MONTANA INFRASTRUCTURE LTD,MUMBAI vs. ACIT CEN CIR 38, MUMBAI

The above titled appeals have been preferred by the assessee against the common order dated 08.07.2016 of the Commissioner of Income Tax (Appeals) [hereinafter referred to as the CIT(A)] relevant to assessment years 2010-11 & 2011-12.

These appeals are time barred by 9 days. Since the delay in filing the appeals is of only 9 days and the reason for delay has been explained by the Ld. A.R., I allow the condonation of delay and proceed to hear the appeals.

The short facts of the case are as under: The assessee had filed the return of income declaring the loss of Rs.5.87 lakhs. The assessment was completed under section 143 read with section 147 of the Act determining the total income at nil. In response to two notices under section 148 the assessee has filed the return. The Assessing Officer (hereinafter referred to as the AO) found that while in the original return the assessee has claimed the loss of Rs.5.87 lakhs whereas in response to notice under section 148 the assessee has filed the nil return of income. Therefore, AO was of a view that assessee has filed nil return. As there was a survey took place under section 133A of the Act and in pursuant to survey action assessee’s assessment was reopened. Therefore, penalty was levied by the AO.

The matter carried to the Ld. CIT(A) and the Ld. CIT(A) has confirmed the same.

During the course of assessment proceeding, the Ld. A.R. submitted that assessee has filed the original return wherein assessee has declared total loss of Rs.5.87 lakhs. Thereafter, there was a survey under section 133A and in pursuance of the assessment assessee’s assessment was reopened under section 147 of the Act. In response to notice under section 148 assessee has filed the nil return of income without carry forward the loss of Rs.5.87 lakhs. The Ld. A.R. submitted that the assessee has claimed the loss on the ground that assessee was running the business but could not carry out the business and closed the business. But, some of the activities were 3 & ITA No.6583/M/2016 M/s. Montana Infrastructure Ltd. carried out by the assessee. Therefore, loss was claimed. But thereafter assessee withdrew the claim of loss in subsequent year and thus assessee could not claim the loss in subsequent year also. Moreover, it is a case where the assessee has claimed the loss in a year and the same loss was not claimed in the subsequent return, hence it does not attract the penalty. The Ld. A.R. submitted that no penalty can be levied and he relied upon the decision of Hon’ble Delhi High Court in the case of CIT vs. AT & T Communications Services India Pvt. Ltd. -342 ITR 257, Gujarat High Court in Sachinam Trust - 21 DTR 1 (Guj.), and he also relied upon the decision of Punjab & Haryana Court in the case of Rajiv Garg & Others – 313 ITR 256.

The Ld. D.R. relied upon the orders of the Revenue authorities.

I have heard the rival contentions of both the parties. I do not find any infirmity in the order of the Ld. CIT(A) in both the appeals of the assessee. Hence, I have no alternative but to accept the order of the Ld. CIT(A).

In the result, both the appeals of the assessee are dismissed.