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Income Tax Appellate Tribunal, “B” BENCH, MUMBAI
Before: SHRI R.C. SHARMA, AM & SHRI MAHAVIR SINGH, JM Smt. Nirmala R. Goenka
PER MAHAVIR SINGH, JM:
This appeal by assessee is directed against the order of CIT(A)-23, Mumbai in Appeal No. CIT(A)-23/ITO-12(2)(4)/IT-152/2010-11 vide order dated 01.02.2013. Assessment was framed by ITO-12(2)(4), Mumbai u/s. 143(3) of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) for AY 2008-09 vide his order dated 18.11.2010.
The only issue in this appeal of assessee is against the order of CIT(A) confirming the action of AO in not allowing set off of brought forward losses of Rs.3,95,511/-. 3. We have heard rival submissions and gone through facts and circumstances of the case. We find that the assessee has claimed loss for Asst. Year 2003-04 and according to lower authorities the same was disallowed as Smt. Nirmala R. Goenka Asst. Year 2008-09 brought forward loss in that Asst. Year i.e. AY 2003-04. For this, CIT(A) has given following finding in para 2.3 as under:
2.3 1 have carefully considered the assessment order, the submission made for the appellant and material available on record. In the appellant's case the loss was disallowed to be brought forward by the Assessing Officer in the assessment order for A.Y.2003-04 after due verification of the facts and application of mind. The cause of grievance as admitted by the appellant in his written submission lies in the order of A.Y.2003·04 and not in the year under consideration. The Assessing Officer had disallowed brought forward loss of A. Y .2003-04 based upon the detailed and reasoned order passed in the A.Y.2O03·04. In view of this matter, I do not find any reason to interfere in the present order of the Assessing Officer. The claim of the appellant is, therefore, rejected and the ground is dismissed. and confirmed the action of the AO.
Now before us, ld. counsel for the assessee stated that the Tribunal in Asst. Year 2003-04 allowed the claim of loss vide order dated 31.08.2012 in directing the CIT(A) to consider the arguments of the assessee and take a decision as per law. The CIT(A) while giving effect to the order of the Tribunal allowed the claim of assessee by quashing the reopening by observing in para 6 as under (relevant portion only): “… The appellant's submission clearly denotes that the AO after taking note of appellant's return of income and submission passed an order u/s. 143(3) dt. 14-3-2006 at the time of which all the necessary details were available and submitted by the appellant as described above. In view of the same, the re-opening of the assessment which was done by the AO subsequently vide notice u/s. 148 dtd. 26-3-2009, which was also issued beyond four years from the end of the assessment year, in my considered view the action of the AO was not justified in view of aforestated facts and submission of the appellant's case. Besides this there is no new information or material on record to show that the appellant has concealed any particulars of income. In view of the same, in my considered view, the AO's such action was against the spirit of 1 st proviso to Sec. 147 of the I. T. Act. Thus, after taking note of the decision cited by the appellant's AR and subsequently the decision of the Hon’ble Apex Court in the case of CIT vs Kelvinator of India Ltd, 320 ITR 561 (2010) and jurisdictional ITAT in the case of German Remedies Ltd vs DCIT reported in 2005-TIOL-195-HC-MUM-IT, I consider it proper and appropriate to hold that the AO’s action of reopening the assessment was against the provisions of law. Hence, the AO’s reassessment order so framed cannot be sustained in the eyes of law. Accordingly, the Smt. Nirmala R. Goenka Asst. Year 2008-09 reassessment order framed by the AO is cancelled. Thus, the assessment order so passed by the AO is annulled.”
In view of the above, when the same was confronted to Ld. Sr. DR, he fairly agreed to the position. In view of this position, we allow the claim of the assessee in regard to allowance of set off of brought forward loss to the tune of Rs. 3,95,511/-. Appeal of assessee is allowed.
In the result, appeal of assessee is allowed. Order pronounced in the open court on 7th April, 2016.