SUDHA DHOOT,KOLKATA, WET BENGAL vs. ADDL JCIT (A) 12, MUMBAI, MUMBAI

ITA 4054/MUM/2023Status: DisposedITAT Mumbai15 May 2024AY 2018-195 pages

AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that none appeared on behalf of the appellant (assessee) during the hearing. After perusing the order of the JCIT(A) and hearing the Ld. DR, the Tribunal observed that the assessee, in written submissions before the JCIT(A), claimed that the return was filed by the due date for both AY 2017-18 and AY 2018-19. The disallowance of brought forward losses was made by the CPC while processing the return. The Tribunal found it unclear from the grounds of appeal and the appellate order whether the return along with audited accounts for AY 2017-18 was filed by the due date. Consequently, the Tribunal set aside the order of the Ld. JCIT(A) and restored the issue to the file of the AO. The AO is directed to verify the facts and consider the claim of brought forward losses, if allowable as per law, after providing an opportunity to the assessee. The appeal was allowed for statistical purposes.

What were the facts?

The assessee, Sudha Dhoot, filed an appeal before the Income Tax Appellate Tribunal (ITAT), Mumbai, against the order of the Additional Joint Commissioner of Income-tax (Appeals) [JCIT(A)], Kolkata-12, for Assessment Year (AY) 2018-19. The JCIT(A) upheld the disallowance of brought forward losses amounting to ₹43,97,351/-. This disallowance was initially made by the CPC, Bengaluru, during the processing of the assessee's return under Section 143(1) of the Income-tax Act, 1961. The reason cited for the disallowance was that the return for the relevant previous year (AY 2017-18) was uploaded after the due date. The assessee contended that the return for AY 2017-18 was filed on 05.08.2017, which was within the due date of 31.10.2017 for audited accounts.

What were the issues?

1. Whether the reopening of assessment was bad in law, as contended by the assessee. 2. Whether the disallowance of brought forward losses of ₹43,97,351/- was justified, considering the assessee's claim that the return for AY 2017-18 was filed within the due date (05.08.2017) and not after it, as stated by the Assessing Officer (AO). 3. Whether the assessee could be punished twice for the same offence, as the matter for AY 2017-18 was already under scrutiny, invoking the principle of double jeopardy under Article 20(2) of the Constitution of India. Assessee's Contentions: - The reopening of assessment was bad in law. - The AO disallowed brought forward losses of ₹43,97,351/- based on an incorrect premise that the return for AY 2017-18 was uploaded after the due date, whereas it was filed on 05.08.2017, within the due date of 31.10.2017 for audited accounts. There was no tangible material or application of mind by the AO. - Punishing the assessee for AY 2018-19 for the same offence as AY 2017-18 violates the fundamental right against double jeopardy (Article 20(2) of the Constitution), citing various Supreme Court judgments including R.B. Ram Ratan Seth v. State and Magbool Hussain v. State of Bombay. Revenue's Contentions: - The respondent (Ld. DR) appeared and was heard. No specific contentions for the revenue were recorded in the judgment beyond the fact that the Ld. DR was heard.

Which sections of the Income-tax Act were involved?

Section 143(1),Section 250

AI-generated summary — verify with the full judgment below

Before: SHRI NARENDER KUMAR CHOUDHRY, JUDICIAL & SMT. RENU JAUHRI

For Respondent: Shri Himanshu Kumar

Hearing: 13.05.2024Pronounced: 15.05.2024

Appellant by : None Respondent by : Shri Himanshu Kumar Date of Hearing 13.05.2024 Date of Pronouncement 15.05.2024 आदेश / O R D E R PER RENU JAUHRI:-

This appeal is filed by the assessee against the order of the Ld. Joint Commissioner of Income-tax (Appeals), Kolkata-12 [hereinafter referred to as “JCIT(A)”]/National Faceless Appeal Centre, Delhi [NFAC] dated 16/10/2023 passed u/s. 250 of the Income-tax Act, 1961 [hereinafter referred to as “Act”] for the Assessment Year [A.Y.] 2018-19.

The assessee has raised the following grounds of appeal:

P a g e | Sudha Dhoot v/s ADDL. JCIT(A)-12, Mumbai “1. That the reopening of assessment was bad in law.

2. That the Leaarned Assessing Officer has disallowed the amount of Brought Forward Losses amounting to ₹ 43,97,351/- mentioning that the return of 2017 was uploaded after due date but it was not uploaded after due date. The due date for filing return of audited account is 31.10.2017 and we have filed the return with in due date, i.e. on 05.08.2017. Addition by the learned AO proved that there was no tangible material to believe and neither there was not any application of ind and without any basis and ground.

