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Income Tax Appellate Tribunal, KOLKATA ‘C’ BENCH, KOLKATA
Before: Shri P.M. Jagtap, Vice- & Shri Satbeer Singh Godara
Per Shri P.M. Jagtap, Vice-President:- This appeal filed by the assessee is directed against the order of ld. Commissioner of Income Tax (Appeals)-1, Kolkata dated 28.03.2018 and the solitary issue involved therein relates to the disallowance of assessee’s claim for set off of brought forward loss of the earlier years against the income of the assessee for the year under consideration.
The assessee in the present case is a Company, which is engaged in the business of transportation. In the return of income filed for the year under consideration, set off of brought forward loss for assessment years 2010-11 and 2011-12 amounting to Rs.1,16,45,850/- and Rs.59,96,905/- respectively was claimed by the assessee against the income for the year
ITA No. 1052/KOL/2018 Assessment Year: 2013-2014 M/s.Coast Liners Pvt. Limited
under consideration and after claiming the said set off, nil income was declared by the assessee. During the course of assessment proceedings, the Assessing Officer found that the assessee-company itself had filed its return of income for A.Y. 2012-13 at a positive figure without claiming any set off of the loss for A.Y. 2010-11 and 2011-12. He also noted that no evidence was brought on record by the assessee to show that the loss for A.Y. 2010-11 and 2011-12 as claimed by the assessee was actually determined in the assessment and the same was allowed to be carried forward. He, therefore, disallowed the claim of the assessee for set off of brought forward loss of assessment years 2010-11 and 2011-12.
The disallowance made by the Assessing Officer on account of its claim for set off of brought forward loss of A.Ys. 2010-11 and 2011-12 was challenged by the assessee in the appeal filed before the ld. CIT(Appeals) and since he did not find merit in the written submission filed by the assessee in support of its case, the ld. CIT(Appeals) confirmed the disallowance made by the Assessing Officer on account of assessee’s claim of set off of loss of A.Ys. 2010-11 and 2011-12 for the following reasons given in his impugned order:- “On careful consideration of the written submissions and material on record, the issue in dispute relates to the appellant’s claim for set off of losses for A.Y. 2010-11 and 2011-12 under the provisions of section 72 of the I.T. Act, 1961. However, admittedly the appellant has not brought on record any documentary evidence in support of its claim that the losses claimed were determined in the assessment order u/s 143(3) for the said assessment years. Moreover, as per provisions of section 80 of the I.T. Act the determination of loss in pursuance of return filed u/s. 139(1) within the prescribed period is a precondition for carry forward losses. The AO has relied upon the decision by the ITAT, Mumbai in the case of Vipul P. Dalal (Supra), however, the facts and circumstances of the appellant’s case relating to set off of loss determined for the same assessment year was found to be rectified, whereas the issue in the appellant’s case pertains to claim for set off of brought forward losses not disclosed/determined in the preceding assessment years.
ITA No. 1052/KOL/2018 Assessment Year: 2013-2014 M/s.Coast Liners Pvt. Limited
Since the facts of the cited case law is found to be distinguishable, the ratio thereof is not applicable to the appellant’s case. In view of the above discussion, since the appellant’s claim for A.Y. 2010-11 and 2011-12 for Rs.1,16,45,850/- and Rs.59,96,905/- respectively for carry forward loss were not determined in the assessment order. Therefore, I am of the view that there is no infirmity in the finding of A.O., which is confirmed. This ground is not allowed”.
Aggrieved by the order of the ld. CIT(Appeals), the assessee has preferred this appeal before the Tribunal.
We have heard the arguments of both the sides and also perused the relevant material available on record. The ld. Counsel for the assessee has submitted that the factum and quantum of loss for A.Ys. 2010-11 and 2011-12 as claimed by the assessee can be verified by the Assessing Officer from the relevant assessment record and on such verification, he can allow the claim of the assessee for the set off of the said loss against the income for the year under consideration, i.e. A.Y. 2013-13 or atleast against the income of the assessee for A.Y. 2012-13. He has submitted that the Assessing Officer has not given effect to the order of the Tribunal for A.Y. 2012-13 and while giving such effect, the Assessing Officer may be directed to consider and allow the claim of the assessee for set off of brought forward loss for A.Ys. 2010-11 and 2011-12. We are unable to accept this contention of the ld. Counsel for the assessee. First of all, the year under appeal is 2013-14 and since there is no appeal before us for A.Y. 2012-13, we cannot give any direction for set off of loss for A.Ys. 2010-11 and 2011-12 against the income for A.Y. 2012-13 as sought by the ld. Counsel for the assessee. Moreover, as rightly noted by the authorities below in their respective orders and further contended by the ld. D.R. at the time of hearing before the Tribunal, the set off of brought forward loss for A.Ys. 2010-11 and 2011-12 was never claimed by the assessee against the income for A.Y. 2012-13 either in the return of
ITA No. 1052/KOL/2018 Assessment Year: 2013-2014 M/s.Coast Liners Pvt. Limited
income or in the assessment proceedings or even during the course of appellate proceedings. The said claim, therefore, cannot be entertained at this stage. It is also observed that this issue is squarely covered in favour of the Revenue and against the assessee by the decision of the Hon’ble Punjab & Haryana High Court in the case of B.C.S. Kartar Chit Fund –vs.- CIT [179 ITR 137], wherein it was held that where losses sustained are not set off against the profits of the immediately succeeding year or years, they cannot be set off against profits at a later date. To the similar effect is the decision of the Hon’ble Madras High Court in the case of Tyresoles (India), Calcutta -vs.- CIT [49 ITR 515]. Respectfully applying the ratio of these judicial pronouncements, we uphold the impugned order of the ld. CIT(Appeals) confirming the disallowance made by the Assessing Officer on account of assessee’s claim for set off of brought forward loss of A.Ys. 2010-11 and 2011-12 against the income for the year under consideration and dismiss this appeal of the assessee. 5. In the result, the appeal of the assessee is dismissed. Order pronounced in the open Court on November 22, 2019. Sd/- Sd/- (Satbeer Singh Godara) (P.M. Jagtap) Judicial Member Vice-President) Kolkata, the 22nd day of November, 2019 Copies to : (1) M/s. Coast Liners Pvt. Limited, 29D, Seven Tanks Lane, Dum Dum Junction, Kolkata-700030 (2) Deputy Commissioner of Income Tax, Circle-1(2), Aayakar Bhawan, P-7, Chowringhee Square, Kolkata-700069 (3) Commissioner of Income Tax (Appeals)-1, Kolkata, (4) Commissioner of Income Tax, Kolkata- , Kolkata; (5) The Departmental Representative (6) Guard File By order
Assistant Registrar, Income Tax Appellate Tribunal, Kolkata Benches, Kolkata Laha/Sr. P.S.