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M/s District Co-operative Bank Ltd. Versus A.C.I.T. -V, Lucknow.

2015 (8) TMI 128 - ITAT LUCKNOW

Credit of brought forward losses - whether CIT(A)erred in not allowing the additional ground of the appellant for giving credit of brought forward losses? - Held that:- As for assessment year 2004-05, 2006-07 and 2007-08, the return of income was filed by the assessee within due date prescribed u/s 139(1) and the assessment was completed by the Assessing Officer at a loss of ₹ 16.14 lac, ₹ 11.56 lac and ₹ 159.56 lac respectively and these losses were not set off in assessment y .....

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eligible for set off in the present year. We we feel that the order of CIT(A) is not sustainable but at the same time, the issue has to go back to the file of the Assessing Officer for fresh decision after finding out the outcome of the assessment in assessment year 2005-06. - Decided in favour of assessee for statistical purposes.

Payment of salary by transfer to UP Cooperative Union - deputed persons / supervisors - Non deduction of TDS - Held that:- From the Para from the order of .....

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uced the income to below taxable limit. Hence, it is seen that the TDS was deductible and since it was not done by the assessee, the disallowance made by Assessing Officer and confirmed by CIT(A) is proper.- Decided against assessee.

Disallowance of professional charges paid to Shri R.K. Nigam - Non deduction of TDS - Held that:- From the the order of CIT(A), we find that the claim of the assessee is regarding payment of ₹ 94,234/- including the amount of ₹ 36,233/- for re .....

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urposes and under these facts, we do not find any reason to interfere in the order of learned CIT(A).- Decided against assessee.

Computing the taxable income - Whether profit was inclusive of reversal of NPAs provisions? - Held that:- The matter should go to the file of the Assessing Officer for fresh decision after examining this aspect as to whether the write back of the provision in the present year is out of provision of which year and whether the provision in the respective year .....

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DER PER A. K. GARODIA, A.M. This is assessee s appeal directed against the order passed by learned CIT(A)-II, Lucknow dated 07/01/2013 for the assessment year 2009-2010. 2. Ground No. 1 & 2 are inter connected, which read as under: 1. The Learned Commissioner of Income Tax (Appeals)-II, Lucknow (hereinafter referred to as the Ld. CIT(A) erred on facts and in law in not allowing the additional ground of the appellant for giving credit of brought forward losses. 2. On the facts stated in the s .....

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beyond due date and therefore, loss of the assessee in that year of ₹ 4,96,203/- cannot be carried forward and ser off in the present year but apart from that, the assessee has incurred loss in all earlier years i.e. assessment year 2004-05 to 2007-08 and in all those years, the return of income were filed before due date i.e. on or before 31st October of the respective assessment year. He submitted that the loss of those years should be allowed to be set off in the present year. He also s .....

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e on pages 100 to 103 of the paper book. 4. Learned D. R. of the Revenue supported the orders of the authorities below. 5. We have considered the rival submissions. We find that the present issue was decided by learned CIT(A) as per Para 7(4)(b) of his order, which is reproduced below for the sake of ready reference:- 7(4)(b) The above provision contemplates determination of loss in pursuance of the return filed under section 139(3) of the Act which are to be carried forward to be set off under .....

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e allowed to be set off from current year's income. However, only the business losses of earlier years which are notified by the Assessing Officer are allowed to be carried forward and set off from the current year's income and for which the condition precedent is that the return of income should have been filed in accordance with section 139(3) read with section 139(1) of the Act. Accordingly, the claim of set off of brought forward losses of earlier years are not allowable to the appel .....

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ed to section 80 and section 139(3) of the Act. For the sake of ready reference, we reproduce the provisions of both the sections, which are as under: Section-80 Notwithstanding anything contained in this Chapter, no loss which has not been determined in pursuance of a return filed in accordance with the provisions of sub-section(3) of section 139, shall be carried forward and set off under sub-section(1) of section 72 or sub-section(2) of section 73 or sub-section(1) or sub-section(3) of sectio .....

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er sub-section (1) a return of loss in the prescribed form and verified in the prescribed manner and containing such other particulars as may be prescribed, and all the provisions of this Act shall apply as if it were a return under sub-section (1). 5.2 From the provisions of sub section (3) of section 139, it is seen that assessee s obligation is confined to the extent that in the year of incurring loss, the assessee should file the return of income within the time allowed u/s 139(1) of the Act .....

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aper book and the loss declared by the assessee in that year of ₹ 1,20,98,360/-. This is the claim of the assessee that the assessee has not received any intimation and no order was passed u/s 143(3) of the Act but this fact has to be examined as to whether any assessment was framed or not and if framed, what was the assessed income but this is apparent that the return of income was filed by the assessee within the due date prescribed u/s 139(1) and the assessee has shown loss as per retur .....

