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Income Tax Appellate Tribunal, MUMBAI BENCHES “J” MUMBAI
Before: SHRI B.R. BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
This appeal has been preferred by the Revenue against the order of the CIT(A)-14, Mumbai dated 26-02-2016 for the A.Y. 2010-11, whereby the learned CIT(A) partly allowed the appeal filed by the assessee passed u/s 143(3) of the Income Tax Act (“the Act”)
Brief facts of the case are that the assessee engaged in the business of manufacturing of chemicals, filed its return of income for the A.Y. 2010-11 declaring total income as ‘Nil’ as per the normal provisions and Rs.1,93,84,437/- under the provisions of Section 115JB of the Act. The return was processed and after examining the details furnished by the assessee in the light of the submissions made, declined to accept the claim of assessee to set off the loss amounting to Rs. 2,50,83,839/-, since the assessee had only claim an amount of Rs. 1,78,28,655/-in the return of income and had not filed any revised return of income to claim the additional amount of big loss available on Assessment Year: 2010-11 the average basis, the assessee was allowed to set off the loss as claimed in the original return of income.
3. Aggrieved, the assessee carried the matter before the Ld. CIT(A) in first appeal. The Ld. CIT(A) after hearing the assessee partly allowed the appeal. The revenue is in appeal before the Tribunal against the findings of the Ld. CIT(A) raising the following grounds of appeal.
“i. The Learned CIT (A) has erred on facts and in law in directing the Assessing Officer to consider the revised statement of unabsorbed depreciation and book loss furnished by the assessee for computation of Book Profit u/s 11 5JB of the LT. Act, 1961 without properly appreciating the factual and legal matrix of the case as clearly brought out by the Assessing Officer in the Assessment Order. ii. The Learned CIT (A) has erred on facts and in law in directing the Assessing Officer to consider the revised statement of unabsorbed depreciation and book loss furnished by the assessee for computation of Book Profit u/s 11 5JB of the LT. Act, 1961 without properly appreciating the fact that the Assessing Officer is bound by the law to accept only the claim made by the assessee along with the return of income. iii. The Learned CIT (A) has erred on facts and in law in directing the Assessing Officer to allow set off of unabsorbed depreciation pertaining to A.Y. 1995-96 to A.Y. 1999-2000 against the 'Income from Other Sources' without appreciating the fact that the time period for claiming the above depreciation had already lapsed.
2. The Ld. CIT(A) 's order is contrary in law and on facts and deserves to be set aside.
The appellant craves leave to amend or alter any ground or add a new ground that may be necessary.
4. The appellant prays that the order of CIT(A) on the above grounds be set aside and that of the AO restored.”
Before us, the learned Counsel for the assessee pointed out that the present case of the assessee is covered by the decision of ITAT Mumbai rendered in assessee’s own case for the A.Y. 2009- 10 in which the identical issues were decided by the ITAT in favour of the assessee and against the Revenue. The learned Counsel further submitted Assessment Year: 2010-11 that the present appeal is required to be disposed of accordingly. On the other hand, the learned Departmental Representative did not controvert the fact that the issues involved in this case are identical to the case of the assessee for the A.Y. 2009-10 and all the three issues have been decided in favour of the assessee by the ITAT Mumbai.
We notice that all the three grounds raised in the present appeal are identical to the grounds raised by the assessee in its own case for the A.Y. 2009-10 and the coordinate Bench has decided all the three issues vide order dated 09-12-2015. The first and second grounds of the appeal have been decided by the coordinate Bench in favour of the assessee holding as under: -
“8. We have considered the rival submission and perused the material on record. We have observed that the assessee company has raised additional claim before the A.O. during the assessment proceedings by filing a revised statement of unabsorbed depreciation and book loss for computing the book profit u/s 115JB of the Act in which the losses were different from the one which was claimed in the return of income filed with Revenue, the said revised statement filed by the assessee company before the AO during assessment proceedings was not considered by the A.O and no cognizance was taken thereof by the AO on the ground that the assessee company’s claim raised vide return of income filed with Revenue can only be considered. The CIT(A) duly considered the said claim and has allowed the same on merits. We do not find any infirmity in the orders of the CIT(A) in considering the said claim as adjudicating authorities can always consider and decide on merits, any claim which the taxpayer has raised before the AO during assessment proceedings although the same is not claimed by the taxpayer vide Return of income filed with the Revenue as held by Hon’ble Bombay High Court in CIT v. Pruthvi Brokers & Shareholders (P) Ltd., (2012) 349 ITR 336 (Bom). Thus, the grounds of appeal raised by the Revenue in ground No.i and ii are, therefore, dismissed based on our above discussions. We order accordingly.”
Assessment Year: 2010-11 6. Since, the identical issue has already been decided in facour of the assessee in assessee’s own case, we respectfully, follow the findings of the coordinate Bench and dismiss ground No n1& 2 of the appeal of the revenue.
Similarly, the co-ordinate Bench has allowed ground number (III) of the appeal by following the decision of co-ordinate Bench in the case of Dhadda Diamonds P. Ltd Vs ITO in to 3911/Mum/2013 dated 25-03-2015 and the decision rendered by the coordinate Bench in Milton’s P. Ltd, Vs. CIT-6 in ITA No.3019/Mum/2012 order dated 22.05. Since, the identical issues have already been decided in favour of the assessee by the coordinate Bench in the assessee’s own case for the A.Y. 2009-10 (supra) we respectfully follow the decision of the co-ordinate Bench and dismiss ground No.3 of the appeal raised by the Revenue.
In the result, the appeal of the Revenue for the A.Y. 2010-11 is dismissed.