3. No one can be punished twice for some offence for A.Y. 2017-18 is already under scrutiny. So, for same offence assessee cannot be punished in A.Y. 2018-19. AS per the fundamental right secured Article 20 under clause (2) is grounded on the common law maxim nemo debet bis vexarti offence more than once. If a person is charged again for the same offence, he can plead, as a complete defence, his former acquittal or conviction, or as it is technically exp4ressed take the plea of autrefois acquit or autrefois convict.

 R.B. Ram Ratan Seth v. State, AIR 1959 Punj 69; State of  M.P. v. A.K. Jain, AIR 1958 MP 162; Poona Electric Supply Co. Ltd. v. State, AIR 1967 Bom 27.  AIR 1958 SC 444: 1958 SCR 1394.  S.A. Venkataraman v. Union of India, AIR 1954 SC 375: 1954 SCR 1150; Union of India v. Sukumar AIR 1966 SC of India 1206: (1966) 2 SCR 34.  Rao Shiva Bahadur Singh v. State of Vindhya Pradesh, AIR 1955 SC 446: (1955) 2 SCR 206.  (2004) 4 SCC 158.  Kalawati v. State of H.P., AIR 1953 SC 131, 132: 1953 SCR 546. Also see, Harjinder Singh v. State of Punjab, (1985) 1 SCC 422: AIR 1985 SC 404; Mohinder Singh v. State of Punjab, (1977) 3 SCC 346: AIR 1976 SC 2299.  S.A. Venkataraman v. Union of India, AIR 1954 SC 375: 1954 SCR 1150.  Maqbool Hussain v. State of Bombay, AIR 1953 SC 325: 1953 SCR 730.  Thomas Dana v. State of Punjab, AIR 1959 SC 375: 1959 Supp (1) SCR 274; Maqbool Hussain v State of Bombay, AIR

P a g e | Sudha Dhoot v/s ADDL. JCIT(A)-12, Mumbai 1953 SC 325: 1953. state of Bombay AIR 1953 SC 325: 1953 SCR 730.  Ibid. Also, Union of India v. Purushottam, (2015) 3 SCC 779, 793.  Leo Roy Frey v. Supt., District Jail, AIR 1958 SC 119: 1958 SCR 822.  Raja Narayanlal Bansilal v. Maneck Phiroz Mistry, AIR 1961 SC 29, 38: (1961) 1 SCR 417.  AIR 1953 SC 325: 1953 SCR 730.  Yagendra Kumar Jaiswal v. State of Bihar (2016) 3 SCC 183. AIR 1954 SC 375: 1954 SCR 1150.  Union of India v. Sunil Kumar Sarkar (2001) 3 SCC414: AIR 2001 SC 1092.”

Brief facts of the case are that the return of income was filed by the assessee on 30.07.2019 declaring income of ₹2,10,696/-. The return was processed u/s 143(1) of the Act by the CPC, Bangaluru and brought forward losses of ₹ 43,97,451/- were disallowed on the ground that the return was filed late for relevant previous year (i.e. A.Y. 2017-18).

Aggrieved with the assessment order, the appellant filed an appeal before the CIT(A)/NFAC on 19.01.2019. The appeal has subsequently assigned to the JCIT(Appeals). The JCIT(A) vide order dated 16.10.2023 has upheld the disallowance of brought forward losses on the ground that the return for A.Y. 2017-18 was not filed by the due date.

None appeared on behalf of the appellant before us on the date fixed for hearing. We have gone thought the order of JCIT(A) and heard

P a g e | Sudha Dhoot v/s ADDL. JCIT(A)-12, Mumbai the Ld.DR. It is seen that the assessee had claimed vide written submission submitted before the JCIT(A) that the return was filed by the due date in both the assessment years, A.Y. 2017-18 & 2018-19. Disallowance of brought forward losses has been made by the CPC while processing the return. From the details stated in the grounds of appeal as well as the appellate order, it is not clear that as to whether the return along with audited accounts was filed by the due date for A.Y. 2017-18.

6. We, accordingly, set aside the order of the Ld. JCIT(A) and restore it to file of the AO to verify the facts and consider the claim of brought forward losses, in case allowable as per law, after giving an opportunity to the assessee.

7. In the result, the appeal filed by the assessee is allowed for statistical purpose.

Order Pronounced in Open Court on 15.05.2024

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