ASST CIT 20(2), MUMBAI V. RAMESH R. SHAH, MUMBAI

ITA 5101/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 3921 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-02-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 06-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B S BIST
• Assessee Lawyers: NEELAM C JADHAV
• Keywords: Tax effect
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI B.R.BASKARAN (AM) AND SHRI RAM LAL NEGI (JM) ITA NO. 5101 /MUM/2014 ASSESSMENT YEAR: 2009-10 THE ACIT - 20(2), 612, PIRAMAL CHAMBERS, LALBAUG, MUMBAI- 400012. VS. MR. RAME SH R. SHAH. 21, CHANDRA MILAN, M.G.ROAD, VILE PARLE, (E), MUMBAI- 400057. PAN- AAGPS8062G (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI. B.S.BIST RESPONDENT BY : MS. NEELAM C. JADHAV DATE OF HEARING: 22/02/2016 DATE OF PRONOUNCEMENT: 22/02/2016 O R D E R PER RAM LAL NEGI, JM THE AFORESAID APPEAL HAS BEEN FILED BY THE REV ENUE AGAINST IMPUGNED ORDER DATED 30/05/2014 PASSED BY THE CIT( APPEALS)-31, MUMBAI IN RESPECT OF THE ORDER OF ASSESSMENT PASSED U/S 143(3) FOR THE ASSESSMENT YEAR 2009-10, ON THE FOLLOWING GROUN DS:- 1. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW AN D IN THE CIRCUMSTANCES OF THE CASE IN ALLOWING THE C/F OF TH E LOSS FOR A.Y. 2005-06 UNDER THE HEAD CAPITAL GAIN BY IGNORING THE FACT THAT THE CLAIM OF C/F OF LOSS UNDER THE HEAD CAPITAL GAI N WAS NOT MADE WITHIN THE TIME ALLOWED UNDER SECTION 139(1) O F THE ACT AS SPECIFICALLY PROVIDED UNDER SECTION 139(3) OF THE A CT. 2 ITA NO. 5101 /MUM/2014 ASSESSM ENT YEAR: 2009-10 2. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN IGNORING THE SPECIFIC PROVISIONS OF SECTION 139(3) OF THE ACT THAT ANY LOSS UNDER THE H EAD PROFITS AND GAINS OF BUSINESS OR PROFESSION OR UNDER THE HE AD CAPITAL GAINS IS ALLOWED TO BE CARRIED FORWARD ONLY WHEN CL AIM OF CARRY FORWARD OF SUCH LOSS IS FILED WITHIN THE TIME ALLOW ED UNDER SECTION 139(1) OF THE ACT. IN THE PRESENT CASE, ADM ITTEDLY, NO RETURN OF LOSS FOR A.Y. 2005-06 WAS FILED UNDER SEC TION 139(1) OR ANY LOSS UNDER THE HEAD CAPITAL GAINS WAS CLAIMED T O BE CARRIED FORWARD WITHIN THE TIME ALLOWED UNDER SECT ION 139(1) OR ANY LOSS UNDER THE HEAD CAPITAL GAINS WAS CLAIMED T O BE CARRIED FORWARD WITHIN THE TIME ALLOWED UNDER SECTI ON 139(1) OF THE ACT. 3. THE LD. CIT(A) HAS ERRED ON FACTS AND IN LAW AND IN THE CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING THE F ACT THAT THE ASSESSEE IN HIS ORIGINAL RETURN OF INCOME FOR A.Y. 2005-06 DID NOT CLAIM A LOSS OF RS. 1,82,27,039/- TO BE CARRIED FORWARD UNDER SECTION 74 OF THE ACT. IT WAS ONLY IN THE REV ISED RETURN OF INCOME DATED 28/03/2006 FILED UNDER SECTION 139(5) THAT THE ASSESSEE CLAIMED THE LOSS FOR SHARES FROM PHLOX PHA RMA LTD. OF THE AFORESAID LOSS CANNOT BE CARRIED FORWARD AS PE R SECTION 80 OF THE ACT. THUS, THE POSITION OF LAW IS QUITE CL EAR THAT TO REVISE A RETURN OF LOSS, THE ORIGINAL RETURN OF LOSS SHOUL D HAVE BEEN FILED UNDER SECTION 139(3) WITHIN THE TIME LIMIT PR OVIDED UNDER SECTION 139(1) OF THE ACT. 4. THE APPELLANT PRAYS THAT THE ORDER OF THE CIT(AP PEALS) ON THE ABOVE GROUNDS TO BE SET ASIDE AND THAT OF THE A SSESSING OFFICER BE RESTORED. 5. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR TO SUBMIT ADDITIONAL NEW GROUND WHICH MAY BE NECESS ARY. 3 ITA NO. 5101 /MUM/2014 ASSESSM ENT YEAR: 2009-10 2. AT THE OUTSET, IT IS NOTICED THAT, THE QUANTUM IN DISPUTE IS ONLY RS. 12,13,132/- AND THE TAX EFFECT ON THIS AMOUNT IS BE LOW THE 10 LAKHS. VIDE THE LATEST CBDT CIRCULAR NO. 21 OF 2015, DATED 10 TH DECEMBER, 2015, NEW GUIDELINES OF MONETARY LIMIT FOR FILING O F APPEALS BY THE DEPARTMENT HAS BEEN ISSUED, WHEREBY THE TAX EFFECT FOR FILING OF APPEAL BEFORE THE ITAT HAS BEEN PRESCRIBED AT RS. 10 LAKHS . IN THE SAID CIRCULAR, IT HAS BEEN SPECIFICALLY CLARIFIED THAT T HE SAID INSTRUCTION WILL APPLY RETROSPECTIVELY TO ALL THE PENDING APPEALS. A CCORDINGLY, THE APPEAL FILED BY THE REVENUE IS NOT MAINTAINABLE AND IS DIS MISSED IN LIMINE . ORDER PRONOUNCED IN THE OPEN COURT ON 22 TH FEBRUARY, 2016 SD/- SD/- ( B.R.BASKARAN ) (RAM LAL NEGI) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED: 22/02/2016 / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A)- 4. / CIT 5. !' , $ !'% , / DR, ITAT, MUMBAI 6. &' ( / GUARD FILE. / BY ORDER, ) //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI PRAMILA