Shanti Refrigeration Industries Pvt. Ltd., Pantnagar V. ACIT, Circle- 1, Haldwani

ITA 6379/DEL/2017

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3217 (ITAT-DELHI)
• Duration Of Justice: 4 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2013-2014
• Appeal Filed On: 16-10-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: B R MISHRA
• Keywords: Depreciation; Opportunity of being heard; Revised return; Unabsorbed depreciation
• Section: 143(3); 139(5)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH SMC, NEW DELHI BEFORE SHRI R. K. PANDA, ACCOUNTANT MEMBER ITA NO.6379/DEL/2017 ASSESSMENT YEAR : 2013-14 SHANTI REFRIGERATION INDUSTRIES PVT. LTD., PLOT NO.27&28, SECTOR- 7, SIDCUL, PANTNAGAR. VS. ACIT, CIRCLE-1, HALDWANI. PAN : AALCS3426J (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAHUL KHARE, ADV. DEPARTMENT BY : SHRI B. R. MISHRA, SR.DR DATE OF HEARING : 12-02-2018 DATE OF PRONOUNCEMENT : 27-02-2018 O R D E R PER R. K. PANDA, AM : THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAIN ST THE ORDER DATED 14.09.2017 OF CIT(A), HALDWANI RELATING TO ASSESSME NT YEAR 2013-14. 2. THE ONLY EFFECTIVE GROUND RAISED BY THE ASSESSEE READS AS UNDER :- 1. THE LEARNED CIT(A) ERRED IN FACT AND IN LAW IN NOT ALLOWING THE BENEFIT OF ASSESSED B/F LOSSES WHICH IS NOT ONLY ILLEGAL BUT A LSO AGAINST THE FACTS AND CIRCUMSTANCES OF THE CASE. 3. FACTS OF THE CASE, IN BRIEF, ARE THAT THE ASSESS MENT IN THIS CASE WAS COMPLETED U/S 143(3) ON 16.03.2016 WHEREIN THE ASSE SSING OFFICER REJECTED THE CLAIM OF BROUGHT FORWARD LOSS OF EARLIER YEARS ON T HE GROUND THAT THE SAME WAS NOT CLAIMED AT THE TIME OF FILING OF THE RETURN. W HILE DOING SO, THE ASSESSING OFFICER RELIED ON THE ORDER OF THE HON'BLE SUPREME COURT IN THE CASE OF GOETZE 2 ITA NO.6379/DEL/2017 (INDIA) LTD. REPORTED IN 284 ITR 323, ACCORDING TO WHICH, INCOME CANNOT BE ASSESSED BELOW THE RETURNED INCOME. IT MAY BE PERT INENT TO MENTION HERE THAT THE ASSESSEE IN ITS RETURN OF INCOME FILED ON 30.09 .2013 HAS DECLARED INCOME AT RS.33,95,610/- AFTER CLAIMING DEDUCTION UNDER CHAPT ER VI-A FOR RS.9,82,763/-. 4. IN APPEAL, THE LD. CIT(A) DISMISSED THE APPEAL O F THE ASSESSEE BY OBSERVING AS UNDER :- 2. THE CONTENTIONS OF THE APPELLANT HAVE BEEN CONS IDERED, HOWEVER FROM A PERUSAL OF THE RECORDS, IT IS SEEN THAT THE APPELLA NT IN HIS APPEAL HAS RAISED POINT IN ITS GROUNDS OF APPEAL THAT A.O. HAS NOT GIVEN THE B ENEFIT OF ASSESSED B/F LOSSES. HOWEVER DURING APPELLATE PROCEEDINGS A/R HAS FILED SUBMISSIONS ONLY REGARDING CARRY FORWARD OF UNABSORBED DEPRECIATION LOSS AND N O WRITTEN SUBMISSION REGARDING BROUGHT FORWARD OF BUSINESS LOSS. HENCE IN ABSENCE OF ANY SUBMISSION ON THE MATTER DURING APPELLATE PROCEEDINGS, THE APPLICATION OF TH E APPELLANT CANNOT BE ACCEPTED. EVEN OTHERWISE LOSSES NOT CLAIMED IN THE ORIGINAL R ETURN UNLESS UNDER 139(3), CANNOT BE CLAIMED BY FILING REVISED RETURN U/S 139(5) OF K ARNATAKA FOREST DEVELOPMENT CORPORATION LTD. VS. CIT, ITAT BANGALORE IN ITA NO. 81 OF 2011 DATED 30/03/2012. ACCORDINGLY THE APPLICATION OF THE APPELLANT IS REJ ECTED. 5. AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 6. I HAVE CONSIDERED THE ARGUMENTS MADE BY BOTH THE SIDES AND PERUSED THE ORDERS OF THE ASSESSING OFFICER AND THE LD. CIT(A). I HAVE ALSO CONSIDERED THE VARIOUS DECISIONS CITED BEFORE ME. IN MY OPINION, THE MATTER REQUIRES A FRESH LOOK BY THE LD. CIT(A) REGARDING THE ADJUSTMENT OF BROUGHT FORWARD LOSS OF EARLIER YEARS. IN MY OPINION, IF SUCH BROUGHT FORW ARD LOSS OF EARLIER YEARS HAS BEEN DETERMINED BY THE ASSESSING OFFICER THEN IN TH AT CASE EVEN THOUGH THE ASSESSEE HAS NOT FILED A RETURN FOR THE IMPUGNED AS SESSMENT YEAR IN TIME, HIS 3 ITA NO.6379/DEL/2017 RIGHT TO CLAIM THE BROUGHT FORWARD LOSS WHICH WAS D ETERMINED EARLIER CANNOT BE TAKEN AWAY. AS PER THE STATUTE, THE BUSINESS LOSS CANNOT BE CARRIED FORWARD TO SUBSEQUENT YEARS, IF THE RETURN IS NOT FILED IN TIM E AS PROVIDED IN THE STATUTE. HOWEVER, THE SAME DOES NOT APPLY TO THE ADJUSTMENT OF BROUGHT FORWARD BUSINESS LOSS FROM THE INCOME OF THE CURRENT YEAR. THE VARIOUS DECISIONS RELIED ON BY THE LD. COUNSEL FOR THE ASSESSEE SUPPORTS HIS CASE. THEREFORE, I RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) WITH A DIRECTIO N TO ADJUDICATE THE ISSUE AFRESH AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ISSUE. I HOLD AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY ALLOWED FOR STATISTICAL PURPOSES. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 27 TH FEBRUARY, 2018. SD/- (R. K. PANDA) ACCOUNTANT MEMBER DATED: 27-02-2018. SUJEET COPY OF ORDER TO: - 1) THE APPELLANT 2) THE RESPONDENT 3) THE CIT 4) THE CIT(A) 5) THE DR, I.T.A.T., NEW DELHI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR 4 ITA NO.6379/DEL/2017 ITAT, NEW DELHI