N.V. Projects Pvt. Ltd., Mumbai vs Assessee

M/s N V Projects Pvt. Ltd., बनाम/ Dy. Commissioner of Income Tax C/o Kalyaniwalla and Mistry, Circle 5(2), Vs. Army and Navy Building, Aayakar Bhavan, 3rd floor, 148, M G Road, M K Road.

Fort, Mumbai Mumbai-400001 (अपीलाथ /Appellant) .. ( यथ / Respondent)

थायी ले ख ा सं . /जीआइआर सं . /PAN/GIR No. :AACCN4827H

अपीलाथ ओर से / Assessees by S/Shri M M Golvala and Zareer N Mehta यथ क ओर से/Revenue by Shri Vivekand Prempurna

सन ु वाई क तार ख / Date of Hearing : 4.12.2014 घोषणा क तार ख /Date of Pronouncement : 14.01.2015

आदे श / O R D E R

PER AMIT SHUKLA, (JM)

This appeal has been preferred by the assessee against the

order dated 9.04.2012, passed by the ld. CIT(A)-9, Mumbai, for the

quantum of assesment under section 143(1) of the Income Tax Act,

1961 (the Act) for the assessment year 2010-11, on following

grounds :

" 1. The appellant submits that the ld. CIT(A) erred in not striking down the adjustment made u/s 143(1), inasmuch as unabsorbed depreciation of the current year Rs.6,18,44,024/- has not been carried forward in the intimation.

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2. Having regard to the facts and circumstance of the case and the provisions of law, the appellant submits that the AO be directed to carry forward unabsorbed depreciation of Rs.6,18,44,024/-"

2. The brief facts of the case are that, the assessee is

engaged in the business of operating and maintenance of IT Park.

During the year under consideration, the assessee had incurred a

loss of Rs.6,18,44,024/- which was in the nature of unabsorbed

depreciation. The assessee had filed its return of income in Form

ITR 6 u/s 139(1) of the Act on 30.9.2010 by way of e-filing,

wherein it has claimed loss to be carried forward. The statement

of income filed along with the return of income has been placed in

the paper book at pages 1 and 2 which shows the figure of loss to

be carried forward. In the acknowledgment of return of income the

figure of loss has been mentioned at page 1 of the return of

income and again in part B of the return of income which is

appearing at page 12 of the paper book. While processing the

return u/s 143(1) the loss claimed by the assessee has been

denied by the revenue as per intimation dated 17.3.2000.

3. Against this, the assessee moved an application u/s 154

vide letter dated 3.4.2012 before the AO. However, no action has

been taken by the AO on such application. Aggrieved by this, the

assessee filed an appeal before the ld. CIT(A), who instead of

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directing the AO to allow the carried forward losses has, only

directed him to examine the claim of the assessee made in

rectification application and allow after verification of original

assessment order.

4. Before us, the ld. counsel submitted that first of all, such a

carried forward of loss cannot be denied in the intimation u/s

143(1) of the Act, as it is beyond the scope of said section and

there is no prima facie mistake in the figures of loss claimed to be

carried forward. Secondly, the direction of the ld.CIT(A) is very

vague and even after direction of the ld. CIT(A) no action has

been taken by the AO till date. Thus, he submitted that such a

loss claimed by the assessee should be allowed as carried

forward or the AO should be directed to carry out the rectification

within a specified period.

5. The ld. DR also agreed that the matter should be restored

back to the file of the AO with a specific direction.

6. After hearing both the parties and on perusal of the

impugned order and material on record, we find that the assessee

has claimed loss of Rs.6,18,44,024/- in the return of income to be

carried forward. This is evident from the copy of return of income

filed before us. In the intimation issued u/s 143(1) dated 17.3.201, 4 I . T . A . N o . 4 5 8 8 / Mu m / 2 0 1 0

such a claim of carried forward loss has been denied to the

assessee. Against this, the assessee has moved a rectification

application u/s 154 way back on 3rd April,2012. Even after expiry

of more than two and half years no action has been taken. Even

the order of ld.CIT(A) giving direction to the AO is also very

vague. Further such a denial of claim of loss to be carried forward

in the intimation u/s 143(1) is beyond the scope and purview of

said section, as for the purpose of denying carried forward loss,

the same needs to be examined and has to be decided in

accordance with the provisions of law and secondly, once the

assessee has moved an application u/s 154 of the Act, then the

same should have been decided within a period of 4 to 6 months

as stipulated under section 154. Accordingly, we direct the AO to

carry out necessary rectification and allow the carried forward of

losses within a period of 2 months from the receipt of order.

7. With the above direction, the appeal of the assessee is

treated as allowed for statistical purposes.

The above order was pronounced in the open court on 14th Jan, 2015.

घोषणा खल ु े यायालय म दनांकः 14th Jan, 2015 को क गई ।

sd sd (डी. क णाकर राव/D. KARUNAKAR RAO) (अ मत शु ला / AMIT SHUKLA) लेखा सद य / ACCOUNTANT MEMBER या यक सद य / JUDICIAL MEMBER मुंबई Mumbai: 14th Jan,2015. 5 I . T . A . N o . 4 5 8 8 / Mu m / 2 0 1 0

व. न.स./ SRL , Sr. PS

आदे श क त ल प अ े षत/Copy of the Order forwarded to :

1. अपीलाथ / The Appellant

2. यथ / The Respondent.

3. आयकर आयु त(अपील) / The CIT(A)- concerned

4. आयकर आयु त / CIT concerned

5. वभागीय त न ध, आयकर अपील य अ धकरण, मंब ु ई/ DR, ITAT, Mumbai concerned

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, true copy

सहायक पंजीकार (Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई /ITAT, Mumbai