ACIT CIR-4(2)(2), MUMBAI V. MARK & SPENCER RELIANCE INDIA P.LTD, NAVI MUMBAI

ITA 6703/MUM/2018

• Counselvise Citation: [2020] 111 COUNSELVISE.COM (IT) 8116 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 1 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2012-2013
• Appeal Filed On: 27-11-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: KAMAL MANGAL J
• Keywords: Revised return
• Section: 139(5); 139(1); 9(1); 9(1); 9(1); 13; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH MUM BAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMB ER & SHRI G. MANJUNATHA, ACCOUNTANT MEMB ER ITA NO.6703/MUM/2018 ( ASSESSMENT YEAR :2012-13 ) ACIT, CIRCLE-4(2)(2) ROOM NO.640, 6 TH FLOOR AAYKAR BHAWAN, M.K.ROAD MUMBAI-400 020 VS. MARKS & SPENCER RELIANCE INDIA PVT.LTD. 4 TH FLOOR, COURT HOUSE LOKMANYA TILAK ROAD DHOBI TALAO MUMBAI-400 002 PAN/GIR NO. AAFCM5990D APPEL LANT ) .. RESPONDENT ) REVENUE BY SHRI KAMAL MANGAL, JCIT-DR ASSESSEE BY SHRI NIMESH VORA, AR DATE OF HEARING 14 /01/2020 DATE OF PRONOUNCEMENT 22/01/2020 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS)09, MUMBAI , DATED 10/09/2018 AND IT PERTAINS TO ASSESSMENT YEAR 2012- 13. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT(A) ERRED IN DISMISSING THE APPEAL CONSI DERING THE CLAIM OF LOSS BY THE ASSESSEE COMPANY IN THE REVISED RETU RN WHEN THE SAME WAS NOT CLAIMED IN ORIGINAL RETURN AS LEGAL AND VAL ID, WHICH IS CONTRAST WITH THE SECTION 80 AND SECTION 139(3) OF THE I.T.A CT, 1961. 2. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER AN Y GROUND OR ADD NEW GROUND WHICH MAY BE NECESSARY. ITA NO.6703/MUM/2018 MARKS & SPENCER RELIANCE INDIA PVT.LTD. 2 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS FILED ITS RETURN OF INCOME FOR AY 2012-13 ON 29/11/2012, DECL ARING TOTAL INCOME OF RS. NIL, BEING INCOME FROM BUSINESS OF RS . 8,18,81,234/-, LESS SET OFF OF BROUGHT FORWARD LOSS OF EARLIER YEARS. THE ASSESEE HAS CONSIDERED BROUGHT FORWARD LOSSES FOR AY 2009-1 0 AT RS. 5,75,97,803/- AS PER REVISED RETURN FILED FOR THAT YEAR. THE LD. AO, HOWEVER RESTRICTED THE BROUGHT FORWARD LOSS FOR AY 2009-10 TO RS. 1,33,52,450/-, AS PER ORIGINAL RETURN OF INCOME FIL ED FOR THAT YEAR BY INVOKING THE PROVISIONS OF SECTION 80 OF THE I.T.AC T, 1961 AND ACCORDINGLY, DISALLOWED EXCESS LOSS CLAIMED BY THE ASSESSEE, AS PER THE REVISED RETURN OF INCOME. THE ASSESSEE CARRIED MATTER IN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY. THE LD.CIT(A) , FOR THE DETAILED REASONS RECORDED IN HIS APPELLATE ORDER, DATED 10/ 09/2018 ALLOWED BROUGHT FORWARD LOSS CLAIMED BY THE ASSESSEE, ON TH E BASIS OF REVISED RETURN FILED FOR THAT YEAR, ON THE GROUND T HAT PROVISIONS OF SECTION 80 CANNOT BE INVOKED, WHEN THE ASSESSEE HAS FILED REVISED RETURN OF INCOME WITHIN THE DUE DATE ALLOWED UNDER THE ACT, BECAUSE, THE REVISED RETURN WOULD TAKE PLACE THE ORIGINAL RETURN FOR THAT YEAR. AGGRIEVED BY THE LD.CIT(A) ORDER, THE RE VENUE IS IN APPEAL BEFORE US. 4. THE LD. DR SUBMITTED THAT THE LD.CIT(A) WAS ERR ED IN CONSIDERING THE CLAIM OF LOSS, AS PER REVISED RETUR N OF INCOME FILED BY THE ASSESSEE, WHEN THE SAME WAS NOT CLAIMED IN ORIG INAL RETURN AS LEGAL AND VALID, WHICH IS CONTRAST WITH THE PROVISI ON OF SECTION 80 AND SECTION 139(3) OF THE I.T.ACT, 1961. 5. THE LD. AR FOR THE ASSESSEE, ON THE OTHER HAND, STRONGLY SUPPORTING ORDER OF THE LD. CIT(A) SUBMITTED THAT O NCE, ORIGINAL ITA NO.6703/MUM/2018 MARKS & SPENCER RELIANCE INDIA PVT.LTD. 3 RETURN OF INCOME WAS FILED WITHIN THE DUE DATE SPEC IFIED U/S 139(1), THEN ANY LOSS CLAIMED BY FILING REVISED RETURN WITH IN THE DUE DATE SPECIFIED U/S 139(5) CAN BE ALLOWED TO BE CARRIED F ORWARD AND SET OFF AGAINST INCOME OF SUBSEQUENT YEARS. 