SAMIR SHAH, MUMBAI V. ASST CIT 17(2), MUMBAI

ITA 5008/MUM/2012

• Counselvise Citation: [2014] 120 COUNSELVISE.COM (IT) 5885 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 26-03-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 03-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHOK SURI

Judgement Text

, , , , IN THE INCOME TAX APPELLATE TRIBUNALE BENCH, MUMB AI BEFORE SHRI D.KARUNAKARA RAO, AM AND SHRI AMIT SHUK LA, JM ITA NO. 5008/MUM/2012 ASSESSMENT YEAR-2008-09 SHRI SAMIR SHAH, 553/7, 1 ST FLOOR, MADU KUNJ, ADENWALA ROAD, MATUNGA, MUMBAI-400019 / VS. THE ASST. COMMISSIONER OF INCOME-TAX, 17(2), ROOM NO.217, 2 ND FLOOR, PIRAMAL CHAMBERS, MUMBAI ./ PAN :AADPS2071G ( /ASSESSEE ) .. ( / REVENUE ) ITA NO.5097/MUM/2012 ASSESSMENT YEAR-2008-09 THE ASST. COMMISSIONER OF INCOME-TAX, 17(2), ROOM NO.217, 2 ND FLOOR, PIRAMAL CHAMBERS, MUMBAI / VS. SHRI SAMIR SHAH, 553/7, 1 ST FLOOR, MADU KUNJ, ADENWALA ROAD, MATUNGA, MUMBAI-400019 ./ PAN :AADPS2071G ( / REVENUE ) .. ( ! / ASSESSEE ) ' # / ASSESSEE BY : SHRI VIJAY MEHTA ' # / REVENUE BY : S HRI . ASHOK SURI ' $ / DATE OF HEARING : 26/03/2014 %&' ' $ / DATE OF PRONOUNCEMENT : 26/03/2014 () () () () / ORDER PER D. KARUNAKARA RAO, AM: THERE ARE TWO APPEALS UNDER CONSIDERATION. AT THE OUTSET THAT THE LD. COUNSEL FOR THE ASSESSEE FILED A LETTER BEF ORE US MENTIONING FOLLOWING THE FACT KINDLY REFER TO THE ABOVE FIXED FOR HEARING TODAY, I WOULD LIKE TO STATE THAT I AM NOT PRESSING THE GROUN DS RAISED IN MY APPEAL AND HENCE, MAY BE DECIDED BY YOUR HONOURS . 2 ITA NO.5008 AND 5097/MUM/2012. SAMIR SHAH 2. IN THIS REGARD, THE COUNSEL MENTIONED THAT THE G ROUNDS ARE NOT PRESSED THE APPEAL CAN BE DISMISSED AS NOT PRESSED. AFTER HEARING THE REVENUE, THE GROUNDS RAISED DISMISSED AS NOT PR ESSED. 3. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. 4. IN CONNECTION WITH THE REVENUES APPEAL BEING IT A NO. 5097/MUM/2012, THE LD. COUNSEL INFORMED US THAT THE DEMAND FOR SET UP FOR THE BROUGHT FORWARD LOSSES WERE NOT ALLO WED, CONSIDERING THE MISTAKEN BELIEF THAT THE RETURN OF INCOME WAS F ILED BELATEDLY. BUT THE FACT IS THAT THE RETURN OF INCOME IN PHYSICAL F ORM WAS FILED ON 22/07/2007 AND IT IS IN TIME. FURTHER, THE E-RETURN WAS FILED ON 03/11/2007 AS AGAINST THE DUE DATE OF 22/11/2007, W HICH IS BELATED BY A DAY. THE RELEVANT FACTS WERE DISCUSSED IN DETAIL BY THE CIT(A) AND THE CIT(A) ALLOWED THE CLAIM OF THE ASSE SSEE. ON HEARING BOTH THE PARTIES, WE HAVE