SHREELEKHA GLOBAL FINANCE LTD, MUMBAI V. DCIT (OSD-1) CR -7, MUMBAI

ITA 359/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83709 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-09-2014
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 18-09-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 11-01-2013
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: SATISH R MODY SHRI MANJU
• Keywords: Depreciation; Revised return; Unabsorbed depreciation
• Section: 115JB

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E, MUMBAI .., ! , ' , # BEFORE SHRI I.P.BANSAL, JM AND SHRI RAJENDRA, AM ITA NO359 /MUM/2013 (A.Y. 2007-08) SHREELEKHA GLOBAL FINANCE LTD., SIMPLEX REALTY LTD., KESHAVRAO KHAYDE MARG, SANT GADGE MAHARAJ CHOWK, BYCULLA (W), MUMBAI 400011 PAN: AACCS 3479G DCIT(OSD-1), C.R.-7, 4 TH FLOOR, AAYKAR BHAVAN, MK ROAD, MUMBAI 400020 ( $% / // / APPELLANT) ' ' ' ' / VS. ( ()$%/ RESPONDENT) $% * + * + * + * + /APPELLANT BY : SHRI SATISH R. MODY ()$% * + * + * + * + /RESPONDENT BY : SHRI MANJUNATHA SWAMY ' * ,-' / / / / DATE OF HEARING : 18.09.2014 ./0 * ,-' / DATE OF PRONOUNCEMENT : 18.09.2014 1 1 1 1 / / / / O R D E R PER I.P.BANSAL (JM) : THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DI RECTED AGAINST ORDER PASSED BY LD. CIT(A)-40, MUMBAI DATED 08/11/2012 FOR ASSES SMENT YEAR 2007-08. GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS)-40, MUMBAI ER RED IN NOT ALLOWING THE CLAIM MADE BEFORE HIM FOR SET OFF OF BOOK LOSS OR UNABSO RBED DEPRECIATION WHICHEVER IS LWER AGAINST THE BOOK PROFIT OF RS.5,02,430/- ON T HE GROUND THAT YOUR APPELLANT HAD ENOUGH OPPORTUNITIES TO MAKE THE CLAIM EARLIER. THE HONBLE COMMISSIONER OF INCOME TAX (APPEALS)-40 , MUMBAI ERRED IN NOT CONSIDERING THE FACT THAT THE CLAIM WAS CLEARLY ALL OWABLE AS PER THE PROVISIONS OF THE ACT AND WAS A COMPUTATIONAL ERROR. 2. WHILE FILING THE RETURN OF INCOME, IN THE BOOK PROFIT COMPUTED UNDER SECTION 115JB OF THE INCOME TAX ACT, 1961 (THE ACT) THE ASSESSEE DID NOT DEDUCT THE BOOK LOSSES OR UNABSORBED DEPRECIATION WHICHEV ER IS HIGHER AND THE AO DID NOT ADMIT THIS CLAIM. LD. CIT(A) HAS ALSO REJECTED THIS CONTENTION OF THE ASSESSEE ON THE GROUND THAT ASSESSEE WAS NOT IGNORANT AND WA S HAVING BENEFIT OF ADVICE FROM THE PROFESSIONAL LEGAL ADVISORS. LD. CIT(A) OBSERVED THAT NO RELIEF CAN BE ITA NO359 /MUM/2013 (A.Y. 2007-08) 2 GRANTED TO THE ASSESSEE WHERE ASSESSEE IS IGNORANT OF HIS RIGHTS AND HE REJECTED THE CLAIM OF THE ASSESSEE. 3. BEFORE US IT WAS PLEADED BY LD. AR THAT LD. CIT( A) HAS ERRED IN NOT ACCEPTING THE CLAIM OF THE ASSESSEE. HE SUBMITTED THAT THE CLAIM OF THE ASSESSEE IS LEGAL CLAIM AND EVEN IF THE SAME IS NOT MADE IN THE RETURN OF INCOME, APPELLATE AUTHORITIES ARE ENTITLED TO ADMIT THE CLAIM AND THI S PROPOSITION IS IN ACCORDANCE WITH THE DECISION OF HONBLE BOMBAY HIGH COURT IN T HE CASE OF CIT VS. PRUTHVI BROKERS & SHARE HOLDERS PVT. LTD. 349 ITR 336 (BOM) , WHEREIN THEIR LORDSHIPS HAVE HELD THAT EVEN ASSUMING THAT THE AO IS NOT ENT ITLED TO GRANT A DEDUCTION ON THE BASIS OF A LETTER REQUESTING AN AMENDMENT TO TH E RETURN FILED, THE APPELLATE AUTHORITIES ARE ENTITLED TO CONSIDER THE CLAIM AND TO ADJUDICATE THE SAME. IT IS NOT NECESSARY THAT THE DEDUCTION BE ALLOWED ONLY IF THE REVISED RETURN OF INCOME WOULD HAVE BEEN FILED. 4. ON THE OTHER HAND, LD. DR RELIED UPON THE ORDER PASSED BY AO AND LD. CIT(A). 5. WE HAVE HEARD BOTH THE PARTIES AND THEIR CONTENT IONS HAVE CAREFULLY BEEN CONSIDERED. AFTER CAREFUL CONSIDERATION, WE ARE OF THE OPINION THAT THE PROPOSITION RAISED BY THE ASSESSEE IS SQUARELY COV ERED BY THE AFOREMENTIONED DECISION OF THE HONBLE BOMBAY HIGH COURT. THEREF ORE, WE ADMIT THE CLAIM OF THE ASSESSEE AND DIRECT THE AO TO ALLOW APPROPRIATE RE LIEF AFTER NECESSARY VERIFICATION OF THE SAME. THE AO WILL ALLOW THE ASSESSEE A REA SONABLE OPPORTUNITY TO SUBSTANTIATE ITS CLAIM. WITH THESE DIRECTIONS WE RESTORE THE ISSUE TO THE FILE OF A.O. 6. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 18.09. 2 014. 1 * ./0 2'3 18.09.2014 / * : SD/- SD/- (RAJENDRA) (I.P.BANSAL) ' ' ' ' / ACCOUNTANT MEMBER / JUDICIAL MEMBER MUMBAI; 2' DATED : 18 TH SEPT. 2014. VM. ITA NO359 /MUM/2013 (A.Y. 2007-08) 3 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0, 1 * (,; < ;0,/ COPY OF THE ORDER FORWARDED TO : 1. $% / THE APPELLANT 2. ()$% / THE RESPONDENT. 3. =() / THE CIT, MUMBAI. 4. = / CIT(A)-13, MUMBAI 5. ;@: (,' , , / DR, ITAT, MUMBAI 6. :A B / GUARD FILE. 1' 1' 1' 1' / BY ORDER, );, (, //TRUE COPY// C CC C/ // /D D D D (DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI