIT, CIRCLE 1(1), BHUBANESWAR PAN/GIR NO. AAAAO 0258 K (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI P.R.MOHANTY, AR REVENUE BY : SHRI D.K.PRADHAN, DR DATE OF HEARING : 1 5 / 0 2 / 201 8 DATE OF PRONOUNCEMENT : 2 6 / 0 2 / 201 8 O R D E R PER PAVAN KUMAR GADALE, JM THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE CIT(A) - 1, BHUBANESWAR DATED 30.3. 2016 FOR THE ASSESSMENT YEAR 2010 - 2011. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL IS THAT THE CIT(A) ERRED IN CONFIRMING THE ACTION OF THE ASSESSING OFFICER DENYING CARRY FORWARD OF LOSSES OF THE ASSESSEE WITHOUT ANY VALID AND COGENT REASON. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE DERIVES INCOME FROM TRADING AND DISTRIBUTION OF FERTILISER, PADDY, RICE AND ALSO RENT. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, THE ASSESSING OFFICER FOUND 2 ITA NO.255/CTK/2016 ASSESSMENT YEAR : 2008 - 2009 THAT THE ASSESSEE HAS CLAIMED CARRY FORWARD L OSSES. THE ASSESSING OFFICER ASKED THE ASSESSEE TO PRODUCE THE COPIES OF FINAL ACCOUNTS ON THE BASIS OF WHICH THE LOSS COULD BE ASSESSED. IT WAS SUBMITTED THAT SINCE THE STATUTORY AUDIT IS NOT UNDERTAKEN, THEREFORE, IT WOULD NOT BE POSSIBLE TO SUBMIT THE SAME. IN THE ABSENCE OF FINAL ACCOUNTS, THE ASSESSING OFFICER DENIED THE CLAIM OF THE ASSESSEE TO ALLOW CARRY FORWARD LOSSES. 4. ON APPEAL, THE CIT(A) CONFIRMED THE ACTION OF THE ASSESSING OFFICER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDE RS OF LOWER AUTHORITIES AND MATERIALS AVAILABLE ON RECORD. PRIMA FACIE, WE FIND THAT THE ASSESSING OFFICER HAS DENIED THE CLAIM OF CARRY FORWARD LOSSES BY THE ASSESSEE ON THE GROUND THAT THE FINAL AUDITED ACCOUNT WAS NOT SUBMITTED BY THE ASSESSEE BUT THE ACCOUNT WAS SUBMITTED PROVISIONALLY. LD A.R.S CONTENTION THAT AS THE ACCOUNTS OF THE ASSESSEE HAVE NOT GOT AUDITED, THEREFORE, THE ASSESSEE HAS FILED PROVISIONAL ACCOUNTS ON THE BASIS OF FINANCIAL DAT A AND THE ASSESSEE HAS GIVEN EXPLANATION DURING THE A SSESSMENT PROCEEDINGS AND THE RETURN O F I N C O M E IS FILED UNDER SECTION 139(1) OF THE ACT, WHICH IS WITHIN THE STATUTORY LIMIT. LD A.R. SUBSTANTIATED HIS ARGUMENTS WITH COPY OF INCOME TAX RETURN FILED ON 31.10.2008 FOR THE SAID ASSESSMENT YEAR AND THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF THE ASSESSEE ITSELF FOR THE ASSESSMENT YEAR 1988 - 89 IN ITA NO.239/CTK/1998 ORDER DATED 26.8.2002 AND ALSO THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF OMC VS ACIT, 108 TTJ 678, WHEREIN, IT HAS BEEN HELD AS UNDER: 3 ITA NO.255/CTK/2016 ASSESSMENT YEAR : 2008 - 2009 LOSS CARRY FORWARD AND SET OFF RETURN NOT ACCOMPANIED WITH AUDITED ACCOUNTS ASSESSEE, A GOVERNMENT OF ORISSA UNDERTAKING, ITS ACCOUNTS ARE AUDITED BY THE AUDITORS APPOINTED BY THE CAG WHICH IS NOT WITHIN THE CONTROL OF THE ASSESSEE ASSESSEE FILING RETURN UNDER S. 139(1) IN TIME WITHOUT ACCOMPANYING AUDITED ACCOUNTS INDICATION GIVEN IN THE RETURN ITSELF THAT AUDIT OF THE ACCOUNTS HAD NOT BEEN COMPLETED TILL THEN IN VIEW OF CBDT INSTRUCTION NO. 1348 DT. 30TH AUG., 1980, IF THE RETURN INDICATED THAT T HE AUDIT HAS NOT BEEN COMPLETED AND HENCE AUDITED ACCOUNTS AND AUDITORS REPORT COULD NOT BE ENCLOSED, THE RETURN SHOULD NOT BE TREATED AS DEFECTIVE ASSESSEE HAD ALL ALONG FILED RETURNS ON THE BASIS OF PROVISIONAL ACCOUNTS WHICH HAD BEEN ACCEPTED BY THE DE PARTMENT, CBDT IN THE PAST HAD CONDONED THE DELAY IN FILING AUDITED ACCOUNTS AND TRIBUNAL, CUTTACK BENCH, HAD CANCELLED PENALTY UNDER S. 271B FOR ASSESSEES INABILITY TO FILE TAX RETURN IT AUTHORITIES WERE, THEREFORE, NOT JUSTIFIED IN REFUSING TO CARRY FOR WARD LOSS AND DEPRECIATION ON THE GROUND THAT RETURN WAS INVALID. WE FIND THAT THE AUDIT OF ACCOUNT OF THE ASSESSEE WAS NOT WITHIN THE HANDS OF THE ASSESSEE, WHICH IS A GOVERNMENT UNDERTAKING. BASED ON THE PROVISIONAL INFORMATION, THE ASSESSEE HAS FILED THE RETURN AND, THEREFORE, SAME HAS TO BE ALLOWED. WE ALSO FIND SUPPORT FROM THE DECISION OF THIS BENCH OF THE TRIBUNAL IN THE CASE OF ASSESSEE AND ALSO IN THE CASE OF OMC (SUPRA). THEREFORE, FOLLOWIN G THE SAME, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE CLAIM OF THE ASSESSEE TO CARRY FORWARD THE LOSSES AND ALLOW THE GROUND OF APPEAL OF THE ASSESSEE. 6. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 2 6 / 0 2 /201 8 . S D / - S D / - ( N.S SAINI) ( PAVAN KUMAR GADALE) A CCOUNTANT MEMBER JUDICIALMEMBER CUTTACK; DATED 2 6 / 0 2 /201 8 4 ITA NO.255/CTK/2016 ASSESSMENT YEAR : 2008 - 2009 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PRIVATE SECRETARY ITAT, CUTTACK 1. THE APPELLANT : ORISSA STATE CO - OPERATIVE MARKETING FEDERATION LTD., OLD STATION ROAD, BHUBANESWAR 2. THE RESPONDENT. ACIT, CIRCLE 1(1), BHUBANESWAR 3. THE CIT(A) - 1, BHUBANESWAR 4. PR.CIT - 1, BHUBANESWAR 5. DR, ITAT, CUTTACK 6. GUARD FILE. //TRUE COPY//