NIRMALA R. GOENKA, MUMBAI V. ITO 12(2)(4), MUMBAI

ITA 3667/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4241 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-04-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Next Hearing Date: 20-08-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 09-05-2013
• Court: TRIBUNAL
• Section: 143(3); 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI BEFORE SHRI R.C. SHARMA, AM AND SHRI MAHAVIR SINGH, JM ITA NO. 3667/MUM/2013 (ASSESSMENT YEAR: 2008-09) SMT. NIRMALA R. GOENKA 95-97, SNEHDEEP, JOLLY MAKER APTS., NEW CUFFE PARADE, MUMBAI-400005 (PAN:AALPG7311F) VS. INCOME-TAX OFFICER-12(2)(4), MUMBAI, R. NO. 123, 1 ST FLOOR, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI- 400020. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI HARIDAS BHAT RESPONDENT BY : SHRI SANJEEV JAIN, DR DATE OF HEARING: 31.03.2016 DATE OF PRONOUNCEMENT: 07.04.2016 O R D E R PER MAHAVIR SINGH, JM: THIS APPEAL BY ASSESSEE IS DIRECTED AGAINST THE ORD ER OF CIT(A)-23, MUMBAI IN APPEAL NO. CIT(A)-23/ITO-12(2)(4)/IT-152/2010-11 VI DE ORDER DATED 01.02.2013. ASSESSMENT WAS FRAMED BY ITO-12(2)(4), MUMBAI U/S. 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT) FO R AY 2008-09 VIDE HIS ORDER DATED 18.11.2010. 2. THE ONLY ISSUE IN THIS APPEAL OF ASSESSEE IS AGAINS T THE ORDER OF CIT(A) CONFIRMING THE ACTION OF AO IN NOT ALLOWING SET OFF OF BROUGHT FORWARD LOSSES OF RS.3,95,511/-. 3. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FA CTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ASSESS EE HAS CLAIMED LOSS FOR ASST. YEAR 2003-04 AND ACCORDING TO LOWER AUTHORITIES THE SAME WAS DISALLOWED AS 2 ITA NO. 3667/MUM/2013 SMT. NIRMALA R. GOENKA ASST. YEAR 2008-09 BROUGHT FORWARD LOSS IN THAT ASST. YEAR I.E. AY 200 3-04. FOR THIS, CIT(A) HAS GIVEN FOLLOWING FINDING IN PARA 2.3 AS UNDER: 2.3 1 HAVE CAREFULLY CONSIDERED THE ASSESSMENT ORD ER, THE SUBMISSION MADE FOR THE APPELLANT AND MATERIAL AVAILABLE ON RECORD. IN THE APPELLANT'S CASE THE LOSS WAS DISALLOWED TO BE BROUGHT FORWARD BY THE AS SESSING OFFICER IN THE ASSESSMENT ORDER FOR A.Y.2003-04 AFTER DUE VERIFICA TION OF THE FACTS AND APPLICATION OF MIND. THE CAUSE OF GRIEVANCE AS ADM ITTED BY THE APPELLANT IN HIS WRITTEN SUBMISSION LIES IN THE ORDER OF A.Y.200 304 AND NOT IN THE YEAR UNDER CONSIDERATION. THE ASSESSING OFFICER HAD DISA LLOWED BROUGHT FORWARD LOSS OF A. Y .2003-04 BASED UPON THE DETAILED AND R EASONED ORDER PASSED IN THE A.Y.2O0304. IN VIEW OF THIS MATTER, I DO NOT F IND ANY REASON TO INTERFERE IN THE PRESENT ORDER OF THE ASSESSING OFFICER. THE CLAIM OF THE APPELLANT IS, THEREFORE, REJECTED AND THE GROUND IS DISMISSED. AND CONFIRMED THE ACTION OF THE AO. 4. NOW BEFORE