Appeal details
Counselvise Citation
[2013] 120 COUNSELVISE.COM (IT) 3588 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 11 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
13-05-2013
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
B
Next Hearing Date
13-05-2013
Assessment Year
2007-2008
Appeal Filed On
23-05-2011
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI RAJENDRA, ACCOUNTANT MEMBER ITA NO. 4189/MUM/2011 (ASSESSMENT YEAR: 2007-08) THE MANJRI STUD FARM P. LTD. DCIT (OSD), CIRCLE 2(2 ) 41/44, SHAPOORJI PALLONJI CENTRE AAYAKAR BHAVAN, M. K. ROAD MINOO DESAI MARG, COLABA VS. MUMBAI 400020 MUMBAI 400005 PAN - AAACT1947J APPELLANT RESPONDENT APPELLANT BY: SHRI P.B. CHHAPGAR RESPONDENT BY: SHRI MOHIT JAIN DATE OF HEARING: 13.05.2013 DATE OF PRONOUNCEMENT: 13.05.2013 O R D E R PER D. MANMOHAN, V.P. THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 15.03.2011 PASSED BY THE CIT(A)-5, MUMBAI AND IT PE RTAINS TO A.Y. 2007-08. 2. THOUGH THE ASSESSEE RAISED THREE GROUNDS, AT THE TI ME OF HEARING, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT GRO UND NO. 2, REFERABLE TO DISALLOWANCE UNDER SECTION 14A OF THE ACT, IS NOT P RESSED. 3. WITH REGARD TO GROUND NO. 1 IT WAS CONTENDED THAT T HE ASSESSEE COMPANY IS ENGAGED IN STUD FARM AND AGRICULTURAL FA RM ACTIVITIES APART FROM ACTING AS I.T. AND INFRASTRUCTURAL SERVICE PRO VIDER. IN THE YEAR UNDER CONSIDERATION ASSESSEE DID NOT CLAIM SET OFF OF BRO UGHT FORWARD LOSSES UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND IT ALSO D ID NOT CLAIM DEDUCTION IN TERMS OF EXPLANATION TO SECTION 24(B) OF THE I.T . ACT. IT MAY BE NOTICED THAT DURING THE COURSE OF ASSESSMENT PROCEEDINGS TH E ASSESSEE SUBMITTED THAT WHILE FILING THE ORIGINAL RETURN ASSESSEE COMP ANY DID NOT CLAIM DEDUCTION IN TERMS OF EXPLANATION TO SECTION 24(B) OF THE ACT AND REQUESTED THE AO TO CONSIDER THE SAME DURING THE ASSESSMENT P ROCEEDINGS. THE AO ITA NO. 4189/MUM/2011 THE MANJRI STUD FARM P. LTD. 2 WAS OF THE OPINION THAT IT IS DUTY OF THE ASSESSEE TO CLAIM DEDUCTION IN THE ORIGINAL RETURN OR BY WAY OF REVISED RETURN. SINCE THE ASSESSEE HAS NOT FILED ANY REVISED RETURN OF INCOME IN RESPECT OF THE ABOV E CLAIM, THEREBY FORFEITING ITS RIGHT TOWARDS THE CLAIM, BY APPLYING THE DECISI ON OF THE APEX COURT IN THE CASE OF GOETZE (INDIA) LTD. 284 ITR 323, THE CLAIM WAS REJECTED. THE LEARNED CIT(A) OBSERVED THAT THE DECISION OF THE APEX COURT IS EQUALLY APPLICABLE TO THE CIT(A) ALSO AND HENCE HE CANNOT ENTERTAIN THE C LAIM, WHICH WAS NOT MADE BEFORE THE AO IN THE FORM OF A VALID RETURN OR REVISED RETURN. 4. FURTHER AGGRIEVED, ASSESSEE IS IN APPEAL BEFORE US. THE LEARNED COUNSEL FOR THE ASSESSEE ADVERTED OUR ATTENTION TO THE ORDER OF THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. PRUTHVI BO RKERS & SHAREHOLDERS (2012) 23 TAXMANN.COM 23 (BOM) TO SUBMIT THAT BY VI RTUE OF THE DECISION OF THE HON'BLE SUPREME COURT THE AO MAY NOT BE IN A PO SITION TO TAKE UP AN ISSUE WHICH DOES NOT ARISE OUT OF THE RETURN OF INC OME OR A REVISED RETURN BUT THERE ARE NO FETTERS ON THE ITAT TO CONSIDER A FRESH ISSUE. IN PARA 23 OF THE SAID ORDER THE HON'BLE BOMBAY HIGH COURT OBSERV ED AS UNDER: - 23. IT IS CLEAR TO US THAT THE SUPREME COURT DID N OT HOLD