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TMI Blog2016 (3) TMI 1013X X X X Extracts X X X X X X X X Extracts X X X X ..... without giving a reasonable opportunity of being heard is unjust, arbitrary and against the facts and circumstances of the case. 2. Action of ld. CIT(A) in confirming the action of the AO in disallowing the carry forward of loss of Rs. 2,90,78,830/- is unjust, arbitrary and against the facts and circumstances of the case.'' 4.1 Brief facts of the case are that the assessee has filed the return of loss on 28-12-2011 declaring loss of Rs. (-) 2,90,78,830/- which was processed u/s 143(1) on 22-03-2002. Since the return has been filed beyond the specified limit for filing the return u/s 139 (1), the aforesaid loss was not allowed to be carried forward to the subsequent assessment year. Assessee filed application u/s 154 of the I T Act claiming it as a mistake and for its rectification. 4.2 Apropos other appeal, the AO while processing the return u/s 143(1) rejected assessee's claim for carried forward of losses on the ground that return was filed belated and did not qualify for carried forward of losses. The assessee preferred rectification application u/s 154 of the Act which was rejected by the AO by following observation:- ''The assessee has filed application u/s 154 on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the date for filing various returns before Income Tax and other Central Government Departments mentioned in para- 6E(ii) has been extended from 31.12.2000 to 31.12.2001. However, on going through the order of the Hon'ble BIFR dated 22-11-2000 and the sanctioned scheme in BIFR case No. 34/92 circulated with said order it is noted that the reliefs and concessions have been provided for the period prior to 31.03.2000, since the cutoff date as per para-6 of the Scheme is 31.03.2000. The relief has been worked out in light of the closure of the company from lsl June 1998 till 31st March 2000 and the change of management of the company by inclusion of a new co-promoter Captain K.S.Solanki. Although the scheme provides for allowing the new management to file various returns before Income Tax Department, and to allow the company to carry forward and set-off of the investment allowance and unabsorbed depreciation / unabsorbed losses for all the years during which the revival scheme is implemented, the assessment years to which the scheme is applicable has not been mentioned separately. Considering that the cut-off date of scheme has been stated as 31.03.2000, it is held that the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me against the appellant in order dated 11.02.2013 in appeal No.235/2002-03. Even on merits, on going through the order of the Hon'ble BIFR dated 21.11.2000 and the sanctioned Scheme in BIFR case No. 34/92 circulated with said order I find that the reliefs and concessions have been provided for the period prior to 31.03.2000, since the cut-off date as per para-6 of the Scheme is 31.03.2000. The relief has been worked out in light of the closure of the company from 1st t June 1998 till 31st March 2000 and the change of management of the company by inclusion of a new co-promoter Captain K.S.Solanki. Although the scheme provides for allowing the new management to file various returns before Income Tax Department, and to allow the company to carry forward and set-off of the investment allowance and unabsorbed depreciation / unabsorbed losses for all the years during which the revival scheme is implemented, the assessment years to which the scheme is applicable has not been mentioned separately. Considering that the cut-off date of scheme has been stated as 31-03-2000, it is held that the scheme would be applicable up to FY 1999- 2000 i.e. upto AY 2000-01 and it would not be appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reliefs and concession form, Govt. of India, Govt. of Rajasthan, RIICO etc as mentioned in clause 6DGovernment of Rajasthan and 6E-Govt. of India. In SS-2000, the new promoter has been advised to arrange for audit of accounts for the year ended March 31,1998, 1999 and 2000 refer to clause 6(I)(i) of SS 2000. The date of filing of various returns was given 31-12-2000 refer to clause 6(E)(ii) of SS 2000. However, due to misplacement of record, theft during closure of company from 1998-2000, the accounts could not be prepared/ audited. In the meeting of BIFR held on 16-08-2001, the submission was made by RECL ''that the company was required to file various return with different Govt. agencies by December 2000 as envisaged in the scheme. Since the accounts would be finalized by Sept. 2001 and thereafter adopted in the AGM, he requested that the date of filing of such return be extended upto Dec. 2001. The Bench has considered the said request and directed that the company would file a formal request with the Board for extending the date of filing of various return with different Govt. agencies upto 31-12-2001. Accordingly, a request was made by RECL to BIFR for extension of time