N.V. PROJECTS PVT. LTD., MUMBAI V. D.C.I.T. CIRCLE 5(2), MUMBAI

ITA 4588/MUM/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 88028 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 04-12-2014
• Assessment Year: 2010-2011
• Appeal Filed On: 06-07-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEKAND PREMPURNA
• Assessee Lawyers: ZAREER N MEHTA
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 6; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, M UMBAI BEFORE S/SHRI D. KARUNAKAR RAO, (AM) AND AMIT SHUKLA, (JM) . , , ./I.T.A. NO.4588/MUM/2012 ( ! / ASSESSMENT YEAR :2010-2011) M/S N V PROJECTS PVT. LTD., C/O KALYANIWALLA AND MISTRY, ARMY AND NAVY BUILDING, 3 RD FLOOR, 148, M G ROAD, FORT, MUMBAI-400001 / VS. DY. COMMISSIONER OF INCOME TAX CIRCLE 5(2), AAYAKAR BHAVAN, M K ROAD. MUMBAI ( '# / APPELLANT) .. ( $%'# / RESPONDENT) ' ./ &' ./PAN/GIR NO. :AACCN4827H '# ( / ASSESSEES BY S/SHRI M M GOLVALA AND ZAREER N MEHTA $%'# ) ( /REVENUE BY SHRI VIVEKAND PREMPURNA * ) + / DATE OF HEARING : 4.12.2014 ,-! ) + /DATE OF PRONOUNCEMENT : 14.01.2015 / O R D E R PER AMIT SHUKLA, (JM) THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE AGA INST THE ORDER DATED 9.04.2012, PASSED BY THE LD. CIT(A)-9, MUMBAI, FOR THE QUANTUM OF ASSESMENT UNDER SECTION 143(1) OF THE I NCOME TAX ACT, 1961 (THE ACT) FOR THE ASSESSMENT YEAR 2010-11, ON FOLLOWING GROUNDS : 1. THE APPELLANT SUBMITS THAT THE LD. CIT(A) ERRED IN NOT STRIKING DOWN THE ADJUSTMENT MADE U/S 143(1), INAS MUCH AS UNABSORBED DEPRECIATION OF THE CURRENT YEAR RS.6,18 ,44,024/- HAS NOT BEEN CARRIED FORWARD IN THE INTIMATION. I.T.A. NO.4588/MUM/2010 2 2. HAVING REGARD TO THE FACTS AND CIRCUMSTANCE OF T HE CASE AND THE PROVISIONS OF LAW, THE APPELLANT SUBMITS TH AT THE AO BE DIRECTED TO CARRY FORWARD UNABSORBED DEPRECIATION O F RS.6,18,44,024/- 2. THE BRIEF FACTS OF THE CASE ARE THAT, THE ASSESS EE IS ENGAGED IN THE BUSINESS OF OPERATING AND MAINTENANC E OF IT PARK. DURING THE YEAR UNDER CONSIDERATION, THE ASSESSEE H AD INCURRED A LOSS OF RS.6,18,44,024/- WHICH WAS IN THE NATURE OF UNABSORBED DEPRECIATION. THE ASSESSEE HAD FILED ITS RETURN OF INCOME IN FORM ITR 6 U/S 139(1) OF THE ACT ON 30.9.2010 BY WAY OF E-FILING, WHEREIN IT HAS CLAIMED LOSS TO BE CARRIED FORWARD. THE STATEMENT OF INCOME FILED ALONG WITH THE RETURN OF INCOME HAS BEEN PLACED IN THE PAPER BOOK AT PAGES 1 AND 2 WHICH SHOWS THE FIG URE OF LOSS TO BE CARRIED FORWARD. IN THE ACKNOWLEDGMENT OF RETURN OF INCOME THE FIGURE OF LOSS HAS BEEN MENTIONED AT PAGE 1 OF THE RETURN OF INCOME AND AGAIN IN PART B OF THE RETURN OF INCOM E WHICH IS APPEARING AT PAGE 12 OF THE PAPER BOOK. WHILE PROCE SSING THE RETURN U/S 143(1) THE LOSS CLAIMED BY THE ASSESSEE HAS BEEN DENIED BY THE REVENUE AS PER INTIMATION DATED 17.3 .2000. 