ANYTHING CONTRARY TO WHAT WAS HELD IN THE PREVIOUS JUDGEMENT S TO THE EFFECT THAT EVEN IF A CLAIM IS NOT MADE BEFORE THE ASSESSI NG OFFICER, IT CAN BE MADE BEFORE THE APPELLATE AUTHORITIES. THE JURISDIC TION OF THE APPELLATE AUTHORITIES TO ENTERTAIN SUCH A CLAIM HAS NOT BEEN NEGATED BY THE SUPREME COURT IN THIS JUDGEMENT. IN FACT, TH E SUPREME COURT MADE IT CLEAR THAT THE ISSUE IN THE CASE WAS LIMITE D TO THE POWER OF THE ASSESSING AUTHORITY AND THAT THE JUDGMENT DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL UNDER SECTION 254. 5. THE LEARNED COUNSEL ALSO PLACED BEFORE US A COPY OF THE ORDER OF THE ITAT B BENCH MUMBAI IN THE CASE OF MAHINDRA & MAH INDRA LIMITED (MA NO. 39/MUM/2012) TO CONTEND THAT IN THE LIGHT OF TH E DECISION OF THE HON'BLE BOMBAY HIGH COURT THIS BENCH HAD ACCEPTED T HE PLEA OF THE ASSESSEE AND SET ASIDE THE MATTER TO THE FILE OF TH E AO TO VERIFY THE CLAIM AND TO RECONSIDER THE MATTER ACCORDING TO LAW. IN THE L IGHT OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT, THE LEARNED COUNSEL SUBM ITTED THAT, THE TRIBUNAL IS EMPOWERED TO LOOK INTO THE ISSUE AND, I F NECESSARY, IT CAN SET ASIDE THE MATTER TO THE FILE OF THE AO FOR RECONSID ERATION. ITA NO. 4189/MUM/2011 THE MANJRI STUD FARM P. LTD. 3 6. THE LEARNED D.R., ON THE OTHER HAND, RELIED UPON TH E ORDERS PASSED BY THE TAX AUTHORITIES. 7. HAVING REGARD TO THE CIRCUMSTANCES OF THE CASE AND IN THE LIGHT OF THE DECISION OF THE HON'BLE BOMBAY HIGH COURT WE DEEM I T FAIR AND REASONABLE TO SET ASIDE THE MATTER TO THE FILE OF THE AO, WHO IS DIRECTED TO EXAMINE THE CLAIM OF DEDUCTION OF ` 20,72,578/- IN TERMS OF EXPLANATION TO SECTION 24(B ) OF THE INCOME TAX ACT. 8. WITH REGARD TO GROUND NO. 3 THE FACTS ARE THAT THE ASSESSEE CLAIMED SET OFF OF BROUGHT FORWARD LOSSES UNDER THE HEAD I NCOME FROM HOUSE PROPERTY AND UNABSORBED DEPRECIATION. AS DISCUSSED IN THE EARLIER PARAGRAPH, THOUGH THE CLAIM WAS MADE DURING THE COU RSE OF FILING THE RETURN, IT WAS NOT DISCUSSED EITHER BY THE AO OR BY THE CIT(A). THE LEARNED COUNSEL FOR THE ASSESSEE PLACED RELIANCE ON THE DEC ISION OF THE HON'BLE BOMBAY HIGH COURT (SUPRA) TO SUBMIT THAT THE MATTER DESERVES TO BE SET ASIDE TO THE FILE OF THE AO WITH A DIRECTION TO CON SIDER THE MATTER IN ACCORDANCE WITH LAW. THE LEARNED COUNSEL ADVERTED O UR ATTENTION TO PAGE 21 OF THE PAPER BOOK TO SUBMIT THAT THE AO HAS NOT DIS CUSSED THE ISSUE AND THOUGH A SPECIFIC GROUND WAS RAISED BEFORE THE CIT( A), EVEN THE CIT(A) HAS NOT CONSIDERED THIS ASPECT. 9. ON THE OTHER HAND, THE LEARNED D.R. RELIED UPON THE ORDERS OF THE TAX AUTHORITIES ON THIS ASPECT. 10. HAVING REGARD TO THE RIVAL SUBMISSIONS AND IN THE I NTEREST OF SUBSTANTIAL JUSTICE WE SET ASIDE THE ISSUE TO THE F ILE OF THE AO WHO IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN ACCORDANCE WITH LAW. 11. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS PART LY ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH MAY, 2013. SD/- SD/- (RAJENDRA) (D. MANMOHAN) ACCOUNTANT MEMBER VICE PRESIDENT MUMBAI, DATED: 13 TH MAY, 2013 ITA NO. 4189/MUM/2011 THE MANJRI STUD FARM P. LTD. 4 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 5, MUMBAI 4. THE CIT 2, MUMBAI CITY 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.