GONE THROUGH THE PARA 5 I N GENERAL AND PARA 5.3 IN PARTICULAR. THE CONTENTS OF PARA 5.3 T O 5.5 ARE REPRODUCED HERE FOR THE SAKE OF COMPLETE THE RECORD :- 5.3. I HAVE CAREFULLY CONSIDERED THE ABOVE SUBMISSIONS O F THE APPELLANT. THE APPELLANT HAS FILED ORIGINAL RETURN OF INCOME FOR T HE A.Y. 2007-08 ON 22.10.2007. THE COPY OF THE RETURN AVAILABLE IN PAGE 34 OF THE PAPER BOOK, CONTAINS THE ACKNOWLEDGEMENT FOR THE RETURN HAVING BEEN FILED ON 22.10.2007 BEFORE THE ITO 17(2)(2). HOWEVER, THE APPELLANT HAS ALSO FILED AN OTHER RETURN WAS FILED BELATEDLY. THE ASSESSING OFFICER FAILED TO MAKE A NOTE THAT TH E ORIGINAL RETURN IN THE CASE OF THE APPELLANT WAS FILED IN TIME. IN VIEW OF THIS, THE ELECTRONICALLY FILED RETURN SUBSEQUENTLY CAN BE TREATED AS VALID RETURN FILED W ITHIN THE TIME LIMIT AVAILABLE U/S139/(4) OF THE INCOME TAX ACT. 5.4 THE APPELLANT HAS ALSO BROUGHT TO MY NOTICE THE CIRCULAR ISSUED BY THE BOARD IN THIS REGARD. COPY OF THE CIRCULAR NO.3 OF 2007 D ATED 25.05.2007 IS AVAILABLE IN PAGES 37 TO 44 OF THE PAPER BOOK. AS PER THE BOARD S CIRCULAR, THE ELECTRONICALLY FILED RETURN IS MANDATORY ONLY FOR COMPANIES AND FI RMS WHICH ARE LIABLE FOR AUDIT U/S 44AB. HOWEVER IT IS OPTIONAL IN THE OTHER CATEGORI ES OF ASSESSEES. 5.5. SINCE THE ORIGINAL RETURN IS FILED WITHIN THE DUE DATE I.E. BEFORE 31.10.2007, THE APPELLANT IS ENTITLED TO CARRY FORWARD SUCH LOS SES TO THE SUBSEQUENT YEAR, IN VIEW 3 ITA NO.5008 AND 5097/MUM/2012. SAMIR SHAH OF THIS, THE ASSESSING OFFICER IS DIRECTED TO ACCEP T THE CARRIED FORWARD BUSINESS LOSS AND SHORT TERM CAPITAL LOSS. 5. IT IS THE FINDING OF FACT THAT THE RETURN OF INC OME IN PHYSICAL FOR WAS FILED IN TIME. THE BELATED E-RETURN IS BASICAL LY ONLY AN ADDITIONAL REQUIREMENT. IT IS ALSO COMPLIED BY THE ASSESSEE. CONSIDERING THE ABOVE, WE FIND THAT THE ORDER OF THE CIT(A) IS REAS ONABLE AND DOES NOT REQUIRE ANY INTERFERENCE. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 26/03/ 2014. () ' %&' * +(, 26/03/ 2014 & ' - . SD/- SD/- AMIT SHUKLA D.KARUNAKARA RAO (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) MUMBAI , +( +( +( +( DATED: 26/03/2014 F{X~{T? P.S. () ' /$01 21'$ / COPY OF THE ORDER FORWARDED TO : (1) / 34$ / THE ASSESSEE; (2) / THE REVENUE; (3) 5() / THE CIT(A); (4) 5 / THE CIT, MUMBAI CITY CONCERNED; (5) 18- /$/ , , / THE DR, ITAT, MUMBAI; (6) -93 : / GUARD FILE. !1$ /$ / TRUE COPY () / BY ORDER ; / < / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI,