Shashi Bhushan Khanna, New Delhi V. ITO, New Delhi

ITA 5854/DEL/2010

• Counselvise Citation: 585420114 RSA 2010
• Duration Of Justice: 8 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-09-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: G
• Next Hearing Date: 07-09-2011
• Assessment Year: 2001-2002
• Appeal Filed On: 22-12-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MRS ANUSHA KHURANA

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH G DELHI BEFORE SHRI R.P. TOLANI AND SHRI K.G. BANSAL ITA NO. 5854(DEL)/2010 ASSESSMENT YEAR: 2001-02 SHASHI BHUSHAN KHANNA, INCO ME-TAX OFFICER, C/O BHATIA BEHL & ASSOCIATES, VS. WARD 23 (2), NEW DELHI. 26/8, OLD RAJINDER NAGAR, DELHI-60. (APPELLANT) (RESPON DENT) APPELLANT BY : SHRI R.S. SINGHVI, C.A. RESPONDENT BY: MRS. ANUSHA KHURANA, SR. DR DATE OF HEARING : 08.09.2011 DATE OF PRONOUNCEMENT: .09.2011. ORDER PER K.G. BANSAL : AM THE ASSESSEE HAS TAKEN UP TWO SUBSTANTIVE GROUN DS IN THIS APPEAL, WHICH READ AS UNDER:- (A) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT JUSTIF IED IN CLAIM OF THE ASSESSEE TO SET OFF ASSESSED BUSINESS LOSS, FIRST AGAINST INCOME FROM OTHER SOURCES THEN AGAINST SHORT-TERM CAPIT AL GAIN AND THE BALANCE, IF ANY, AGAINST LONG-TERM CAPITAL GAINS ONLY AS DONE BY THE AO. (B) THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE LD. COMMISSIONER OF INCOME-TAX (APPEALS) IS NOT JUSTI FIED IN HOLDING THAT W.E.F. 1.4.1988 IT IS NOT THE PREROGATIVE OF AN ASSESSEE TO DEMAND THAT THE LOSS UNDER ANY HEAD OTHER THAN UNDER THE HEAD ITA NO. 5854(DEL)/2010 2 CAPITAL GAINS BE SET OFF AGAINST THE INCOME OTH ER THAN LONG TERM CAPITAL GAIN. 2. BEFORE US, THE LD. COUNSEL SUBMITTED AT THE OUTSET THAT THE ISSUES STAND COVERED BY THE DECISION OF A BENCH OF PUNE TRIBUNAL IN THE CASE OF COATED FABRICS (P) LTD. VS. JOINT CIT, (2006) 101 ITD 297. THE OPERATIVE PORTION OF THE DECISION IS CONTAINED I N PARAGRAPH NO. 3, WHICH IS REPRODUCED BELOW:- 3. TO SUM UP, WE HEREBY DIRECT THE ASSESSIN G OFFICER TO FIRST SET OFF THE BUSINESS LOSS AGAINST THE INC OME UNDER THE HEAD OTHER SOURCES AND IF BALANCE IS LEFT, THE SAME IS DIRECTED TO BE SET OFF AGAINST THE INCOME UNDER THE HEAD CAPITAL GAINS. RESULTANTLY, THE GROUND RAISED BY THE ASSESSEE IS HEREBY ALLOWED. 2.1 IN REPLY, THE LD. DR RELIED ON THE ORDERS OF THE AUTHORITIES BELOW. 2.2 WE HAVE CONSIDERED THE FACTS OF THE CASE AN D SUBMISSIONS MADE BEFORE US. THE PUNE BENCH OF THE TRIBUNAL HAS SP ECIFICALLY HELD THAT THE BUSINESS LOSS OF A YEAR HAS TO BE SET OFF AGA INST INCOME COMPUTED UNDER THE RESIDUARY HEAD FOR THE SAME YEAR. THEREAFT ER, IF ANY BALANCE IS LEFT, THE SAME HAS TO BE SET OFF AGAINST THE INCOME COMPUTED UNDER THE HEAD CAPITAL GAINS. AS ONE BENCH OF THE TRIBUNAL H AS DECIDED THE MATTER IN THE AFORESAID MANNER, THE JUDICIAL DISCIPLINE DEMANDS THAT WE FOLLOW THE ITA NO. 5854(DEL)/2010 3 SAME. ACCORDINGLY, THE AO IS DIRECTED TO SET O FF BUSINESS LOSS OF THIS YEAR AGAINST INCOME COMPUTED UNDER THE HEAD INC OME FROM OTHER SOURCES FOR THIS YEAR. IF ANY LOSS REMAINS U NABSORBED THEREAFTER, THE SAME MAY BE SET OFF AGAINST THE INCOME COMPUTED UNDER THE HEAD CAPITAL GAINS FOR THIS YEAR. 3. IN THE RESULT, THE APPEAL IS ALLOWED. SD/- SD/- (R.P. TOLANI) (K.G.BANSAL) JUDICIAL MEMBER ACCOUNTANT MEMBER SP SATIA COPY OF THE ORDER FORWARDED TO:- SHRI SHASHI BHUSHAN KHANNA, DELHI-110060. ITO, WARD -23(2) , NEW DELHI. CIT(A) CIT THE DR, ITAT, NEW DELHI. ASSISTANT REGISTRAR.