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TMI Blog2020 (7) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ld CIT(A) is legally justified in determining the business loss of Rs. 735615769/- for Assessment Year 2012-13 by allowing carried forward loss of Rs. 691894858/- in the case of belated return in his cryptic order without giving Assessment Year basis and reason for allowance of such carried forward loss. 2. Whether in facts and circumstances of the case the ld CIT (A) is legally justified in determining the business loss of Rs. 735615769/- for Assessment Year 2012-13 by allowing carried forward loss of Rs. 691894858/- in the case when the assessee had filed its return of income beyond stipulated time and by ignoring the provisions of section 139(3) of the Income Tax Act, 1961." 3. Brief facts of the case shows that the assessee is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that assessee is eligible to carry forward the unabsorbed deprecation to that extent. 4. Against this order, the assessee preferred an appeal before the ld CIT (A) wherein, the assessee raised several claims. However, the only grievance of the revenue is with respect to carry forward of the losses, it is discussed by the ld CIT (A) in para 6 of this order. He held as under:- "6. Ground no. 3 relates to reduction of assessed losses. In the Assessment order the A.O. has recorded as under:- "During the course of assessment proceedings, it is noticed that the assessee company had filed return of income/loss on 02.01.2013 and such losses were claimed for carry forward u/s 72 of the Act. The AR of the assessee company was asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the due date prescribed under section 139(1) of the Act, business loss of INR 69,18,94,858 cannot be carried forward to subsequent years. However, the aforesaid restriction does not apply to carry forward of unabsorbed depreciation which is governed by section 32 of the Act and not by section 72 of the Act. Section 32(2) of the Act provides that where any depreciation allowance or part of it cannot be given effect to in a particular year due to shortage of profits, then such allowance or part thereof respectively shall be carried forward and shall be treated as part of depreciation of the subsequent year and so on for the succeeding years. Neither section 139(3) nor section 32 lay down any pre-requisite of filing the return of income wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n considered and it is held that as per provision of section 139(3) of the Act, the assessee company is not entitled for carry forward and set off of losses u/s 72 of the Act, however, the assessee company has claimed for carry forward of the same. The return was filed on 02.01.2013 after due date, i.e. 30.11.2012. Further, it is observed that the assessee company has not pointed out this mistake, i.e. systems error in very beginning of the assessment proceedings, but rather, it has pointed out this mistake after the show cause was issued to the assessee company. Thus, the business loss of Rs. 69,18,94,858/-, after excluding the un absorbed depreciation of Rs. 4,37,20,911/- from the total loss of Rs. 91,49197/-, is disallowed and the same i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is allowed to be carried forward to the next year as is the treatment given by the appellant itself. The ground is allowed." 5. The ld AO is aggrieved with that order, has preferred the above appeal. 6. The first ground of appeal is against the order of the ld CIT(A) challenging it to be cryptic order without giving any basis and reason for allowances carry forward of loss of Rs. 69,18,94,858/- and as per the second ground it challenges under the belief that the ld CIT(A) has allowed the assessee to carry forward the loss of Rs. 69,18,94,858/- despite assessee filing return of income beyond due date prescribed u/s 139(1) of the Act. 7. The ld DR submitted that the assessee has filed belated return and therefore the assessee is not eligi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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