limit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 139(3) of the IT Act since return of income was not furnished within time allowed u/s. 139(1). (ii) As per CBDT, New Delhi circular No. 576, the assesses company is not entitled to the benefit of extension of date of filing return of income. The assesses has not filed any specific evidence of year-wise permission given by the BIFR for above assessment year. I am inclined to agree with die AR of the appellant that the AO has erred in following the CBDT New Delhi circular No. 576 since this circular dated 31,08,1990 had been withdrawn vide circular No, 683 dated 08,06.1994, I have considered the order of the Hon'ble BIFR dated 22.11.20(10 and 06.09.2001 by. which the date for filing various returns before Income Tax. and other Central Government Departments mentioned m para- 6E(ii) has been extended from. 31.12.2000 to 31.12.2001. Further, on going through the order of the Hon'ble BIFR dated 22,11.2000 and the sanctioned scheme in BIFR case No. 34/92 circulated with said order it is noted that the reliefs and concessions have been provided for the period prior to 31.03.2000, since the cutoff date as per para-6 of the Scheme is 31.03.2000. The relief has been worked ou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case for assessment year 2000-01 are similar to the year in question i.e. AY 2001-02 wherein impugned appellate orders have been passed by the ld. CIT(A) in appeal u/s 154 on 11-02-2013 and u/s 143(3) on 01-03-2013. As a matter of fact, the same CIT by two separate orders of the date for the assessment year 2000-01 and 2001-02 has taken two opposite views while deciding the appeal AO's respective orders u/s 154 of the Act. Since the order for the assessment year 2000-01 has been accepted by the Revenue, there is no justification on the part of the ld. CIT(A) in not following his own order of the same date on the same facts and circumstances of the case. In assessment year 2001-02, it has been clearly held that the provisions of Sick Industrial Companies (Special Provisions) Act, 1985, the Rules or Scheme made under the said Act would have an overriding effect over the provisions of the I.T. Act. On the same date in other order, this categorical rule finding has been given go-bye for no justifiable reasons since the Revenue has accepted this order. The appeal in this behalf may be allowed. 4.12 On merits, it is contended that the issue whether the assessee shall be entitled for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... being heard to the assessee. '' 4.13 It is further contended that in any case the claim of unabsorbed depreciation is to be allowed irrespective of belated filing of the return. Reliance is placed in the case of CIT vs. Govind Nagar Sugar Ltd. (2011) 343 ITR 13 wherein the Hon'ble High Court has observed as under: - ''16. We have already noted above that Section 32 deals with the different types of depreciation whereas Section 80 deals with carried forward of unabsorbed losses other than losses on account of depreciation. If that was not so, there was no need for Legislature to prove specific provision for carrying forward of depreciation u/s 32 of the Act. It has already been noted that in case of Nagapatinam Import & Export Corpn.(supra) which was relied by our High Court in the case of J Patel &Co. (supra) whereby it was held that Section 72 contemplates loss other than unabsorbed depreciation and there was a time limit within which loss can be adjusted, whereas in the case of unabsorbed depreciation there is no time limit and further that under the statute there is a separate identity with respect to unabsorbed depreciation though at the time of computation, it becomes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment year cannot be decided by him. It's is only AO dealing with the assessment where any claim of set-off is eligible for set off of the loss will decide as observed by the Hon'ble Supreme Court in the case of Manmohan Das 59 ITR 699. The issue whether the assessee shall be entitled to carry forward and set-off of this loss in any subsequent year shall be decided by the AO framing the assessment of such subsequent assessment year, in which claim of set off of loss is made by the assessee. This view if further supported by Hon'ble P&H High Court in CIT v. Haryana Hotels Ltd. 276 ITR 521. Respectfully following these judgments, we hold that since no claim of set off of loss is made by the assessee in this year the action of AO in rejecting to allow carry forwarded is not tenable as it preempts the future quasi-judicial powers of the AO who has to actually set off of the loss if and when there are profits. Therefore, the remarks/ findings of the ld. AO denying claim of carryover of earlier losses and unabsorbed depreciation are expunged. The legality of claim of set off will be considered by AO who will deal with the aspect of set off. Thus the grounds of the assessee to this ext ..... X X X X Extracts X X X X X X X X Extracts X X X X
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