Manju Rastogi, Bareilly V. ITO, Bareilly

ITA 355/LKW/2010

• Counselvise Citation: 35523714 RSA 2010
• Duration Of Justice: 4 year(s) 3 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 18-07-2014
• Assessment Year: 1999-2000
• Appeal Filed On: 20-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ARE BEING DISPOSED OF
• Keywords: Principle of natural justice
• Section: 139

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NOS.355 & 356/LKW/2010 A.YRS.:1999 - 2000 & 2001 - 02 MANJU RASTOGI, 65, KUNCHA SITA RAM, BAREILLY. PAN:AGLPR5072L VS. INCOME TAX OFFICER, WARD - 1(2), BAREILLY. (APPELLANT) (RESPONDENT) O R D E R PER A. K. GARODIA, A.M. BOTH THESE APPEALS ARE FILED BY THE ASSESSEE, WHICH ARE DIRECTED AGAINST TWO SEPARATE ORDERS OF LEARNED CIT(A), BAREILLY BOTH DATED 06/01/2010 FOR THE ASSESSMENT YEAR 1999 - 2000 & 2001 - 2002. BOTH THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE CONCISE GROUNDS OF APPEAL RAISED BY THE ASSESSEE IN I.T.A. NO.355/LKW/2010 ARE AS UNDER: 1. BECAUSE THE CIT(A) H AS ERRED IN LAW AND ON FACTS IN UPHOLDING THE ORDER DATED 12.12.2008 AS PASSED BY THE INCOME - TAX OFFICER, WARD - 1 (2), BAREILLY CAPTIONED AS 'ORDER UNDER SECTION 254/143(1) OF THE INCOME - TAX ACT, 1961' WHEREBY THE APPELLANT'S CLAIM FOR CARRY FORWARD OF APPELLANT BY SHRI S. K. GARG, ADVOCATE SHRI P. K. KAPOOR, C.A. RESPONDENT BY SHRI ALOK MITRA, D.R. DATE OF HEARING 18/07/2014 DATE OF PRONOUNCEMENT 0 5 /0 9 /2014 2 LONG TERM CAPITAL LOSS AMOUNTING TO RS.9,20,480/ - HAS BEEN DENIED. 2. BECAUSE AFTER DETERMINING THE LOSS UNDER THE HEAD CAPITAL GAIN, AMOUNTING TO RS.9,20,840/ - , THE AUTHORITIES BELOW COULD NOT HAVE DENIED/UPHELD THE 'DENIAL' ASSESSEE'S CLAIM FOR CARRY FORWAR D OF SUCH LOSS KEEPING IN VIEW PARA 7 OF THE JUDGMENT AND ORDER DATED 30.11.2010 PASSED BY THE HON'BLE HIGH COURT IN ITA NO.712 OF 2007 IN THE CASE OF CIT VS. SMT. MANJU RASTOGI (COPY ENCLOSED). 3. THE GROUNDS OF APPEAL IN I.T.A. NO.356/LKW/2010 ARE AS U NDER: 1. BECAUSE THE AUTHORITIES BELOW HAVE ERRED IN LAW AND ON FACTS IN DENYING/ UPHOLDING THE DENIAL OF APPELLANT'S CLAIM FOR SET - OFF OF LONG TERM CAPITAL LOSS AS BROUGHT FORWARD FROM THE ASSESSMENT YEAR 1999 - 2000, AGAINST LONG TERM CAPITAL GAIN OF TH E YEAR UNDER APPEAL. 2. BECAUSE THE 'APPELLANT'S' CLAIM FOR SET - OFF OF LOSSES BROUGHT FORWARD FROM THE ASSESSMENT YEAR 1999 - 2000 COULD NOT HAVE BEEN DENIED ON THE GROUND THAT CLAIM FOR CARRY FORWARD AS MADE AND ACCEPTED ALSO AS PER INTIMATION ISSUED UNDER SECTION 143(1) EARLIER, HAD SINCE BEEN VARIED IN TERMS OF FRESH ORDER DATED 12.12.2008 CAPTIONED AS ORDER U/S 254/143(1) OF THE INCOME - TAX ACT, 1961' (FOR THE ASSESSMENT YEAR 1999 - 2000). 3. BECAUSE THE SAID ORDER DATED 12.12.2008 ITSELF WAS VOID ABINITIO AND ON THE BASIS OF THE SAID ORDER, THE CLAIM FOR SET - OFF OF LOSSES AS BROUGHT FORWARD FROM THAT YEAR COULD NOT HAVE BEEN DENIED, MUCH LESS VALIDLY. 4. BECAUSE, IN ANY CASE, THE 'RETURN' FOR THE ASSESSMENT YEAR 1999 - 2000 STOOD FILED WITHIN THE TIME LIMIT PRESCRIBED UNDER SECTIO N 139(1) READ WITH CIRCULAR ISSUED BY THE CBDT AND THE CLAIM FOR SET - OFF OF LOSSES WAS ADMISSIBLE AS PER THE PROVISIONS CONTAINED IN SECTION 139 (3) READ WITH SECTION 80 OF THE ACT. 5. BECAUSE THE VIEW TAKEN BY THE AUTHORITIES BELOW STOOD WHOLLY VITIATED, AS THE SAME IS BASED ON MISREADING/MISINTERPRETATION OF THE ORDER DATED 3 13.07.2007 PASSED BY THE HON'BLE UAT IN THE APPELLANT'S OWN CASE IN FTA NO.694/LUC/2004 FOR THE ASSESSMENT YEAR 2 001 - 02. 