NESCO LTD,MUMBAI vs. DCIT 9(2), MUMBAI

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ITA 156/MUM/2013Status: DisposedITAT Mumbai08 March 2017AY 2009-103 pages
AI SummaryRemanded

What did the Tribunal hold?

The Tribunal noted that neither the AO nor the CIT(A) had provided specific reasons for disallowing the loss. In the interest of justice, the matter was restored to the AO for proper adjudication after considering the evidence.

What were the facts?

The assessee claimed a loss on the sale of mutual funds. The Assessing Officer (AO) and the Commissioner of Income Tax (Appeals) [CIT(A)] disallowed this loss. The assessee contended that they had provided sufficient details and explanations.

What were the issues?

Whether the loss on redemption of mutual funds is an allowable business loss. Whether the lower authorities properly adjudicated the claim after considering the provided details.

Which sections of the Income-tax Act were involved?

Section 143(3),Section 94(7)

AI-generated summary — verify with the full judgment below

Income Tax Appellate Tribunal, “B” BENCH, MUMBAI

For Appellant: Shri Satish R. Mody, AR
For Respondent: Shri Suman Kumar, DR

This appeal by the assessee is arising out of the order of CIT(A)-20, Mumbai, in appeal No. CIT(A)-20/DC.9(2)/IT-464/2011-12 dated 10-10-2012. The Assessment was framed by DCIT Circle-9(2), Mumbai for the A.Y. 2009-10 vide order dated 30-12-2011 u/s 143(3) of the Income Tax Act, 1961 (hereinafter ‘the Act’).

2. The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of the AO in disallowing the loss on sale of mutual fund of Rs. 27,65,694/-. For this Assessee has raised following Grounds: -

“1. DISALLOWANCE OF LOSS ON SALE OF MUTUAL FUNDS RS-27,65,694/-:

On the facts and in the circumstances of the case and in law the Ld. CIT (A)-20 erred in disallowing amount of aforesaid loss merely on the basis of that said expenditure is not allowable expenditure being loss on redemption of mutual fund disregarding Appellant did furnish the details, documents and explanation during appellate proceedings.

2.

On the facts and circumstances and in law, the Ld. CIT-(A) ought to have recorded required finding as to why and to what extent the alleged loss cannot be allowed as business loss under the provisions of Section 94(7) of Income Tax Act, 1961.”

3.

At the outset, the learned Counsel for the assessee stated that neither the AO nor the CIT(A) has recorded the reasons for making disallowance of loss on redemption of mutual funds. We have gone through the orders of the lower authorities and notice that none of the authorities below have given any details as to why the disallowance was made. In support of the same assessee filed the details and claimed that the same were filed before the AO as well as the CIT(A). On the other hand, the learned Sr. DR took us through the finding of CIT(A) recorded in Para 5.3 as under: - “5.3 1 have considered the finding of the Assessing Officer and rival submission of the appellant, I find that this expenditure is not allowable expenditure being loss on redemption of mutual funds. I find that Ld. AR has not given any details or proper explanation in support of his contention therefore, such disallowance of loss cannot be deleted without any foundation. Contrary to the expectation of the appellant, I find that Ld. Assessing Officer has rightly disallowed the loss on redemption of mutual fund of Rs. 27,65,094/- being not allowable as business loss, hence, same is confirmed.”

4.

According to the learned Sr. DR, the assessee has not given any details in support of his claim before the CIT(A). We have gone through the facts and circumstances in entirety and notice that now assessee has filed complete details and claimed that these were before the lower authorities. In the interest of justice and fair play, we restore this issue back to the file of the AO for proper adjudication of the issue after considering evidences. Orders of the lower authorities are set aside and matter remanded back to the file of the assessee on this issue.

5.

In the result, the appeal of assessee is allowed for statistical purpose. Order pronounced in the open court on 08-03-2017.

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