SARLADEVI MANGERAM MITTAL, MUMBAI V. ITO 21(2)(4), MUMBAI

ITA 3442/MUM/2014

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 2072 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-12-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2010-2011
• Appeal Filed On: 15-05-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, M UMBAI , , ! ! ! ! , ' ' ' ' BEFORE SHRI RAJENDRA, ACCOUNTANT MEMBER AND SHRI SA NJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.3442/MUM/2014 ( !# $ / ASSESSMENT YEAR :2010-11) SARLADEVI MANGERAM MITTAL, 4 TH FLOOR, 401, PRIYANKA BLDG, 6 TH ROAD, 28 TH FRIEND SOCIETY, JVPD SCHEME, VILE PARLE (W), MUMBAI-400056 # # # # / VS. INCOME TAX OFFICER - 21( 2 )( 4 ), PRATYAKSHAKAR BHAVAN, BANDRA-KURLA COMPLEX, BANDRA (E), MUMBAI-400050 ( %& / APPELLANT) .. ( '(%& / RESPONDENT) % ./ ) ./PAN/GIR NO. :ABCPM9865G %& * / APPELLANT BY SHRI RAJESH S SHAH '(%& + * /RSPONDENT BY SHRI B S N RAJU # + , / DATE OF HEARING : 10.11.2015 -.$ + , /DATE OF PRONOUNCEMENT : 11.12.2015 / / / / / O R D E R PER SANJAY GARG, JUDICIAL MEMBER : THE PRESENT APPEAL HAS BEEN PREFERRED BY THE ASSES SEE AGAINST THE ORDER DATED 10.4.2014 PASSED BY LD. COMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS THE CIT(A)]-3 2, MUMBAI RELEVANT TO ASSESSMENT YEAR 2010-11. 2. THE SOLE ISSUE RAISED BY THE ASSESSEE IN THIS AP PEAL IS REGARDING DISALLOWANCE OF CARRIED FORWARD LOSS. ITA NO.3442/MUM/2014 2 3. THE ASSESSEE DURING THE YEAR CLAIMED SET OFF OF CARRIED FORWARD LOSS OF RS.89,55,039/-. HOWEVER, THE ASSESSING OFFICER (HEREINAFTER REFERRED TO AS THE AO) NOTED THAT THE PERUSAL OF ASSESSMENT REC ORD FOR THE ASSESSMENT YEAR 2008-09 REVEALED THAT THE INCOME OF THE ASSESS EE FOR THAT YEAR HAD BEEN ASSESSED AT RS.NIL AND THAT NO LOSSES HAD BEEN ALLOWED TO CARRIED FORWARD. THE AO DID NOT ALLOW SET OFF OF CARRIED F ORWARD BUSINESS LOSS OF RS. 89,55,039/- PERTAINING TO ASSESSMENT YEAR 2008 -09. IN APPEAL, THE ASSESSEE MADE THE FOLLOWING SUBMISSIONS BEFORE THE LD. CIT(A): 4.3 THE SUBMISSIONS OF THE APPELLANT ARE SUMMARIZE D AS UNDER :- I. IT WAS SUBMITTED THAT THE ASSESSMENT FOR A.Y. 08-09 WAS COMPLETED U/S. 143(3) OF THE ACT WHEREIN FULL DETAILS IN RESP ECT OF LOSS WERE PROVIDED AND SCRUTINIZED BY THE A.O. FURTHER, THE R ETURN OF INCOME WAS FILED IN TIME. II. IT WAS SUBMITTED THAT AFTER CONSIDERING THE DETAILS FILED, THE AO HAS ACCEPTED THE RETURN OF INCOME FILED BY THE APPELLAN T FOR A.Y. 08-09. IT WAS CONTENDED THAT IN THE ACKNOWLEDGEMENT PAGE O F THE RETURN, THE LOSS OF RS.89,55,039/- HAS BEEN CLEARLY SHOWN I N THE A.Y. 08- 09 AND THEREFORE, THE LOSS WAS CORRECTLY