What did the Tribunal hold?

The Tribunal held that in the interest of justice and to ensure the assessee is heard, the matter should be re-examined. Due taxes must be levied, and the assessee should be given a proper opportunity to present its case.

The assessee claimed set off of brought forward business loss and unabsorbed depreciation from AY 2009-10 against AY 2011-12 profits. The Assessing Officer did not allow this set off, and the assessee contended that clerical mistakes and lack of opportunity led to an incorrect assessment.

What were the issues?

Whether the assessee is entitled to set off brought forward losses and unabsorbed depreciation, and whether a proper opportunity of being heard was provided.

Glacier Refrigeration P.Ltd vs ITO | ITAT Mumbai 2016

Income Tax Appellate Tribunal, MUMBAI BENCHES “SMC”, MUMBAI

Before: Shri Joginder Singh,

For Appellant: Shri V.S. Jadhav-DR

Hearing: 18/01/2016

आदेश / O R D E R

The assessee is aggrieved by the impugned order dated 08/12/2014 of the Ld. First Appellate Authority, Mumbai. The only ground raised in this appeal pertains to not allowing set off of the brought forward business loss and unabsorbed depreciation loss of Rs.5,34,027/- of Assessment Year 2009-10 against the profit of A.Y. 2011- 12 and further not allowing proper opportunity of being heard.

At the time of hearing, at the outset, the ld. counsel for the assessee, Shri N.K.Aroara, contended that true facts could not be explained by the Ld. counsel for the assessee due to clerical mistakes occurred in the facts. The assessee also filed certain documents, which were claimed to go to the roots of the issue. It was prayed that if opportunity is given, the assessee is in a position to substantiate its claim. On the other hand, Shri V.S.Jadhav, Ld. DR, contended that the either the interest of the Revenue may be safeguarded or the matter may be sent back to the file of the ld. Commissioner of Income Tax (Appeals) or the ld. Assessing Officer, so that the claim of the assessee may be examined.

2.1. I have considered the rival submissions and perused the material available on record. The facts, in brief, are that the assessee declared income of Rs.7,73,872/- while filing the e-return, uploaded with the details of income and brought forward losses of earlier years both unabsorbed business loss of Rs.4,51,906/- and unabsorbed depreciation of Rs.82,121/-. The assessee has set off total loss of Rs.5,34,027/- of the A.Y. 2009-10 against the profit of Rs.7,73,873/- of the assessment year in hand by calculating the tax on balance income. However, without going into much deliberation and the claim of the assessee that there was a clerical mistake and proper opportunity was not provided to the assessee, in the interest of justice and in view of the principle that no person should be condemned unheard and further without going into merits of the appeal, I am of the view that even as per mandate of Article 265 of Constitution of India, only due taxes has to be levied/collected, therefore, this appeal is remanded back to the file of the ld. Commissioner of Income Tax (Appeals) to examine the claim of the assessee and after providing due opportunity of being heard be decided in accordance with law. The assessee is at liberty to furnish evidence, if any, in support of its claim. Thus, the appeal of the assessee is allowed for statistical purpose only.

Finally, the appeal of the assessee is allowed for statistical purpose only.

This order was pronounced in the open in the presence of ld. representatives from both sides at the conclusion of the hearing on 14/01/2016.

GLACIER REFRIGERATION P.LTD,MUMBAI vs. ITO WD 9(3)(4), MUMBAI

What did the Tribunal hold?

What were the facts?

What were the issues?

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