6. BECAUSE THE ORDER APPEALED AGAINST IS CONTRARY TO THE FACTS, LAW AND PRINCIPLES OF NATURAL JUSTICE. 4. IT WAS SUBMITTED BY LEARNED A.R. OF THE ASSESSEE THAT THE ISSUE INVOLVED IN THESE APPEALS IS INTER CONNECTED. HE SUBMITTED THAT IN ASSESSMENT YEAR 1999 - 2000 , THE ASSESSEE IS REQUESTING FOR CARRY FORWARD OF LONG TERM CAPITAL LOSS OF RS.9,20,480/ - AND IN ASSESSMENT YEAR 2001 - 2002 , THE ASSESSEE IS CLAIMING SET OFF OF THIS LOSS INCURRED IN ASSESSMENT YEAR 1999 - 2000. HE ALSO SUBMITTED THA T CLAIM OF THE ASSESSEE FOR CARRY FORWARD OF LOSS IN ASSESSMENT YEAR 1999 - 2000 WAS NOT ALLOWED BY THE ASSESSING OFFICER ON THE BASIS THAT THE RETURN OF INCOME WAS NOT FILED IN TIME AND FOR THE SAME REASON , SET OFF OF THE SAME LOSS IN ASSESSMENT YEAR 2001 - 0 2 WAS ALSO NOT ALLOWED BY THE ASSESSING OFFICER. HE SUBMITTED THAT IN ASSESSMENT YEAR 2001 - 02 , THE CLAIM OF ASSESSEE REGARDING SET OFF OF LOSS INCURRED IN ASSESSMENT YEAR 1999 - 2000 WAS SET ASIDE BY THE TRIBUNAL IN I.T.A. NO.694/LKW/2004 DATED 13/07/2007, COPY OF WHICH IS AVAILABLE ON PAGE NO. 5 TO 12 OF THE PAPER BOOK. HE AGAIN SUBMITTED THAT AGAINST THIS TRIBUNAL ORDER, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE HON'BLE ALLAHABAD HIGH COURT IN INCOME TAX APPEAL NO. 712 OF 2007 DATED 30/11/2010, COP Y OF WHICH IS AVAILABLE ON PAGE NO. 13 & 14 OF THE PAPER BOOK. IT WAS HELD BY HON'BLE ALLAHABAD HIGH COURT THAT THE ASSESSEE HAS FILED ITS RETURN OF INCOME ON 30/08/99 FOR ASSESSMENT YEAR 1999 - 2000 AND IT IS NOT IN DISPUTE THAT IT WAS WITHIN THE TIME EXTE NDED BY THE BOARD AND AFTER OBSERVING THIS , IT WAS HELD THAT IN VIEW OF THIS, FIRST CONDITION MENTIONED IN SECTION 139(3) OF THE INCOME TAX ACT WAS SATISFIED. THEREAFTER , IT WAS HELD THAT THE ONLY DIFFICULTY WAS THAT THE ASSESSING OFFICER HAD NOT DETERMIN ED THE LOSSES AND FOR THIS REASON , THE TRIBUNAL REMANDED THE CASE. HE SUBMITTED THAT WHEN IT IS HELD BY HON'BLE ALLAHABAD HIGH COURT THAT THE RETURN FILED BY THE ASSESSEE 4 ON 30/08/1999 FOR ASSESSMENT YEAR 1999 - 2000 IS WITHIN THE PRESCRIBED TIME AS PER SEC TION 139 (3) OF THE ACT, THE CLAIM OF THE ASSESSEE SHOULD BE ALLOWED IN BOTH THE YEARS. 5. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 6. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THAT THE ISSUE IS NO MORE RES INTEGRA BECA USE IT IS ALREADY DECIDED BY HON'BLE ALLAHABAD HIGH COURT IN THIS CASE THAT THE RETURN OF INCOME FILED BY THE ASSESSEE IN ASSESSMENT YEAR 1999 - 2000 ON 30/08/1999 IS SATISFYING THE FIRST CONDITION MENTIONED IN SECTION 139(3) OF THE ACT. HENCE, BY RESPECTFU LLY FOLLOWING THIS JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT, WE HOLD THAT THE CARRY FORWARD OF LOSS IN ASSESSMENT YEAR 1999 - 2000 SHOULD BE ALLOWED AND CONSEQUENTIAL SET OFF OF SUCH LOSS IN ASSESSMENT YEAR 2001 - 02 SHOULD ALSO BE ALLOWED. 7. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE STAND ALLOWED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GARODIA ) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 0 5 /0 9 /2014 *C.L.SINGH COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. CONCERNED CIT 4. THE CIT(A) 5. D.R., I.T.A.T., LUCKNOW ASSTT. REGISTRAR