CLAIMED AN D WAS ACCEPTED BY THE A.O. U/ S. 143(3) OF THE ACT FOR A.Y. 2008-0 9. III. IT WAS CONTENDED BY THE ASSESSEE THAT THE TOTAL INC OME AT RS.NIL, SHOWS THAT THE AO HAS ADJUSTED LOSS TO THE EXTENT O F POSITIVE INCOME AND BALANCE LOSS IS TO BE CARRIED FORWARD AS SHOWN IN THE RETURN OF INCOME. COPY OF RETURN OF INCOME FILED FOR AY 2008 -09 AND THE ASSESSMENT ORDER WAS SUBMITTED ALONG WITH THE SUBMI SSIONS MADE BY THE ASSESSEE. IV. IT WAS CONTENDED THAT THE AO HAS NOT FULLY UNDERSTO OD THE RETURN OF INCOME FILED FOR AY-08-09 AND THAT THE APPELLANT HAS FILED LETTER DATED 5.3.2011 WHICH WAS FILED ON 16.3.2011 REQUEST ING THE AO TO RECTIFY THE MISTAKE. HOWEVER, NO RECTIFICATION HAS BEEN DONE. V. IT WAS FURTHER SUBMITTED THAT IF THE A.O. WOULD HAV E VERIFIED THE RECORDS, HE WOULD HAVE FOUND THAT THIS WAS MISTAKE APPARENT FROM RECORD. HOWEVER, WITHOUT ANY DISCUSSION, THE AO WRO NGLY DID NOT ALLOW; CARRIED FORWARD LOSS FOR ADJUSTMENT AGAINST THE INCOME OF THE ITA NO.3442/MUM/2014 3 YEAR. VI. IT WAS ACCORDINGLY REQUESTED TO ALLOW THE CARRIED FORWARD LOSSES TO BE ADJUSTED AGAINST THE INCOME OF THIS YEAR. HOWEVER, THE LD. CIT(A) REJECTED THE CONTENTION OF THE ASSESSEE WITHOUT GOING INTO THE MERITS OF THE SUBMISSIONS OBSERVING THAT THE CONTENTIONS MADE BY THE ASSESSEE WERE IN RELATION TO THE RETURN OF INCOME FILED FOR THE ASSESSMENT YEAR 2008-09 AND IT WAS NOT OPEN FOR HIM TO ISSUE ANY DIRECTION IN RELATION TO THAT ASSESSMENT YEAR. HOWE VER, SINCE THE ASSESSED INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR 2008 -09 WAS ACCEPTED AT NIL. HENCE, CARRIED FORWARD LOSS WAS NOT ALLOWABLE . THEREFORE, HE UPHELD THE ORDER OF THE AO. 4. AT THE TIME OF HEARING, THE LD. AR INVITED OUR ATTENTION TO THE ASSESSMENT ORDER FOR THE ASSESSMENT YEAR 2008-09, W HEREIN THE AO VIDE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT HAS A CCEPTED THE TOTAL INCOME OF THE ASSESSEE. THE LD. AR HAS INVITED OU R ATTENTION TO THE PAGE 79 OF THE PAPER BOOK WHICH IS A COPY OF COMPUTATION OF INCOME FOR THE ASSESSMENT YEAR 2008-09, SHOWING THAT THE ASSESSEE HAD VERY MUCH CLAIMED BUSINESS LOSS OF RS.89,55,039/- IN THE RETU RN OF INCOME. HE HAS FURTHER INVITED OUR ATTENTION TO THE PAGE 82 OF THE PAPER BOOK WHICH IS A COPY OF ACKNOWLEDGMENT OF RETURN OF INCOME FILED FO R THE ASSESSMENT YEAR 2008-09, WHEREIN CURRENT LOSSES HAVE BEEN DULY CLAI MED. THE LD. AR HAS FURTHER INVITED OUR ATTENTION TO THE VARIOUS COLUMN S OF THE INCOME TAX RETURN FORM TO SHOW THAT AS PER THE COLUMNS OF THE FORM, IF THE INCOME IS IN LOSS THEN THE ASSESSEE HAS TO FILL RELEVANT COLU MNS WITH NIL INCOME AND