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2016 (5) TMI 1230 - ITAT MUMBAI

2016 (5) TMI 1230 - ITAT MUMBAI - TMI - Intimation u/s.143(1) being time barred - Held that:- The copy of order dated 16.02.2012 is on the file which speaks about the finalization of the assessment. There is no iota evidence on the file to which it can be assumed that the assessee received the intimation after the expiry of one year in view of the proviso u/s.143(1) of the Act. Therefore, in the said circumstances the contention raised by the assessee which is not supported by any documents on r .....

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A of the Act and income which is also exempted u/s. 50 of the Act would also remain exempted as per provision of subsection 4 of section 115 JA of the Act. The capital gain arising to an assessee u/s.50 of the Act on a depreciable asset is liable to be excluded from calculation on deemed profit u/s. 115JA of the Act. In view of the said circumstances it is apparent that the capital receipt to the tune of ₹ 20,57,890/- is not liable to be included while determining the profit and loss accou .....

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added to the income of the assessee. Accordingly this issue is decided in favour of the Assessee - I.T.A. No. 1061/M/14 - Dated:- 25-5-2016 - Shri R. C. Sharma, AM And Shri Amarjit Singh, JM For the Assessee : Shri Nishit Gandhi For the Department : Shri Vikram Batra ORDER Per Amarjit Singh, JM This is an appeal filed by the assessee against the order dated 27.11.2013 passed by the learned Commissioner of Income Tax (Appeals), Mumbai [hereinafter referred to as the learned CIT(A) ] relevant to t .....

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w of this position, it is clear that the Assessing Officer has nothing to report and does not desire to be heard in person. The ACIT(CPC), Bangalore determined the total income of the appellant at loss of ₹ 1,49,819/- for the current year, which was to be carried forward and book profit u/s. 115JB of the Act at ₹ 19,31,177/- as deemed total income. Thereafter the assessee filed an appeal before learned CIT(A) and the learned CIT(A) dismissed the appeal of the assessee. Feeling aggrie .....

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barred. The intimation therefore be quashed. 3. The CIT(A) erred in upholding that the Asst. CIT was right in computing income under section 115JB at ₹ 19,31,177/- making the adjustment of ₹ 20,57,890/-. The appellant submits that the adjustments made by the Asst. CIT is not permissible under section 143(1). The adjustment be quashed. 3.1 The CIT(A) ought to have accepted loss of ₹ 1,49,819/- declared by the appellant and the Asst. CIT ought not to have made any adjustment and .....

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n upholding computation of tax at ₹ 2,98,367/-. The appellant submits that the assessing officer be directed to compute correct tax under the provisions of the Income Tax Act, 1961. 4.1 The CIT(A) erred in upholding levy of interest under provisions of sections 234A, 234B and 234C and charging interest of ₹ 95,605/-. The appellant submits that interest has been erroneously charged by the assessing officer. The appellant submits that interest be quashed. 4.2 The appellant without prej .....

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refore the intimation is time barred in view of the proviso to the section 143(1) of the Act, therefore, the assessment u/s. 143(1) is bad in law. The plea of the revenue is that the date of intimation u/s.143(1) of the Act is 16.02.2012. The copy of order dated 16.02.2012 is on the file which speaks about the finalization of the assessment. There is no iota evidence on the file to which it can be assumed that the assessee received the intimation after the expiry of one year in view of the provi .....

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ital gain which is infact the capital receipt. The assessee filed the return of income declaring total loss of ₹ 1,49,819/-. The assessee derived Long Term Capital Gain of ₹ 20,57,890/- in respect of transfer of fixed assets held by the appellant for several years. Therefore, the said receipt was in nature of capital and was reflected under the head Reserve and Surplus. The capital was not credited to the Profit & Loss Account. Since the Profit & Loss A/c. is required to be p .....

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justment of ₹ 20,57,890/- which has been credited to the reserves and surplus, which adjustment in computation of book profit is beyond the scope of provisions of Section 115JB of the Act and also placed reliance upon the order passed by the Income Tax Appellate Tribunal, Mumbai bench in case [2005] 4 SOT 376 titled as Income Tax Officer Ward 3(1) Vs. Frigsales (India) Ltd. No doubt the representative of the department supported the version of the order passed by the learned CIT(A). In vie .....

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