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paper book and as per this assessment order, the return of income was filed by the assessee on 29?03/2009, which is beyond due date and the income was assessed by the Assessing Officer at loss of ₹ 4,96,203/- as per order u/s 143(3) dated 20/10/2012. Hence, the loss for this year cannot be carried forward and set off in the present year but this is also true that the loss of earlier year was not set off in the assessment year 2008-09. 6. As per above discussion, we find that for assessment .....

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order for assessment year 2005-06 is not available and therefore, this is necessary to find out as to what was the assessed income in that year although the return of income was filed within the due date for this year also and if it is foun that there was any loss assessed in that year, such loss should also be eligible for set off in the present year. 7. We have also come across a judgment of Hon'ble Apex Court rendered in the case of CIT vs. Manmohan Das (Deceased) [1966] 59 ITR 699 (SC) w .....

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er this judgment and also as per provision of section 139(3), the assessee is required to file the return of loss in the respective year within the time prescribed u/s 139 (1) and if the loss is accepted in the relevant year then such loss is eligible for carry forward and set off in future year as per law and that aspect of carry forward and set off of loss has to be decided by the Assessing Officer when the set off is claimed by the assessee. 8. As per the above discussion in Para 6 & 7, w .....

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owed for statistical purposes. 9. Ground No. 3 is as under: 3. The Ld. CIT(A) erred on facts and in law in confirming the addition of ₹ 1,60,000/- by not appreciating the facts of the case as stated in the statement of facts. 10. This ground was not pressed by Learned A.R. of the assessee and accordingly, the same is rejected as not pressed. 11. Ground No. 4 & 5 are as under: 4. The Ld. CIT(A) erred on facts and in law in confirming the addition of ₹ 4,16.137/- by not appreciatin .....

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. R. of the Revenue supported the orders of the authorities below. 14. We have considered the rival submissions. Regarding ground No. 4, we find that the issue was decided by learned CIT(A) as per Para 5(4) of his order, which is reproduced below for the sake of ready reference:- 5(4) As regards the payment of salary to supervisors of ₹ 8,11,4537-, the appellant contends that the payment has been made after deduction of TDS wherever applicable. It is also stated that the amount pertains to .....

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ven details of investment under section 80C of the Act and therefore the TDS was not deducted. I find that the contentions lacks the evidentiary value in absence of documents in support. I also find that payments of salary by transfer to UP Cooperative Union of ₹ 1,75,000/- each in the case of 3 supervisors is without deduction of TDS and so is the case with other supervisors to whom part of the salary is disbursed by the appellant and part is transferred to UP Cooperative Union for statut .....

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000/- each in the case of 3 supervisors is without deduction of TDS and so is the case with other supervisors to whom part of the salary is disbursed by the assessee and part is transferred to UP Cooperative Union for statutory dues. This finding is also given that there is no evidence of any claim of deduction under section 80C of the Act which could have reduced the income to below taxable limit. Hence, it is seen that the TDS was deductible and since it was not done by the assessee, the disal .....

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hat the deputed persons have paid the tax on the salaries received by them wherever liable and therefore, this Tribunal decision is not applicable because the facts are different. Since a categorical finding is given by learned CIT(A) that the income of all the employees to whom salary was paid were liable to tax and no tax was deducted by the assessee, we do not find any reason to interfere in the order of CIT(A). Accordingly, this ground is rejected. 15. Regarding ground No. 5, we find that th .....

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y lump sum payment. The reimbursement of expenses is therefore included in the payment on which TDS is to be deducted on account of payment of fees. The disallowance of ₹ 94,234/- under section 40(a)(ia) of the Act is confirmed. 15.1 From the above Para from the order of CIT(A), we find that the claim of the assessee is regarding payment of ₹ 94,234/- including the amount of ₹ 36,233/- for reimbursement of expenses. This is by now a settled position of law that if the bill rais .....

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earned CIT(A). Accordingly, ground No. 5 is also rejected. 16. Ground No. 6 is as under: 6. The Ld. CIT (A) erred on facts and in law in not appreciating the facts of the present case that the profit of ₹ 2,93,87,633/-for the year under consideration was inclusive of reversal of provisions of ₹ 2,83,63,000/- and the appellant was to be taxed only for the profit of ₹ 10,24,633/- as stated in the statement of facts. 17. This ground was not pressed by Learned A.R. of the assessee .....

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assessment year 2004- 05, which stood already taxed in the hands of the appellant in that year. 19. It was submitted by Learned A.R. of the assessee that profit & loss account of the assessee is available on page No. 50 and from the same, it can be seen that an amount of ₹ 283.63 lac was credit, on account of reversal of provision for overdue interest of ₹ 105.08 lac, reversal of provision of NPA loan and ₹ 178.26 lac reversal of provision of standard assets ₹ 0.29 l .....

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