The ITO, Ward-1(2), RAJKOT-GUJARAT V. Shri Pravinchandra C. Parekh (HUF), GONDAL

ITA 381/RJT/2011

• Counselvise Citation: 38124914 RSA 2011
• Duration Of Justice: 6 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 02-05-2012
• Assessment Year: 2003-2004
• Appeal Filed On: 07-10-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MK SINGH
• Keywords: Opportunity of being heard; Corroborative evidences

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBULAL; RAJKOT BENCH, RAJKOT. . .. . . .. . , , , , . .. . . .. . , , , , $ $ $ $ BEFORE SHRI T. K. SHARMA, JM AND SHRI D. K. SRIVAST AVA, AM ITA NOS. 381 TO 383/RJT/2011 / ASSESSMENT YEARS 2003-04 TO 2005-06 THE I.T.O., WARD-1 (2) RAJKOT. ( */ APPELLANT) VS. SHRI PRAVINCHANDRA C. PAREKH(HUF), M/S. PARDES DEHYDRATION CO., NATIONAL HIGHWAY 8-B, NR.GUNDALA CROSSING,GONDAL. PAN: AAIHP4156Q. +,*/ RESPONDENT - / REVENUE BY SHRI. M. K. SINGH, D.R. /- / ASSESSEE BY NONE - / DATE OF HEARING 02-05-2012 - / DATE OF PRONOUNCEMENT 04 - 05-2012 / / / / ORDER . .. . . . . . , , , , / T. K. SHARMA, J. M. THESE THREE APPEALS OF THE REVENUE ARE AGAINST THE COMMON ORDER DATED 13-07-20 11 OF CIT(A)-I, RAJKOT DIRECTING THE AO FOR THE ASSESSMENT YEARS 2003-04 T O 2005-06. 2. THE GROUND RAISED BY THE REVENUE FOR THE ASSESSM ENT YEAR 2003-04 IS AS UNDER:- 1. THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN SET-OFF OF LOSS OF ONE UNIT IS ALLOWED AGAINST PROFIT OF ANOTHER UNIT RS.20,22,736/-. 3. THE GROUND RAISED BY THE REVENUE FOR THE ASSESSM ENT YEARS 2004-05 AND 2005-06 IS IDENTICAL EXCEPT THE DIFFERENCE OF FIGUR E. IN THE ASSESSMENT YEAR 2004-05 THE FIGURE IS RS.30,41,028/- AND THE ASSESS MENT YEAR 2005-06 IT IS RS.30,52,259/-. ITA NOS.381 TO 383 /RJT/2011 2 4. DESPITE THE NOTICE OF HEARING SENT THROUGH REGIS TERED POST, ON THE DATE OF HEARING, NONE WAS PRESENT FROM THE SIDE OF THE ASSE SSEE. WE THEREFORE, PROCEED TO DECIDE ALL THESE THREE APPEALS ON THE BASIS OF S UBMISSIONS MADE BY LD. D.R. AND MATERIALS AVAILABLE ON RECORD. 5. BRIEFLY STATED THE FACTS ARE THAT THIS TRIBUNAL VIDE ORDER DATED 24-04-2009 IN ITA NO.538,539 AND 540/RJT/2008 SET ASIDE THE MA TTER TO THE FILE OF THE AO. IN PURSUANCE OF THIS ORDER OF THE TRIBUNAL, AO ASKED T HE ASSESSEE TO SUBMIT THE FOLLOWING DETAILS:- 2. IN THIS CONNECTION, AS DIRECTED BY THE HONBLE ITAT VIDE ORDER NO. ITA 538, 539 AND 540/RJT/2008 DATED 24-04-2009 AND YOU WERE REQUESTED TO SUBMIT A CONSOLIDATED RETURN OF INCOME WITH CONS OLIDATED FINAL ACCOUNTS ALONG WITH NECESSARY SUPPORTING EVIDENCE TO VERIFY GENUINENESS AND ALLOWABLY OF YOUR CLAIM OF LOSS IN OTHER PROPRIETAR Y CONCERNS. 3. YOU HAVE FILED A LETTER ON 23-11-20009 WITH COPY OF ACKNOWLEDGEMENT OF RETURN OF INCOME AND COPY OF STA TEMENT OF TOTAL INCOME EARLIER FILED IN THE NAME OF SHRI PRAVINCHAN DRA C. PAREKH (HUF) HAVING DIFFERENT P.A. NO. I.E. AABHP7440L WITH THE INCOME TAX OFFICER, WARD-1(4) VIDE RECEIPT NO.04046, INSTEAD OF SUBMITT ING CONSOLIDATED RETURN OF INCOME WITH CONSOLIDATED FINAL ACCOUNTS FOR ABOV E MENTIONED ASSESSMENT YEAR. 4. FURTHER, ON PERUSAL OF NOTE ON COMPUTATION OF CA RRIED FORWARD LOSES FOUND ENCLOSED WITH THE COPY OF ACKNOWLEDGEMENT OF RETURN, IT IS NOTICED THAT YOU HAVE MENTIONED THAT CALCULATION IS SUBJECT TO VERIFICATION WITH OFFICE RECORDS, APPEAL AND AMENDMENT RESULTS . IN THIS CONNECTION YOU ARE HEREBY ASKED TO EXPLAIN THE SAME. 6. SINCE NO DETAILS WERE FURNISHED. AO PASSED THE O RDER U/S.143(3) R.W.S.254 OF THE I.T. ACT ON 01-12-2010 WHEREIN HE HAS STATED THAT CLAIM OF SET-OFF OF EARLIER LOSS IS NOT ADMISSIBLE AS THE ASSESSEE HAS NOT FILE D A CONSOLIDATED RETURN OF HIS DIFFERENT PROPRIETARY CONCERNS AND LOSS CLAIMED HAS ALREADY BEEN SET-OFF IN THE EARLIER YEAR. 7. AGGRIEVED WITH THE AFORESAID ORDER, ASSESSEE PRE FERRED AN APPEAL BEFORE THE LD. CIT(A). BEFORE THE LD. CIT(A) IT WAS CONTE NDED THAT ASSESSEE VIDE PAPER ITA NOS.381 TO 383 /RJT/2011 3 BOOK DATED 12-07-2011 HAS FILED COPIES OF CONSOLIDA TED RETURNS FOR ASSESSMENT YEARS 2003-04, 2004-05 AD 2005-06 WITH I>T>O.,WARD- 1(2), RAJKOT AND SUBMITTED THAT THE ITAT IN ITA NO.22/RJT/2007 HAS DETERMINED CARRY FORWARD THE LOSS IN CASE OF M/S. PRASAR ENTERPRISE FOR ASSESSMENT YEAR 2003-04 AT RS.85,10,182/- VIDE ITS ORDER DATED 18-10-2007.THE HONBLE ITAT HA S DIRECTED THAT THE LOSS OF ONE UNIT IS TO BE ALLOWED AGAINST PROFIT OF ANOTHER UNIT, THE CARRIED FORWARD LOSS OF PRASAR ENTERPRISE IS RS,85,10,182/- DETERMINED TO B E SET OFF AS DETERMINED BY HONBLE ITAT VIDE ITS ORDER DATED 18-10-2007, THIS IS THE ONLY ISSUE RAISED IN APPEAL BEFORE HONBLE ITAT AND SET ASIDE OF ISSUE A ND NOT SET ASIDE THE ASSESSMENT WHICH THE ASSESSING OFFICER HAS MISCONCE IVED AND STATED SET-ASIDE THE ASSESSMENT WHICH IS WRONG. BEFORE THE LD. CIT( A), ASSESSEE HAS ALSO SUBMITTED A CHART CLAIMING SET-OFF OF LOSS WHICH IS REPRODUCED IN PARA8.4 OF THE IMPUGNED ORDER. 