DCIT CIR 3(1), MUMBAI V. FUSION INVESTMENT & FINANCIAL SERVICES LTD, MUMBAI

ITA 6496/MUM/2013

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4050 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 5 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-04-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 1999-2000
• Appeal Filed On: 05-11-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: BEENA SANTOSH
• Assessee Lawyers: A V SONDE
• Keywords: Business income; Depreciation; Tax effect; Unabsorbed depreciation

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUM BAI BEFORE SHRI JASON P. BOAZ, AM AND SHRI SANDEEP GOSA IN, JM ./ I.T.A. NO.6496/MUM/2013 ( / ASSESSMENT YEAR:1999-2000) D.C.I.T., CIRCLE 3(1), ROOM NO.607, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400 020. / VS. M/S. FUSION INVESTMENT & FINANCIAL SERVICES LTD. BAJAJ BHAVAN, 3 RD FLOOR, JAMNALAL BAJAJ MARG,NARIMAN POINT, MUMBAI-21. ./ ./PAN/GIR NO. AABCS 5993C ( /APPELLANT ) : ( / RESPONDENT ) / APPELLANT BY : SHRI BEENA SANTOSH / RESPONDENT BY : SHRI A.V. SONDE / DATE OF HEARING : 20/04/2016 !'# / DATE OF PRONOUNCEMENT : 20/04/2016 $% / O R D E R PER SANDEEP GOSAIN, J. M.: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 30.08.2013 OF COMMISSIONER OF INCOME TAX (APPEALS)-6, MUMBAI (HER EINAFTER CALLED AS THE CIT(A) ) FOR ASSESSMENT YEAR 1999-2000. 2 ITA NO.6496/MUM/2013 DCIT VS M/S. FUSION INVESTMENT & FINANCIAL SERVICES LTD. 1. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING SET OFF OF UNABSOR BED B/F. LOSSES AGAINST THE INCOME UNDER THE HEAD CAPITAL GAIN INSPITE OF HONB LE ITATS DIRECTION IN ITS ORDER DATED 22.08.2008 TO ALLOW THE BENEFITS OF UNABSORBED BUSINESS LOSS AND DEPRECIATION AGAINST THE BUSINESS INCOME OF CUR RENT YEAR IN ACCORDANCE WITH THE LAW. 2. WHETHER ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) WAS JUSTIFIED IN ALLOWING SET OFF OF UNABSOR BED B/F. LOSSES AGAINST THE INCOME UNDER THE HEAD CAPITAL GAIN INSPITE OF THE F ACT THAT THERE IS NO BUSINESS INCOME FOR THE CURRENT YEAR AND AS PER LAW ONLY B/FD UNABSORBED DEPRECIATION CAN BE SET OFF AGAINST THE INCOME UNDE R THE HEAD CAPITAL GAIN. 3. THE APPELLANT PRAYS THAT THE ORDER OF CIT(A) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF ASSESSING OFFICER BE RESTORED. 4. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GR OUND OR ADD A NEW GROUND WHICH MAY NECESSARY. 2. AT THE OUTSET THE LD. AR OF THE ASSESSEE POINTED OUT THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.10.00 LAKHS AND FURTHER SUBMITTE D THAT IN VIEW OF THE CBDT CIRCULAR NO.21/2015, DATED 10.12.2015 BROUGHT OUT BY THE CENTRAL BOARD OF 3 ITA NO.6496/MUM/2013 DCIT VS M/S. FUSION INVESTMENT & FINANCIAL SERVICES LTD. DIRECT TAXES, DEPARTMENT OF REVENUE, MINISTRY OF FI NANCE, GOVERNMENT OF INDIA, THE APPEAL WAS NOT MAINTAINABLE AND BE DISMISSED. T HE LD. DR ALSO AGREED TO THE SUBMISSION OF THE LD. AR. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND ALSO CON SIDERED THE SUBMISSIONS OF LD. AR THAT THE TAX EFFECT IN THIS APPEAL IS BELOW RS.10 LACS THEREFORE, IN VIEW OF THE CIRCULAR NO 21/2015 DATED 10 TH DECEMBER, 2015 NO APPEALS SHOULD BE FILED BY THE REVENUE BEFORE THE TRIBUNAL WHICH HAS TAX EFFEC T OF RS. 10.00 LACS OR LESS AND THIS CIRCULAR IS ALSO APPLICABLE RETROSPECTIVELY TO ALL PENDING APPEALS. THE RELEVANT EXTRACT THE SAID CBDT CIRCULAR (SUPRA) IS AS UNDER: - THIS INSTRUCTION WILL APPLY RETROSPECTIVELY TO PEN DING APPEALS AND APPEALS TO BE FILED HENCEFORTH IN HIGH COURTS/TRIBUNALS. PENDI NG APPEALS BELOW THE SPECIFIED TAX LIMITS IN PARA 3 ABOVE MAY BE WITHDRA WN/NOT PRESSED. APPEALS BEFORE THE SUPREME COURT WILL BE GOVERNED BY THE IN STRUCTIONS ON THIS SUBJECT, OPERATIVE AT THE TIME WHEN SUCH APPEAL WAS FILED. 4. CONSIDERING THE ABOVE, THE APPEAL FILED BY THE R EVENUE, IS THEREFORE DISMISSED. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. 4 ITA NO.6496/MUM/2013 DCIT VS M/S. FUSION INVESTMENT & FINANCIAL SERVICES LTD. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH APRIL, 2 016 SD/- SD/- (JASON P. BOAZ) (SANDEEP GOSAIN) $ / ACCOUNTANT MEMBER &' $ / JUDICIAL MEMBER ( ) MUMBAI; *$ DATED :20.04.2016 PS. ASHWINI / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT - CONCERNED 5. ./0 ''12 , 12# , ( ) / DR, ITAT, MUMBAI 6. 045 6 / GUARD FILE / BY ORDER, / !'# (DY./ASSTT. REGISTRAR) #$ %, ( ) / ITAT, MUMBAI.