SHARMA PICTURE PUBLICATION, MUMBAI V. ITO 14(3)(3), MUMBAI

ITA 6881/MUM/2012

• Counselvise Citation: 688119914 RSA 2012
• Duration Of Justice: 1 year(s) 2 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2009-2010
• Appeal Filed On: 09-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Period of limitation; Unabsorbed depreciation
• Section: 143(3)

Judgement Text

- 1 - VK;DJ VIHYH; VF/KDJ.K BZ U;K;IHB EQACBZ ESAA IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI JH VKJ JH VKJ JH VKJ JH VKJ- -- - LH LHLH LH- -- - 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA 'KEKZ] YS[KK LNL; ,OA MK0 ,L MK0 ,L MK0 ,L MK0 ,L- -- - VH VHVH VH- -- - ,E ,E,E ,E- -- - IOYU IOYU IOYU IOYU] U;KF;D ] U;KF;D ] U;KF;D ] U;KF;D LNL; DS LE{K LNL; DS LE{K LNL; DS LE{K LNL; DS LE{K BEFORE SHRI R.C. SHARMA, ACCOUNTANT MEMBER AND DR. S.T. M PAVALAN, JUDICIAL MEMBER VK;DJ VIHY LA[;K /ITA NO.6881/MUM/2012 FU/KKZJ.K O'KZ @ ASSESSMENT YEAR 2009-10 M/S SHARMA PICTURE PUBLICATION 01 ST FLOOR, VALLABHDAS KANJI STREET, 175, PRINCESS STREET, KALBADEVI, MUMBAI 400 002. CUKE@ VS. THE I.T.O 14(3)(3), MUMBAI. PAN:- AAGFS6910F VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VIHYKFKHZ DH VKSJ LS @ ASSESSEE BY SHRI NEELKANTH KHANDELWAL IZR;FKHZ DH VKSJ LS @ REVENUE BY MS. SONIA KUMAR VKNS'K@ VKNS'K@ VKNS'K@ VKNS'K@ ORDER PER R.C. SHARMA, AM. THIS IS AN APPEAL, FILED BY THE ASSESSEE AGAINST TH E ORDER OF CIT(A) DATED 29.06.2012 FOR A.Y. 2009-10, IN THE MATTER OF ORDER PASSED U/S 143(3) OF THE INCOME TAX ACT. THE ONLY GRIEVANCE OF THE ASSESSEE RELATES TO DENYING THE CARRY FORWARD OF RETURNED LOSS OF RS . 2,89,112/- TO THE SUBSEQUENT YEAR ESPECIALLY WHEN THE SAID LOSS HAS A RISEN ON ACCOUNT OF UNABSORBED DEPRECIATION. LQUOKBZ DH RKJH[K@ DATE OF HEARING 15 - 01 - 2014 ?KKS'K.KK DH RKJH[K@ DATE OF PRONOUNCEMENT 2 2 - 01 - 2014 - 2 - 2. RIVAL CONTENTIONS HAVE BEEN HEARD AND RECORD PER USED. FACTS IN BRIEF ARE THAT THE ASSESSEE FILED HIS RETURN AT NIL INCOME, WHEREIN UNABSORBED DEPRECIATION OF RS. 2,89,112/- WAS CLAIM ED AS CARRY FORWARD BUSINESS LOSS. HOWEVER THE AO DECLINED THE CARRY FO RWARD ON THE PLEA THAT ASSESSEE HAS FILED HIS RETURN OF INCOME BEYON D TIME ON 31 ST MARCH 2010, HENCE THE LOSS COULD NOT BE ALLOWED TO BE CAR RIED FORWARD AND SET OFF. AS PER OUR CONSIDERED VIEW, PROVISIONS OF SECT ION 80 R.W.S 139(1) ARE NOT APPLICABLE TO LOSS ARISING ON ACCOUNT OF DEPREC IATION. THE ISSUE IS ALSO SETTLED BY THE DECISION OF HONBLE HIGH COURT OF DE LHI IN THE CASE OF CIT VS. GOVIND NAGAR SUGAR LTD (334 ITR 13), WHEREIN I T WAS HELD THAT BENEFIT OF CARRY FORWARD AND SET OFF DEPRECIATION CAN NOT BE DENIED U/S 72, IN SO FAR AS SECTION 72 DEALS WITH CARRY FORWARD OF UNABS ORBED BUSINESS LOSS OTHER THAN LOSSES ON ACCOUNT OF DEPRECIATION. SECTI ON 32(2) PROVIDES FOR CARRY FORWARD OF DEPRECIATION. SECTION 80 AND SECTI ON 139(3) APPLY TO BUSINESS LOSS AND NOT TO UNABSORBED DEPRECIATION, H ENCE PERIOD OF LIMITATION FOR FILING LOSS RETURN AS PROVIDED IN SE CTION 139(1) SHALL NOT BE APPLICABLE FOR CARRY FORWARD OF UNABSORBED DEPRECIA TION. THE REASONS ASSIGNED BY THE AO FOR DECLINING THE CLAIM FOR CARR Y FORWARD WAS NOT CORRECT IN SO FAR AS PROVISIONS OF SECTION 139(4) P ROVIDES THAT IN CASE A PERSON HAS NOT FURNISHED THE RETURN OF INCOME WITHI N THE TIME ALLOWED U/S 139(1), HE CAN FILE RETURN BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF RELEVANT ASSESSMENT YEAR. THUS THE PROVISIONS OF SECTION 139(4) PROVIDES EXTENDED PERIOD OF LIMITATION AS AN EXTENT TO SECTION 139(1). RESPECTFULLY FOLLOWING THE VERDICT IN CASE OF GOVIN D NAGAR SUGAR LTD. (SUPRA), WE DO NOT FIND ANY MERIT IN THE ACTION OF LOWER AUTHORITIES FOR - 3 - NOT ALLOWING CARRY FORWARD OF DEPRECIATION, WHICH W AS IN THE FORM OF LOSS. WE DIRECT THE AO TO ALLOW THE SAME. 3. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED ON 22 /01/2014 SD/- SD/- ( DR. S.T.M. PAVALAN ) (R.C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED 22 /01/2014 SKS SR. P.S COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CONCERNED CIT(A) 4. THE CONCERNED CIT 5. THE DR, E BENCH, ITAT, MUMBAI BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCHES, MUMBAI