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Income Tax Appellate Tribunal, MUMBAI BENCHES “D”, MUMBAI
Before: SHRI B.R.BASKARAN (AM) & SHRI RAM LAL NEGI (JM)
The aforesaid appeal has been filed by the Revenue against impugned order dated 30/05/2014 passed by the CIT(Appeals)-31, Mumbai in respect of the order of assessment passed u/s 143(3) for the assessment year 2009-10, on the following grounds:-
The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in allowing the c/f of the loss for A.Y. 2005-06 under the head capital gain by ignoring the fact that the claim of c/f of loss under the head capital gain was not made within the time allowed under section 139(1) of the Act as specifically provided under section 139(3) of the Act.
2. The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in ignoring the specific provisions of section 139(3) of the Act that any loss under the head profits and gains of business or profession or under the head capital gains is allowed to be carried forward only when claim of carry forward of such loss is filed within the time allowed under section 139(1) of the Act. In the present case, admittedly, no return of loss for A.Y. 2005-06 was filed under section 139(1) or any loss under the head capital gains was claimed to be carried forward within the time allowed under section 139(1) or any loss under the head capital gains was claimed to be carried forward within the time allowed under section 139(1) of the Act.
The Ld. CIT(A) has erred on facts and in law and in the circumstances of the case in not appreciating the fact that the assessee in his original return of income for A.Y. 2005-06 did not claim a loss of Rs. 1,82,27,039/- to be carried forward under section 74 of the Act. it was only in the revised return of income dated 28/03/2006 filed under section 139(5) that the assessee claimed the loss for shares from Phlox Pharma Ltd. of the aforesaid loss cannot be carried forward as per section 80 of the Act. Thus, the position of law is quite clear that to revise a return of loss, the original return of loss should have been filed under section 139(3) within the time limit provided under section 139(1) of the Act. 4. The appellant prays that the order of the CIT(Appeals) on the above grounds to be set aside and that of the Assessing Officer be restored. 5. The appellant craves leave to amend or alter any ground or to submit additional new ground which may be necessary.
At the outset, it is noticed that, the quantum in dispute is only Rs. 12,13,132/- and the tax effect on this amount is below the 10 lakhs. vide the latest CBDT Circular No. 21 of 2015, dated 10th December, 2015, new guidelines of monetary limit for filing of appeals by the Department has been issued, whereby the tax effect for filing of appeal before the ITAT has been prescribed at Rs. 10 lakhs. In the said Circular, it has been specifically clarified that the said instruction will apply retrospectively to all the pending appeals. Accordingly, the appeal filed by the revenue is not maintainable and is dismissed in limine.