MONTANA INFRASTRUCTURE LTD, MUMBAI V. ACIT CEN CIR 38, MUMBAI

ITA 6577/MUM/2016

• Counselvise Citation: [2017] 126 COUNSELVISE.COM (IT) 8017 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-12-2017
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 09-11-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: N HEMALATHA
• Assessee Lawyers: S K MUTSADDI
• Keywords: Condonation of delay
• Section: 133A; 147; 148

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH SMC, MUMBAI BEFORE SHRI D.T. GARASIA, JUDICIAL MEMBER ITA NO.6577/M/2016 ASSESSMENT YEAR: 2010-11 ITA NO.6583/M/2016 ASSESSMENT YEAR: 2011-12 M/S. MONTANA INFRASTRUCTURE LTD., 507, VYAPAR BHAVAN, 49, P. DMELLO ROAD, CARNAC BUNDER, MUMBAI-400 009 PAN: AABCM4495K VS. ACIT, CENTRAL CIRCLE-6(3), 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI 400 021 (APPELLANT) (RESPONDENT) PRESENT FOR: ASSESSEE BY : SHRI S.K. MUTSADDI, A.R. REVENUE BY : SMT. N. HEMALATHA, D.R. DATE OF HEARING : 06.11.2017 DATE OF PRONOUNCEMENT : 20.12.2017 O R D E R PER D.T. GARASIA, JUDICIAL MEMBER: THE ABOVE TITLED APPEALS HAVE BEEN PREFERRED BY TH E ASSESSEE AGAINST THE COMMON ORDER DATED 08.07.2016 OF THE C OMMISSIONER OF INCOME TAX (APPEALS) [HEREINAFTER REFERRED TO AS TH E CIT(A)] RELEVANT TO ASSESSMENT YEARS 2010-11 & 2011-12. 2. THESE APPEALS ARE TIME BARRED BY 9 DAYS. SINCE THE DELAY IN FILING THE APPEALS IS OF ONLY 9 DAYS AND THE REASON FOR DELAY HAS BEEN EXPLAINED BY THE LD. A.R., I ALLOW THE CONDONATION OF DELAY AND PROCEED TO HEAR THE APPEALS. ITA NO.6577/M/2016 & ITA NO.6583/M/2016 M/S. MONTANA INFRASTRUCTURE LTD. 2 3. THE SHORT FACTS OF THE CASE ARE AS UNDER: THE ASSESSEE HAD FILED THE RETURN OF INCOME DECLAR ING THE LOSS OF RS.5.87 LAKHS. THE ASSESSMENT WAS COMPLETED UND ER SECTION 143 READ WITH SECTION 147 OF THE ACT DETERMINING THE TO TAL INCOME AT NIL. IN RESPONSE TO TWO NOTICES UNDER SECTION 148 THE AS SESSEE HAS FILED THE RETURN. THE ASSESSING OFFICER (HEREINAFTER REF ERRED TO AS THE AO) FOUND THAT WHILE IN THE ORIGINAL RETURN THE ASSESSE E HAS CLAIMED THE LOSS OF RS.5.87 LAKHS WHEREAS IN RESPONSE TO NOTICE UNDER SECTION 148 THE ASSESSEE HAS FILED THE NIL RETURN OF INCOME. T HEREFORE, AO WAS OF A VIEW THAT ASSESSEE HAS FILED NIL RETURN. AS THER E WAS A SURVEY TOOK PLACE UNDER SECTION 133A OF THE ACT AND IN PURSUANT TO SURVEY ACTION ASSESSEES ASSESSMENT WAS REOPENED. THEREFORE, PEN ALTY WAS LEVIED BY THE AO. 4. THE MATTER CARRIED TO THE LD. CIT(A) AND THE LD. CIT(A) HAS CONFIRMED THE SAME. 5. DURING THE COURSE OF ASSESSMENT PROCEEDING, THE LD. A.R. SUBMITTED THAT ASSESSEE HAS FILED THE ORIGINAL RETU RN WHEREIN ASSESSEE HAS DECLARED TOTAL LOSS OF RS.5.87 LAKHS. THEREAFT ER, THERE WAS A SURVEY UNDER SECTION 133A AND IN PURSUANCE OF THE A SSESSMENT ASSESSEES ASSESSMENT WAS REOPENED UNDER SECTION 14 7 OF THE ACT. IN RESPONSE TO NOTICE UNDER SECTION 148 ASSESSEE HAS F ILED THE NIL RETURN OF INCOME WITHOUT CARRY FORWARD THE LOSS OF RS.5.87 LAKHS. THE LD. A.R. SUBMITTED THAT THE ASSESSEE HAS CLAIMED THE LO SS ON THE GROUND THAT ASSESSEE WAS RUNNING THE BUSINESS BUT COULD NO T CARRY OUT THE BUSINESS AND CLOSED THE BUSINESS. BUT, SOME OF THE ACTIVITIES WERE ITA NO.6577/M/2016 & ITA NO.6583/M/2016 M/S. MONTANA INFRASTRUCTURE LTD. 3 CARRIED OUT BY THE ASSESSEE. THEREFORE, LOSS WAS C LAIMED. BUT THEREAFTER ASSESSEE WITHDREW THE CLAIM OF LOSS IN S UBSEQUENT YEAR AND THUS ASSESSEE COULD NOT CLAIM THE LOSS IN SUBSEQUEN T YEAR ALSO. MOREOVER, IT IS A CASE WHERE THE ASSESSEE HAS CLAIM ED THE LOSS IN A YEAR AND THE SAME LOSS WAS NOT CLAIMED IN THE SUBSE QUENT RETURN, HENCE IT DOES NOT ATTRACT THE PENALTY. THE LD. A.R . SUBMITTED THAT NO PENALTY CAN BE LEVIED AND HE RELIED UPON THE DECISI ON OF HONBLE DELHI HIGH COURT IN THE CASE OF CIT VS. AT & T COMM UNICATIONS SERVICES INDIA PVT. LTD. -342 ITR 257, GUJARAT HIGH COURT IN SACHINAM TRUST - 21 DTR 1 (GUJ.), AND HE ALSO RELIE D UPON THE DECISION OF PUNJAB & HARYANA COURT IN THE CASE OF R AJIV GARG & OTHERS 313 ITR 256. 6. THE LD. D.R. RELIED UPON THE ORDERS OF THE REVEN UE AUTHORITIES. 7. I HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE P ARTIES. I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A) I N BOTH THE APPEALS OF THE ASSESSEE. HENCE, I HAVE NO ALTERNATIVE BUT TO ACCEPT THE ORDER OF THE LD. CIT(A). 8. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20.12.2017. SD/- (D.T. GARASIA) JUDICIAL MEMB ER MUMBAI, DATED: 20.12.2017. * KISHORE, SR. P.S. ITA NO.6577/M/2016 & ITA NO.6583/M/2016 M/S. MONTANA INFRASTRUCTURE LTD. 4 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT (A) CONCERNED, MUMBAI THE DR CONCERNED BENCH //TRUE COPY// [ BY ORD ER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.