TMI Blog2021 (12) TMI 398X X X X Extracts X X X X X X X X Extracts X X X X ..... king a specific mention, by moving the rectification petition, about the eligibility for carrying forward of loss was thus, in a way, somewhat academic and more as a measure of abundant caution rather than the requirement of law. The rectification order was thus wholly infructuous in the eyes of the law. Once a loss has been disclosed in the income tax return, and such a loss has not been disturbed in the scrutiny assessment proceedings, such a loss is treated to have been accepted, and quantification thereof cannot be disturbed. What the learned PCIT has done is to disturb this quantum of loss, but then that could have been done within two years from the end of the financial year in which the related scrutiny assessment order was passed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed to as the Act , for the assessment year 2012-13. 2. Grievances raised by the assessee-appellant, which we will take up together, are as follows: 1. The order passed by Learned Principal Commissioner of Income Tax ( Ld. Pr. CIT) u/s. 263 of the Income Tax Act, 1961 ( Act ) is bad in law, and in facts as she grossly erred in invoking provisions of section 263 of the Act to set aside an order passed u/s. 154 of the Act by the Assessing Officer ( AO ) rectifying her own order passed u/s. 143(3) without satisfying conditions of section 263 of the Act. 2. Without prejudice, to above, order passed u/s. 263 by Ld. Pr. CIT is bad in law and is void ab inito as while passing order u/s. 263 of the Act Ld. CIT issued show cause notice o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given in the income tax return were disturbed. There was, however, no specific mention about the eligibility of the loss from specified business of ₹ 19,06,42,620 being eligible for being carried forward as such. Upon receipt of this assessment order under section 143(3) dated 27th January 2015, the assessee moved a rectification petition, on 2nd March 2016, seeking a specific mention of the loss of ₹ 19,06,42,620 being eligible for being carried forward. The Assessing Officer upheld this plea of the assessee and, vide order dated 12th May 2016, observed that on perusal of the record, the contention of the assessee was found to be correct and that during the year, the assessee is having loss of ₹ 19,06,42,620 from the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2015, can this issue be taken up in the revision proceedings in 2019. 5. Having heard the parties on the above propositions, we are of the considered view that the assessee deserves to succeed for these short reasons alone. In the first place, as learned counsel for the assessee vehemently submits, the issue regarding eligibility for set-off is wholly academic so far as the year of incurring loss in question is concerned. As observed by Hon ble Supreme Court in the case of Manmohan Das (supra), Whether the loss of profits or gains in any year may be carried forward to the following year and set off against the profits and gains of the same business, profession or vocation .. has to be determined by the Income-tax Officer who deals wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ITO Vs Volkart Brothers [(1971) 82 ITR 50 (SC)], could not have been disturbed in the proceedings under section 154, and what cannot be done under section 154, cannot be done under section 263 r.w.s. 154 either. Whichever way one looks at it, the impugned revision order is vitiated in law. As regards learned Departmental Representative s plea that the quantification of loss in question was never examined at any stage in the scrutiny assessment proceedings, and, therefore, it cannot be allowed to be carried forward, all we can say is that the Assessing Officer could surely have done so in the scrutiny assessment proceedings under section 143(3), but just because he has missed the bus, we cannot bend the law to allow that examination now. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