8. AFTER CONSIDERING THE AFORESAID SUBMISSIONS, THE LD. CIT(A) ISSUED THE IMPUGNED DIRECTIONS WHICH ARE CONTAINED IN PARA-3.4 AND 4 READ AS UNDER:- 3.2 I HAVE CAREFULLY CONSIDERED THE FINDING GIVEN BY THE ASSESSING OFFICER AND THE SUBMISSION OF THE AR OF THE APPELLA NT. THE FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER, IN THE ORIGINA L ASSESSMENT ORDER, HAS IN VIEW OF THE PROVISIONS OF SECTION 80AB AND ALSO IN VIEW OF THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF KOLAGIRI I NDUSTRIAL CO-OPERATIVE TEA FACTORY LIMITED (224 ITR 604) AND IN THE CASE O F IPCA LABORATORIES LTD. (266 ITR 521) HELD THAT THE APPELLANT WAS ENTI TLED TO DEDUCTION U/S.80HHC AFTER SET-OFF OF BROUGHT FORWARD LOSSES. ACCORDINGLY, THE ASSESSING OFFICER REDUCED THE CLAIM OF DEDUCTION U/ S.80HHC OF THE ACT IN THE ORIGINAL ASSESSMENT ORDER PASSED U/S.143(3) OF THE ACT FOR THE ABOVE ASSESSMENT YEARS. THEREAFTER, AN ORDER U/S.154 OF THE ACT WAS PASSED, IN WHICH IT HAS MENTIONED THAT ASSESSMENT FOR A.Y. 2001-02 HAS BEEN FINALIZED U/S.143(3) R.W.S.147 OF THE ACT ON 15-12- 2006 AND LOSSES OF RS.3657363/- OF EARLIER YEARS HAS BEEN SET OFF AGAI NST THE INCOME OF THE A.Y. 2001-02 AND NO LOSS IS REMAINS TO CARRY FORWAR D. AGGRIEVED BY THE ORDER OF THE ASSESSING OFFICER, THE APPELLANT FILED AN APPEAL AGAINST THE ABOVE ORDER PASSED BY THE ASSESSING OFFICER BEFORE THE CIT(A). THE CIT(A) HAS CONFIRMED THE ORDER PASSED BY THE ASSESS ING OFFICER AND DISMISSED THE APPEAL OF THE ASSESSEE VIDE APPELLATE ORDER DTD.24/26-09- 2008. SUBSEQUENTLY, THE APPELLANT PREFERRED AN APPE AL BEFORE THE HONBLE I.T.A.T. RAJKOT BENCH AGAINST THE CIT(A)S ABOVE OR DER. THE HONBLE I.Y.A.T. RAJKOT BENCH VIDE ITS ORDER IN ITA NO.538, 539 AND 540/RJT/2008 ITA NOS.381 TO 383 /RJT/2011 4 DATED 24-4-2009 IN THE CASE OF THE PARDESH DEHYDRAT ION CO., GONDAL (PAN:AAIHP4165Q)HAS SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER WITH THE DIRECTION TO DECIDE THE SAME AFTER GIVING FAIR AND REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESS EE, OBSERVING AS UNDER: 5. WE FIND THAT THE ASSESSEE HAS FILED THE CONSOL IDATED RETURN WHICH IS IN THE PAPER-BOOK. THEREFORE, WE F IND THAT AS PER THE DECISION OF THE SPECIAL BENCH, IF THE ASSES SEE FILED THE SEPARATE RETURNS AND SUBSEQUENTLY, HE FILES CON SOLIDATED RETURNS THEN THE LOSS SHOULD BE ALLOWED AS