Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 92608 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 8 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
29-05-2015
Appeal Filed By
Department
Bench Allotted
B
Next Hearing Date
21-05-2015
Assessment Year
2009-2010
Appeal Filed On
28-09-2012
Judgement Text
IN THE INCO ME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI G.S. PANNU, ACCOUNTANT MEMBER AND SHRI SANJAY GARG, JUDICIAL MEMBER ./I.T.A. NO.5908/M/2012 ( AY: 2009 - 2010 ) ITO (E)1 (1), R.NO.505, PIRAMAL CHAMBERS, 5 TH FLOOR, PAREL, MUMBAI - 12. / VS. DR. BALABHAI NANAVATI HOSPITAL, GROUND FLOOR, NANAVATI HOSPITAL BUILDING, S.V. ROAD, VILE PARLE (W), MUMBAI - 56. ./ PAN : AAATD 0094 K ( / APPELLANT) .. ( / RESPONDENT ) / APPELLANT BY : SHRI YOGESH KAMAT, DR / RESPONDENT BY : SHRI VIJAY C. KOTHARI / DATE OF HEARING : 21.5 .2015 / DATE OF PRONOUNCEMENT :29 .5.2015 / O R D E R PER G.S. PANNU, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER PASSED BY THE CIT (A) - 1 , MUMBAI DATED 27.7.2012 FOR THE ASSESSMENT YEAR 200 9 - 2010 IN THE MATTER OF ORDER PASSED BY THE ASSESSING OFFICER U/S 143(3) OF THE INCOME TAX ACT 1961, DATED 26.1 2.2011 . 2. IN THIS APPEAL, REVENUE HAS RAISED THE FOLLOWING TWO MAIN GROUNDS OF APPEAL; - 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN DIRECTING THE AO TO SET OFF OF DEFICIT AMOUNTING TO RS. 4,38,73,990/ - OF EARLIER YEARS AGAINST INCOME OF CURRENT YEAR WITHOUT APPRECIATING THE FACT THAT THIS WOULD HAVE THE EFFECT OF GRANTING DOUBLE BENEFIT TO THE ASSESSEE, FIRST AS ACCUMULATION OF INCOME U/S 11(1)(A) OR AS CORPUS DONATION U/S 11(1)(A) IN THE CURRENT OR EARLI ER YEARS AND THEN AS APPLICATION OF INCOME U/S 11(1)(A) IN THE CURRENT YEAR WHICH WAS LEGALLY NOT PERMISSIBLE. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD CIT (A) ERRED IN ALLOWING THE CLAIM OF THE ASSESSEE FOR CARRY FORWARD OF DEFICIT, IGNORING THE FACTS THAT THERE WAS NO EXPRESS PROVISION IN THE IT ACT, 1961 PERMITTING ALLOWANCE OF SUCH CLAIM AND THAT ASSESSEE HAD ACCEPTED THAT STAND OF THE AO IN THIS REGARD IN THE EARLIER AY 2008 - 2009. 2 3. IN THIS CASE, AT THE TIME OF HEARING THE LD REPRESENTATIVE FOR THE ASSESSEE MADE A PRELIMINARY SUBMISSION TO THE EFFECT THAT THE AFORESAID G ROUNDS OF APPEAL RAISED BY THE REVENUE WERE MISCONCEIVED INASMUCH AS THE SAME DO NOT ARISE FROM THE IMPUGNED ORDER OF THE CIT (A). AS PER TH E LD REPRESENTATIVE, THE PLEA OF THE REVENUE THAT THE CIT (A) ERRED IN DIRECTING THE ASSESSING OFFICER TO SET OFF THE DEFICIT AMOUNT ING OF RS. 4,38,73,990/ - OF EARLIER YEARS AGAINST THE INCOME OF THE CURRENT YEAR WAS MISCONCEIVED BECAUSE NO SUCH DIRECTION HAS BEEN PASSED BY THE CIT (A). AS PER THE LD REPRESENTATIVE , THERE WAS NO DEFICIT OF RS. 4,38,73,990/ - OF EARLIER YEAR AND THEREFORE, THE AFORESAID GROUND RAISED BY THE REVENUE ITSELF WAS MISCONCEIVED. 4. EXPLAINING THE CIRCUMSTANCES, THE LD REPRESENTA TIVE REFERRED TO THE FOLLOWING DISCUSSION IN THE ORDER OF THE CIT (A). 