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Before: SHRI R. S. SYAL & SMT SUCHITRA KAMBLE
PER SUCHITRA KAMBLE, JM These appeals are filed by the Revenue against the order dated 30th July, 2012 & 13/11/2013 passed by CIT(A)-XXIX, New Delhi. 2. The grounds of appeal in both the Assessment Year is that the CIT(A) erred in holding that the claim of carry forward loss made by the assessee during the assessment proceedings tantamount to correction of return of law should be allow to carry forward. The brief facts of the case are as follows:-
3. “ The appellant is engaged in the business of distribution, marketing, sales and exploitation of the cinematographic films rights and acquires all or some of the rights in the cinematographic films for exploitation around the world including India.. For the year under consideration the appellant filed its return of income on 30/9/2008 declaring a total income of Rs.39, 97,805/-. Subsequently, the said return was revised by the Appellant on 11/1/2010 showing total income of NIL. The Ld. Assessing Officer however in his order of assessment has held as under:-
(i) The provisions of Section 5 are applicable because the amount has accrued in India and furthermore, the income has been received in India by an agent located/situated in India for and on behalf of the Appellant.
(ii) Appellant is having a business connection in India u/s 9(1)(i) of the Act.
(iii) Under Article 5 of the Double Taxation Avoidance Agreement as entered between India and Cyprus the Appellant is having a PE in India in the form of agent appointed by its and hence the income is taxable in India.
(iv) The Appellant is not entitled to the carry forward the loss as computed employing the Rule 9B as the same has not been claimed by the Appellant in the return of the income.”
The Ld.CIT(A) allowed this ground of carry forward loss in light of the judgment of Hon’ble Delhi High Court in the case of Nalva Investment Ltd. reported in 322 ITR 233 (Del). The CIT(A) observed that it is undisputed fact that in the present case both the original return of the income as well as the revised return of income was filed by the assessee in time. The CIT(A) further held that though he aggrieved the Rule 9B only the profits for computation mechanism for providing a deduction in respect of expenditure on accusation of distribution of feature films the role nowhere restricts carry forward of the assess loss computation of loss in the instant case is result of the assessment proceedings and once it is tantamount then carry forward of loss was only a natural consequence provided other pre-conditions are satisfied. The CIT(A) held that in the present case provisions of Section 80 are satisfied.
The Ld. DR submitted that the carry forward of loss was done during the assessment proceedings and not at the time of filing return of income he submitted the Hon'ble Supreme Court judgment in the case of Goetz India Ltd. Vs. CIT 2006 284 ITR 323 as well as CIT Vs. Natraj Stationary Products Pvt. Ltd 2009, 312 ITR 22 Delhi Influence Vs. CIT 2015 55 Taxman.com 192 and also Jai Bharat Cooperative Housing Society Ltd. Vs. ITO 2010 125 ITD, 19 ITAT, Mumbai.
The Ld. DR submitted that the Assessing Officer cannot adjudicate the claim of the assessee which was nowhere on the record in the light of the Apex Court judgment.
The Ld. AR relied on the order of the CIT (A).
We have heard both the parties and perused relevant records. It is clear and undisputed fact that the assessee has claimed carry forward loss during the assessment proceedings itself there was nothing new on record the loss was already pointed out in various documents submitted before the Assessing Officer there was no change of books of accounts balance sheets only under that the claim was not made during the filing of return this cannot be treated as filing a new return which was not present before the Assessing Officer . In- fact the Apex court in Goetz India Ltd clearly states that the assessee has a permission under the Act to file revised return before the authorities and it imbibes the claim which he makes thereto. In this case as well, the assessee has availed that provision and claimed carry forward loss. The CIT (A) has taken into account all the contentions of the assessee and has rightly allowed this claim. There is no requirement of interference in the order of the CIT (A).
In the result, both the appeals of the Revenue are dismissed.
Order pronounced in the Open Court on 05th December, 2016.