The ITO, Ward-3, Gandhinagar V. M/s. Mahalaxmi Wood Crafts,

ITA 27/AHD/2007

• Counselvise Citation: [2009] 114 COUNSELVISE.COM (IT) 7395 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2009
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 16-01-2013
• Assessment Year: 2003-2004
• Appeal Filed On: 02-01-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAHUL KUMAR
• Keywords: Deemed to accrue or arise in india; Set aside; Capital Gains

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, A BENCH, AHMEDABAD BEFORE SHRI A. K. GARODIA, ACCOUNTANT MEMBER AND SHRI KUL BHARAT, JUDICIAL MEMBER I.T.A. NO. 27/ AHD/2007 (ASSESSMENT YEAR 2003-04) ACIT, WARD 3, GANDHINAGAR VS. M/S. MAHALAXMI WOOD CRAFTS, 453, NEAR PALAV HOTEL, CHANDRALA DISTT. GANDHINAGAR PAN/GIR NO. : AADFM4212B (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI RAHUL KUMAR, SR. DR RESPONDENT BY: SHRI SANJAY R SHAH, AR DATE OF HEARING: 16.01.2013 DATE OF PRONOUNCEMENT: 24. 01.2013 O R D E R PER SHRI A. K. GARODIA, AM:- THIS IS REVENUES APPEAL DIRECTED AGAINST THE ORDER OF LD. CIT(A) GANDHINAGAR, DATED 13.10.2006 FOR THE ASSESSMENT YE AR 2003-04. THE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: THE LD. I.T.A.NO. HA ERRED IN LAW AND ON FACTS OF THE CASE I DIRECTION TO ALLOW THE BUS9IENSS LOSS TO BE SET OFF AGAINST THE DEEMED INCOME U/S 69B. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) OUGHT TO HAVE UPHELD THE ORDER OF THE A.O. IT IS, THEREFORE, PRAYED THAT THE ORDER OF THE LD. CIT(A) MAY BE SET ASIDE AND THAT OF THE A.O. BE RESTORED TO THE ABOVE EXTENT. I.T.A.NO.27 /AHD/2007 2 2. LD. D.R. SUPPORTED THE ASSESSMENT ORDER WHEREAS LD. A.R. SUPPORTED THE ORDER OF LD. CIT(A), HE ALSO SUBMIT TED THAT AS PER THE PROVISIONS OF SECTION 71(1) OF THE INCOME TAX ACT, 1961, THIS SET OFF IS ALLOWABLE. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS PERUSED THE MATERIAL ON RECORD AND HAVE GONE THROUGH THE ORDERS OF AUTHORIT IES BELOW. WE FIND THAT THIS ISSUE WAS DECIDED BY LD. CIT(A) AS PER TH E PROVISION OF SECTION 71(1) OF THE INCOME TAX ACT, 1961 AND HENCE, FOR TH E SAKE OF READY REFERENCE, WE REPRODUCE SUB-SECTION (1) OF SECTION 71 OF THE ACT, WHICH IS AS UNDER: 71(1) WHERE IN RESPECT OF ANY ASSESSMENT YEAR THE NET RESULT OF THE COMPUTATION UNDER ANY HEAD OF INCOME, OTHER THAN CAPITAL GAINS, IS A LOSS AND THE ASSESSEE HAS NO INCOME UN DER THE HEAD CAPITAL GAINS, HE SHALL, SUBJECT TO THE PROVISION S OF THIS CHAPTER, BE ENTITLED TO HAVE THE AMOUNT OF SUCH LOSS SET OFF AGAINST HIS INCOME, IF ANY, ASSESSABLE FOR THAT ASSESSMENT YEAR UNDER ANY OTHER HEAD. 4. FROM THE ABOVE PROVISIONS OF SUB-SECTION (1) OF SECTION 71 OF THE INCOME TAX ACT, 1961, WE FIND THAT AS PER THE PROVI SION OF THIS SUB- SECTION, IF THERE IS ANY LOSS UNDER ANY HEAD OF INC OME OTHER THAN CAPITAL GAINS, THE ASSESSEE CAN SET OFF THE SAME AGAINST AN Y OTHER HEAD EXCEPT UNDER THE HEAD INCOME FROM CAPITAL GAINS. HENCE, A S PER THE PROVISION OF THIS SUB-SECTION (1) OF SECTION 71, THE PRESENT LOS S UNDER THE HEAD INCOME FROM BUSINESS CAN BE SET OFF AGAINST INCOME UNDER T HE HEAD INCOME FROM OTHER SOURCES AND HENCE, WE DO NOT FIND ANY INFIRMI TY IN THE ORDER OF LD. I.T.A.NO.27 /AHD/2007 3 CIT(A). WE, THEREFORE, DECLINE TO INTERFERE IN THE ORDER OF LD. CIT(A) ON THIS ISSUE. 5. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD./- SD./- (KUL BHARAT) (A. K. GARODIA) JUDICIAL MEMBER ACCOUNTANT MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD 1. DATE OF DICTATION 18/01/2013 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER 21/01/2013.OTHER MEMBER 3. DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P .S./P.S. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE D ICTATING MEMBER FOR PRONOUNCEMENT 24/01/2013 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR. P.S./P.S.24/01 6. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK 24/01/2013 7. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK .. 8. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT RE GISTRAR FOR SIGNATURE ON THE ORDER . 9. DATE OF DESPATCH OF THE ORDER. .