SRIKANT MOHTA,KOLKATA vs. CIT, CENTRAL CIRCLE - II, KOLKATA, KOLKATA

Assessment Year: 2004-05 Assessment Year: 2006-07 Srikant Mohta..............................……….….............................…..……………….…...……..…….............Appellant P-31A, Kalakar Street Kolkata – 700 007 [PAN : AFAPM 1673 C] Vs. Commissioner of Income Tax, Central Circle-II, Kolkata..…........………………...…...........Respondent Appearances by: Shri Sanjay Modi, CA, appeared on behalf of the assessee. Shri A.K. Singh, CIT D/R. appearing on behalf of the Revenue. Date of concluding the hearing : December 17th , 2018 Date of pronouncing the order : January 16th , 2019 ORDER Per J. Sudhakar Reddy, AM :- Both these appeals are filed by the assessee and are directed against the separate but identical orders of the Learned Commissioner of Income Tax Central-II, Kolkata, (ld. CIT(A)) passed u/s. 263 of the Income Tax Act, 1961, (the ‘Act’), dt. 08/09/2010, for the Assessment Year 2004-05 & dt. 10/09/2010, for the Assessment Year 2006-07.

Assessment Year: 2004-05 Assessment Year: 2006-07 Srikant Mohta “(1) Whether a loss return filed within the time specified in the notice under Section 153A(1)(a) of the Income Tax Act, 1961 is required to be treated as a return filed in accordance with the provisions of Section 139(3) for the purpose of carrying forward of the loss in terms of Section 72 read with Section 80 of the Act; (2) In a case where Section 153A of the Income Tax Act, 1961 applies, whether a return filed in response to the notice under Section 153A(1)(a) is required to be treated as a return under Section 139 and that any other return is of no consequence and non est; and (3) Whether the consideration that the loss in any year may be carried forward to the subsequent year and set off against the profits and gains in the subsequent year is a question that has to be determined by the assessing officer who deals with the assessment of the subsequent year.”

The Hon’ble High Court answered the questions of law as follows:- “In the light of the substantial questions of law being answered herein, a definitive final order cannot be passed without being sure of the date of issuance of the notice under Section 153A(1)(a) of the Act and the time afforded by such notice for the assessee to file the return. For such purpose, the orders impugned passed by the Appellate Tribunal require to be set aside and the matters remitted back to the Tribunal for the Tribunal to ascertain the details as to the date of the notice and the time afforded to file the return and pass an order in the light of the views expressed herein on the questions of law and it is ordered accordingly. The first question of law indicated above is answered thus : For the purpose of carrying forward the loss in terms of Section 72 read with Section 80 of the Act, in a case where search operations have been conducted under Section 132 of the Act, the time to file the return within the meaning of Section 139(3) of the Act has to be regarded as the reasonable time afforded by the consequent notice under Section 153A (1)(a) of the Act. The second question is answered thus : When search operations are conducted under Section 132 of the Act, the obligation of the assessee to file any return remains suspended till such time that a notice is issued for such purpose under Section 153A(1)(a) of the Act. If the return is filed by the assessee within the reasonable time permitted by such notice under Section 153A(1)(a) of the Act, such return would then be deemed to have been filed within the time permitted under Section 139 (1) of the Act for the benefit under Section 139(3) of the Act to be availed of by the assessee.”

Assessment Year: 2004-05 Assessment Year: 2006-07 Srikant Mohta

5. This case was posted for hearing on 24/09/2018, 19/11/2018, 20/11/2018, 25/11/2018 and thereafter today i.e. 17/12/2018. The ld. D/R filed the following letter dt. 22/11/2018 written by the DCIT, Central Circle-3(3), Kolkata, which is extracted herein for ready reference:-

5.1. From the copy of the notice filed before us along with the above referred letter, it can be seen that it was dt. 23rd December, 2005. It is also evident that all these notices Assessment Year: 2004-05 Assessment Year: 2006-07 Srikant Mohta have been served on the assessee on 27th March, 2006. There is no evidence brought on record by the revenue to controvert the claim of the assessee. There is no evidence of service of notice for the impugned Assessment Year 2004-05, on the assessee. Under these circumstances, the submission of the assessee that it had received the notice on 27th March, 2006, would have to be accepted and this date has to be considered for the purpose of computing limitation. The assessee has filed his return of income in response to these notices u/s 153A(a) for Assessment Years 1999-2000 to 2003-04 within 30 days from the date of service of notice i.e., 26/04/2006. Hence the assessee has filed its return of income well within the time specified in the notice. Thus the proposition of law laid down by the Hon’ble Jurisdictional High Court in the assessee’s own case discussed above applies on all fours. Accordingly, appeal of the assessee is allowed. 4.1. The facts and result of the assessee’s appeal for the Assessment Year 2004-05, applies mutatis mutandis to that of the appeal for the Assessment Year 2006-07.