SHRI SATISH MAYEKAR,MUMBAI vs. DCIT-28(3), MUMBAI, MUMBAI

ORDER PER PAVAN KUMAR GADALE, J.M. The assessee has filed an appeal against the order of Commissioner of Income Tax (Appeals)-26, Mumbai passed u/s 143(3) and 250 of the Income Tax Act, 1961. The assessee has raised following grounds of appeal as under :

1. On the facts and circumstances of the case andin law,the teamed Commissioner of income Tax Appeals-26 (CIT(A)) erred in not allowing the set off of F&O loss of Rs.22,88,642/- against business income stating that the Appellant had not furnished revised return of Income under section 139(5) of the Act, without Shri Satish Mayekar 2 considering the facts that the Appellant had filed revised computation of income during the course of scrutiny assessment since due date of filing revised return of income was over.

2. On the facts and circumstances of the case andin law, the Ld. CIT(A) erred in not allowing carry forward of short term capital Loss of Rs.30,99,430/- to She subsequent years, stating that the Appellant had not furnished revised return of income under section 139(5) of the Act, without considering the facts that the Appellant had filed revised computation of income during the course of scrutiny assessment since due date of filing revised return of income was over. 3. On the facts and circumstances of the case andin law, the Ld. CIT(A) erred in not allowing the set off of F&O toss of Rs.22,88,642 against business income and carry forward of short term capital Loss of Rs.30.99,430 lo the subsequent years, relying on decision of Apex Court in case Of Goetze India Lid (SC) 2006 284 ITR 323 without considering the facts that !he said decision restrict the Assessing Officer to allow the claim made during the course of scrutiny assessment and not the Appellate authorities. 2. The brief facts of the case are that the assessee is an individual and engaged in the business of IOC Petrol & Diesel retail outlet and filed the return of income for the assessment year 2011-12 on 23.09.2011 declaring a total income of Rs.66,19,717/-. The return of income was processed u/s 143(1) of the Act. Subsequently, the case was selected for scrutiny and notice u/s 143(2) and u/s 142(1) of the Act along with the questionnaire was issued. In compliance, the Ld.AR of the assessee appeared from time to time and submit the details. The Assessing Officer has called for the information in respect of individual transaction statement of investments and the income offered for taxation and the sources of investments. The assessee has filed a letter dated 02.12.2013 explaining the nature of business and the personal income details, investment activities, interest income and other information.

Shri Satish Mayekar 3 2.1 The assessee has filed a revised computation of income excluding an amount of Rs.22,88,642/- being loss from the business income of proprietary concern and the revised income was offered at Rs.43,39,824/-. But the Assessing Officer observed that the revised statement filed by the assessee cannot be accepted as the assessee has to file revised return of income u/s 139(5) of the Act. The contentions of the assessee are that the loss of Rs.22,88,642/- was incurred and should be reduced from business income of Rs.66,28,466/- and the same was not accepted. Further the assessee claimed in the revised computation of income carried forward of short term capital loss of Rs.30,99,430/- for set off for future years. Similarly, the Assessing Officer called for bank accounts of the assessee and identified the credit of Rs.21,61,200/- and called for the explanations. Since, the assessee could not give proper explanations and has offered the income for taxation in the revised computation statement. Hence addition of Rs.21,61,200/- was treated as undisclosed income and finally the A.O. determined the total income of Rs.89,07,020/- and passed order u/s 143(3) of the Act dated 28.01.2014.