THE KOTA CO-OPERATIVE MARKETING LTD., KOTA V. INCOME TAX OFFICER , WARD-1-3, KOTA

ITA 852/JPR/2019

• Counselvise Citation: [2019] 113 COUNSELVISE.COM (IT) 6345 (ITAT-JAIPUR)
• Duration Of Justice: 4 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 07-11-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 11-06-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK SHARMA CIT DHK
• Keywords: Depreciation; Assessment record; Unabsorbed depreciation; Set aside
• Section: 143(1); 139(1)

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCH SMC, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; DS LE{K BEFORE: SHRI SHRI VIJAY PAL RAO, JUDICIAL MEMBER VK;DJ VIHY LA-@ ITA NO. 852/JP/2019 FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2008-09. THE KOTA COOPERATIVE MARKETING LTD. DAINIK NAVJYOTI BUILDING, RAWATBHATA ROAD, KOTA. CUKE VS. THE INCOME TAX OFFICER, WARD 1(3), KOTA. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAATT 1464 B VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI VIPUL JAIN (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI ABHISHEK SHARMA (ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 01.10.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 07/11/2019. VKNS'K@ ORDER PER VIJAY PAL RAO, JM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 16.03.2019 OF LD. CIT (APPEALS), KOTA FOR THE ASSESSMENT YEAR 200 8-09. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL :- 1. THE LD. ASSESSING OFFICER HAS ERRED IN DISALLO WING THE SET OFF OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION ALLEGING THAT THE RETURN OF INCOME FOR THE AY 2000-01 WAS NOT FILED W ITHIN DUE DATE WITHOUT ANY EVIDENCE IN THIS REGARD. THE APPELLANT HAS FILED INCOME TAX RETURN FOR THE AY 2000-01 WITHIN DUE DATE BUT THE A CKNOWLEDGEMENT OF THE RETURN IS NOT AVAILABLE. THE APPELLANT HAS AN I NTIMATION U/S 143(1)(A) DATED 30.11.2000 WHICH SHOWS CARRY FORWAR D LOSSES OF RS. 8,80,900/-. THIS PROVES THAT THE RETURN OF INCOME W AS FILED IN TIMELY MANNER. 2. THIS IS SECOND ROUND OF APPEAL AS IN THE FIRST R OUND THE TRIBUNAL VIDE ORDER DATED 19.12.2016 IN ITA NO. 460/JP/2015 HAD SET ASI DE THE MATTER TO THE RECORD OF 2 ITA NO. 852/JP/2019 THE KOTA CO-OPEREATIVE MARKETING LTD., KOTA. THE AO ON THE ISSUE FOR DECIDING THE SAME AFRESH AF TER GIVING AN OPPORTUNITY OF HEARING TO THE ASSESSEE. 3. THE ONLY ISSUE ARISES IN THIS APPEAL IS DENIAL O F SETTING OFF OF BROUGHT FORWARD LOSSES PERTAINING TO THE ASSESSMENT YEAR 2000-01. THE AO HAS DENIED THE SETTING OFF OF BROUGHT FORWARD LOSSES ON THE GROUND THAT TH E ASSESSEE HAS NOT FILED THE COPY OF THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 200 0-01 TO ASCERTAIN WHETHER THE RETURN OF INCOME WAS FILED WITHIN TIME OR NOT. THE LD. CIT (A) HAS CONFIRMED THE ACTION OF THE AO ON THE SIMILAR REASON. 4. BEFORE THE TRIBUNAL, THE LD. A/R OF THE ASSESSEE HAS SUBMITTED THAT THE ASSESSEE PRODUCED THE INTIMATION DATED 30 TH NOVEMBER, 2000 ISSUED UNDER SECTION 143(1)(A) OF THE IT ACT. THEREFORE, FROM THE SAID INTIMATION IT IS CLEAR THAT THE RETURN OF INCOME WAS FILED IN TIME AND WAS PROCESSED ON 30 TH NOVEMBER, 2000. THE LD. A/R HAS THUS CONTENDED THAT IF THE RETURN OF INCOME WOU LD HAVE BEEN FILED BELATEDLY, THEN HOW THE SAID RETURN WAS PROCESSED UNDER SECTIO N 143(1) MANUALLY BY THE AO ON 30.11.2000. HE HAS ALSO REFERRED TO THE COMPUTA TION OF INCOME FOR THE YEAR UNDER CONSIDERATION AND SUBMITTED THAT THE ASSESSEE HAS CLAIMED SETTING OFF OF BROUGHT FORWARD LOSSES PERTAINING TO THE ASSESSMENT YEAR 2000-01 ONLY RS. 7,65,276/- WHEREAS THE AO HAS DISALLOWED THE ENTIRE CLAIM OF SETTING OFF OF LOSSES OF RS. 8,10,157/-. FURTHER, THE AO HAS MADE THE ADDIT ION OF RS. 8,80,901/- AS AGAINST THE CLAIM OF RS. 7,65,276/-. HENCE THE LD. A/R HAS SUBMITTED THAT ONCE THE ASSESSEE HAS PRODUCED THE INTIMATION ISSUED UNDER SECTION 14 3(1)(A), THEN IN THE ABSENCE OF ANY CONTRARY MATERIAL AND WITHOUT ASCERTAINING THE FACTS FROM THE DEPARTMENTS OWN 3 ITA NO. 852/JP/2019 THE KOTA CO-OPEREATIVE MARKETING LTD., KOTA. RECORD, THE REJECTION OF CLAIM OF SETTING OFF OF BR OUGHT FORWARD LOSSES IS UNJUSTIFIED AND ARBITRARY. 5. ON THE OTHER HAND, THE LD. D/R HAS SUBMITTED THA T DESPITE THE MATTER WAS SET ASIDE TO THE RECORD OF THE AO IN THE FIRST ROUND OF APPEAL, THE ASSESSEE HAS FAILED TO PRODUCE THE EVIDENCE REGARDING THE RETURN OF INCOME FILED BY THE ASSESSEE FOR CLAIMING THE CARRY FORWARD LOSSES AND SETTING OFF T HE SAME FOR THE YEAR UNDER CONSIDERATION. HE HAS RELIED UPON THE ORDERS OF TH E AUTHORITIES BELOW. 6. I HAVE CONSIDERED THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE AO HAS DISALLOWED THE CLAIM OF SETTING OFF OF BROUGHT FORWARD LOSSES PERTAINING TO THE ASSESSMENT YEAR 2000-01 ONLY ON T HE GROUND THAT THE ASSESSEE HAS NOT PRODUCED THE COPY OF RETURN OF INCOME TO SHOW T HAT THE RETURN OF INCOME WAS FILED IN TIME. IT IS PERTINENT TO NOTE THAT THE AS SESSEE PRODUCED THE INTIMATION ISSUED UNDER SECTION 143(1)(A) OF THE ACT DATED 30.11.2000 . THE SAID INTIMATION WAS IN RESPECT OF THE RETURN OF INCOME FILED BY THE ASSESS EE WHICH WAS PROCESSED MANUALLY BY THE AO AND CONSEQUENTLY THE LOSS OF RS. 8,80,901 /- WAS ACCEPTED WHILE ISSUING THE SAID INTIMATION DATED 30.11.2000. THIS INTIMATI ON IS DULY SIGNED BY THE AO WITH DATE AND HENCE IT IS CLEAR THAT THERE IS NO MENTION ABOUT ANY DEFAULT ON THE PART OF THE AO IN FILING THE RETURN OF INCOME. THEREFORE, THE FILING OF THE RETURN OF INCOME AS SUCH IS NOT IN DISPUTE BUT THE AO HAS DENIED THE SE TTING OFF OF BROUGHT FORWARD LOSSES ON THE GROUND THAT IN THE ABSENCE OF COPY OF RETURN OF INCOME FILED BY THE ASSESSEE, IT IS NOT POSSIBLE TO ASCERTAIN THE DATE OF FILING OF THE RETURN WHETHER IT IS WITHIN THE LIMITATION UNDER SECTION 139(1) OF THE I T ACT OR NOT. THE FACT THAT THE RETURN OF INCOME WAS ASSESSED UNDER