Rakesh Kumar Pandita, Delhi V. ACIT Circle-24(1), New Delhi

ITA 6476/DEL/2019

• Counselvise Citation: [2021] 107 COUNSELVISE.COM (IT) 3140 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 2 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-10-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2012-2013
• Appeal Filed On: 02-08-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SANJIV MAHAJAN
• Assessee Lawyers: R C CHANDIWALA
• Section: 143(1); 22; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL, DELHI SMC B ENCH, NEW DELHI [THROUGH VIDEO CONFERENCE] BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ITA NO. 6476/DEL/2019 [ASSESSMENT YEAR: 2012-13] SHRI RAKESH KUMAR PANDITA VS. THE A.C.I.T SRB INSTRUMENTS PVT LTD CIRCLE 24(1) B-28/34, MAURYA COMPLEX NEW DELHI LAXMI NAGAR, DELHI PAN: AFRPP 2611 N [APPELLANT] [RESPONDENT] DATE OF HEARING : 20.10.2021 DATE OF PRONOUNCEMENT : 22.10.2021 ASSESSEE BY : SHRI R.C. CHANDIWALA, CA REVENUE BY : SHRI SANJIV MAHAJAN, SR. DR ORDER PER N.K. BILLAIYA, ACCOUNTANT MEMBER: THIS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX [APPEALS] 8, NEW DELHI DATED 14.06.2019 PERTAINING TO ASSESSMENT YEAR 2012-13. 2 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE AS SESSEE IS THAT THE LD. CIT(A) ERRED IN NOT ALLOWING THE ADJUSTMENT OF CURRENT YEAR LOSSES WITH INCOME UNDER SECTION 115BBD OF THE INCO ME TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT]. 3. BRIEFLY STATED, THE FACTS OF THE CASE ARE THAT T HE APPELLANT COMPANY FILED ITS RETURN OF INCOME ON 14.09.2012 DE CLARING AN INCOME OF RS. 26,26,860/-. THE SAME WAS PROCESSED BY THE C PC, BANGALORE U/S 143(1) OF THE ACT AND THE ASSESSED INCOME WAS RS. 3 1,51, 660/. 4. THE ASSESSEE MOVED AN APPLICATION FOR RECTIFICAT ION OF ERROR IN THE COMPUTATION OF ASSESSED INCOME WHILE PROCESSING THE SAME BY CPC, BANGALORE. 5. THE MISTAKE WHICH WAS POINTED OUT WAS THAT THOUG H THE LOSS OF CURRENT YEAR ADJUSTED WAS MENTIONED IN THE INTIMATI ON U/S 143 (1) BY THE CPC AT RS. 22,53,768/- BUT THE SAME WAS NOT ADJ USTED WHILE COMPUTING THE ASSESSED INCOME. SINCE THERE WAS MIST AKE APPARENT FROM RECORD, THE ASSESSED SOUGHT RECTIFICATION U/S 154 OF THE ACT. 3 6. THE CLAIM OF THE ASSESSEE WAS DISMISSED BY THE A SSESSING OFFICER WHO WAS OF THE OPINION THAT SINCE THE ASSESSEE HAS DECLARED INCOME U/S 115BBD OF THE ACT AND CALCULATED THE TAX AT SPE CIAL RATE OF 15%, THEREFORE, THE SAME CANNOT BE SET OFF AGAINST LOSSE S. APPLICATION UNDER SECTION 154 OF THE ACT WAS REJECTED. 7. THE ASSESSEE CARRIED THE MATTER BEFORE THE LD. C IT(A) AND REITERATED ITS CLAIM OF SET OFF. 8. THE CITA WAS OF THE OPINION THAT WHETHER CURRENT YEAR LOSS CAN BE SET OFF FROM THE INCOME DECLARED UNDER SECTION 1 15BD OF THE ACT IS A HIGHLY DEBATABLE ISSUE AND A DEBATABLE ISSUE CANN OT BE RECTIFIED U/S 154 OF THE ACT. 9. BEFORE ME, THE LEARNED COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES. IT IS THE SAY OF THE LD. COUNSEL THAT DUE TO INADVERTENT MISTAKE, THE ASSESS EE COULD NOT FILE COMPLETE DETAILS IN THE RETURN OF INCOME WHICH WAS PROCESSED BY CPC, BANGALORE. THE LD. COUNSEL FOR THE ASSESSEE VEHEMEN TLY STATED THAT THE AMOUNT OF CURRENT YEAR LOSS HAS BEEN SPECIFICALLY M ENTIONED IN THE 4 INTIMATION U/S 143(1) OF THE ACT RECEIVED FROM CPC, BANGALORE. THEREFORE, THE CLAIM OF SET OFF SHOULD BE ALLOWED. 