3. AGAINST THIS, THE ASSESSEE MOVED AN APPLICATION U/S 154 VIDE LETTER DATED 3.4.2012 BEFORE THE AO. HOWEVER, NO ACTION HAS BEEN TAKEN BY THE AO ON SUCH APPLICATION. AGGRIEVE D BY THIS, THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A), WH O INSTEAD OF I.T.A. NO.4588/MUM/2010 3 DIRECTING THE AO TO ALLOW THE CARRIED FORWARD LOSSE S HAS, ONLY DIRECTED HIM TO EXAMINE THE CLAIM OF THE ASSESSEE M ADE IN RECTIFICATION APPLICATION AND ALLOW AFTER VERIFICAT ION OF ORIGINAL ASSESSMENT ORDER. 4. BEFORE US, THE LD. COUNSEL SUBMITTED THAT FIRST OF ALL, SUCH A CARRIED FORWARD OF LOSS CANNOT BE DENIED IN THE INT IMATION U/S 143(1) OF THE ACT, AS IT IS BEYOND THE SCOPE OF SA ID SECTION AND THERE IS NO PRIMA FACIE MISTAKE IN THE FIGURES OF L OSS CLAIMED TO BE CARRIED FORWARD. SECONDLY, THE DIRECTION OF THE LD. CIT(A) IS VERY VAGUE AND EVEN AFTER DIRECTION OF THE LD. CIT(A) NO ACTION HAS BEEN TAKEN BY THE AO TILL DATE. THUS, HE SUBMITTED THAT SUCH A LOSS CLAIMED BY THE ASSESSEE SHOULD BE ALLOWED AS C ARRIED FORWARD OR THE AO SHOULD BE DIRECTED TO CARRY OUT THE RECTIFICATION WITHIN A SPECIFIED PERIOD. 5. THE LD. DR ALSO AGREED THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF THE AO WITH A SPECIFIC DIRECTIO N. 6. AFTER HEARING BOTH THE PARTIES AND ON PERUSAL OF THE IMPUGNED ORDER AND MATERIAL ON RECORD, WE FIND THAT THE ASSESSEE HAS CLAIMED LOSS OF RS.6,18,44,024/- IN THE RETURN OF INCOME TO BE CARRIED FORWARD. THIS IS EVIDENT FROM THE COPY OF RETURN OF INCOME FILED BEFORE US. IN THE INTIMATION ISSUED U/S 143(1 ) DATED 17.3.201, I.T.A. NO.4588/MUM/2010 4 SUCH A CLAIM OF CARRIED FORWARD LOSS HAS BEEN DENIE D TO THE ASSESSEE. AGAINST THIS, THE ASSESSEE HAS MOVED A R ECTIFICATION APPLICATION U/S 154 WAY BACK ON 3 RD APRIL,2012. EVEN AFTER EXPIRY OF MORE THAN TWO AND HALF YEARS NO ACTION HAS BEEN TAKEN. EVEN THE ORDER OF LD.CIT(A) GIVING DIRECTION TO THE AO I S ALSO VERY VAGUE. FURTHER SUCH A DENIAL OF CLAIM OF LOSS TO B E CARRIED FORWARD IN THE INTIMATION U/S 143(1) IS BEYOND THE SCOPE AN D PURVIEW OF SAID SECTION, AS FOR THE PURPOSE OF DENYING CARRIE D FORWARD LOSS, THE SAME NEEDS TO BE EXAMINED AND HAS TO BE DECIDED IN ACCORDANCE WITH THE PROVISIONS OF LAW AND SECONDLY, ONCE THE ASSESSEE HAS MOVED AN APPLICATION U/S 154 OF THE AC T, THEN THE SAME SHOULD HAVE BEEN DECIDED WITHIN A PERIOD OF 4 TO 6 MONTHS AS STIPULATED UNDER SECTION 154. ACCORDINGLY, WE D IRECT THE AO TO CARRY OUT NECESSARY RECTIFICATION AND ALLOW THE CAR RIED FORWARD OF LOSSES WITHIN A PERIOD OF 2 MONTHS FROM THE RECEIPT OF ORDER. 7. WITH THE ABOVE DIRECTION, THE APPEAL OF THE ASSE SSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 14TH JAN, 2015 . ,-! . /0 14TH JAN, 2015 - ) 1* 2 SD SD ( . / D. KARUNAKAR RAO) ( / AMIT SHUKLA ) / ACCOUNTANT MEMBER / JUDICIAL MEMBER * MUMBAI: 14TH JAN,2015. I.T.A. NO.4588/MUM/2010 5 . . ./ SRL , SR. PS ' # $%& '&($ / COPY OF THE ORDER FORWARDED TO : 1. '# / THE APPELLANT 2. $%'# / THE RESPONDENT. 3. ( ) / THE CIT(A)- CONCERNED 4. / CIT CONCERNED 5. 451 $6 , + 6 , * / DR, ITAT, MUMBAI CONCERNED 6. 1 7* / GUARD FILE. / BY ORDER, TRUE COPY 8 & (ASSTT. REGISTRAR) + 6 , * /ITAT, MUMBAI