PER THE LAW SO REVERSE THE FINDING OF THE CIT(A) AND RESTORED THIS ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR FRESH CONSIDE RATION ON THE ISSUE. THE ASSESSING OFFICER IS ALSO DIRECTED TO GIVE FAIR AND REASONABLE OPPORTUNITY F BEING HEARD THE ASSESS EE BEFORE COMING TO THE CONCLUSION AND THE ASSESSEE IS ALSO DIRECTED TO CO-OPERATE WITH THE REVENUE FOR SPEEDY AND EXPEDITIOUS DISPOSALS OF THE APPEALS. IT IS ALSO FOUND THAT THE HONBLE ITAT IN PARA-4 OF THE ABOVE ORDER HAS OBSERVED THAT THE ASSESSEE HAS CARRIED OUT THE BUSI NESS IN THE NAME OF P C PAREKH (HUF) AND HE HAS THREE DIFFERENT UNITS I.E . M/S. PARDES DEHYDRATION CO., M/S. PRASAREENTERPRISE AND P S EXI MPS, THE ASSESSEE HAS FILED SEPARATE RETURNS FOR THESE UNITS, THE ASS ESSEE WAS CLAIMING THE SET OFF OF LOSS AGAINST THE PROFIT MAKING UNIT, THE ASSESSEE HAS FILED CONSOLIDATED RETURNS BEFORE THE ASSESSING OFFICER. 3.3 FURTHER, THE HONBLE I.T.A.T. RAJKOT BENCH VIDE ITS ORDER IN ITA NO.22/RJT/2007 DATED 18-10-2007 IN THE CASE OF M/S. PARASAR ENTERPRISE, RAJKOT HAS DIRECTED ASSESSING OFFICER TO ALLOW THE CARRY FORWARD LOSS OF RS.8510182/- TO BESET OFF AGAINST THE INCOME, IF AN Y, AS PER LAW. 3.4 THE MENTIONING OF WRONG/DIFFERENT PAN IS TECHNI CAL ERROR. FURTHER, IN THE CASE OF NICHOLAS AEAS FUND LTD. VS. ASSTT. D IRECTOR OF INCOME (IT) 2009304 ITR (AT) 3225, IT IS HELD THAT WHEN MULTIPL E RETURN OF FOUR DIFFERENT UNITS WITH CONSOLIDATES RETURNS ARE FILED, ALL THE INCOMES ARE TO BE AGGREGATED TO COME TO TOTAL INCOME AND THEREFORE AS COROLLARY SET-OFF OF LOSS OF ONE UNIT IS TO BE ALLOWED AGAINST PROFIT OF ANOTHER UNIT. IT IS FOUND THAT APPELLANT HAS SUBMITTED CONSOLIDATED RETURNS T O THE DEPARTMENT AND ITA NOS.381 TO 383 /RJT/2011 5 ALL SUCH RETURNS ARE FILED WITHIN TIME, HENCE ASSES SING OFFICER CANNOT IGNORE DULY FILED CONSOLIDATED RETURNS AVAILABLE ON OFFICE RECORDS. APPELLATE AUTHORITIES HAVE ALSO ALLOWED CARRIED FOR WARD OF LOSS. NO LEGALLY ALLOWABLE DEDUCTION SHOULD BE REFUSED. IN VIEW OF THE ABOVE DECISION, THE ASSESSING OFFICER IS DIRECTED TO VERIFY FROM OFFICI AL RECORDS, CHART SUBMITTED BY THE APPELLANT AND THEN DETERMINE CARRY FORWARD L OSS, IF ANY, IN THE CASE OF THE APPELLANT, AND AS COROLLARY ALLOW SET-OFF OF LOSS OF ONE UNIT AGAINST PROFIT OF ANOTHER UNIT, IF ANY. THESE GROUNDS OF A PPEAL ARE ALLOWED. 9. AGGRIEVED WITH THE ORDER OF LD. CIT(A), THE REVE NUE IS IN APPEAL BEFORE THE TRIBUNAL. 