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TMI Blog2022 (9) TMI 966X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of assessee for set off of carry forwarded losses - HELD THAT:- We have heard both the parties and noted that if the assessee is eligible to claim depreciation and set off of carry forwarded losses of proceeding years, it should be allowed to him as per law, therefore, we remit these issues back to the file of the assessing officer with the direction to examine the eligibility of the assessee to claim depreciation and eligibility of assessee for set off of carry forwarded losses of proceeding years and then after adjudicate these issues in accordance with law. For statistical purposes, these two grounds raised by the assessee are treated to be allowed. - ITA No. 438/SRT/2019 - - - Dated:- 16-9-2022 - Shri Pawan Singh, JM And Dr. A. L. Saini, AM For the Assessee : Mehul Shah, CA For the Respondent : Shri Vinod Kumar, Sr. DR ORDER PER DR. A. L. SAINI, AM: Captioned appeal filed by the Assessee, pertaining to Assessment Year (AY) 2013-14, is directed against the order passed by the Learned Commissioner of Income Tax (Appeals)-1, [in short the ld. CIT(A) ], in Appeal No. CAS- 1/861/2015-16 dated 28.10.2016, which in turn arises out of an assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessing Officer has failed to give an allowance of depreciation as per Income Tax Act,1961 amounting to Rs.44,58,403/- and has also failed to allow the set off and carry forward of losses of preceding years and the counsel had suggested to explore alternative remedy under rectification u/s 154 and hence the appeal before Honorable Tribunal was filed on 24.09.2019. 3) The issue in this appeal is that the learned Commissioner of Income Tax (Appeals) has erred in confirming the action of Assessing officer in making addition of Rs.33,77,626/- by considering the exempt agriculture income as income from other sources. 4) The assessee submits that the case is a meritorious one and requires consideration. If the delay is not condoned, it would cause irreparable loss to the applicant. 5) Therefore, in the facts and circumstances of the case, the applicant prays to this Honourable Income Tax Appellate Tribunal: (a) To condone the delay of approximate 997 days in filing the Appeal No.438/SRT/2019 and to extend the time for filing the same inclusive and upto the date of filing the appeal; (b) To grant such other and further relief as deemed fit by Honourable Income Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... casts a duty on us to deliver justice. The reasons given in the affidavit for condonation of delay are convincing and these reasons would constitute reasonable and sufficient cause to condone delay. We, therefore, condone the delay and admit the appeal for hearing. 8. Succinct facts are that assessee before us is a limited company and filed its return of income for the assessment year (AY) 2013-14 on 02.09.2013, declaring total income at Rs. NIL. During the year, the assessee has claimed exempt agriculture income to the tune of Rs.41,27,626/-. The assessee company is engaged in the business of sale of agricultural products. The assessee`s case was selected for scrutiny assessment and, various details/evidences were called by assessing officer. In response, the assessee filed details/evidences. The assessing officer after taking into account all the facts and evidences submitted by the assessee, estimated the agricultural income to the tune of Rs.7,50,000/- and balance amount of Rs.33,77,626/- ( Rs.41,27,626- Rs.7,50,000) has been treated as income from other sources . Accordingly, assessment under section 143(3) of the Act was completed on 29.03.2016 making addition at Rs.33,77 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 20-21 evidencing brought forward unabsorbed depreciation (vide paper book page no. 78) We have gone through the past assessment order u/s 143(3) for assessment year 2012-13 and note that scrutiny assessment was framed under section 143(3) of the Act and assessing officer has not made and addition on account of agricultural income. Besides, for assessment year 2011-12, the scrutiny assessment was framed under section 143(3) of the Act, however assessing officer has not made any addition on account of agricultural income. The finding of assessment order framed by the assessing officer for assessment year 2012-13 under section 143(3) of the Act is reproduced below: 3. The assessee company is engaged in the business of Trading growing of Jathropa Seeds and Agriculture product. During the assessment proceedings the question is raised that why the said income of Rs.21,17,173/-be treated as agriculture income. The Ld. A.R. a submitted that the assessee also relied on that the said income is exempt by insertion in section 2(1A) of Explanation (iii) is now provided that any income derived from sapling of seedlings grown in an industry shall be deemed to be agriculture income. The as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of Rs.10,36,661/-. 8. Assessed u/s 143(3) of the I.T. Act. Charge interest u/s. 234A/234B/234C of the IT Act. Give credit for prepaid taxes, if any, after due verification. Issue demand notice/challan accordingly. 13. Therefore, it is evidently clear that assessment order was framed by assessing officer u/s 143(3) in assessee`s case, without making any addition on account of agricultural income. We have also examined the other assessment order framed by Assessing Officer for AY.2011-12 and noted that such kind of addition was not made by the Assessing Officer. It is a well settled legal position that factual matters which permeate through more than one assessment year, if the Revenue has accepted a particular's view or proposition in the past, it is not open for the Revenue to take a entirely contrary or different stand in a later year on the same issue, involving identical facts unless and until a cogent case is made out by the Assessing Officer on the basis of change in facts. For that we rely on the order of the Hon ble Supreme Court in Radhasoami Satsang vs. CIT 193 ITR 321 (SC), wherein it was held as follows: We are aware of the fact that, strictly speaki ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd No.1 raised by the assessee is allowed. 17. Coming to ground Nos. 2 and 3 raised by the assessee. Learned Counsel for the assessee argued that assessing officer has erred in not allowing the claim of depreciation as per Income Tax Act, 1961 to assessee amounting to Rs.44,58,403/- although it is mandatory in terms of Explanation 5 to section 32(1) of the Act. The ld Counsel also contended that assessing officer has erred in not allowing the set off of carry forwarded losses of proceeding years. On the other hand, Learned DR for the Revenue, pleaded that these issues were not raised by the assessee before the ld CIT(A), hence these grounds may be remitted back to the file of assessing officer for fresh adjudication. We have heard both the parties and noted that if the assessee is eligible to claim depreciation and set off of carry forwarded losses of proceeding years, it should be allowed to him as per law, therefore, we remit these issues back to the file of the assessing officer with the direction to examine the eligibility of the assessee to claim depreciation and eligibility of assessee for set off of carry forwarded losses of proceeding years and then after adjudicate t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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