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TMI Blog2018 (6) TMI 1188X X X X Extracts X X X X X X X X Extracts X X X X ..... m. Ld. CIT(A), therefore, correctly directed the A.O. to consider the claim of assessee for carry forward of short term capital loss. Directions of the CIT(A) are modified to that extent that the A.O. shall verify the claim of assessee of carry forward of the short term capital loss as per law and shall pass the order accordingly, by giving reasonable, sufficient opportunity of being heard to the assessee - ITA.No.157/Del./2015 - - - Dated:- 21-6-2018 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI L.P. SAHU, ACCOUNTANT MEMBER For The Revenue : Shri Amit Jain, Sr. D.R. For The Assessee : None ORDER PER BHAVNESH SAINI, J.M. This appeal by Revenue has been directed against the Order of the Ld. CIT(A)-3, Ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not claimed in the return of income filed, but, claim was made during assessment proceedings, which, in the view of the A.O. was not permitted. Hence, A.O. did not entertain the assessee s claim of short term capital loss. The assessee challenged the order of the A.O. before Ld. CIT(A) and the submissions of the assessee are reproduced as under : Submission on Claim of Short Term Loss of ₹ 1,37,89,600 The Kohinoor Foods Limited (FOR SHORT 'Company') had issued 1,02,00,000 Share Warrants to promoters on 11th March, 2008 as per the SEBI Guideline and after obtaining in-principal approval from both the Stock Exchange. It took 10% of the total value (As per the SEBI Guideline) as advance payment before issuance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he promoters in the balance share warrants and forfeiture of the amount by the company. The said amount forfeited by the company is also reflected in the balance sheet of the Kohinoor Foods Ltd Company and shown in the capital reserves. The extinguishment of any right in the capital asset amounts to transfer as held by the Larger Bench of Flon'ble apex court in the decision of CIT v. Mrs. Grace Col I is Ors. [2001] 166 CTR (SC) 201: [2001)248 ITR 323 (SC). Therefore if the net result of the computation under the head capital gain is loss then it is to be dealt according to law. The Hon'ble Jurisdictional High court in the case of CIT vs, Ratan Chand Bagri 329 ITR 356 held that forfeiture of amount paid towards convertible wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Also, CBDT Circular No. 114 XL-35 of 1955 dated 11.04.1955 states that officer of the department must not take advantage of the ignorance of an assessee as to his rights. Also, if the AO has not considered the claim of the assessee without filling the revised return, the CIT(A) is having co-terminus powers with the powers of Assessing Officer and the fact that appellate proceedings are the continuation of original proceedings, we request your honours to allow the claim of the assessee and the carry forward of the capital loss should be allowed to the assessee. Also it is a well settled position of law that a claim cannot be denied to the assessee just because the assessee did not make the claim in the original return or filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the claim made by assessee. The findings of the Ld. CIT(A) are reproduced as under : 6. I have gone through the appellant's submissions, facts and evidences available on records and considered the decision relied upon by the appellant and AO. With regard to the appellant's contention that the AO's order is not valid on the ground that it does not allow the appellant to carry forward of the short term capital loss since the appellant did not file the revised return of income under section 139 of the Act, it is stated that this objection of the appellant has some force. The AO has failed to consider that after the decision of Goetze (India) Ltd. vs. CIT 284 ITR 323 (SC) there have been a number of decisions that have he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. The Ld. D.R. relied upon the order of the A.O. However, none appeared on behalf of the assessee. 5. After considering the submissions of the Ld. D.R. we do not find any merit in the Departmental Appeal. The A.O. did not allow the claim of assessee of carry forward of the short term capital loss because no revised return have been filed. However, assessee has filed a revised computation before A.O. and also made a claim for deduction. It is well settled law that even if A.O. could not have considered the claim of assessee but there is no bar on the powers of the appellate authority to consider the claim of assessee as per law. The powers of the Ld. CIT(A) are co-terminus powers to that of the A.O. Therefore, being the first appella ..... X X X X Extracts X X X X X X X X Extracts X X X X
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