FURTHER THAT IN THE COLUMN FOR PROFIT AND GAINS OF BUSINESS THE ASSESSEE DID SHOW NEGATIVE INCOME AND FURTHER IN TH E RELEVANT COLUMN OF LOSS, THE ASSESSEE HAS DULY CLAIMED THE ABOVE LOSS. THE LD. AR HAS ITA NO.3442/MUM/2014 4 THEREFORE SUBMITTED THAT AS PER THE INSTRUCTIONS OF FORM OF RETURN, THE ASSESSEE HAD SHOWN NIL INCOME AND THE ASSESSEE HAD ALSO SEPARATELY CLAIMED LOSS AND THE RETURN OF INCOME OF THE ASSESS EE HAD BEEN ACCEPTED AS SUCH. IN VIEW OF THIS, CARRIED FORWARD LOSSES OF THE ASSESSEE HAVE BEEN DEEMED TO BE ALLOWED BY THE AO IN THE YEAR 2008-09. HE FURTHER SUBMITTED THAT, THE ASSESSEE HAD MADE AN APPLICATIO N DATED 5.3.2011 FOR RECTIFICATION U/S 154 OF THE ACT TO THE CONCERNED AO TO RECTIFY THE ASSESSMENT ORDER SPECIFICALLY POINTING OUT ABOUT TH E ACCEPTANCE OF THE LOSS OF THE YEAR WHICH WAS REQUIRED TO BE CARRIED FORWAR D FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE AO HAS FAILED TO DISPO SE OF THE APPLICATION DESPITE REPEATED REMINDERS SENT TO THE AO IN THIS R ESPECT. 5. WE FIND THAT THE LD. CIT(A) HAS COMPLETELY IGNOR ED THE ABOVE SUBMISSIONS OF THE ASSESSEE AND HELD THAT HE WAS NO T SUPPOSED TO PASS ANY DIRECTION IN RESPECT OF ASSESSMENT YEAR 2008-09 . THE ISSUE RELATING TO CARRIED FORWARD LOSSES FOR THE YEAR UNDER CONSIDERA TION IS VERY MUCH CONNECTED WITH THE RETURN OF INCOME FOR THE ASSESSM ENT YEAR 2008-09. THE LD. CIT(A) HAS FAILED TO APPLY HIS MIND TO THE SUBMISSIONS MADE BY THE ASSESSEE. SO KEEPING IN VIEW THE SUBMISSIONS O F THE LD. A.R. AND THE RELEVANT RECORD PRODUCED BEFORE US, WE RESTORE THIS ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTION TO EXAMINE THE CONTENTI ONS RAISED BY THE ASSESSEE, CALL REMAND REPORT FROM THE AO BY DIRECTI NG THE AO TO DISPOSE OF THE APPLICATION FILED BY THE ASSESSEE FOR RECTIF ICATION OF THE ASSESSMENT ORDER U/S 154 OF THE ACT RELEVANT TO THE ASSESSMEN T YEAR 2008-09 AND THEREAFTER TO GIVE REPORT ABOUT THE CLAIM OF THE AS SESSEE IN THE RETURN OF INCOME REGARDING CLAIM OF LOSS IN AY 2008-09 AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE MADE IN THIS RESPECT AN D THEN DECIDE THE ISSUE IN ACCORDANCE WITH LAW. ITA NO.3442/MUM/2014 5 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED ACCORDINGLY ON 11 TH DEC, 2015. -.$ 0 1#2 11 TH DEC , 2015 . + : SD/- SD/- ( , / RAJENDRA) ( /SANJAY GARG) /ACCOUNTANT MEMBER ! /JUDICIAL MEMBER MUMBAI: 11 TH DEC, 2015. . !# . ./ SRL , SR. PS / / / / + ++ + '!,;< '!,;< '!,;< '!,;< =<$, =<$, =<$, =<$, / COPY OF THE ORDER FORWARDED TO : 1. %& / THE APPELLANT 2. '(%& / THE RESPONDENT. 3. >, ( ) / THE CIT(A)- CONCERNED 4. >, / CIT CONCERNED 5.