M/s. Goel Spuntex Pvt. Ltd, Panipat V. ITO, Panipat

ITA 2739/DEL/2017

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 7359 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 8 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-01-2020
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 04-05-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Business income; Depreciation; Opportunity of being heard; Unabsorbed depreciation
• Section: 72; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH: E, NEW DELHI BEFORE SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI O.P. KANT, ACCOUNTANT MEMBER ITA NO.2739/DEL/2017 ASSESSMENT YEAR: 2009-10 M/S. GOEL SPUNTEX PVT. LTD., SHIV NAGAR, KRISHANPUR, PANIPAT VS. ITO, WARD-5, PANIPAT PAN :AAACG6309H (APPLICANT) (RESPONDENT) ORDER PER O.P. KANT, AM: THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 20 TH FEBRUARY, 2017 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), KARNAL [IN SHORT LEARNED CIT (A)] FOR ASSESSMENT YEAR 2009-10 ARISING OUT OF RECTIFICATIO N ORDER PASSED UNDER SECTION 154 OF THE INCOME-TAX ACT, 1961 (IN S HORT THE ACT) BY THE ASSISTANT COMMISSIONER OF INCOME TAX (CPC), BANGALORE. 2. GROUNDS OF APPEAL RAISED BY THE ASSESSEE ARE REPRO DUCED AS UNDER: APPLICANT BY SHRI K.L. ANEJA, ADV. RESPONDENT BY MS. RAKHI VIMAL, SR.DR DATE OF HEARING 23.01.2020 DATE OF PRONOUNCEMENT 30.01.2020 2 ITA NO. 2739/DEL./2017 1. THAT THE ORDER OF THE LEARNED CIT(APPEALS) IS AG AINST LAW AND FACTS. 2. THAT THE LEARNED CIT(A) HAS WRONGLY DISALLOWED T HE CLAIM OF SET OFF BROUGHT FORWARD LOSS TO THE ASSESSEE AGAINST TH E INCOME OF THE CURRENT YEAR EVEN THOUGH THE ASSESSEE COULD NOT PRO PERLY FILE THE E-RETURN FROM BEING THE FIRST YEAR OF E-FILING THE RETURN AND THE SET OFF IS ALLOWABLE UNDER THE ACT. 3. THAT ALL THE APPELLANT CRAVES LEAVE TO ADD OR AM END THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD OR DISPOSED OF F. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE ASSE SEE FILED RETURN OF INCOME FOR THE YEAR UNDER CONSIDERATION E LECTRONICALLY ON 15.09.2009. ACCORDING TO THE ASSESSEE, IT HAS DE CLARED BUSINESS INCOME OF RS.1,95,894 /- AND AFTER SETTING OFF OF BROUGHT FORWARD UNABSORBED DEPRECIATION TAXABLE INCOME WAS DECLARED AT NIL. HOWEVER, SELF ASSESSMENT TAX OF RS.3,185/- WAS PAID ON THE BOOK PROFIT OF RS.30,934/- UNDER THE MAT PROVISIONS . THE RETURN OF INCOME FILED BY THE ASSESSEE WAS PROCESSED BY TH E CENTRAL PROCESSING UNIT (CPC), BANGALORE. ACCORDING TO THE ASSESSEE, THE BENEFIT OF BROUGHT FORWARD BUSINESS LOSS WAS NOT AL LOWED TO THE ASSESSEE BY THE CPC IN PROCESSING ORDER DATED 06.09 .2010. THE ASSESSEE FILED RECTIFICATION APPLICATION ON 24.02.2 011 BEFORE THE CPC, BANGALORE. THE CPC ADVISED THE ASSESSEE TO FIL E RECTIFICATION APPLICATION ONLINE ON THE WEBSITE OF THE INCOME TAX DEPARTMENT. COMPLYING THE DIRECTION OF THE CPC, THE ASSESSEE FI LED RECTIFICATION APPLICATION ON 19.11.2011. THE APPLICATION OF THE A SSESSEE WAS REJECTED BY THE CPC WITH THE FOLLOWING OBSERVATIONS : 3 ITA NO. 2739/DEL./2017 3.1 ON FURTHER APPEAL BY THE ASSESSEE BEFORE THE LEARNE D CIT(A), A REPORT FROM THE LOCAL ASSESSING OFFICER WAS CALLE D FOR WHEREIN HE EXPRESSED THAT COPY OF E-FILED RETURN OF INCOME WAS NOT AVAILABLE WITH HIM. IN VIEW OF NO MANUAL RECORD AVAILABLE WIT H THE ASSESSING OFFICER, THE LEARNED CIT(A) REJECTED THE APPEAL OF THE ASSESSEE OBSERVING AS UNDER: 2.4 AFTER GOING THROUGH THE FACTS AND SUBMISSIONS, IT IS OBSERVED THAT THE APPELLANT HAS NOT BEEN ABLE TO PR OVIDE ANY CLEAR DOCUMENTATION TO CLAIM THAT THERE WAS ANY MISTAKE APPARENT FROM RECORD. THE AO HAS ALSO STATED THAT THERE WAS NO MANUAL RECORD ON HIS OFFICE ON THE BAS IS OF WHICH THE CONTENTIONS OF THE ASSESSEE COULD BE ACCE PTED. IN VIEW OF THE FACTS AVAILABLE, THERE DOES NOT APPE AL TO BE ANY CASE FOR RECTIFICATION U/S 154 OF THE I.T. ACT. ACCORDINGLY, THE GROUNDS OF THE APPELLANT ARE REJECT ED. 4. