9911796707
TMI Blog2019 (4) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... r the specified due date. Therefore, the assessee has filed the revised return of income for the assessment year 2006- 07 within the stipulated time claiming increased amount of losses, however, the assessing officer inadvertently determined the claim of losses while passing order u/s. 143(3) for the assessment year 2006-07 on the basis of the original return of income filed by the assessee. When the matter was brought to the notice of the assessee as elaborated above he has rectified the apparent error by passing order u/s. 154 of the act in the assessment year 2007-08 vide which the claim of the losses of the assessee was allowed. AO has rectified the mistake u/s. 154 of the act and correctly allowed the claim of set off of carried forward business/depreciation, therefore, we are not inclined with the unjustified finding of the CIT(A). Considering we allow the ground of appeal of the assessee for assessment years 2007-08 to assessment year 2008-09. In the result, all the grounds appeal of the assessee are allowed. - ITA Nos. 919 to 921/Ahd/2016 - - - Dated:- 28-1-2019 - Shri Rajpal Yadav, Judicial Member And Shri Amarjit Singh, Accountant Member For the Assessee : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn of income for assessment year 2006-07 on 30th December, 2016 and declared loss of ₹ 16,88,228/- consisting of business loss of ₹ 13,49,317 and the unabsorbed depreciation of ₹ 3,38,911/-. The assessment u/s. 143(3) of the act for assessment year 2006-07 was finalized on 30th December, 2008. In the assessment an addition of ₹ 5,58,715/- was made and losses of the assessee was reduced to ₹ 11,29,510/-. The ld. CIT(A) has deleted the aforesaid addition, therefore, the losses for assessment year 2006-07 was allowed at ₹ 16,88,228/- as claimed in the original return of income . Thereafter the assssee has furnished return of income for assessment year 2007-08 on 30th October, 2007 and declared total income at ₹ 3,98,150/- after setting off of losses of ₹ 16,88,228/- relating to assessment year 2006-07. Subsequently the assessee has filed revised return of income on 9th July, 2008 and declared total income at Rs. nil after setting off of business losses of ₹ 24,86,379/- relating to assessment year 2006-07. In the revised return of income filed for the assessment year 2007-08 the assessee has shown total brought forward business ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /-, after considering disallowance of ₹ 91,66,874/-u/s 40(a)(ia) in A.Y. 2005-06. The case was selected for scrutiny and order u/s 143(3) was passed on 30.12.2008 (after considering the Revised Return, filed almost an year earlier), determining total loss at ₹ 11,29,510/-, after addition of ₹ 5,58,715/-. It is noted from the order u/s 143(3), which was passed after considering the Revised Return of Income that the Assessing Officer had allowed carry forward of loss of ₹ 11,29,510/- to subsequent years. The assessee filed an appeal against order u/s 143(3) dated 30.12.2008 only contesting the addition of ₹ 5,58,715/- before CIT(A) and did not file any appeal against Assessing Officer's order allowing carry forward of loss of ₹ 11,29,510/-. In the appeal against the addition of ₹ 5,58,715/-, CIT(A) decided the issue in favour of the assessee in CAB/II-439/08-09 dated 29.11.2010 and the Assessing Officer gave effect to the appeal order vide his order dated 31.01.2011 and finally allowed the assessee to carry forward losses of ₹ 16,88,228/-. 6. We have heard the rival contentions and perused the material on record carefully. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted time. It is noticed that neither the assessing officer has challenged the validity of the revised return of income filed for assessment year 2006- 07 nor pointed out any defect in the revised return of income. The assessee has filed its return of income for the assessment year 2007-08 on 30-10- 2007. In the revised return of income for assessment year 2007-08, total brought forward business losses for the assessment year 2006-07 was claimed at ₹ 1,05,16,191/- and unabsorbed depreciation at ₹ 3,38,909/-. The assessment for assessment year 2007-08 was completed u/s. 143(3) and an addition of ₹ 1,00,000/- was made and the assessee s loss reduced to ₹ 4,37,285/-. To rectify the mistake apparent from record the assessing officer has duly passed an order u/s. 154 of the act of the assessment year 2007-08 and assessee was allowed to carry forward the business loss of ₹ 39,333030/- and unabsorbed depreciation loss of ₹ 338911/- in relation to assessment year 2006-07. However, vide the impugned order u/s. 143(3) r.w.s. 147 of the act dated 31/12/2014 for assessment year 2007-08 the assessing officer has held that the claim of the assessee of carrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion, allowance or relief in the return ; (c) where an assessment has been made, but - (i) income chargeable to tax has been underassessed ; or (ii) such income has been assessed at too low a rate ; or (iii) such income has been made the subject of excessive relief under this Act ; or (iv) excessive loss or depreciation allowance or any other allowance under this Act has been computed.] In the light of the above facts and provisions of section 147 of the act , we find that the assessing officer has failed to substantiate that how there was escapement of income after expiry of 4 years as there was no failure on the part of the assessee to disclose any material or information necessary for assessment 143(3) of the act. We did not find any substance in the decision of ld. CIT(A) holding without any reason that the order passed u/s. 154 by the assessing officer on 26-11-2010 allowing carry forward of loss was not sustainable in law. We observe that the assessing officer has completed the assessment for the assessment year 2005-06 on 06-12-2007 and addition to income was made at ₹ 91,66,874/- under section 40(a)(ia) of the act as the amount of TDS was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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