4.2. ON VERIFICATION, THE CONTENTION OF THE LD AR THAT TOTAL OF THE EXPENDITURE SIDE OF THE INCOME & EXPENDITURE ACCOUNT AT RS. 87,75,47,863/ - INCLUDES THE DEFICIT OF RS. 4,38,73,990/ - IS FOUND TO BE CORRECT AND TO THAT EXTENT THE INCOME IS DIRECTED TO BE REDUCED. GROUND NO. 3(B) IS ALLOWED............. 5. IN TERMS OF THE AFORESAID DECISION OF THE CIT (A), THE ASSESSING OFFICER IS DIRECTED TO REDUCE THE INCOME TO THE EXTENT OF RS. 4 ,38,73,990/ - . IN THIS CONTEXT, IT WAS EXPLAINED THAT THE INCOME WAS COMPUTED BY THE ASSESSING OFFICER BY CONSIDERING THE TOTAL RECEIPTS FROM THE INCOME & EXPENDITURE ACCOUNT AS RS. 87,75,47,863/ - , AS IS EVIDENT FROM THE PARA 5 OF THE ASSESSMENT ORDER. THE ASSESSEE WAS AGGRIEVED BY THE ACTION OF THE ASSESSING OFFICER IN ADOPTING THE FIGURE OF RS. 87,75,47,863/ - AND CARRIED THE MATTER IN APPEAL BEFORE THE CIT (A). 6. BEFORE THE CIT (A), ASSESSEE REFERRED TO ITS INCOME & EXPENDITURE ACCOUNT FOR THE YEAR UNDER CONSIDERATION, A COPY OF WHICH HAS BEEN PLACE D IN THE PAPER B OOK FILED BEFORE US AT PAGES 36 TO 37. AS PER THE SAID INCOME & EXPENDITURE ACCOUNT, THE TOTAL OF THE INCOME SIDE IS STATED TO BE RS. 87,75,47,863/ - WHICH IS INCLUSIVE OF THE DEFICIT FOR THE YE AR AMOUNTING TO RS. 4,38,73,990/ - . THE ASSESSEE ASSERTED AND WHICH HAS BEEN ACCEPTED BY THE CIT (A) THAT THE TOTAL RECEIPTS FOR THE YEAR UNDER CONSIDERATION OUGHT TO BE RS. 87,75,47,863 MINUS RS. 4,38,73,990/ - , AND NOT RS. 87,75,47,863/ - CONSIDERED BY THE ASSESSING OFFICER. IT IS IN THIS BACKGROUND, THE CIT (A) DIRECTED THE REDUCTION OF I NCOME T O THE EXT ENT OF RS. 4,38,73,990/ - . THE G ROUNDS OF APPEAL RAISED BY THE REVENUE AS ABOVE OSTENSIBLY MISCONSTRUE THE DE CISION OF THE CIT (A) IN ASMUCH AS THERE IS NO DIRECTION BY THE CIT (A) TO THE 3 ASSESSING OFFICER TO ALLOW SET - OFF OF DEFICIT AMOUNT ING TO R S. 4,38,73,990/ - OF EARLIER YEAR AGAINST THE INCOME OF THE CURRENT YEAR. THEREFORE, IN THE AFORESAID FACTUAL SITUATIO N, OBJECTION RAISED BY THE LD REPRESENTATIVE THAT THE G ROUNDS OF APPEAL RAISED BY THE REVENUE ARE MISCONCEIVED, IS QUITE FAIR. IN FACT, IN THE COURSE OF HEARING, LD DR APPEARING FOR THE REVENUE HAS NOT DISPUTED THE AFORESAID FACTUAL MATRIX BROUGHT OUT BY THE LD REPRESENTATIVE FOR THE ASSESSEE, WHICH IS ALSO BORNE OUT OF THE MATERIAL ON RECORD. 7. EVEN OTHERWISE, WE FIND THAT THE DIRECTION OF THE CIT (A) WHICH WE HAVE EXTRACTED ABOVE IS UNEXCEPTIONAL AND IT DOES NOT REQUIRE ANY INTERFERENCE FROM OUR SIDE. 8. THUS, IN THE AFORESAID MANNER, WE FIND NO MERIT IN THE APPEAL OF THE REVENUE AND THE SAME IS DISMISSED. 9. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNC ED IN THE OPEN COURT ON 29 TH MAY, 2015. SD/ - SD/ - ( SANJAY GARG ) ( G.S. PANNU ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; 29 .5 .2015 . . ./ OKK , SR. PS / 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 . //TRUE COPY// / BY ORDER, / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI
