DCIT, CHENNAI V. Omnex India P Ltd., CHENNAI

ITA 832/CHNY/2017

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 3955 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-07-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2012-2013
• Appeal Filed On: 04-04-2017
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: P RADHAKRISHNAN

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, CHENNAI . . . , !, # !$ BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI S. JAYARAMAN, ACCOUNTANT MEMBER ./ ITA NO.832/MDS/2017 ' (' / ASSESSMENT YEAR : 2012-13 THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 5(1), CHENNAI - 600 034. V. M/S OMNEX INDIA PVT. LTD., NO.1/807-A, PILLAYAR KOVIL STREET, THURAIPAKKAM, CHENNAI - 600 097. PAN : AAACO 7454 F (*+/ APPELLANT) (,-*+/ RESPONDENT) *+ . / / APPELLANT BY : SH. P. RADHAKRISHNAN, JCIT ,-*+ . / / RESPONDENT BY : NONE 0 . 1# / DATE OF HEARING : 27.06.2017 23( . 1# / DATE OF PRONOUNCEMENT : 27.07.2017 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE REVENUE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) 3, CHENN AI, DATED 30.12.2016 AND PERTAINS TO ASSESSMENT YEAR 2012-13. 2 I.T.A. NO.832/MDS/17 2. NO ONE APPEARED FOR THE ASSESSEE INSPITE OF RECE IPT OF NOTICE BY RPAD. THE REGISTRY HAS PLACED POSTAL ACKNOWLEDG EMENT AS PROOF OF SERVICE OF NOTICE ON THE ASSESSEE. THEREF ORE, WE HEARD LD. DEPARTMENTAL REPRESENTATIVE AND PROCEEDED TO DISPOS E OF THE APPEAL ON MERIT. 3. SH. P. RADHAKRISHNAN, THE LD. DEPARTMENTAL REPRE SENTATIVE SUBMITTED THAT THE ASSESSEE CLAIMS SET OFF OF BROUG HT FORWARD BUSINESS LOSS OF ` 43,56,464/- FOR THE ASSESSMENT YEAR 2010-11 UNDER SECTION 139(3) OF THE INCOME-TAX ACT, 1961 (I N SHORT 'THE ACT'). ACCORDING TO THE LD. D.R., THE ASSESSEE IS ELIGIBLE TO CARRY FORWARD THE BUSINESS LOSS AND SET OFF IN THAT YEAR PROVIDED THE RETURN OF INCOME WAS FILED WITHIN THE TIME LIMIT PRESCRIBED U NDER SECTION 139(1) OF THE ACT. IN THIS CASE, ACCORDING TO THE LD. D.R., FOR ASSESSMENT YEAR 2010-11, THE RETURN WAS NOT FILED W ITHIN THE TIME LIMIT PROVIDED UNDER SECTION 139(1) OF THE ACT, THE REFORE, THE BUSINESS LOSS SAID TO BE SUFFERED IN ASSESSMENT YEA R 2010-11 CANNOT BE CARRIED FORWARD TO SET OFF AGAINST THE IN COME IN THE SUBSEQUENT YEAR. THEREFORE, ACCORDING TO THE LD. D .R., THE CIT(APPEALS) IS NOT CORRECT IN ALLOWING THE CLAIM O F THE ASSESSEE. 