FAISAL ABBAS, PUNE V. DCIT CEN(CIRCLE)-2, MUMBAI

ITA 3486/MUM/2010

• Counselvise Citation: 348619914 RSA 2010
• Duration Of Justice: 1 year(s) 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 01-12-2011
• Assessment Year: 2005-2006
• Appeal Filed On: 03-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Keywords: Business income
• Section: 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES SMC , MUMBAI BEFORE SHIRI RAJENDRA SINGH, A.M. ITA NO. : 3486/MUM/2010 ASSESSMENT YEAR : 2005-06 SHRI FAISAL ABBAS 405-VENUS APARTMENTS, 4 TH FLOOR, NORTH MAIN ROAD, KOREGAON PARK, PUNE-411 001 PAN NO : ACPPA 6146 G VS. D.C.I.T. CENTRAL CIRCLE 2 MUMBAI (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI K. GOPAL RESPONDENT BY : SHRI P. C. MAURYA DATE OF HEARING : 01 .1 2 .2011 DATE OF PRONOUNCEMENT : 01.12.2011 ORDER PER RAJENDRA SINGH (AM) : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 05.03.2010 OF THE LD. CIT(A)-36 FOR THE ASSESSMENT YEAR 2005-06. THE ONLY DISPUTE RAISED BY THE ASSESSEE IN THIS APPEAL IS REGARDING SET OFF OF BROUGHT FORWARD LOSS OF ASSESSMENT YEAR 2001-02. 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE HAD A B ROUGHT FORWARD BUSINESS LOSS OF `. 2,91,155/- FOR THE ASSESSMENT YEAR 2001-02. THE AO DID NOT SET OFF THE BROUGHT BUSINESS LOSS, ON THE G ROUND THAT THE RETURN OF INCOME FOR THE CURRENT YEAR I.E. ASSESSMENT YEAR 2005-06 WAS NOT ITA NO : 3486/MUM/2010 SHRI FAISAL ABBAS 2 FILED WITHIN TIME ALLOWED U/S.139(1), BUT HAD BEEN FILED IN RESPONSE TO NOTICE U/S.153(A) ON 17.08.2007. 3. IN APPEAL, CIT(A) CONFIRMED THE ORDER OF THE AO AGGRIEVED BY WHICH THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL . 4. I HAVE HEARD BOTH THE PARTIES, PERUSED THE RECOR DS AND CONSIDERED THE MATTER CAREFULLY. THE DISPUTE IS REG ARDING SET OFF OF BROUGHT FORWARD LOSS OF ASSESSMENT YEAR 2001-02 AGA INST THE BUSINESS INCOME OF ASSESSMENT YEAR 2005-06. THERE IS NO DISP UTE THAT THE LOSS FOR THE ASSESSMENT YEAR 2001-02 HAD BEEN DETERMINED AS PER THE RETURN OF INCOME FILED WITHIN THE TIME ALLOWED U/S. 139(1) OF THE I.T. ACT. THE AO HAS NOT SET OFF BROUGHT FORWARD LOSS ON THE GROUND THAT THE RETURN OF INCOME FOR THE CURRENT YEAR I.E. 2005-06 WAS NOT FILED WITHIN THE TIME ALLOWED U/S.139(1). IN MY VIEW, THE DECISI ON TAKEN BY THE AUTHORITIES BELOW FOR NOT SETTING OFF THE BROUGHT F ORWARD LOSS CANNOT BE SUSTAINED. THE LD. AR FOR THE ASSESEEE HAS RIGHTLY POINTED OUT THAT THE CASE IS COVERED BY THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE IN ITA NOS.3485 & 3487/MUM/2010 OF ASSESSMENT YEAR 200 2-03 AND 2007-08 VIDE ORDER DATED 25.102.011. IN THAT CASE ALSO, THE RETURN FOR THE CURRENT YEAR IN WHICH THE LOSSES WAS REQUIRED T O SET OFF HAD BEEN FILED IN RESPONSE TO SECTION 153A AND NOT WITHIN TI ME ALLOWED U/S.139(1) OF THE I.T. ACT AND IT WAS FOR THIS REAS ON THAT THE LOSS HAD NOT BEEN ALLOWED. THE TRIBUNAL HELD THAT ONCE LOSS IS DETERMINED AS PER THE RETURN FILED U/S.139(3), THE ASSESSEE BECOMES E LIGIBLE FOR SET OFF AGAINST THE INCOME OF SUBSEQUENT YEARS IRRESPECTIVE OF THE FACT WHETHER THE RETURNS OF SUCH LATER YEARS WERE FILED U/S.139( 1) OR NOT. THE CASE OF THE ASSESSEE IS IDENTICAL. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF THE TRIBUNAL IN THE EARLIER YEAR, I SET ASIDE TH E ORDER OF THE CIT(A) AND ALLOW THE CLAIM OF THE ASSESSEE. ITA NO : 3486/MUM/2010 SHRI FAISAL ABBAS 3 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. THE DECISION WAS PRONOUNCED IN THE OPEN COURT ON TO DAY I.E. 1 ST DECEMBER, 2011. SD/ - ( RAJENDRA SINGH ) ACCOUNTANT MEMBER MUMBAI, DT: 01/12/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, SMC - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI