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Income Tax Appellate Tribunal, “SMC” Bench, Mumbai
Before: Shri Shamim Yahya (AM)
This appeal by the assesses is directed against order's of learned CIT-A dated 7.5.2018 and pertains to assessment year 2012-13.
The grounds of appeal
read as under :-
1. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (A) erred in confirming the total income of the appellant assessed at Rs.7,90,210/- as against returned income of Rs. 1,55,212/-.
2. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (A) erred in confirming the action of the Assessing Officer in denying set-off of brought forward unabsorbed business loss of Rs.6,34,995/- pertaining to A.Y. 2011- 12 to the extent of the business income for the A.Y. 2012-13.
3. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (A) ought to have allowed set-off of brought forward business loss of Rs.6,34,995/- as claimed by the appellant in the return of income filed for the A.Y. 2012-13 to the extent of income offered during that year.
2 Disha Niseet Rupani
On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax (A) ought to have accepted the submission made by the appellant during the course of appellate proceedings in respect of set off of brought forward unabsorbed business loss of Rs.6,34,995/- pertaining to A.Y. 2011-12 against business income for the A.Y. 2012-13.
5. On the facts and the circumstances of the case and in law, the learned Commissioner of Income Tax(A) before upholding the assessment order for the A.Y. 2012-13 failed to appreciate that appeal filed by the appellant before CIT(A) for the A.Y. 2011-12 against additions/disallowances made by the Assessing Officer in the assessment order passed u/s 143(3) r.w.s. 254 was as yet pending for disposal.
Brief facts of the case are as under :-
In this case during the course of assessment proceedings the assessee filed affidavit before the assessing officer that the sales and purchases were all bogus. Assessee submitted that 2% of the above, being commission should only be taken as income of the assessee against the income offered in the computation of income. However the assessing officer referred to the CBDT circular and held that the assessment cannot be framed at lower than the income offered by the assessee in the return of income. The assessing officer also held that assessee has sought carry forward loss for assessment year 2011-12 amounting to Rs. 16,19,419/-. The assessing officer found that he has verified the assessment order of the assessment year 2011-12 and noted that there was no such carry forward loss therein, hence he declined to give this benefit to the assessee.
4. Against this order assessee appealed before the learned CIT-A. Learned CIT-A despite noting the ground raised did not adjudicated the issue of assessment of income. As regards the issue of allowance of carry forward of loss of earlier year he agreed with the assessing officer. Against this order assessee is in appeal before the ITAT.
I have heard both the counsel and perused the records. Learned counsel prayed that the first issue not adjudicated by learned CIT(A) may be remitted
3 Disha Niseet Rupani to him for adjudication. He further stated as regards carry forward of loss that in the assessment year 2011-12 the matter had travelled to the ITAT. Subsequently in the giving effect order of the ITAT at the level of learned CIT-A there was some carry forward loss. He prayed that the issue may be said aside so that you can submit the necessary papers in support of the claim.
Up on careful consideration in the facts and circumstances of the case as stated above since the issue as to computation of income has not been adjudicated by the learned CIT-A, I deem it appropriate to remit the issue to him to consider the ground not adjudicated by him. As regards the issue of carry forward of loss, the assessee shall submit the necessary documents and the learned CIT-A will examine the issue of carry forward of loss accordingly. Needless to add the assessee should be granted proper opportunity of being heard.
In the result this appeal by the assessee stands allowed for statistical purposes Order has been pronounced in the Court on 23.8.2019.