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TMI Blog2023 (3) TMI 973X X X X Extracts X X X X X X X X Extracts X X X X ..... s u/s 71 of the Act. We set aside the orders of the authorities below and restore this issue to the file of AO to verify the claim of the assessee and allow set off of loss as per the provisions of law. Grounds raised by the assessee are allowed for statistical purposes. - ITA No. 4/Del/2020 - - - Dated:- 7-3-2023 - SHRI KUL BHARAT , JUDICIAL MEMBER For the Appellant : S/Shri Ved Jain, Adv. Ms. Supriya Mehta, CA For the Respondent : Shri Sanjay Nargas, Sr.DR ORDER PER KUL BHARAT, JM : The present appeal filed by the assessee for the assessment year 2011- 12 is directed against the order of Ld. CIT(A)-33, Delhi dated 30.10.2019. The assessee has raised following grounds of appeal:- 1. On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case, learned CIT(A) has erred both on facts and in law in confirming the order of the AO rejecting the contention of the assessee that the reasons recorded for reopening the assessment does not meet the requirements under section 147 of the Act, bad in law and are contrary to the facts. 7. On the facts and circumstances of the case, learned CIT(A) has erred both on facts and in law in confirming the reopening ignoring the fact that there is no live nexus between the reasons recorded and the belief formed by the assessing officer. 8. On the facts and circumstances of the case, the learned CIT(A) has erred, both on facts and in law in confirming the order passed by the AO despite the fact that reopening the assessment procee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the requisite approval from Ld. PR. CIT-21, New Delhi. Accordingly, a notice dated 21.08.2018 was issued u/s 142(1) of the Act to the assessee and asked to file return of income but non-compliance of the statutory notice, penalty was imposed to the assessee on 31.08.2018. However, on 20.09.2018, the assessee filed its return of income at NIL. Thereafter, the Assessing Officer ( AO ) framed the assessment u/s 143(3) r.w.s 147 of the Act vide order 27.12.2018. The AO made addition in respect of credit entries amounting to Rs.38,79,684/- and assessed the income at Rs.38,79,680/-. 3. Aggrieved against this, the assessee preferred appeal before Ld.CIT(A) who sustained the addition and dismissed the appeal of the assessee. 4. Aggrieved agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 147 of the Act on the basis of AIR Information. The assessee was asked to file the return of Income and furnish the details of gain or loss on the share transactions. 3. The assessee filed its ITR on 20.09.2018 declaring the loss of Rs 50,33,474/- under the Head PBGP. Copy of the acknowledgement of ITR and computation of income are placed at PB Pg. No.22-23. Also, a copy of profit and loss Ale of the assessee is placed at PB pg. 44. 4. Thereafter the Id. AO asked the assessee to submit the explanation regarding the source of the fund to the above losses along with documentary evidences. 5. The assessee, vide its reply, explained the source transactions. The same is reproduced herein under: - The assessee had ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmitted that without prejudice to the fact that addition is unwarranted even if the above addition is taken into consideration, the same shall be eligible to be setoff under the provisions of section 71 of the Act. As per section 71, the assessee shall be entitled to setoff the losses arises from the business income against the income of Other Sources. The relevant extract of section is reproduced herein under: 13.71. (1) Where in respect of any assessment year the net result of the computation under any head of income, other than Capital gains , is a loss and the assessee has no income under the head Capital gains , he shall, subject to the provisions of this Chapter, be entitled to have the amount of such loss set off against his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the year is eligible for set off against any addition made by AO. Accordingly in the present case assessee has filed return of loss of Rs.50,33,474/- (PB Pg. 23). The AO ought to have set off the addition made by him of Rs.38,79,680/-. This is without prejudice to the fact that the addition otherwise is unsustainable. 7. On the other hand, Ld. Sr. DR opposed these submissions and supported the orders of the authorities below. He submitted that the assessee had not filed return of income on time therefore, he was not eligible for set off of business loss. 8. I have heard Ld. Authorized Representatives of the parties and perused the material available on record and gone through the orders of the authorities below. A short question wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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