6. WE HAVE HEARD BOTH THE PARTIES, PERUSED THE MATE RIAL AVAILABLE ON RECORD AND GONE THROUGH ORDERS OF THE AUTHORITIE S BELOW. THE ASSESSEE HAS CLAIMED SET OFF FOR BROUGHT FORWARD BU SINESS LOSS, AS PER REVISED RETURN OF INCOME FILED FOR THAT YEAR. T HE LD. AO HAS ALLOWED LOSS, AS PER ORIGINAL RETURN OF INCOME FILE D FOR THAT YEAR. ACCORDING TO THE LD. AO, LOSSES OF EARLIER YEARS CA N BE ALLOWED TO BE SET OFF, AS PER THE PROVISION OF SECTION 80, WHICH STATES THAT ANY LOSS RETURN FILED, AS PER THE PROVISION OF SECTION 139(3 ) ONLY CAN BE ALLOWED TO BE SET OFF, BUT NOT LOSS AS PER REVISED RETURN OF INCOME FILED U/S 139(5) OF THE I.T.ACT, 1961. IN THE BACKG ROUND OF ABOVE FACTUAL POSITION, IF YOU EXAMINE THE CLAIM OF THE A SSESSE, WE NOTED THAT THE ASSESSEE HAS FILED ORIGINAL RETURN OF INCO ME FOR AY 2009-10 WITHIN THE DUE DATE, AS PER PROVISION OF SECTION 13 9(1) OF THE I.T.ACT, 1961 AND DECLARED LOSS OF RS. 1,33,52,450/-. SUBSEQ UENTLY, IT HAS FILED A REVISED RETURN ON 26/03/2011 AND DECLARED L OSS OF RS. 5,75,97,803/- AND SAID REVISED RETURN IS AS PER PRO VISION OF SECTION 139(5) OF THE I.T.ACT, 1961. AS PER THE PROVISION O F SECTION 80 OF THE I.T.ACT, 1961, LOSS DETERMINED IN PURSUANCE OF RETU RN FILED IN ACCORDANCE WITH THE PROVISION OF SECTION 139(3) OF THE ACT, SHALL BE ALLOWED TO BE CARRIED FORWARD UNDER THE RELEVANT, PROVISIONS OF THE ACT. SECTION 139(3) OF THE ACT, SPECIFIES THAT LOSS SUSTAIN UNDER THE HEAD INCOME FROM BUSINESS SHALL BE ALLOWED TO BE CA RRIED FORWARD UNDER THE RELEVANT PROVISIONS OF THE ACT, PROVIDED THE RETURN IS FILED WITHIN THE DUE DATE AS PRESCRIBED UNDER THE PROVIS IONS OF SECTION ITA NO.6703/MUM/2018 MARKS & SPENCER RELIANCE INDIA PVT.LTD. 4 139(1) OF THE ACT. SIMILARLY, AS PER SECTION 139(5) OF THE ACT, AN ERROR OR OMISSION IN THE RETURN FILED U/S 139(1) CAN BE R ECTIFIED BY FILING A REVISED RETURN ON OR BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION O F ASSESSMENT WHICHEVER IS EARLIER. IN THE PRESENT CASE, THE ORIG INAL RETURN WAS FILED ON 24/09/2009, WHICH IS BEFORE THE DUE DATE OF FILI NG RETURN U/S 139(1) OF THE ACT. SIMILARLY, THE ASSESSEE HAS FILE D REVISED RETURN ON 26/03/2011, WHICH IS BEFORE THE DUE DATE OF FILING REVISED RETURN I.E 31/03/2011. FROM THE PLAIN READING OF SECTION 139(3 ) R.W.S. 80 OF THE ACT, IT IS CLEAR THAT IF ASSESEE INCURRED A LOSS, W HICH IT CLAIMS TO BE CARRIED FORWARD, THEN IT HAS TO FILE ITS RETURN OF INCOME WITHIN THE TIME STIPULATED IN SECTION 139(1) OF THE ACT, OTHERWISE, THE LOSS WILL NOT BE CARRIED FORWARD. SINCE, THE ASSESSEE HAS FILED ORIG INAL RETURN WITHIN THE DUE DATE PRESCRIBED U/S 139(1), THEN ANY REVISE D RETURN FILED, SUBSEQUENTLY WITHIN THE DUE DATE PRESCRIBED U/S 139 (5) PARTAKS, THE NATURE OF ORIGINAL RETURN FILED U/S 139(1) AND CONS EQUENTLY, THE CONDITIONS PRESCRIBED U/S 139(3) OF THE ACT, IS FUL FILLED AND ACCORDINGLY, LOSS CLAIMED SHALL BE ALLOWED TO BE CA RRIED FORWARD UNDER THE RELEVANT PROVISION OF THE ACT. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE LD. AO WAS INCORRECT IN IN VOKING THE PROVISIONS OF SECTION 80 OF THE I.T.ACT, 1961 TO AL LOW LOSS AS PER ORIGINAL RETURN FILED U/S 139(1) OF THE ACT. THE LD . CIT(A) AFTER CONSIDERING THE RELEVANT FACTS HAS RIGHTLY ALLOWED SET OFF OF LOSS AS PER REVISED RETURN FILED FOR THAT YEAR AND RIGHTLY HELD THAT PROVISION OF SECTION 80 OF THE ACT, CANNOT BE INVOKED IN THE PRE SENT CASE. HENCE, WE ARE INCLINED TO UPHOLD THE FINDINGS OF THE LD.CI T(A) AND DISMISSED APPEAL FILED BY THE REVENUE. 7. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ITA NO.6703/MUM/2018 MARKS & SPENCER RELIANCE INDIA PVT.LTD. 5 ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/01/2 020 SD/- (SAKTIJIT DEY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 22/01/2020 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//