10. PER CONTRA, THE LD. DR STRONGLY SUPPORTED THE O RDER OF THE FIRST APPELLATE AUTHORITY. 11. I HAVE GIVEN THOUGHTFUL CONSIDERATION TO THE OR DERS OF THE AUTHORITIES BELOW. IT IS TRUE THAT IN THE INTIMATIO N U/S 143(1) OF THE ACT, LOSS OF THE CURRENT YEAR HAS BEEN MENTIONED AT RS. 22,53,768/. IT IS EQUALLY TRUE THAT THE ASSESSEE HAS RETURNED INCO ME IN RESPECT OF DIVIDEND RECEIVED FROM A FOREIGN COMPANY U/S 115BBD OF THE ACT. SECTION 115BD READS AS UNDER: 115BBD. (1) WHERE THE TOTAL INCOME OF AN ASSESSEE, BEING AN INDIAN COMPANY, FOR THE PREVIOUS YEAR RELEVANT TO T HE ASSESSMENT YEAR BEGINNING ON THE 1ST DAY OF APRIL, 2012 28 [ OR BEGINNING ON THE 1ST DAY OF APRIL, 2013 ] 28A [ OR BEGINNING ON THE 1ST DAY OF APRIL, 2014 ] INCLUDES ANY INCOME BY WAY OF DIVIDENDS DECLARED, DISTRIBUTED OR PAID BY A SPECIFIED FOREIGN COMPANY, THE INCOME-TAX PAYABLE SHALL BE THE AGGREGATE OF ( A ) THE AMOUNT OF INCOME-TAX CALCULATED ON THE INCOME BY WAY OF SUCH DIVIDENDS, AT THE RATE OF FIFTEEN PER CENT; AN D 5 ( B ) THE AMOUNT OF INCOME-TAX WITH WHICH THE ASSESSEE WOULD HAVE BEEN CHARGEABLE HAD ITS TOTAL INCOME BEEN REDUCED B Y THE AFORESAID INCOME BY WAY OF DIVIDENDS. (2) NOTWITHSTANDING ANYTHING CONTAINED IN THIS ACT, NO DEDUCTION IN RESPECT OF ANY EXPENDITURE OR ALLOWANCE SHALL BE AL LOWED TO THE ASSESSEE UNDER ANY PROVISION OF THIS ACT IN COMPUTI NG ITS INCOME BY WAY OF DIVIDENDS REFERRED TO IN SUB-SECTION (1). (3) IN THIS SECTION, ( I ) 'DIVIDENDS' SHALL HAVE THE SAME MEANING AS IS GIV EN TO 'DIVIDEND' IN CLAUSE ( 22 ) OF SECTION 2 BUT SHALL NOT INCLUDE SUB- CLAUSE ( E ) THEREOF; ( II ) 'SPECIFIED FOREIGN COMPANY' MEANS A FOREIGN COMPA NY IN WHICH THE INDIAN COMPANY HOLDS TWENTY-SIX PER CENT OR MOR E IN NOMINAL VALUE OF THE EQUITY SHARE CAPITAL OF THE COMPANY.] 12. AS PER CLAUSE (2), NO DEDUCTION IN RESPECT OF A NY EXPENDITURE OR ALLOWANCE SHOULD BE ALLOWED TO THE ASSESSEE UNDER A NY PROVISION OF THIS ACT IN COMPUTING ITS INCOME BY WAY OF DIVIDENDS REF ERRED TO IN SUB- SECTION (1). NOW, THE INTERPRETATION OF EXPENDITUR E OR ALLOWANCE TO COVER CURRENT YEAR LOSS IS, IN MY CONSIDERED OPINIO N, A HIGHLY DEBATABLE ISSUE AND NO PRECEDENCES HAVE BEEN MADE AVAILABLE T O ME. THEREFORE, IN THESE CIRCUMSTANCES, I HAVE NO HESITATION IN UPH OLDING THE FINDINGS OF THE LD. CIT(A). GROUND RAISED BY THE ASSESSEE I S DISMISSED. 6 13. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IN ITA NO. 6476/DEL/2019 IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 22.10 .2021. SD/- [N.K. BILLAIYA] ACCOUNTANT MEMBER DATED: 22 ND OCTOBER, 2021. VL/ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) ASST. REGISTRAR, 5. DR ITAT, NEW DELHI 7 DATE OF DICTATION DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE OTHER MEMBER DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR.PS/PS DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR.PS/PS DATE ON WHICH THE FINAL ORDER IS UPLOADED ON THE WEBSITE OF ITAT DATE ON WHICH THE FILE GOES TO THE BENCH CLERK DATE ON WHICH THE FILE GOES TO THE HEAD CLERK THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER DATE OF DISPATCH OF THE ORDER