M/S. AERENS BUILDWELL LTD.,NEW DELHI vs. ACIT, NEW DELHI

Briefly the facts of the case are that search, seizure and survey operations under section 132/133A of the Income Tax Act, 1961 were conducted on 17.08.2011 in the case of assessee and others. The A.O. issued notice under section 153A of the Act and the assessee in response thereto filed return of income declaring loss of Rs.58,92,431. The A.O. found that auditor has pointed out in admissible deduction under section 40(a) of the I.T. Act and others under section 40A(7) under the Heads “FBT, Wealth Tax, Interest and Gratuity etc.”. Therefore, these amount totaling to Rs.59,75,028/- will be added to the income of the assessee. The A.O. after considering the explanation of assessee found that in assessment year under appeal assessee has failed to explain share capital

Learned Counsel for the Assessee as regards the addition of Rs.58,92,432/- on account of loss submitted that the Ld. CIT(A) has deleted the addition of Rs.53,90,935/- [Rs.52,28,934/- + Rs.1,62,001/-]. He has submitted that A.O. has passed the Order Dated 30.03.2018 giving effect to the Order of the Ld. CIT(A) and assessable income is assessed at Rs.1,02,91,662/- in place of Rs.1.56 crores as assessed in the assessment order. He has submitted that since ITAT has deleted the addition of Rs.1.56 crores vide Order Dated 21.12.2018, therefore, the losses available to the assessee to be carried forward to subsequent assessment year which are relevant to A.Ys.2010-2011 and 2011-2012. He has submitted that in subsequent A.Ys. 2010-2011 and 2011-2012 under appeal as above as the income has been assessed only on the ground that adjustment of losses on account of addition of Rs.1.56 crores in A.Y. 2009-2010 is not available to the assessee. He has, therefore, submitted that direction may be issued to the A.O. to pass appeal effect order accordingly

In view of the above, we find contention of Learned Counsel for the Assessee to be correct that after deletion of the addition of Rs.1.56 crores by the ITAT and the Ld. CIT(A) has allowed relief in a sum of Rs.53,90,935/-, therefore, such loss shall have to be carried forward to the subsequent assessment year as per Law. We, accordingly, direct the A.O. to take care of such situation arise on account of deletion of the substantive addition and shall pass the appeal effect order accordingly in accordance with the Law.

In the result, ITA.No.5074/Del./2016 of the Assessee partly allowed for statistical purposes.

In the aforesaid appeal, assessee has challenged the confirmation of disallowance of loss of Rs.34,63,934/- and challenged the Order of Ld. CIT(A) in confirming the 7 ITA.No.5074, 5077 & 5076/Del./2016 M/s. Aerens Buildwell Ltd., New Delhi. addition made by A.O. to Rs.52,28,934/- which was disallowed in previous year for non-payment of TDS.

Learned Counsel for the Assessee submitted that A.O. in para-3 of the assessment order disallowed the claim of losses of Rs.34,63,934/- on the ground that losses brought forward has already set-off in A.Y. 2009-2010. It is, therefore, income assessed at Rs.12,85,553/-. He has submitted that if the aforesaid losses as considered in A.Y. 2009-2010 is considered, then, assessable losses for A.Y. 2010-2011 would be reduced substantially, therefore, A.O. may be directed to do so accordingly. We find claim of assessee to be correct because earlier years losses shall have to be carried forward in subsequent assessment year. The A.O. did not allow benefit of the same because of the substantive assessment was made in A.Y. 2009-2010. A.O. is, therefore, directed to give effect of set-off of the brought forward losses for A.Y. 2009-2010 in assessment year under appeal as per Law.

In the result, ITA.No.5077/Del./2016 of the Assessee allowed for statistical purposes.

In the present appeal the assessee has challenged the disallowance of loss of Rs.7,31,553/-.

In the result, ITA.No.5076/Del./2016 of the assessee allowed for statistical purposes.

To sum-up, assessee’s appeal for the A.Y. 2009- 2010 partly allowed for statistical purposes and appeals for the A.Ys. 2010-2011 and 2011-2012 are allowed for statistical purposes.