SECTION 143(1)( A) MANUALLY BY THE AO AND 4 ITA NO. 852/JP/2019 THE KOTA CO-OPEREATIVE MARKETING LTD., KOTA. ISSUED THE INTIMATION ON 30.11.2000 SUGGEST THAT TH E RETURN OF INCOME WAS FILED IN TIME OTHERWISE IT WOULD NOT HAVE BEEN PROCESSED BY 30 TH NOVEMBER, 2000. EVEN OTHERWISE, WHEN THE FILING OF RETURN OF INCOME IS N OT IN DISPUTE, THEN DISPUTING THE DATE OF FILING BY THE AO WITHOUT BRINGING ANY MATER IAL ON RECORD IS NOT JUSTIFIED. ONCE THE RETURN WAS DULY FILED BY THE ASSESSEE AND PROCE SSED UNDER SECTION 143(1)(A), THEN THE AO INSTEAD OF ASKING THE ASSESSEE TO FILE THE COPY OF RETURN OUGHT TO HAVE ASCERTAINED IT FROM THE ASSESSMENT RECORD WITH HIMS ELF. IT APPEARS THAT EVEN THE ASSESSMENT RECORD FOR THE ASSESSMENT YEAR 2000-01 W AS NOT AVAILABLE WITH THE DEPARTMENT OR WITH THE AO, THEREFORE, THE AO INSIST ED THE ASSESSEE TO FILE THE COPY OF THE RETURN. MERELY BECAUSE THE ASSESSEE WAS NOT ABLE TO TRACE OUT THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2000-01 BUT WHEN THE ASSESSEE HAS FILED THE INTIMATION ISSUED UNDER SECTION 143(1)(A) THEN HAVI NG REGARD TO THE FACTS AND CIRCUMSTANCES AND PARTICULARLY THE INTIMATION ITSEL F ISSUED ON 30.11.2000, IT IS CONSIDERED THAT THE RETURN OF INCOME WAS FILED IN T IME AND CONSEQUENTLY THE CLAIM OF SETTING OFF OF BROUGHT FORWARD LOSSES FOR THE ASSES SMENT YEAR 2000-01 WHICH WAS DULY ACCEPTED BY THE AO WHILE ISSUING THE INTIMATIO N DATED 30 TH NOVEMBER, 2000 IS AN ALLOWABLE CLAIM. EVEN OTHERWISE, THE BROUGHT FOR WARD LOSSES FOR THE ASSESSMENT YEAR 2000-01 IS CLAIMED TO BE SET OFF AGAINST THE I NCOME FOR THE YEAR UNDER CONSIDERATION IS ONLY RS. 7,65,276/- BUT THE AO HAS DISALLOWED THE ENTIRE CLAIM OF THE ASSESSEE AND RATHER MADE THE ADDITION TO THE TUNE O F RS. 8,80,901/- WHICH IS THE LOSS SHOWN IN THE ASSESSMENT YEAR 2000-01 AND ACCEP TED IN THE INTIMATION ISSUED UNDER SECTION 143(1)(A). HENCE THE AO WHILE MAKING THE ADDITION HAS IGNORED THE ACTUAL AMOUNT OF CLAIM OF SETTING OFF PERTAINING TO ASSESSMENT YEAR 2000-01 AT RS. 5 ITA NO. 852/JP/2019 THE KOTA CO-OPEREATIVE MARKETING LTD., KOTA. 7,65,276/-. THIS SHOWS THE CASUAL APPROACH OF THE A O AS WELL AS THE LD. CIT (A) WHO PASSED THE IMPUGNED ORDERS WITHOUT APPLICATION OF M IND. ACCORDINGLY, IN THE FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE, THE CLAIM OF SETTING OFF OF BROUGHT FORWARD LOSSES OF THE ASSESSEE IS ALLOWED AND THE ADDITION MADE BY THE AO IS DELETED. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 07/11/201 9. SD/- ( FOT; IKY JKWO (VIJAY PAL RAO) U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 07/11/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT-THE KOTA COOPERATIVE MARKETING LTD ., KOTA. 2. THE RESPONDENT THE ITO WARD 1(3), KOTA. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 852/JP/2019) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 6 ITA NO. 852/JP/2019 THE KOTA CO-OPEREATIVE MARKETING LTD., KOTA.