MR. SHRENIK JASWANTLAL SHAH ,MUMBAI vs. DCIT CIRCLE 19(3), MUMBAI

From the facts of the present case, we noticed that the assessee had declared short term capital gain of Rs. 9,18,303/- which according to him was set off against the brought forward short term capital loss of Rs. 15,74,129/- relating to A.Y 2008-09, as the unabsorbed short term capital loss for the A.Y 2008-09 and subsequently assessment year was carried forward as per table below: Unabsorbed Short term capital A.Y B/fd Set off To be c/f 2008-09 15,74,129 9,18,303 6,55,826 2011-12 7,924 0 7,924 2012-13 5,74,313 0 5,74,313 2013-14 4,28,211 0 4,28,211

The return of the assessee was taken up for scrutiny and order u/s 143(3) of the Act was passed on 31-12-2016 and the returned income was accepted along with the claim of the set off of the current years short term capital gain with the brought forward short term capital loss.

As per the assessment order passed u/s 143(3) thereby determining the income of the assessee at Rs. 97,08,150/- and the final remarks were as under;-

However, the assessment of the assessee was then reopened u/s 147 of the Act on 31/7/2022 to examine the claim of the set off of long term capital gain on sale of a commercial property with the purchase of a residential property u/s 54F. This claim was accepted in the order passed u/s 147 r.w.s. 144B dated 17/02/2023. Hence the returned income was again accepted at Rs. 9,18,303/-.

But still a demand notice was issued raising a demand of Rs. 8,62,438/- which as per the tax computation sheet shows to be a demand on the short term capital gain of Rs. 9,18,303/- along with interest.

Accordingly assessee submitted that the tax computation sheet is not in sync with the assessment order and the demand of Rs.8,62,438/- has been wrongly raised though the short term capital loss has been set off as per the assessment order.

Since, this demand of Rs. 8,62,438/- is only in the tax calculation sheet and is not in accordance with the final order passed by the AO u/s 143(3) of the Act.

Therefore, after having gone through the previous return forms, we noticed that in the year under consideration there is no justification in not setting off the short term capital gain of the current assessment year against the brought forward short term capital loss of the previous years.

Therefore taking into consideration the entire facts and circumstances of the present case, we are of the view that the order passed by the Ld. CIT(A) is set aside and is restored back to the file of AO with a direction to recalculate the same in accordance with the orders passed u/s 143(3) of the Act. Needless to mention that before passing any order opportunity of hearing be also provided to the assessee. The assessee shall not seek unnecessary adjournments.

Before parting, we make it clear that our decision to restore the matter back to the file of the AO shall in no way be construed as having any reflection or expression on the merits of the dispute, which shall be adjudicated by the AO independently in accordance with law. Since, we have restored the matter back to the file of AO therefore other grounds are not adjudicated as the same are now academic.

In the result, the appeal filed by the assessee is allowed for statistical purposes

उप/सहायक पंजीकार ( Asst.