TELECOMP ELECTRONICS, MUMBAI V. ITO(CPC) BANGALORE, Bangalore

ITA 2897/MUM/2014

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 93245 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-07-2015
• Appeal Filed By: Assessee
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 28-04-2014
• Court: TRIBUNAL
• Department Lawyers: NEELIMA V NADKARNI
• Assessee Lawyers: ASHVIN A ACHARYA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI D. KARUNAKARA RAO, ACCOUNTANT MEMBER I.T.A. NO.2897/M/2014 (AY:2009 - 2010 ) TELECOMP ELECTRONICS, BLDG. NO.36B, FLAT NO.38, MANISH NAGAR, J.P. ROAD, ANDHERI (W), MUMBAI 53. / VS. INCOME TAX DEPARTMENT, CENTRALIZED PROCESSING CENTRE, POST BAG. NO.1, ELECTRONIC CITY, POST OFFICE, BANGALORE - 560100. ./ PAN : AAAFT0522E ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI ASHVIN A. ACHARYA, AR / RESPONDENT BY : MS. NEELIMA V. NADKARNI, DR / DATE OF HEARING : 02.07.2015 / DATE OF PRONOUNCEMENT : 22 .07.2015 / O R D E R PER D. KARUNAKARA RAO, AM: THIS APPEAL FILED BY THE ASSESSEE ON 28.4.2014 IS AGAINST THE ORDER OF THE CIT (A) - 31, MUMBAI DATED 28.2.2014 FOR THE ASSESSMENT YEAR 2009 - 10. IN THIS APPEAL, THE ONLY SOLITARY ISSUE FOR ADJUDICATION IS MENTIONED IN GROUND NO.6 OF THE APPEAL. IN FACT, THE OTHER GROUNDS RAISED BY THE ASSESSEE ARE NOT PRESSED , AND THEREFORE, AFTER HEARING THE LD DR, THE GROUND NOS. 1 TO 5 ARE DISMISSED AS NOT PRESSED . THAT LEAVES THE GROUND NO.6 AND THE SAME READS AS UNDER: 6. WITHOUT PREJUDICE TO WHATEVER STATE HERE INABOVE. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD INCOME TAX OFFICER (CPC) ERRED IN NOT ALLOWING BROUGHT FORWARD LOSS UNDER THE HEAD INCOME FROM BUSINESS OR PROFESSION AGAINST THE GAINS ARISING FROM ANY BUSINESS OR PROFESS ION, THOUGH CHARGEABLE TO TAX UNDER ANY OTHER HEAD OF INCOME. 2. BRIEFLY STATED RELEVANT FACTS RELATING TO THE ISSUE INVOLVED IN THE ABOVE GROUND ARE THAT THE ASSESSEE FILED THE RETURN OF INCOME DECLARING THE TOTAL INCOME AND THE DEFECTS MENTIONED IN THE RETURN WERE ALSO RECTIFIED. IN THE RETURNED INCOME, ASSESSEE MADE A CLAIM OF SET - OFF OF BROUGHT FORWARDED LOSS AGAINST THE CURRENT YEARS INCOME DETERMINED U/S 50 OF THE ACT ASSESSABLE UNDER THE HEAD CAPITAL GAINS. IN THIS REGARD, LD COUNSEL FOR THE AS SESSEE BROUGHT MY ATTENTION TO ORDER OF 2 THE ITAT, DELHI IN THE CASE OF DIGITAL ELECTRONICS LTD VS. ADDL. COMMISSIONER OF INCOME TAX [2011] 135 TTJ (MUMBAI) 419, DATED 20.10.2010 AS WELL AS THE JUDGMENT OF THE HONBLE DELHI HIGH COURT IN THE CASE OF LAVISH APARTMENT PVT. LTD ( ITA NO. 254 OF 2006, DATED 23.7.2012). THESE DECISIONS ARE RELEVANT FOR THE PROPOSITION THAT ALLOWING OF SET - OFF OF UNABSORBED BROUGHT FORWARD LOSS AGAINST THE CURRENT YEARS INCOME ASSESSABLE UNDER THE HEAD INCOME FROM OTHER SOURCE S. PAGES 14, 22 AND 23 OF THE PAPER BOOK CONTAIN RELEVANT ORDERS. AT THE MAXIMUM, THIS ISSUE OF ALLOWING OF SET - OFF OF THE BROUGHT FORWARD LOSS AGAINST THE INCOME ASSESSED UNDER ANY OTHER HEAD OF INCOME OF CURRENT YEAR IS REQUIRED TO BE DECIDED IN FAVO UR OF THE ASSESSEE. DESPITE THE SAID LEGAL PROPOSITIONS, CIT (A) DID NOT ALLOW THE CLAIM OF THE ASSESEE AS PER THE DISCUSSION GIVEN IN PARA 5.6 OF THE IMPUGNED ORDER. 3. ON HEARING BOTH THE PARTIES, I FIND THAT THE SETTLED LEGAL PROPOSITION OF THE LAW WAS NOT PROPERLY APPRECIATED BY THE CIT (A) DESPITE THE RELEVANT DECISIONS MADE AVAILABLE BY THE ASSESSEE TO THE CIT (A). IN MY OPINION, THE MATTER SHOULD BE REMANDED TO THE CIT (A) FOR WANT OF A SPEAKING ORDER AFTER CONSIDERING THE AFORESAID DECISIONS IN TH E MATTER. ACCORDINGLY, GROUND NO.6 RAISED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES . 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 22 ND JULY, 2015. SD/ - (D. KARUNAKARA RAO) ACCOUNTANT MEMBER MUMBAI ; 22 .7 .2015 . . ./ OKK , SR. PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 3 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI