M/s. Anshul Builders & Developers LLP, Pune V. Deputy Commissioner of Income-tax, Central Circle -2 (4), Pune

ITSSA 86/PUN/2019

• Counselvise Citation: [2022] 104 COUNSELVISE.COM (IT) 3708 (ITAT-PUNE)
• Duration Of Justice: 3 year(s) 1 month(s) 2 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 29-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 27-05-2019
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 143(3); 153A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL ‘A’ BENCH, PUNE SHRI S.S. GODARA, JM AND DR. DIPAK P. RIPOTE, AM IT(SS) A No. 86 to 88/PUN/2019 2011-12 to 2013-14 M/s. Anshul Builders & Developers LLP Unit No. 501, 5 th floor, Karan Tej Bonita, CTS No. 1187/16 Ghole Road, Shivajinagar, Pune-411 005 PAN; AAMFA 3096 N Appellant Vs. The Dy. CIT Central Circle 2(4) Pune Respondent Appellant by : Shri S.N. Puranik Department by : Shri Rajiv Kumar Date of Hearing : 28-06-2022 Date of Pronouncement : 30-06-2022 ORDER PER S.S. GODARA, JM : These assessee’s three appeals IT(SS) A No. 86 to 88/PUN/2019 for A.Y. 2011-12 to 2013-14 arise from the CIT(A)-12, Pune’s common order dated 29-03-2019 passed in case No. PN/CIT(A)-12/10481, 10482, 10485/2017-18, respectively involving proceedings u/s 143(3) r.w.s. 153A of the Income-tax Act, 1961, in short “the Act”. Heard both the parties. Case files perused. 2. It emerges at the outset that the assessee has raised its sole identical substantive ground in all the three appeals that both the lower authorities have erred in law and on facts in declining the set off of its carried forward loss of Rs. 6,01,307/-, Rs. 1,08,743/- and the sum total of foregoing twin figures; assessment year-wise, respectively. 3. Both the learned representatives reiterated their respective stands against in support of the impugned carried forward loss set off disallowances. The Revenue has drawn strong support from the CIT(A)’s discussion that since 2 IT(SS) A No.86 to 88 of 2019 Anshul builders & developers A.Y 2011-12 to 2013-14 all these assessments are unabated ones in light of clinching fact that the impugned search took place on 28.03.2016, the assessee is not entitled for its loss(es) claimed. 4. Learned CIT DR further submitted that the an assessment only involves examination of assessee’s entire claims involving original as well as sec. 153A return and therefore, it is not entitled for the impugned set off of loss benefit in these three assessment years. We invited Mr. Rajiv Kumar’s attention to Hon’ble jurisdictional high court decision in Dy. CIT Vs. JSW Steel Ltd. (2020) 422 ITR 71 (Bom) allowing the assessee to raise a new claim of deduction. He distinguished the same by pleading that the issue before their lordships involved an abated assessment only. 5. We have given our thoughtful consideration to the foregoing rival submissions and find no merit in Revenue’s arguments. We make it clear that not only sec. 153A starts with a non-obstante clause i.e. “notwithstanding anything contained in sec. 139, section 147, section 148, section 149, section 151 and section 153” as the case may be but also the legislature makes it clear in section 153A(1)(a) that a return filed thereunder is to be treated “as if such return were a return required to be furnished u/s 139”. This is further followed by clause (b) thereto wherein the Assessing Officer shall “assess or reassess the total income in respect of six assessment years immediately preceding the assessment year relevant to the previous year in which such search is conducted”. Meaning thereby that such total income includes both abated as well as unabated assessment contrary to the Revenue’s arguments. Case Sanjay Nandlal Vyas Vs. ITO in ITA No. 771 to 774/PN/2010 dated 23-12-2011 and Shrikant Motha Vs. CIT (2018) 95 taxmann.com 224 (Cal) also supports the assessee’s cause in identical circumstances. Their lordships in the latter judicial precedent held that the return filed within the stipulated time in section 153(1)(a) notice is indeed entitled for loss set off. 3 IT(SS) A No.86 to 88 of 2019 Anshul builders & developers A.Y 2011-12 to 2013-14 6. Mr. Rajiv Kumar next contended that Jai Steel (India) Vs. ACIT Jodhpur 219 taxman 223 (2013) (Raj) and GMR Infrastructure Ltd. Vs. DCIT in ITA No. 1036/2017 dt. 6-7-2021 (Karnataka) hold that section 153A assessment is to be treated on standalone basis wherein the assessee is not entitled to claim a new claim. Both these judicial precedents are found to be against the hon’ble jurisdictional high court’s judgment (supra). They do not form binding precedents therefore. This is indeed coupled with the fact that case law Gopal Lal Badruka vs. DCIT (2012) 346 ITR 109 (AP) also holds that a section 153A assessment can indeed consider all the relevant facts which come to light to the Assessing Officer during his detailed enquiries. The same is factual position before us wherein the assessee has raised its set off of loss claim which has not been adjudicated on merits by the learned lower authorities on the foregoing technical aspect. We thus accept the assessee’s instant identical sole substantive ground in all these three cases in principle and leave it open for the learned assessing authority to proceed afresh and finalise the consequential computation of loss as per law. Ordered accordingly. 7. These assessee’s instant three appeals in IT(SS)A Nos. 86 to 88/PUN/2019 are allowed for statistical purposes in foregoing terms. A copy of this common order be placed in the respective case files. Order pronounced in the open Court on this 30 th day of June 2022. Sd/- sd/- (DR. DIPAK P. RIPOTE) (SATBEER SINGH GODARA) ACCOUNTANT MEMBER JUDICIAL MEMBER Pune; Dated, this 30 th day of June 2022 Ankam 4 IT(SS) A No.86 to 88 of 2019 Anshul builders & developers A.Y 2011-12 to 2013-14 Copy of the Order forwarded to : 1. The Appellant. 2. The Respondent. 3. The CIT (A)-12, Pune. 4. The Pr. CIT , Central, Pune 5. The D.R. ITAT A’ Bench, Pune. 5. Guard File BY ORDER, Sr. Private Secretary ITAT, Pune. 5 IT(SS) A No.86 to 88 of 2019 Anshul builders & developers A.Y 2011-12 to 2013-14 Date 1 Draft dictated on 28-06-2022 Sr.PS 2 Draft placed before author 29-06-2022 Sr.PS 3 Draft proposed and placed before the second Member JM/AM 4 Draft discussed/approved by second Member AM/JM 5 Approved draft comes to the Sr. PS Sr.PS 6 Kept for pronouncement on Sr.PS 7 Date of uploading of order Sr.PS 8 File sent to Bench Clerk Sr.PS 9 Date on which the file goes to the Head Clerk 10 Date on which file goes to the A.R 11 Date of dispatch of order