What did the Tribunal hold?

The Tribunal noted that the ITAT had already decided the AY 2006-07 appeal, directing the AO to allow the carried forward long-term capital loss. Therefore, the Tribunal remitted the matter back to the Assessing Officer to give effect to the ITAT's order.

The assessee's appeals for AY 2009-10 and 2010-11 were dismissed by the CIT(A) for non-prosecution. The assessee contended that the issue of set-off of brought forward long-term capital loss was consequential to an appeal for AY 2006-07 pending before the ITAT.

What were the issues?

Whether the CIT(A) erred in dismissing the appeal for non-prosecution when the issue was consequential to another pending appeal. Whether the AO should be directed to allow set-off of brought forward long-term capital loss based on a subsequent ITAT order.

M/S. Consolidated Finvest &… vs ACIT | ITAT Delhi 2017

Income Tax Appellate Tribunal, DELHI BENCH “B” BENCH NEW DELHI

Before: SHRI AMIT SHUKLA & SHRI PRASHANT MAHARISHI

For Appellant: Shri V.P. Gupta, Advocate

For Respondent: Shri Anil Kumar Sharma, Sr. DR

Hearing: 22/05/2017Pronounced: 22/05/2017

ORDER

PER AMIT SHUKLA, JUDICIAL MEMBER:

The aforesaid appeals have been filed by the assessee against the separate impugned order of even date 12.03.2014 passed by Learned CIT(Appeals)-VI, New Delhi for the quantum of assessment passed u/s 143(3) for the A.Y. 2009-10 and 2010-11. In both the appeals common grounds of appeal have been raised which reads as under:-

“1. That the order passed by CIT (A) dated 12.03.2014 is bad, unjustified, unreasonable and without considering the facts and the reason on which adjournments were being sought by the Appellant company and accordingly order deserves to be quashed.

That the CIT (A) also erred in dismissing the appeal alleging nonappearance without appreciating that same ought to have been kept in abeyance for the reason that one of the issues involved therein was consequential *to the appeal of the appellant company pending before the Hon’ble ITAT in respect of A.Y. 2006-07 and, therefore, same could be decided after the adjudication of appeal by Hon’ble ITAT for A.Y. 2006-07.

3. That the CIT(A) also erred in not deciding the appeal on merits after considering the facts which were available before him and dismissing the appeal on the ground of non-appearance.

That the appellant company craves leave to alter, amend, vary and/or add any of the grounds of appeal at any time here after.”

2. At the outset, the ld. counsel for the assessee submitted that the Learned CIT (Appeals) is not justified in dismissing the assessee’s appeal on the ground of non-prosecution, because the assessee has been intimating the Learned CIT (Appeals) from time to time that the issue involved in these years, that is, set off carried forward of long term capital loss would be directly covered if the similar issue in A.Y. 2006-07 is decided which at that time was pending before the Tribunal. In support he also drew our attention to various letters submitted before the Learned CIT (Appeals) which has been placed from pages 4 to 8 of the paper book. He further submitted that the only issue involved in these appeals is to give effect of the ITAT order for the A.Y. 2006-07 regarding allowbility of brought forward capital Page 2 of 5 loss in the year under appeal. Now that the decision of Tribunal for the A.Y. 2006-07 is available, then the Assessing Officer should be directed to allow the brought forward loss from the A.Y. 2006-07 in these years as decided by the Tribunal.

On the other hand the ld. DR submitted that the matter should be restored to the file of the Learned CIT (Appeals).

4. After considering the material placed before us, we find that the main issue which has been raised by the assessee before the Learned CIT (Appeals) and also before us is that, assessee has shown a long term capital gain in these years and sought for claim of set-off of brought forward long term capital loss pertaining to A.Y. 2006-07. The Assessing Officer has disallowed the claim on the ground that in the A.Y. 2006-07, the assessee’s claim of a long term capital loss has not been allowed to be carried forward by the AO. Now that the Tribunal in the A.Y. 2006-07, vide order dated 10.9.2014 has directed the Assessing Officer to accept the long term capital loss of Rs. 41,81,03,448/- and to be allowed carried forward of the same. The Learned CIT (Appeals) has dismissed the appeal of the assessee without going on the merits on the ground that the assessee has been seeking adjournment and nobody attended before him and accordingly, he dismissed the appeal for non-prosecution. Though, under these circumstances the matter should have been set aside to the file of the Learned CIT (Appeals) for deciding the issue afresh on merits. However, in the present case the only limited issue is to give effect to the ITAT order for the A.Y. 2006-07, whereby AO has been directed to allow carried forward for long term capital loss in the subsequent years including the years under appeal. Accordingly, we Page 3 of 5 are remitting back to the file of the Assessing Officer who shall allow carry forward long term capital loss for the A.Y. 2006-07 to be set off against the long term capital gain arisen in the A.Y.s 2009-10 and 2010-11. With these directions the grounds raised by the assessee are treated as partly allowed for statistical purposes.

In the result, both the appeals of the assessee are allowed for statistical purposes.

Order pronounced in the open court on 22.05.2017.

M/S. CONSOLIDATED FINVEST & HOLDINGS LTD.,NEW DELHI vs. ACIT, NEW DELHI

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