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TMI Blog2018 (9) TMI 211X X X X Extracts X X X X X X X X Extracts X X X X ..... issues, they have been clubbed & heard together and consolidated order is being passed for the sake of convenience and brevity. 2. In the assessee's appeal (ITA No.7364/Mum/2016), following three substantive Grounds of appeal have been raised: "1. On the facts and circumstances of the case and in law the Ld. Commissioner of Income Tax (Appeals) has erred in confirming the action of the Ld. A.O. in invoking provisions of section 79 of IT. Act. 1961 and further erred in denying the earn forward of losses of Rs. 2,74,33,786/- pertaining to assessment year 2006-07 to 2011-12. 2. On the facts and circumstances of the case and in law the Ld. Commissioner of Income Tax (Appeals) has erred in confirming addition of Rs. 53,40,642/- u/s 14A of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same ought to be dealt with in the assessment of the assessment year in which the assessee actually claims the set-off of brought forward loss in the subsequent assessment year and not in the impugned assessment year. Therefore, as per the assessee, in the impugned assessment year the Assessing Officer could not have considered and directed for denial of carry forward of set off in future years. For the said proposition, learned representative referred to the decision of co-ordinate Bench dated 07.09.2017 in the case of Khajrana Ganesh Properties Private Limited (ITA No.2629/Mum/2014 for A.Y. 2010- 11), wherein by relying on the judgment of Hon'ble Supreme Court in the case of Manmohan Das (Deceased) 59 ITR 699, such plea of the assessee ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar where the assessee has claimed set off of the loss is competent and not the Assessing Officer of the earlier year. The relevant decision of the Co-ordinate Bench is as under: "We have carefully considered the rival submissions and find that the issue before us can be disposed off in the light of the point of law laid down by the Hon'ble Supreme Court in the case of Manmohan Das (Deceased) (supra). As per the Hon'ble Supreme Court, whether the loss in any year may be carried forward to the following year and set-off against the income of the subsequent year is liable to be determined by the Assessing Officer who deals with the assessment of such subsequent year. The Hon'ble Supreme Court further noted that a decision recorde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... off against the income of the subsequent year. Accordingly, the matter is remanded back to the file of the Assessing Officer to remove the direction relating to denial of carry forward and setoff of loss. However, our direction should not be interpreted to be any reflection on the merits of invoking section 79 of the Act, which prohibits carry forward and set off of loss in specified situations. The same shall be open to be considered by the Assessing Officer in the subsequent year of actual set-off while evaluating the claim of the assessee for set off of the impugned business loss. 7. As a consequence of our aforesaid discussion, we set aside the order of the CIT(A) and direct the Assessing Officer to expunge the directions so far as it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es P. Ltd. We find that the CIT(A) has determined the said ground as under: "9.3 I have carefully perused the assessment order and the submission of the appellant. It is seen that appellant has not received any tax free income and this fact is not disputed by the AO. The AO noted that the appellant suo moto disallowed the expenditure. Hence, I find force in the submission of the appellant. Therefore, AO is directed to restrict the disallowance made suo moto by the appellant. The ground of appeal n.3 is partly allowed." Notably, as per the CIT(A) in the absence of the assessee having received any exempt income, the disallowance u/s. 14A was not merited except to the extent of amount suo moto disallowed by the assessee. Against such a dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IT(A) also and not being satisfied the assessee is in appeal before us. 12. Before us, the short point raised by the assessee is based on the decision of the Delhi Bench of the Tribunal in the case of Sir Sobha Singh & Son (P.) Ltd. 41 taxmann.com 378, which is to the effect that the Annual Letting Value (ALV) of a property would not include the consideration of other amenities like watchman, sweepers, gardeners, etc., which has been provided by the owner as per separate agreement with the tenant. At the time of hearing, it was put across before the learned representative to establish that the impugned receipts by way of provision of amenities, etc. was contracted with the respective tenants by separate agreements. There was no material on ..... X X X X Extracts X X X X X X X X Extracts X X X X
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