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Income Tax Appellate Tribunal, “D” BENCH : KOLKATA
Before: Hon’ble Shri M.Balaganesh, AM & Hon’ble Shri S.S.Viswanethra Ravi, JM]
ORDER Per M.Balaganesh, AM
This appeal by the Assessee arises out of the order of the Learned Commissioner of Income Tax(Appeals)-16, Kolkata [in short the ld CIT(A)] in Appeal No.500/CIT(A)-16/Kol/2015-16/W-4(3) dated 13.05.2016 against the order passed by the ACIT, Circle-4, Kolkata [ in short the ld AO] under section 143(3) of the Income Tax Act, 1961 (in short “the Act”) dated 14.01.2013 for the Assessment Year 2010-11.
The only issue to be decided in this appeal is as to whether the Ld. CIT(A) was justified in not considering the brought forward business loss of Rs. 79,97,483/- which was assessed as such for assessment year 2009-10 u/s 143(3) of the Act,
ANC Securities Ltd. A.Yr. 2010-11 for consequential set off with the income of assessment year 2010-11, in the facts and circumstances of the case.
The brief facts of this issue is that the assessee filed its return of income for assessment year 2010-11 on 22.09.2010 declaring total income of Rs. 51,47,410/- . In the said return, the assessee did not claim the benefit of set off brought forward losses of assessment year 2009-10. The assessment was completed u/s 143(3) of the Act on 14.01.2013 determining the total income of the assessee at Rs. 65,16,832/-. The Ld. AO while determining the total income for the assessment year 2010-11, did not give the benefit of set off of brought forward losses for assessment year 2009-10. The assessee raised a ground of appeal
seeking for the same before the Ld. CIT(A) and also by placing reliance on various decisions. The Ld. CIT(A) observed that the assessee had not made any claim of set off of brought forward losses of assessment year 2009-10 either in the original return or in the revised return filed by it. Hence, by placing reliance on the decision of the Hon'ble Supreme Court in the case of Goetze India vs. CIT reported in 284 ITR 323(S C), he upheld the action of the Ld. AO in not allowing the set off of brought forward loss of assessment year 2009-10 in the sum of Rs. 79,97,483/-. Aggrieved, the assessee is in appeal before us on the following grounds:
1. On the facts and circumstances of the case, for that the Ld. CIT(Appeals) has erred in not considering brought forward business loss of Rs. 79,97,483/- which was assessed u/s 143(3) for Assessment Year 2009-10 which is against the law and illegal.
2. Further the Ld. CIT(Appeals) has erred in not considering the fact that the issue was raised before the Ld. Assessing Officer, ACIT, Circle-4, Kolkata in course of hearing of the case. In spite of the fact, the Ld. AO & Ld. CIT(A) did not consider the brought forward business loss of Rs. 2
ANC Securities Ltd. A.Yr. 2010-11 79,97,483/- assessed u/s 143(3) relating to A.Y. 2009-10. For that the Ld. CIT(Appeals) was wrong in not considering brought forward business loss.
We have heard the rival submissions. At the outset, the Ld. AR placed on record the copy of the assessment order for the assessment year 2009-10 framed in the hands of the assessee u/s 143(3) of the Act dated 22.12.2011 wherein the Ld. AO categorically had mentioned the business loss of Rs. 79,97,483/- , as being eligible to be carried forward for future adjustment. Hence, it is very clear that the assessee has got assessed business loss of Rs. 79,97,483/- of assessment year 2009-10 which is eligible to be set off against future business income in accordance with provision of section 72 of the Act. Even though the assessee has not made this claim either in its original return of income or in the revised return of income, it is incumbent on the part of the Ld. CIT(A) to direct the Ld. AO to consider the legitimate claim of set off of brought forward business loss so as to determine the true and correct income of the assessee. The decision of the Hon'ble Supreme Court in the case of Goetze India reported in 284 ITR 323(supra) clearly shows that the said decision is limited only to assessing authority and does not impinge upon the power of the Income Tax Appellate Tribunal u/s 254 of the Act. In other words, the appellate authority could entertain fresh claim made by the assessee even though the same had not been made by way of a valid return. Accordingly, we hold that the Ld. CIT(A) ought to have considered the legitimate claim of set off of brought forward loss of assessment year 2009-10 in the sum of Rs.79,97,483/-, in the facts and circumstances of the case. Accordingly, ground nos. 1 and 2 raised by the assessee are allowed.
Ground no. 3 raised by the assessee was stated to be not pressed by the Ld. AR at the time of hearing before us. The same is reckoned as a statement from the bar 3
ANC Securities Ltd. A.Yr. 2010-11 and accordingly the ground no. 3 raised by the assessee is dismissed as not pressed.
Ground nos. 4 and 5 raised by the assessee are general in nature and does not require any specific adjudication.
In the result, the appeal of the assessee is partly allowed.
Order pronounced in the Court on .01.2018