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Income Tax Appellate Tribunal, DELHI BENCH “H” NEW DELHI
Before: SHRI S.V. MEHROTRA : & SHRI KULDIP SINGH:
Date of hearing : 24-02-2016 Date of order : 15-03-2016. O R D E R PER S.V. MEHROTRA, A.M:-
These are cross appeals, preferred by the revenue as well as the assessee against separate orders of ld. CIT(A), relating to A.Y. 2003-04 and 2004-05.
Revenue’s appeals (ITA nos. 2921 & 2922/Del/2015): 2. Sole effective ground, common in both the assessment years i.e. 2003-04 & 2004-05, is as under:
“Whether in the facts and circumstances of the case, the Ld. Commissioner of Income Tax(A) has erred in law and facts in simply following the directions of the Ld. ITAT when the AO had brought a new fact on record that the assessee has sold in F.Y. 2002-03 the super structure on the said property and offered the same for taxation, whereas the rent of the same was not offered for taxation on substantive basis.
At the outset we may mention that, prima facie, the tax effect involved in the revenue’s appeals is less than Rs. 10 lakhs. Therefore, in terms of CBDT Circular No. 21/2015 dated 10.12.2015, the present departmental appeals are not maintainable and are dismissed accordingly. Assessee’s appeals ITA no. 2386/Del/2015 ( A.Y. 2003-04):-
Brief facts of the case are that assessee had filed return of income declaring loss of Rs. 3,55,460/-. The assessee’s case was reopened. The AO determined the income from house property at Rs. 13,24,048/- and long term capital loss of Rs. 16,16,170/-.
Before ld. CIT(A) the assessee had, inter alia, taken a ground that he AO was not correct in not allowing the carry forward of unabsorbed losses as claimed by assessee. 6. Ld. CIT(A) in para 4.2 has observed as under: 4.2 I have examined the facts of the case on this issue. It is a fact that the assessee has shown losses in its computation of income of assessment years 1997-98, 1998-99, 1999-2000, 2000-01, 2001-02 and 2002-03. However the AR has not established the fact that the same losses were accepted by the Department in the assessment of the relevant assessment years. If the losses claimed by the appellant have been converted into income by making additions, it is only natural that as per the understanding of the assessing officer there would be no brought forward losses which requires set off from current year's income. Based on above discussion the ground of appeal number 3 is dismissed.
Being aggrieved, the assessee is in appeal before us and has taken following grounds of appeal:
1. That each ground of appeal is without prejudice to each other.
2. That the Id CIT is not legally and factually justified in not allowing the carried forward unabsorbed business losses pertains to A Y 1997-98, 1998-99, 1999- 2000, AY 2000-01,AY 2001-02 and AY 2002-03.
3. That the Id CIT is not legally and factually justified in not allowing the carried forward short term capital loss pertains to AY 2002-03.
4. That the appellant reserved the right to add amends, alter and/ or delete any of the grounds of appeal.
8. We have heard ld. DR and perused the material available on record. We do not find any reason to interfere with the directions given by ld. CIT(A) because unless the loss is determined by AO, it cannot be allowed to be carried forward. Loss can be allowed only in accordance with law as per sections 70 to 79 of the I.T. Act. As the matter has been restored back to the file of AO, we do not find any prejudice being caused to the assessee. In the result, assessee’s appeal is dismissed.
9. Identical grounds have been taken by the assessee in AY 2004-05. There being no change in facts and circumstances of the case, for the very same reasons as in AY 2003-04, we see no reason to interfere in the order of ld. CIT(A). Appeal is dismissed.
In the result, departmental appeals as well as assessee’s appeals are dismissed. Order pronounced in open court on 15-03-2016.