Kantibhai Ugarbhai Patel
v.
Commissioner of Income-tax (Appeals)
PRAMOD KUMAR, VICE-PRESIDENT
AND SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER
I T APPEAL NO. 299 (AHD.) OF 2021
[ASSESSMENT YEAR 2019-20]
JUNE 3, 2022
INCOME TAX : Set off of b/f capital loss cannot be disallowed u/s 143(1) r.w.s. 80 when ITR for relevant AY was filed well within the due date
• Assessing Officer was not justified in disallowing set off of brought forward capital loss for AY 2011-12 while processing ITR for AY 2019-20 u/s 143(1) on the ground that ITR for AY 2011-12 was not filed within due date u/s 139(1) when assessee had filed ITR for AY 2011-12 well within the time permitted u/s 139(1) and produced evidence of such filing.
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IN THE ITAT AHMEDABAD BENCH ‘SMC’
Kantibhai Ugarbhai Patel
v.
Commissioner of Income-tax (Appeals)
PRAMOD KUMAR, VICE-PRESIDENT
AND SIDDHARTHA NAUTIYAL, JUDICIAL MEMBER
I T APPEAL NO. 299 (AHD.) OF 2021
[ASSESSMENT YEAR 2019-20]
JUNE 3, 2022
Himanshu Shah for the Appellant. S.S. Shukla, Sr. DR. for the Respondent.
ORDER
Pramod Kumar Vice-President. — By way of this appeal, the assessee-appellant has challenged the correctness of the order dated 25th October 2021, passed by the learned Commissioner (Appeals) in the matter of processing of return under section 143(1) of the Income-tax Act, 1961, for the assessment year 2019-20 on the following grounds:-
| 1. | In law and in facts and circumstances of the Appellant’s case, the learned Commissioner of Income Tax (Appeals) has grossly erred in points of law and facts. | |
| 2. | In law and in facts and circumstances of the Appellant’s case, the learned Commissioner of Income Tax (Appeals) has grossly erred in not allowing set off of brought forward long term capital loss of Rs. 1,53,158 of Asst Year 2011-12. | |
| 3. | In law and in facts and circumstances of the Appellant’s case, the learned Commissioner of Income Tax (Appeals) has grossly erred in charging interest under section 234C of Income-tax Act of Rs. 1,962. | |
| 4. | In law and in facts and circumstances of the Appellant’s case, the learned Commissioner of Income Tax (Appeals) has grossly erred in granting refund of Rs 1,24,329 instead of actual refund of Rs 1,56,620. |
2. The material facts are not in dispute. The impugned disallowance was made in the course of processing of return 143(1) by the Assessing Officer (CPC) on the short ground “Disallowance of loss claimed, as the Income Tax Return of the previous year for which set off of loss is claimed was furnished beyond the due date specified under sub-section (1) of section 139 –u/s 143(1)(a)(iii)” and the assessee has disputed this claim by making a submission through the e-portal to the effect that “Return of Income for AY 2011-12 was filed on 31/07/2011 vide receipt no 0621002696, with ITO, Ward 6(2), Ahmedabad. The return of Income was filed in time. Kindly correct your database. The set off is rightly claimed by me while filing ROI for AY 2019-20”. The plea of the assessee is summarily dismissed by the Assessing Officer (CPC) by observing that “disagreed”. A copy of the screenshot showing the objection raised by the Assessing Officer (CPC), the reply given by the assessee, and the disposal of the said reply by the Assessing Officer (CPC) was also filed before us. The Assessing Officer (CPC) thus proceeded ahead with declining set off of the loss carried forward. Aggrieved by the adjustment so made by the Assessing Officer (CPC), assessee carried the matter in appeal before the learned CIT(A) but without any success. The assessee is not satisfied and is in further appeal before us.
3. We have heard the parties, perused the material on record and duly considered the facts of the case in the light of the applicable legal position.
4. We find that, as evident from a copy of the income tax return for the assessment year 2010-11 at page 9 of the paper book, that the assessee had duly filed the income tax return, for the assessment year 2010-11, well within the time permitted u/s. 139 (i) i.e. on 31st July 2011. In this view of the matter, the very foundation of impugned adjustment under section 143(1) is wholly unsustainable in law. We, therefore, vacate the impugned action of the Assessing Officer to allow the set off of loss brought forward from the assessment year 2010-11. The assessee, accordingly, get the relief for set off of long term capital loss of Rs. 1,53,158/-.
5. In the result, the appeal is allowed. Pronounced in the open court today on the 3rd day of June, 2022.
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