CHALET HOTELS LTD.,MUMBAI vs. DY CIT-CC-4(2), MUMBAI

This appeal by the assessee was adjudicated by the Tribunal on 14.06.2022, however same has been recalled by way of the order in Miscellaneous Application No. 358/Mum/2022, and therefore, both the parties were again heard on the ground raised in the appeal. The relevant heard on the ground raised in the appeal. The relevant heard on the ground raised in the appeal. The relevant ground of appeal is reproduced as ground of appeal is reproduced as under:

The issue-in- -dispute in the appeal is whether the dispute in the appeal is whether the claim of the long-term term capital loss made in the return u/s made in the return u/s 153A of the Act, which has been further revised and 153A of the Act, which has been further revised and 153A of the Act, which has been further revised and claimed as short- -term capital loss, should be allowed to should be allowed to carry forward to subsequent years or not. The assessee is carry forward to subsequent years or not. The assessee is carry forward to subsequent years or not. The assessee is entitled for carry forward of the loss if return of income entitled for carry forward of the loss if return of income entitled for carry forward of the loss if return of income claiming said loss is filed within the due date prescribed claiming said loss is filed within the due date prescribed claiming said loss is filed within the due date prescribed u/s 139(1) of the Act. Further, we find that u/s 139(1) of the Act. Further, we find that u/s 139(1) of the Act. Further, we find that Hon’ble Jurisdictional High Court in the case of JSW Steel Ltd. JSW Steel Ltd. Jurisdictional High Court in the case of (2021) 115 taxmann.com 164 (Bombay) (2021) 115 taxmann.com 164 (Bombay) held that in case held that in case of abated assessment of abated assessment, return of income filed u/s 153A has return of income filed u/s 153A has to be considered as to be considered as ‘regular return’ of income and it is of income and it is upon for the assessee upon for the assessee to lodge a new claim in the return of to lodge a new claim in the return of income filed u/s 153A which was not claimed in his income filed u/s 153A which was not claimed in his income filed u/s 153A which was not claimed in his original return of income. Since, in the case of the original return of income. Since, in the case of the original return of income. Since, in the case of the assessee, the original return u/s 139(1) of the Act for the assessee, the original return u/s 139(1) of the Act for the assessee, the original return u/s 139(1) of the Act for the year under consideration year under consideration was filed on 17.10.2016 filed on 17.10.2016, however, due to search action at the premises of the ver, due to search action at the premises of the ver, due to search action at the premises of the assessee on 30.11.2017 assessee on 30.11.2017, the assessment for the year under the assessment for the year under consideration got abated consideration got abated and consequently notice u/s 153A notice u/s 153A of the Act was issued was issued. In the return of income filed u/s . In the return of income filed u/s 153A, the assessee claimed long term capital loss on the the assessee claimed long term capital loss on the the assessee claimed long term capital loss on the sale of the shares of sale of the shares of “Intime Properties Pvt. Ltd Intime Properties Pvt. Ltd”. Subsequently, the said return was revised and the assessee ubsequently, the said return was revised and the assessee ubsequently, the said return was revised and the assessee claimed that since shares of Intime Properties Ltd. held claimed that since shares of Intime Properties Ltd. held claimed that since shares of Intime Properties Ltd. held only for the period of 35 months and only for the period of 35 months and therefore, loss of therefore, loss of Rs.57,74,866/- arising from the same of those shares was arising from the same of those shares was arising from the same of those shares was in the nature of the in the nature of the short-term capital loss. In view of the capital loss. In view of the decision of the Hon’ble Supreme Court in the case of JSW decision of the Hon’ble Supreme Court in the case of JSW decision of the Hon’ble Supreme Court in the case of JSW Still Ltd. (supra), the return claiming the loss has been fil the return claiming the loss has been fil the return claiming the loss has been filed in terms of section 139(1) of the Act and therefore, in terms of section 139(1) of the Act and therefore, in terms of section 139(1) of the Act and therefore, the assessee is eligible for carry forward of the loss is eligible for carry forward of the loss as per the is eligible for carry forward of the loss provisions of law. In the facts of the case, the Assessing provisions of law. In the facts of the case, the Assessing provisions of law. In the facts of the case, the Assessing Officer need to verify and compute the quantum of loss, Officer need to verify and compute the quantum of loss, Officer need to verify and compute the quantum of loss, therefore , in the therefore , in the interest of substantial justice, we feel it interest of substantial justice, we feel it appropriate to restore this issue back to the file of the appropriate to restore this issue back to the file of the appropriate to restore this issue back to the file of the Assessing Officer for examining the computation of claim of Assessing Officer for examining the computation of claim of Assessing Officer for examining the computation of claim of loss sought to be carried forward by the assessee. loss sought to be carried forward by the assessee. loss sought to be carried forward by the assessee. The ground of appeal of the assessee is ac ground of appeal of the assessee is accordingly allowed cordingly allowed for statistical purpose statistical purpose.

In the result, the appeal of the assessee is allowed. In the result, the appeal of the assessee is allowed. In the result, the appeal of the assessee is allowed.