MONTANA INFRASTRUCTURE LTD,MUMBAI vs. ACIT CEN CIR 38, MUMBAI
In favour of the Revenue: the assessee's appeal was dismissed. From the AI summary of this appeal.
What did the Tribunal hold?
The Tribunal found no infirmity in the order of the CIT(A) which had confirmed the penalty. The assessee's argument that the penalty was not attracted due to the withdrawal of the loss claim was not accepted.
What were the facts?
The assessee initially filed a return declaring a loss of Rs. 5.87 lakhs. Subsequently, in response to a notice under section 148, the assessee filed a nil return, not carrying forward the claimed loss. This led to a penalty being levied.
What were the issues?
Whether penalty is attracted when an assessee withdraws a loss claim in a subsequent return after the assessment was reopened. The validity of the penalty levied by the Assessing Officer and confirmed by the CIT(A).
Which sections of the Income-tax Act were involved?
AI-generated summary — verify with the full judgment below
Cases cited in this judgment(2)Show listHide list
Detected automatically from the text. Citations are also linked where they appear in the judgment. The count shows how many other judgments on BharatTax rely on the same authority.
- CIT v. Rajiv Garg45 citing313 ITR 256 · 2009 · HC
- CIT v. AT & T Communications Services India Pvt. Ltd.7 citing342 ITR 257 · HC
Income Tax Appellate Tribunal, MUMBAI BENCH “SMC”, MUMBAI
Before: SHRI D.T. GARASIA
Per D.T. Garasia, Judicial Member:
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.
2 & ITA No.6583/M/2016 M/s. Montana Infrastructure Ltd.
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.
Order pronounced in the open court on 20.12.2017.
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- Neo Incorporation, Rajkot vs DCIT Circle- 1(2), RajkotITA 471/RJT/2026[2012-2013]Status: Disposed21 Oct 2026AY 2012-2013
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