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2022 (7) TMI 1013 - AT - Income TaxClaim set off of loss against income determined under section 115BBE - HELD THAT - As mentioned in the circular No.11/2019 wherein that an assessee is entitled to claim set off of loss against income determined under section 115BBE of the Act till the assessment year 2016-17. Moreover, as noted by us, ld. DR for the Revenue fairly accepted that in view of the aforesaid CBDT Circular, the decision of ld. CIT (A) is a correct one and it does not need any interference on our part. Accordingly, we uphold the order of ld. CIT (A) and decide the issue in favour of the assessee.
Issues:
1. Whether the unexplained income declared by the assessee can be added under section 68 of the Income Tax Act. 2. Whether the addition made by the Assessing Officer as unexplained cash credit can be deleted. Analysis: Issue 1: The case involves the Revenue appealing against the order of the ld. CIT (A)-8, New Delhi regarding the assessment year 2015-16. The Revenue raised concerns about the unexplained income of Rs.9,40,17,274 declared by the assessee and its treatment under section 68 of the Act. The Assessing Officer had added this amount as unexplained cash credit under section 68 r.w.s. 115BBE of the Income Tax Act. The ld. counsel of the assessee argued that the issue is covered in favor of the assessee by CBDT Circular No.11/2019 and referred to relevant case laws supporting their stance. The ld. DR for the Revenue did not contest that the issue was in favor of the assessee as per the decision of the ld. CIT (A) and the CBDT Circular. Issue 2: The ld. CIT (A) extensively reviewed the case and noted that the Assessing Officer treated the commodity trading profit earned by the appellant as income from unexplained credit, adding it as unexplained cash credit under section 68 r.w.s. 115BBE. However, the ld. CIT (A) pointed out that the provisions of section 115BBE did not prohibit the set off of losses against income for the assessment year 2015-16. The ld. CIT (A) referred to the amended provisions of section 115BBE and highlighted that the prohibition of set off of losses against income would be applicable from the assessment year 2017-18 onwards. Citing the decision of the Hon'ble Supreme Court in CIT Vs. Vatika Township (P) Ltd, the ld. CIT (A) concluded that the amended provisions of section 115BBE were not applicable to the current assessment year. Therefore, the separate addition made by the Assessing Officer under section 68 read with section 115BBE was deleted. The Revenue appealed the decision, but the Tribunal upheld the ld. CIT (A)'s order based on the CBDT Circular No.11/2019, which clarified the non-allowability of set off of losses against deemed income under section 115BBE of the Income Tax Act before the assessment year 2017-18. The Tribunal referenced various case laws supporting the allowance of set off of losses against income till the assessment year 2016-17. The Revenue's representative acknowledged the correctness of the ld. CIT (A)'s decision in light of the CBDT Circular, leading to the dismissal of the Revenue's appeal. In conclusion, the Tribunal dismissed the Revenue's appeal, upholding the decision of the ld. CIT (A) regarding the treatment of unexplained income and the prohibition of set off of losses against income for the assessment year 2015-16.
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