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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 ..... filed by the assessee against two separate orders of the ld. CIT(A), Alwar dated 11-02-2013 u/s 154 and dtd. 01-03-2013 u/s 143(3) of the Act for the assessment year 2001-02 respectively. 2.1 In ITA No. 481/JP/2013, the assessee has raised following ground. Action of ld. CIT(A) in confirming the action of the AO in not allowing carry forward of loss of ₹ 2,90,78,830/- is unjust, illegal, arbitrary and against the facts and circumstances of the case. 3.1 In ITA No. 481/JP/2013, the assessee has raised following grounds. 1. Action of ld. CIT(A) in confirming the action of the AO in passing the order u/s 154 of the I.T. Act 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 ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d u/s 139(1). Moreover, as per CBDT circular no. 576 circulated by CBDT, New Delhi the assessee company is not entitled to the benefit of extension of date of filing of return claimed by it. Hence, application u/s 154 of the I.T. Act , 1961 is hereby rejected. 4.3 The assessee preferred first appeal which was dismissed by the ld. CIT(A) by observing as under: - I am inclined to agree with the 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that the AO has erred in following the CBDT New Delhi circular No. 576 since this circular dated 31.08.1990 had been withdrawn vide circular No. 683 dated 08.06.1994.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 22-11-2000 and 06.09.2001 by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her appeal has been filed before this office. It has been submitted that the Income Tax return was filed as per provisions of the Scheme sanctioned by Hon ble BIFR on 22.11.2000 and as per its order No. 18(4)/l/B.III/BIFR/Mon/2001 dated 06.09.2001 and carry forward of loss assessed should be allowed. 11.3 I have considered the assessment order and submissions made by the AR. I have also considered the order of the Hon ble BIFR dated 22.11.2000 and 06.09.2001 by 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. The appeal against order u/s. 154 of the AO has been decided by 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 J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... FR on 22-11-2000 (SS-2000). The Board appointed State Bank of Bikaner Jaipur as the Monitoring Agency to monitor the progress of implementation of SS-2000. The scheme, inter alia envisaged payment of dues of Financial Institutions, restructuring of dues of State Bank of Bikaner Jaipur and payments to the various statutory authorities. The cut off date (COD) was considered in the sanctioned scheme on 31-03-2000. The cost of the scheme estimated to be ₹ 820 lakhs was proposed to be financed by fresh promoter s contribution in the form of equity capital ₹ 570 lakhs, realization of dues from Coal India Ltd. ₹ 50 lakhs and internal accruals ₹ 200 lakhs. The scheme inter alia provided for payments to, and certain 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 dur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .2001 although the due date of filing the return u/s. 139(1) was 30.11.2000. The AO has issued an intimation u/s. 143(1) of the IT Act dated 22,03.2002 with returned total income of Rs. (-) 237,75,700/-, and amount pavabie/refundable as nil with a note that ilic above loss is not allowable id be carry forwarded to further next year as return of income is not filed within due time as specified in section 139(1.) read with section 139(3) of the Act, 1961. (A) The AO has passed an order u/s. 154 on 28.11.2002 and has rejected the application received from appellant u s. 154 on 07.06.2002 on the folling grounds:- (i) After considering the assessee s submission and the BIFR order dated brought forwarded losses can not be allowed in view of the section 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimation u/s. 143(1) of the Act stating that the above loss is not allowable to carry forwarded to further next year as return of income is not filed within due time as specified in section 139(1) read with section 139(3) of IT Act, 1961 ' and allow necessary relief to the appellant. The ground No. 1, 3 4 are allowed on above terms. (13) The second ground regarding not providing proper opportunity of being heard had become iniructuous and academic in nature in view of the relief provided above. The same is rejected. 4.11 The ld. Counsel for the assessee contends that this order of the ld. CIT(A) allowing carried forward of losses in assessment year 2000-01 has been accepted by the Revenue as no further appeal is filed. The facts and circumstances of the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Assessing Officer in his assessment order is undoubtedly rendering the assessment order erroneous and prejudicial to the interest of revenue. 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 Assessing Officer of the subsequent assessment year, in which such claim is made by the assessee. In this respect, therefore, the ld. CIT was very much justified in holding that the assessment order is erroneous and prejudicial to the interest of revenue insofar as the observation to the effect loss to be carried forward made by the Assessing Officer is concerned and he, accordingly, was justified in setting aside the assessment on the above issue to be made afresh after giving opportunity of 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT VS. Vatika Township (P) Ltd. 367 ITR 466 (SC) for the proposition of maintaining the consistency of the stand of Revenue on same facts and circumstances enunciated. In view thereof, we hold that ld. CIT(A) ought to have followed his order in A.Y. 2001-02 and allowed assessee's application u/s 154 of the Act being the mistake pointed out therein. Thus the appeal of the assessee in ITA No. 482/JP/2013 is allowed. 4.16 Adverting to appeal on merits also we find merit in the assesse s reliance on Delhi ITAT judgment in the case of Lodhi Properties Ltd. (supra) holding that the present Assessing Officer determining the loss shall only determine the quantum of the current year loss. Whether the losses so quantified shall be eligible to be set off against the profit of subsequent assessment 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 asses ..... X X X X Extracts X X X X X X X X Extracts X X X X
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