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Income Tax Appellate Tribunal, RAIPUR BENCH, AT RAIPUR
Before: SHRI RAVISH SOOD & SHRI G. D. PADMAHSHALI
॥ आयकर अपीलीय न्यायाधिकरण, रायपुर न्यायपीठ, रायपुर में ॥ (Through Virtual Hearing) IN THE INCOME TAX APPELLATE TRIBUNAL, RAIPUR BENCH, AT RAIPUR BEFORE SHRI RAVISH SOOD, JUDICIAL MEMBER AND SHRI G. D. PADMAHSHALI, ACCOUNTANT MEMBER आयकर अपीऱ सं. / ITA No. 144/RPR/2019 निर्धारण वर्ा / Assessment Year : 2012-2013 L/H Smt Paramjeet Kaur Sadana D-102, Jainam Plannet, Mandi Rd. Raipur – 492009, Chhattisgarh . . . . . . . अपीऱधर्थी / Appellant PAN: बनाम / V/s. Asstt. Commissioner of Income Tax, . . . . . . . . प्रत्यर्थी / Respondent Circle 4(1), Raipur. द्वारा / Appearances Assessee by :Shri Veekaas S. Sharma :Shri Choudhary N.C. Roy Revenue by सुनवाई की तारीख / Date of conclusive Hearing : 22/12/2022 घोषणा की तारीख / Date of Pronouncement : 26/12/2022 आदेश / ORDER PER G. D. PADMAHSHALI, AM; The present appeal assailed against the order of Commissioner of Income Tax (Appeals)-II, Raipur [for short “CIT(A)”] dt. 21/03/2019 passed u/s 250 of the Income-tax Act, 1961 [for short “the Act”], which dove out of order of assessment dt. 30/01/2015 passed u/s 143(3) by the Asstt. Commissioner of Income Tax,
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L/H Smt Paramjeet Kaur Sadana ITA No.144/RPR/2019 AY: 2012-13 Circle-4(1), Raipur [for short “AO”] for assessment year [for short “AY”] 2012-13. 2. The grounds raised by the appellant are; “1. That having regard to the facts and circumstances of the case, order of CIT (Appeals)-1, Raipur is unjust, unfair and bad in law as the same is contrary to facts and in violation of principles of natural justice. 2. On the facts and in the circumstances of the case, the Learned CIT (Appeals)-II, Raipur has erred on facts and in law in not allowing the loss of Rs.4,02,825/- from trading of Derivative transactions without appreciating the facts properly on account of extraneous reasons, hence, it is prayed that the addition and consequential enhancement to the total income may kindly be deleted. 3. On the facts and in the circumstances of the case, the Learned A.O has erred on facts and in law in not allowing the benefit of set off of loss arising from the transfer of securities against gain on transfer of land under consideration and the Learned CIT (Appeals)-II, Raipur has erred in denying the benefit of set off of loss merely due to the reason that the loss was not claimed in the Return of Income (ROI), hence, it is prayed that the loss may kindly be allowed to set off against the long term capital gain. 4. The Appellant craves leave to add, amend, alter, vary and / or withdraw any or all the above grounds of Appeal.” 3. The sole and substantive ground of dispute in the present appeal hinges around allowability of claim of
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L/H Smt Paramjeet Kaur Sadana ITA No.144/RPR/2019 AY: 2012-13 loss raised first time before appellate authority [for short “FAA”] wherein the return was filed u/s 139(4). 4. Tersely stated the facts borne out of the case records are; 4.1 The assessee (deceased) an individual, filed his return of income [for short “ITR”] on 31/03/013 for the AY 2012-13 declaring income of ₹11,42,260/- arising out of long term capital gain and income from other sources. When the case was subjected to CASS, the assessee was put to notice to explain undisclosed taxable transaction of sale of land for ₹72,12,150/- and in the absence of evidential documents claiming exemption u/s 54F, the Ld. AO framed the assessment with an addition of ₹69,84,833/- u/s 143(3) of the Act.
4.2 Aggrieved assessee carried the matter before FAA challenging the denial of claim of 54F and additionally with a fresh claim of set off of capital losses arisen from trading in future derivatives against the capital gain charged to tax. The Ld. CIT(A) considering the additional evidence and the ITAT-Raipur Page 3 of 6
L/H Smt Paramjeet Kaur Sadana ITA No.144/RPR/2019 AY: 2012-13 remand report, gave partial relief, however did not find force in the claim of capital loss as same being remained unclaimed in the ITR filed nor was disclosed during the course of regular assessment proceedings. Aggrieved by the orders of both the tax authorities below [for short “TAB”], the appellant is before the Tribunal with the grounds of appeal set in para 2 herein before.
During the course of hearing, the authorised representative for the assessee [for short “AR”] adverting page 8 of the appellate order contended that, Ld. FAA denied to entertain the claim of capital loss merely citing the provision of section 80 and for the reason the Ld. AR requested for remanding the file back to the Ld. CIT(A) for de-nova consideration of claim. Au contraire the learned departmental representative [for short “DR”] has taken us through the relevant records to showcase that the claim of capital loss were neither finds place in belated ITR nor made in course regular assessment proceedings and contended that, in the absence of revised return, in ITAT-Raipur Page 4 of 6
L/H Smt Paramjeet Kaur Sadana ITA No.144/RPR/2019 AY: 2012-13 the light of section 80 of the Act no such claim is entitled to be entertained. 6. We have heard the rival contentions of both the parties; and subject to the provisions of rule 18 of Income Tax Appellate Tribunal Rules, 1963 [for short “ITAT, Rules”] perused the material placed on record, case laws relied upon by the appellant as well the respondent and duly considered the facts of the case in the light of settled legal position forewarned to either parties.
It shall suffice to state that, a person who has sustained a loss in any previous year and intend to carry forward such loss for being set off, is obligated by virtue of section 139(3) to file the ITR within the time limit prescribed u/s 139(1) of the Act and section 80 puts on embargo in the event of failure to comply with provisions of section 139(3) of the Act. Admittedly, in the extant appeal, the assessee for the impugned assessment year has filed a belated return of income u/s 139(4) of the Act on 31-03-2013 that is filed after the expiry of the time limit prescribed by ITAT-Raipur Page 5 of 6
L/H Smt Paramjeet Kaur Sadana ITA No.144/RPR/2019 AY: 2012-13 section 139(1) without the claim of capital loss and the said belated ITR was accepted in the course of regular assessment proceedings u/s 143(3) of the Act. The assessee however in an appeal put forth the fresh claim of capital loss first time before Ld. FAA through additional evidence u/r 46A of Income Tax Rules, 1962 stating same could not be laid during the course of regular assessment proceedings which resulted into wrong computation of income in his case. Ostensibly, the Ld. CIT(A) without appreciating the facts whether the capital loss pertains to impugned year or brought forwarded one, has adjudicated the matter without affording reasonable opportunity to the assessee, therefore without commenting on the merits of the claim, we see cogent reason in remanding the file back to the Ld. FAA
Resultantly, the appeal of the assessee is ALLOWED FOR STATISTCAL PURPOSE in above terms. In terms of rule 34 of ITAT Rules, the order pronounced in the open court on this MONDAY 26th Day of December, 2022. -S/d- -S/d- RAVISH SOOD G. D. PADMAHSHALI JUDICIAL MEMBER ACCOUNTANT MEMBER पुणे / PUNE ; दिन ांक / Dated : 26th Day of December, 2022. ITAT-Raipur Page 6 of 6