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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
O R D E R
PER PAVAN KUMAR GADALE JM:
The assessee has filed the appeal against the order of the National Faceless Appeal Centre (NFAC), Delhi / CIT(A) passed u/s 250 of the Act. The assessee has raised the following grounds of appeal:
1. LD CIT(A) erred in holding that the appeal filed by the assessee is not maintainable on the grounds that the same is filed by mentioning inaccurate and misleading facts.
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LD CIT(A) erred in not granting the set-off of the current year business loss of Rs. 25,31,579/- which was though claimed by the assessee in its return and computation of income.
3. The assessee craves leave to add further grounds or to amend or alter the existing grounds of appeal
on or before the date of hearing.
2. The brief facts of the case are that the assessee company is engaged in the business of trading in ferrous and nonferrous metals. The assessee has filed the return of income for the A.Y 2012-13 on 26.09.2012 disclosing a total income of Rs. 76,67,460/-and the return of income was processed u/sec143(1) of the Act dated 14-12-2013 and the asssessee has filed rectification petition u/sec154 of the Act. Subsequently the case was selected for scrutiny and the assessment order was passed u/sec143(3) of the Act on 27.02.2015 determining the total income of Rs.84,64,320/- without allowing claim of setoff of business loss of Rs.25,31,579/-.Aggrieved by the order, the assessee has filed an appeal with the CIT(A) and was partly allowed. Further the assessee has filed an appeal against the CIT(A) order before the Honble Tribunal and was decided on merits on claim of expenses with directions to the Assessing officer. 3.
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Whereas the A.O. has passed the order giving effect (OGE) to ITAT order dated 31-10-2019 were the A.O. has not allowed the claim of business loss. Aggrieved by the OGE order, the assessee has filed an appeal with the CIT(A) and was dismissed with the observations at Page 6 Para5 of the order read as under:
on perusal of the Form No.35 filed by the appellant on 22.11.2019, it is noticed that the appellant has mentioned the section 143(1) under the head 'Details of Order appealed against/Application u/s 248' in the second row 2(a) named as 'Order against which Appeal is filed'. Further, in the row 2(b) 'Date of order/Date of tax payment in case of Application u/s 248, the assessee has mentioned the date as 01.11.2019. On perusal of the documents/information in Form No.35, the date of order under section 143(1) was mentioned as 01.11.2019. Ongoing through the date of processing u/s 143(1) for the Assessment Year under consideration i.e. A.Y.2012-13, the due date of processing of return of income under 143(1) of the Income Tax Act, 1961 was not beyond 31.03.2015 (due date of processing of return was 31.03.2014 which was extended to 31.03.2015 by CBDT). Therefore, the Assessee has to file first appeal under section 246 of the Income Tax Act, 1961 on or before 30.04.2015 whereas the Assessee has filed the first appeal on 22.11.2019 without mentioning the reasonable cause for such a long inordinate delay. Furthermore, on perusal on the record, it is noticed that the stated date of order by the Assessee i.e. 01.11.2019 pertains to the order giving effect to ITAT's order u/s 254 of the Income
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Tax Act, 1961. It clearly shows that the challenged order is only the order of giving appeal effect to the order of Hon'ble ITAT u/s 254 of the Income Tax Act 1961 dated 28.01.2019 in and the same doesn't come under the definition of appeallable order as per the provisions of section 246 of the Income Tax Act, 1961. In view of the above discussion, it is crystal clear that the assessee has filed the first appeal by mentioning inaccurate and misleading facts; therefore, the Appeal of the assessee is not maintainable hence dismissed Aggrieved by the CIT(A)order, the assessee has filed an appeal before the Hon’ble Tribunal.
At the time of hearing, the Ld.AR submitted that the CIT(A) has erred in not considering the facts that the assessee is entitled for the claim of set off of current year business loss and substantiated the submissions with the factual paper book and prayed for allowing the appeal. Contra, the Ld.DR supported the order of the CIT(A).
We heard the rival submissions and perused the material on record. The sole crux of the disputed issue is with respect to allowability of claim of current year business loss to the assessee. The contentions of the Ld. AR that the Hon’ble ITAT has M/s Wellness N. Solution (India) Pvt Ltd, Mumbai. - 5 - granted relief to the assessee and Ld. AR has demonstrated the order giving effect of ITAT dated 31.10.2019 passed by the A.O., where there is no mention of setoff of business loss. Hence, to meet the ends of justice, we restore the disputed issue for limited purpose to the file of the Assessing officer to examine and verify the claim of the asssessee and adjudicate on merits and the assessee should be provided adequate opportunity of hearing and should cooperate in submitting the details and we allow the grounds of appeal of the assessee for statistical purposes.
In the result, the appeal filed by the assessee is allowed for statistical purposes.
Order pronounced in the open court on 16.02.2023.