10. AT THE TIME OF HEARING, ON BEHALF OF REVENUE, S HRI M. K. SINGH, DR APPEARED AND CONTENDED THAT DESPITE ABOUT SEVEN OP PORTUNITIES GIVEN BY AO, BEFORE THE AO ASSESSEE HAS NOT FURNISHED THE CONSOL IDATED RETURNS AS PER DIRECTION OF THE TRIBUNAL. BEFORE THE LD. CIT(A), THE ASSESSEE CONTENDED THAT THESE WERE SUBMITTED BEFORE THE IT), WARD-1(2) VIDE PAPER BOOK DATED 12-07- 2011. THE LD. CIT(A) WITHOUT CALLING THE REMAND RE PORT PASSED THE IMPUGNED ORDER GIVING DIRECTION TO THE AO WHICH ARE CONTAINE D IN PARA-3.(SUPRA). HE SUBMITTED THE IMPUGNED DIRECTIONS GIVEN BY LD. CIT( A) WITHOUT GIVING AN OPPORTUNITY TO THE AO ARE BAD IN LAW AND THEREFORE, THE IMPUGNED ORDER OF LD. CIT(A) BE SET-ASIDE AND HE BE ASKED TO FORWARD THE PAPER-BOOK FILED BEFORE HIM TO THE AO FOR HIS COMMENTS. THE AO MAY VERIFY THE CONSOLIDATED RETURNS AND SUBMIT THE REMAND REPORT. THE LD. CIT(A) ON RECEIP T OF REMAND REPORT WILL DIRECT TO PASS AN APPROPRIATE ORDER. 11. HAVING HEARD BOTH THE SIDES, WE HAVE CAREFULLY GONE THROUGH THE ORDER OF AUTHORITIES BELOW. IT IS PERTINENT TO NOTE THAT AS SESSING OFFICER HAS CLEARLY MENTIONED THAT ASSESSEE HAS NOT FURNISHED THE CONSO LIDATED RETURNS AS DIRECTED BY THE TRIBUNAL. WITHOUT CONSOLIDATED RETURNS, IT IS NOT POSSIBLE FOR THE AO TO VERIFY THE LOSS AND TO COMPLY WITH THE DIRECTIONS O F THE TRIBUNAL. WE THEREFORE, SET ASIDE THE IMPUGNED ORDER OF LD. CIT(A) AND DIRE CT HIM TO FORWARD THE PAPER BOOK SUBMITTED BY ASSESSEE TO THE CONCERNED AO FOR HIS COMMENTS/REMAND REPORT. ON RECEIPT OF COMMENTS/REMAND REPORT OF AO , THE LD. CIT(A) WILL PASS AN ITA NOS.381 TO 383 /RJT/2011 6 APPROPRIATE ORDER IN ACCORDANCE WITH LAW AFTER GIVI NG OPPORTUNITY OF HEARING TO BOTH THE SIDES. 12. IN THE RESULT, FOR THE STATISTICAL PURPOSES, AL L THE THREE APPEALS OF THE REVENUE ARE TREATED AS ALLOWED. THIS ORDER IS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED HEREINABOVE. SD/- SD/- ( .. / D. K. SRIVASTAVA) ( .. / T. K. SHARMA) / ACCOUNTANT MEMBER /JUDICIAL MEMBER 3/ ORDER DATE 04-05-2012. /RAJKOT - -- - +4 +4 +4 [phone] / COPY OF ORDER FORWARDED TO:- 1. * / APPELLANT-. THE INCOME TAX OFFICER, WARD-1(2), R AJKOT. 2. +,* / RESPONDENT-SHRI PRAVINCHANDRA C. PAREKH (HUF), G ONDAL. 3. : / CONCERNED CIT-I, RAJKOT. 4. :- / CIT (A)-I, RAJKOT.. 5. 4 +, , / DR, ITAT, RAJKOT 6. / GUARD FILE. / BY ORDER , ASSTT. REGISTRAR , INCOME TAX APPELLATE TRIBUNAL, RAJKOT.