US, LD. COUNSEL FOR THE ASSESSEE STATED THAT THE TRIBUNAL IN ASST. YEAR 2003-04 ALLOWED THE CLAIM OF LOSS VID E ORDER DATED 31.08.2012 IN ITA NO. 1379/MUM/2012 DIRECTING THE CIT(A) TO CO NSIDER THE ARGUMENTS OF THE ASSESSEE AND TAKE A DECISION AS PER LAW. TH E CIT(A) WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL ALLOWED THE CLA IM OF ASSESSEE BY QUASHING THE REOPENING BY OBSERVING IN PARA 6 AS UNDER (RELE VANT PORTION ONLY): THE APPELLANT'S SUBMISSION CLEARLY DENOTES THAT THE AO AFTER TAKING NOTE OF APPELLANT'S RETURN OF INCOME AND SUBMISSION PASSED AN ORDER U/S. 143(3) DT. 14-3-2006 AT THE TIME OF WHICH ALL THE N ECESSARY DETAILS WERE AVAILABLE AND SUBMITTED BY THE APPELLANT AS DESCRIB ED ABOVE. IN VIEW OF THE SAME, THE RE-OPENING OF THE ASSESSMENT WHICH WA S DONE BY THE AO SUBSEQUENTLY VIDE NOTICE U/S. 148 DTD. 26-3-2009, W HICH WAS ALSO ISSUED BEYOND FOUR YEARS FROM THE END OF THE ASSESSMENT YE AR, IN MY CONSIDERED VIEW THE ACTION OF THE AO WAS NOT JUSTIFIED IN VIEW OF AFORESTATED FACTS AND SUBMISSION OF THE APPELLANT'S CASE. BESIDES THI S THERE IS NO NEW INFORMATION OR MATERIAL ON RECORD TO SHOW THAT THE APPELLANT HAS CONCEALED ANY PARTICULARS OF INCOME. IN VIEW OF THE SAME, IN MY CONSIDERED VIEW, THE AO'S SUCH ACTION WAS AGAINST T HE SPIRIT OF 1 ST PROVISO TO SEC. 147 OF THE I. T. ACT. THUS, AFTER T AKING NOTE OF THE DECISION CITED BY THE APPELLANT'S AR AND SUBSEQUENTLY THE DE CISION OF THE HONBLE APEX COURT IN THE CASE OF CIT VS KELVINATOR OF INDI A LTD, 320 ITR 561 (2010) AND JURISDICTIONAL ITAT IN THE CASE OF GERM AN REMEDIES LTD VS DCIT REPORTED IN 2005-TIOL-195-HC-MUM-IT, I CONSIDE R IT PROPER AND APPROPRIATE TO HOLD THAT THE AOS ACTION OF REOPENI NG THE ASSESSMENT WAS AGAINST THE PROVISIONS OF LAW. HENCE, THE AOS REA SSESSMENT ORDER SO FRAMED CANNOT BE SUSTAINED IN THE EYES OF LAW. ACC ORDINGLY, THE 3 ITA NO. 3667/MUM/2013 SMT. NIRMALA R. GOENKA ASST. YEAR 2008-09 REASSESSMENT ORDER FRAMED BY THE AO IS CANCELLED. THUS, THE ASSESSMENT ORDER SO PASSED BY THE AO IS ANNULLED. 5. IN VIEW OF THE ABOVE, WHEN THE SAME WAS CONFRONTED TO LD. SR. DR, HE FAIRLY AGREED TO THE POSITION. IN VIEW OF THIS POS ITION, WE ALLOW THE CLAIM OF THE ASSESSEE IN REGARD TO ALLOWANCE OF SET OFF OF B ROUGHT FORWARD LOSS TO THE TUNE OF RS. 3,95,511/-. APPEAL OF ASSESSEE IS ALLOW ED. 6. IN THE RESULT, APPEAL OF ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 7TH APRIL, 2 016. SD/- SD/- ( R.C. SHARMA ) ( MAHAVIR SINGH ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 7TH APRIL, 2016 JD. SR. P.S. COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. CIT(A) -23, MUMBAI 4. CIT- , MUMBAI 5. DR, B BENCH ITAT, MUMBAI 6. GUARD FILE. BY ORDER //TRUE COPY// (ASSTT. REGISTRAR) ITAT, MUMBAI