TMI Blog2019 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... f return of income generated by the departmental systems cannot be the reason for denial of the claim. See M/S O.K. SILK MILLS LTD., M/S OKAY PLUS BUILDERS PVT. LTD., M/S SHREE KRISHNA VATIKA BUILDWELL PVT. LTD. [ 2019 (5) TMI 749 - ITAT JAIPUR] and M/S SHREE KRISHNA VATIKA CONSTRUCTION PVT. LTD. [ 2019 (8) TMI 605 - ITAT JAIPUR] - Decided in favour of assessee. - ITA Nos. 242, 243 & 244/JP/2019 - - - Dated:- 12-7-2019 - Shri Vijay Pal Rao, JM And Shri Vikram Singh Yadav, AM For the Assessee : Shri Manish Agarwal (CA) For the Revenue : Shri B.K. Gupta (CIT-DR) ORDER PER VIJAY PAL RAO, JM : These three appeals by the assessee are directed against the composite order of ld. CIT (Appeals)-4, Jaipur dated 3rd December, 2018, Jaipur for the assessment years 2011-12 to 2013-14 respectively. The assessee has raised common grounds in these appeals except the quantum of addition/disallowance as under :- 1. On the facts and in the circumstances of the case, theld. CIT (A) has grossly erred in upholding that assessee has declared additional income of ₹ 1,23,399 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd submitted that the assessee has duly claimed the loss to be carried forward for all these three years. The ld. A/R has pointed out that due to some technical error, in the acknowledgement of return of income filed under section 153A the loss is not appearing. However, when the assessee has claimed the same in the computation of income filed under section 139(1), then the same cannot be disallowed merely because of the technical error in the acknowledgement generated by the systems of the department. He has further pointed out that an identical issue has been considered by this Tribunal in case of M/s. O.K. Silk Mills Ltd., M/s. Okay Plus Builders Pvt. Ltd., M/s. Shree Krishna Vatika Buildwell Pvt. Ltd. and M/s. Shree Krishna Vatika Homes Pvt. Ltd. for the assessment years 2008-09 to 13-14 vide order dated 9th May, 2019. Further, the Tribunal again in case of M/s. Shree Krishna Vatika Construction Pvt. Ltd. vide order dated 31st May, 2019 in ITA Nos. 371 to 373/JP/2019 has decided this issue in favour of the assessee on the identical facts arising from the same search and seizure action in case of other group concerns. 4. On the other hand, the l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 09/05/2019 and after considering all the facts and circumstances, the Tribunal has held as under: 4. Rival contentions have been heard and record perused. Briefly stating the present bunch of 5 appeals are filed against the single order of Ld. CIT(A) dated 07.09.2018 for AYs 2008-09 to 2013-14 involving a single issue, and are therefore taken up together under this single order for all AYs i.e. 2008-09 to 2013-14 for the sake of convenience and brevity. 5. Brief facts of the case are that the assessee is a private limited company engaged in the business of Builders and Contractors. A search u/s 132 of the Income Tax Act, 1961 was conducted on 04.09.2013 in the case of JKD Group and Okay Plus Group and its members, and the assessee is one of the member of Okay Plus Group. Originally the Return of Income for all the respective years under appeal were filed u/s 139(1) of the Income Tax Act, 1961 declaring Nil Income after claiming loss as appearing in the above table, which were claimed as carried forward to next years. Thereafter in response to notice issued u/s 153A dated 04.12.2014, returns were filed within the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons and carefully gone through the orders of the authorities below and found from the record that the assessee had not declared any additional income, pursuant to search in any of the assessment years involved. The contention of the assessee that no additional income was offered in the return filed u/s 153A is further strengthened by the reply of the assessee to the point no 8 of the questionnaires issued during each of the assessment proceedings, wherein the assessee has specifically mentioned the fact that no additional income was offered by it. Moreover, during the course of search no incriminating material whatsoever was found indicating any undisclosed income pertaining to assessee. Further AO has not pointed any such document in the assessment order. And this being so, there was no occasion for the assessee to disclose any additional income or not claim the loss, that was been made in the return filed u/s 139(1). The computation of income and other particulars like Balance Sheet etc. also shows that assessee has incurred and claimed loss in the respective assessment years. 8. We also observe that in the assessment order, the A.O. has wrongly observed that c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... current years losses were not shown in the acknowledgement generated for returns filed u/s 153A were due to some inadvertent technical error, and in no manner ought to have been considered as additional income declared by the assessee pursuant to the search operations carried out in the group. 11. From the record we also found that the assessee had attended the proceedings under the bonafide belief that the losses as claimed (which was same in both returns filed u/s 139(1) and 153A) were duly being assessed by the AO, and this intention of the AO to treat the current year loss of the assessee as its additional income was never intimated during the assessment proceeding. Rather it was noticed only when the assessment order was received, thus no opportunity was ever granted to explain the issue during the course of assessment proceedings before AO. 12. Moreover, we observe that it is not a case where the claim of any deduction has not been lodged in the original return filed u/s 139(1) and now the assessee wants to take the benefit of the same in the return of income filed u/s 153A. In the instant case, assessee has claimed the business loss and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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