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E RELEVANT MATERIAL ON RECORD, INCLUDING THE PAPER-BO OK FILED BY THE ASSESSEE CONTAINING PAGES 1 TO 30. A COPY OF RECTIF ICATION APPLICATION FILED BY THE ASSESSEE TO THE CPC IS AVA ILABLE ON PAGE 17 OF THE PAPER-BOOK. THE RELEVANT PARA OF THE APPL ICATION IS REPRODUCED AS UNDER: 4 ITA NO. 2739/DEL./2017 4.1 THUS, ACCORDING TO THE APPLICATION THE ASSESSEE BY MISTAK E HAS CLAIMED THE SET-OFF OF LOSS UNDER THE HEAD OTH ER SOURCES INSTEAD OF BUSINESS LOSSES. IN OUR OPINION, MEREL Y MISTAKE OF CLAIM OF SET-OFF UNDER WRONG COLUMN CANNOT DISENTIT LE THE ASSESSEE FROM THE CLAIM OF THE LOSS, IF SAME IS OTH ERWISE ALLOWABLE AS PER THE LAW. ACCORDING TO SECTION 72 OF THE ACT, BROUGHT FORWARD BUSINESS LOSS SHALL BE SET-OFF AGAINST THE PROFIT AND GAINS IN BUSINESS PROFESSION CARRIED ON BY THE ASSESSEE A ND ASSESSABLE FOR THAT ASSESSMENT YEAR AND IF THE WHOLE OF THE LO SS CANNOT BE SET-OFF, THE AMOUNT OF LOSS NOT SO SET-OFF, SHALL B E CARRIED FORWARD TO THE FOLLOWING ASSESSMENT YEAR AND SO ON. IF THE FACTS MENTIONED IN THE APPLICATION OF THE ASSESSEE ARE CORRECT, THE N THE MISTAKE IS ELIGIBLE FOR RECTIFICATION UNDER SECTION 154 OF THE ACT. 4.2 IN THE CASE OF CIT VS. MAHALAXMI SUGAR MILLS CO. L TD., REPORTED IN 1986 AIR 2111, 1986 SCR (3) 150, THE HO NBLE 5 ITA NO. 2739/DEL./2017 SUPREME COURT HELD THAT THERE IS A DUTY CAST ON THE INCOME-TAX OFFICER TO APPLY THE RELEVANT PROVISIONS OF THE IND IAN INCOME-TAX ACT FOR THE PURPOSE OF DETERMINING THE TRUE FIGURE OF T HE ASSESSEES TAXABLE INCOME AND THE CONSEQUENTIAL TAXABILITY AND IF THE ASSESSEE FAILS TO CLAIM THE BENEFIT OF A SET-OFF CANNOT RELI EVE THE INCOME-TAX OFFICER OF HIS DUTY TO APPLY SECTION 24 IN AN APPRO PRIATE CASE. THE CBDT CIRCULAR NO. 14(XL-35), DATED 11.04.1955 ALSO HAS LAID DOWN THAT OFFICERS OF THE DEPARTMENT MUST NOT TAKE ADVANTAGE OF IGNORANCE OF AN ASSESSEE AS TO HIS RIGHTS. IT IS ON E OF THEIR DUTIES TO ASSIST A TAXPAYER IN EVERY REASONABLE WAY, PARTI CULARLY IN THE MATTER OF CLAIMING AND SECURING RELIEFS AND IN THIS REGARD THE OFFICERS SHOULD TAKE THE INITIATIVE IN GUIDING A TA XPAYER WHERE PROCEEDINGS OR OTHER PARTICULARS BEFORE THEM INDICA TE THAT SOME REFUND OR RELIEF IS DUE TO HIM. 4.3 WE FIND THAT THE LEARNED CIT(A) HAS SIMPLY REJECTED THE APPEAL OF THE ASSESSEE ON THE GROUNDS THAT ELECTRON IC RETURN OF INCOME FILED BY THE ASSESSEE WAS NOT AVAILABLE WITH THE ASSESSING OFFICER, WITHOUT MAKING ANY ATTEMPT TO VERIFY THE C LAIM OF THE ASSESSEE. IN VIEW OF THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN THE INTEREST OF JUSTICE, WE FEEL IT APPROPRIATE TO RESTORE THIS ISSUE BACK TO THE FILE OF CIT(A) WITH THE DIRECTION TO VERIFY THE CLAIM OF THE ASSESSEE FROM ELECTRONIC RETURN OF INC OME FILED AND DECIDE THE ISSUE, APPLYING THE PROVISIONS OF LAW AS EXISTED DURING THE RELEVANT PERIOD. IT IS NEEDLESS TO MENTION, BOT H THE PARTIES I.E. THE ASSESSEE AND THE ASSESSING OFFICER SHALL BE AFF ORDED ADEQUATE OPPORTUNITY OF BEING HEARD. ACCORDINGLY, THE GROUND S RAISED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 6 ITA NO. 2739/DEL./2017 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOW ED FOR STATISTICAL PURPOSES. ORDER IS PRONOUNCED IN THE OPEN COURT ON 30 TH JANUARY, 2020. SD/- SD/- (BHAVNESH SAINI) (O.P. KANT) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 30 TH JANUARY, 2020. RK/-(D.T.D.) COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR ASST. REGISTRAR, ITAT, NEW DELHI