SOMAIYA AGENCIES P.LTD, MUMBAI V. ITO 2(3)(2), MUMBAI

ITA 5750/MUM/2016

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 0191 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-08-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 23-09-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: DINKLE N HOLIYA
• Keywords: Depreciation; Unabsorbed depreciation

Judgement Text

THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) I.T.A. NO. 5750 /MUM/ 2016 (ASSESSMENT YEAR 20 12 - 13 ) SOMAIYA AGENCIES PVT. LTD. 45 - 47, SOMAIYA BHAVAN M.G. ROAD, FORT MUMBAI - 400 001. VS. ITO 2(3)(2) AAYAKAR BHAVAN M. K. ROAD MUMBAI - 40 0020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACS5487Q ASSESSEE BY SHRI DINKLE N.HOLIYA DEPARTMENT BY MS. N. HEMALATHA DATE OF HEARING 2 4 . 8 . 201 7 DATE OF PRONOUNCEMENT 24 . 8 . 201 7 O R D E R THE ASSESSEE HAS FILED THIS APPE AL CHALLENGING THE ORDER DATED 29 - 06 - 2016 PASSED BY LD CIT(A) - 6, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2012 - 13. THE ASSESSEE IS AGGRIEVED BY THE DECISION OF LD CIT(A) IN NOT ALLOWING CARRY FORWARD OF BUSINESS LOSS OF RS.39.59 LAKHS (RS.48.75 LAKHS LESS DEPRECIATION AMOUNT OF RS.7.36 LAKHS). 2. I HEARD THE PARTIES AND PERUSED THE RECORD. THE ASSESSEE DECLARED LOSS OF RS.48.75 LAKHS, WHICH CONSISTS OF BUSINESS LOSS OF RS.39.59 LAKHS AND UNABSORBED DEPRECIATION OF RS/7.36 LAKHS. SINCE THE ASSESS EE DID NOT FILE RETURN OF INCOME WITHIN THE TIME ALLOWED U/S 139(1) OF THE ACT, THE AO REJECTED THE CLAIM OF CARRY FORWARD OF LOSS. THE LD CIT(A) ALSO UPHELD THE ACTION OF THE AO IN VIEW OF THE SPECIFIC PROVISIONS OF SEC. 80 & 139(3) OF THE ACT. HOWEVER, HE DIRECTED THE AO TO VERIFY THE CLAIM OF UNABSORBED DEPRECIATION AND ALLOW CARRY FORWARD AS PER LAW. AGGRIEVED, THE ASSESSEE HAS FILED THIS APPEAL. 3. WHEN IT WAS POINTED OUT THAT THE TRIBUNAL CANNOT GRANT RELIEF TO THE ASSESSEE AS THE TAX AUTHORIT IES HAVE DECIDED THE ISSUE IN ACCORDANCE WITH THE SOMAIYA AGENCIES PVT. LTD. 2 LAW, THE LD A.R SUBMITTED THAT THE ASSESSEE HAS FILED A PETITION BEFORE CBDT FOR RELAXATION OF PROVISIONS U/S 119 OF THE ACT AND THE CBDT HAS FORWARDED THE PETITION OF THE ASSESSEE TO THE PRINCIPAL CIT. SH E SUBMITTED THAT THE PETITION IS PENDING THERE AND HENCE THE APPEAL MAY BE KEPT IN ABEYANCE. WHEN IT WAS POINTED OUT THAT THE PRESENT APPEAL IS NOT MAINTAINABLE BEFORE THE TRIBUNAL, SINCE THE REMEDY IS AVAILABLE NOW BEFORE LD PRINCIPAL CIT, THE LD A.R REQ UESTED FOR SETTING ASIDE THIS MATTER TO THE FILE OF THE AO. 4. I HEARD LD D.R AND PERUSED THE RECORD. SINCE THE PETITION FILED BY THE ASSESSEE FOR RELAXATION OF PROVISIONS IS PENDING BEFORE LD PRINCIPAL CIT, THE TRIBUNAL HAS GOT NOTHING TO DO WITH T HE APPEAL FILED BY THE ASSESSEE AND IN ANY CASE THE RELIEF PRAYED IS BEYOND THE JURISDICTION OF THE TRIBUNAL. HENCE I RESTORE THIS MATTER TO THE FILE OF THE AO FOR DECIDING THE SAME IN ACCORDANCE WITH THE DECISION TAKEN BY PRINCIPAL CIT. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS TREATED AS DISMISSED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 2 4 . 8 . 201 7. SD/ - (B.R.BASKARAN) ACCOUNTANT MEMBER MUMBAI ; DATED : 2 4 / 8 / 20 1 7 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) PS ITAT, MUMBAI