3 I.T.A. NO.832/MDS/17 4. WE HAVE HEARD THE SUBMISSION OF LD. DEPARTMENTAL REPRESENTATIVE AND PERUSED THE MATERIAL AVAILABLE O N RECORD. THE ASSESSING OFFICER REJECTED THE CARRY FORWARD OF BUS INESS LOSS OF ` 49,23,846/- ON THE GROUND THAT THE ASSESSEE HAS NOT FILED RETURN OF INCOME UNDER SECTION 139(1) WITHIN THE DUE DATE. H OWEVER, THE CIT(APPEALS) ALLOWED THE CLAIM OF THE ASSESSEE ON T HE GROUND THAT THE RETURN FILED BY THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11 WAS NOT REJECTED BY THE ASSESSING OFFICER. THEREFO RE, IN VIEW OF THE RETURN FILED FOR THE ASSESSMENT YEAR UNDER CONSIDER ATION, THE SAME HAS TO BE ALLOWED. THE MAIN CONTENTION OF THE LD. DEPARTMENTAL REPRESENTATIVE BEFORE THIS TRIBUNAL IS THAT FOR THE PURPOSE OF ALLOWING THE CLAIM OF CARRY FORWARD OF BUSINESS LOS S, THE ASSESSEE HAS TO NECESSARILY FILE THE RETURN WITHIN THE TIME PROVIDED UNDER SECTION 139(1) OF THE ACT. 5. WE HAVE CAREFULLY GONE THROUGH THE PROVISIONS OF SECTION 139(3) OF THE ACT WHICH READS AS FOLLOWS:- 139(3) IF ANY PERSON WHO HAS SUSTAINED A LOSS IN ANY PREVIOUS YEAR UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' OR UNDER THE HEAD 'CAPITAL GAINS' AN D CLAIMS THAT THE LOSS OR ANY PART THEREOF SHOULD BE CARRIED FORWARD UNDER SUB-SECTION (1) OF SECTION 72 OR SUB-SECTION (2) OF SECTION 73A OR SUB-SECTION (1) OR SUB-SECTION (3) OF S ECTION 74 OR SUB-SECTION (3) OF SECTION 74A, HE MAY FURNISH, WI THIN 4 I.T.A. NO.832/MDS/17 THE TIME ALLOWED UNDER SUB-SECTION (1) A RETURN OF LOSS IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANN ER AND CONTAINING SUCH OTHER PARTICULARS AS MAY BE PRESCRI BED, AND ALL THE PROVISIONS OF THIS ACT SHALL APPLY AS IF IT WERE A RETURN UNDER SUB-SECTION (1). 6. WHEN THE ASSESSEE CLAIMS BUSINESS LOSS FOR THE A SSESSMENT YEAR 2010-11 AND CLAIMS THE SAME TO BE CARRIED FORW ARD, IT HAS TO FILE THE RETURN OF INCOME UNDER SECTION 139(3) OF T HE ACT WITHIN THE PRESCRIBED TIME PROVIDED UNDER SECTION 139(1) OF TH E ACT. THE REJECTION OF RETURN OF INCOME WOULD COME INTO OPERA TION WHEN THERE IS A DEFECT IN THE RETURN FILED BY THE ASSESSEE. I N THIS CASE, IT IS NOBODYS CASE THAT THERE IS DEFECT IN THE RETURN. THE ASSESSEE CLAIMS TO CARRY FORWARD THE LOSSES SUFFERED IN THE ASSESSMENT YEAR 2010-11 TO THE SUBSEQUENT YEAR, BUT THE RETURN WAS NOT FILED WITHIN DUE DATE PRESCRIBED UNDER SECTION 139(1) OF THE ACT . THEREFORE, THE LOSS SAID TO BE SUFFERED IN THE ASSESSMENT YEAR 201 0-11 CANNOT BE BROUGHT FORWARD TO SUBSEQUENT YEAR. HENCE, THE CIT (APPEALS) IS NOT JUSTIFIED IN ALLOWING THE CLAIM OF THE ASSESSEE . THEREFORE, WE ARE UNABLE TO UPHOLD THE ORDER OF THE CIT(APPEALS). THE ORDER OF THE CIT(APPEALS) IS SET ASIDE AND THAT OF THE ASSES SING OFFICER IS RESTORED. 7. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S ALLOWED. 5 I.T.A. NO.832/MDS/17 ORDER PRONOUNCED ON 27 TH JULY, 2017 AT CHENNAI. SD/- SD/- ( ! ) ( . . . ) (S. JAYARAMAN) (N.R.S. GANESAN) # / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 27 TH JULY, 2017. KRI. . ,167 87(1 /COPY TO: 1. *+ /APPELLANT 2. ,-*+ /RESPONDENT 3. 0 91 () /CIT(A)-3, CHENNAI-34 4. PRINCIPAL CIT- 5, CHENNAI 5. 7: ,1 /DR 6. ;' < /GF.