TMI Blog2020 (11) TMI 774X X X X Extracts X X X X X X X X Extracts X X X X ..... t the assessee was fully justified in reducing the unabsorbed short term brought forward capital loss against the income and on the resultant income, he was justified in paying the tax. Thus we do not agree with the view of the Revenue that there was shortfall in the payment of taxes on the brought forward losses resulting into assessee being liable for penalty u/s 271AA of the Act. We, therefore, set aside the order of AO. Thus the ground of the assessee is allowed. - ITA No.2037/Del/2018 - - - Dated:- 23-11-2020 - Sh. Anil Chaturvedi, Accountant Member And Sh. Kuldip Singh, Judicial Member For the Assessee : Shri Salil Aggarwal, Adv., Shri Shailesh Gupta, Adv., Shri Madhur Aggarwal, Adv. For the Revenue : Shri S. S. Negi, Sr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was recorded, w.r.t cash found assessee inter alia stated that the cash was generated on account of transactions in properties which were unaccounted and were part of ₹ 15.92 crore which were surrendered as additional income. 5. It was also noticed that ₹ 70 lakh that was found from the locker maintained with the HDFC was relevant to A.Y. 2010-11 as the last operation of the locker was on 29.01.2010 and accordingly 70 lakh was treated as additional income of the assessee for A.Y. 2010-11. ₹ 70 lakh was offered by the assessee as additional income u/s 153A in A.Y. 2010-11 and assessee had also paid the tax thereon. 6. AO also noted that in the return of income that was filed for AY 2011-12, assessee had declared addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prejudice the impugned order is had in law and deserves to be quashed as order having passed by Learned Assessing Officer in non compliance of the integral provision of section 274(1), 274(2) section 71 and section 74 of the Income Tax Act 1961. 3. The appellant craves leave to add, amend, delete or alter any one or more of the grounds of appeal before or at the time of hearing. 8. Before us, Learned AR submitted that during the course of statement that was recorded u/s 132 of the Act, assessee had duly accepted the undisclosed income and had also specified and substantiated the same to question No.18 19 put forward by the search team. He pointed to the question raised and the answer of the assessee. He submitted that since the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore the AO was fully justified in levying the penalty. He thus supported the order of lower authorities. 10. We have heard the rival submissions and perused all the relevant materials available on record. The issue in the present ground is with respect to levy of penalty u/s 271AAA of the Act. It is an undisputed fact that a search u/s 132 of the Act took place at the premises of the assessee on 17.09.2010 and during the course of search, in the statement recorded u/s 132(4) of the Act, assessee had surrendered ₹ 15.92 crore as additional income. It is also an undisputed fact that out of the ₹ 15.92 crore of additional income that was surrendered, income of ₹ 70 lacs pertained to AY 2010-11 and the same was offered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to be set off against the short term capital gains of the current year declared by the assessee ??? 8. The relevant fact is that the assessment year in question has been framed consequent to a search action taken place at the premises of the assessee on 17.09.2010 and as such the assessment year under consideration is an assessment to be framed u/s 143(3) of the Act taking into consideration the relevant seized material, if any, being the assessment of the search year. 9. On going through the facts of the case, we do not find any merit in the contention of the Assessing Officer that the assessee has not claimed adjustment of brought forward loss in the statement recorded u/s 132(4). The Assessing Officer can neither expect the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duction u/s 80G 2,350.00 1,02,350.00 Net Taxable Income 14,59,19,382.00 11. We find that the assessee has filed the computation of income correctly. The computation filed is as per the scheme of computation provided in the Income Tax Act. The provisions of Section 74 of the Income Tax Act, 1961 clearly provides for set off of short term capital losses which can be allowed to be carried forward and set off against income, if any, under the head capital gains assessable for the assessment year in respect of any other capital asset. 12. The statute confers carry forward and set off of losses hence the same cannot be denied ..... X X X X Extracts X X X X X X X X Extracts X X X X
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