ACIT, circle-18(2), New Delhi V. Nirulas Corner House Pvt. Ltd., New Delhi

ITA 4686/DEL/2019

• Counselvise Citation: [2022] 103 COUNSELVISE.COM (IT) 9264 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 5 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-10-2022
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 31-10-2022
• Assessment Year: 2012-2013
• Appeal Filed On: 22-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 271(1)(c); 143(3); 139(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI ‘E’ BENCH, NEW DELHI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER, AND SHRI KUL BHARAT, JUDICIAL MEMBER ITA No. 4686/DEL/2019 [A.Y 2012-13] The A.C.I.T. Vs. Nirulas Corner House Pvt Ltd Circle 18(2) 10185C, Arya Samaj Road New Delhi Karol Bagh, New Delhi PAN: AAACN 1849 B (Applicant) (Respondent) Assessee By : None Department By : Shri Jeetender Chand, Sr. DR Date of Hearing : 01.11.2022 Date of Pronouncement : 01.11.2022 ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER:- This appeal by the Revenue is preferred against the order of the ld. CIT(A) - 36, New Delhi dated 12.02.2019 pertaining to A.Y. 2012-13. 2 2. The solitary grievance of the Revenue is that the ld. CIT(A) erred in deleting the penalty of Rs. 1,72,26,624/- levied by the Assessing Officer u/s 271(1)(c) of the Income-tax Act, 1961 [hereinafter referred to as 'The Act']. 3. None appeared on behalf of the assessee in spite of notice. Therefore we decided to proceed exparte. 4. We have heard the ld. DR at length. Case records carefully perused. 5. The roots for levy of penalty lie in the assessment order dated 27.02.2015 framed u/s 143(3) of the Act wherein assessed income was Rs. NIL. 6. Though the assessment was framed at NIL income, the Assessing Officer denied claim of carry forward of business losses of Rs. 8,61,02,164/- as return of income was filed after due date prescribed u/s 139(1) of the Act. Penalty proceedings u/s 271(1)(c) of the Act were separately initiated. 3 7. During the penal proceedings, it was brought to the notice of the Assessing Officer that the assessee has filed rectification application u/s 154 of the Act in which the assessee was allowed the unabsorbed deprecation to be carried forward and remaining current year loss was disallowed. 8. The Assessing Officer was of the opinion that nowhere the assessee has addressed the issue of levy of penalty u/s 271(1)(c) of the Act for claiming current year business loss to be carried forward to the next year when the return was filed after due date prescribed u/s 139(1) of the Act. The Assessing Officer concluded the penalty proceedings by levying penalty of Rs. 1,72,26,620/-. 9. The assessee carried the matter before the ld. CIT(A) and vehemently stated that income has been assessed at NIL and penalty has been levied for claiming carry forward of losses. It was once again explained that losses of Rs. 8,61,02,164/- included unabsorbed depreciation of Rs. 3,03,52,570/-, which were subsequently allowed to be carry forward by allowing rectification application made u/s 154 of the Act. 4 10. After considering the facts and submissions, the ld. CIT(A) was of the opinion that the assessee has not claimed losses incurred for Assessment Year 2012-13 in its return of income filed for Assessment Year 2013-14 or thereafter. Therefore, the penalty was deleted by the ld. CIT(A). 11. Before us, the ld. DR strongly relied upon the findings of the Assessing Officer. 12. We have given thoughtful consideration to the orders of the authorities below. The undisputed fact is that the income was assessed at Rs. NIL and there was no variation in the returned income. Initially, the assessee claimed carry forward of loss of Rs. 8,61,02.164/-. But, subsequently, rectification application of the assessee was partly allowed by the Assessing Officer allowing the carry forward of unabsorbed depreciation of Rs. 3,03,52,570/- 13. It is not the case of the assessee nor of the Revenue that the assessee has claimed set off of brought forward losses during the year under consideration inspite of belated return of income. On the contrary, the assessee has simply claimed carried forward of losses and 5 even if the return is belated, the Revenue is not prevented by disallowing claim of set off in subsequent Assessment Years. 14. Considering the facts of the case in totality, we do not find any reason to interfere with the findings of the ld. CIT(A). 15. In the result, the appeal of the Revenue in ITA No. 4686/DEL/2019 is dismissed. The order is pronounced in the open court on 01.11.2022 in the presence of the ld. DR. Sd/- Sd/- [KUL BHARAT] [N.K. BILLAIYA] JUDICIAL MEMBER ACCOUNTANT MEMBER Dated: 01 st November, 2022. VL/ Copy forwarded to: 1. Appellant 2. Respondent 3. CIT 4. CIT(A) 5. DR 6 Asst. Registrar, ITAT, New Delhi Date of dictation Date on which the typed draft is placed before the dictating Member Date on which the typed draft is placed before the Other Member Date on which the approved draft comes to the Sr.PS/PS Date on which the fair order is placed before the Dictating Member for pronouncement Date on which the fair order comes back to the Sr.PS/PS Date on which the final order is uploaded on the website of ITAT Date on which the file goes to the Bench Clerk Date on which the file goes to the Head Clerk The date on which the file goes to the Assistant Registrar for signature on the order Date of dispatch of the Order