TMI Blog2022 (2) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... Tribunals and the Hon ble High Courts, we direct to delete the addition made by the A.O. and confirmed by the ld. CIT(A). - Decided in favour of assessee. - ITA No. 211/NAG/2018 - - - Dated:- 17-1-2022 - Shri Sandeep Gosain, JM And Shri O.P. Kant, AM For the Assessee : Shri Mahavir Atal (CA) For the Revenue : Mrs. Agnes P Thomas (Sr.DR) ORDER PER: SANDEEP GOSAIN, J.M. The present appeal has been filed by the assessee against order dated 25/05/2018 passed by the ld. CIT(A)-3, Nagpur for the Asstt. Year 2011-12. The grounds of appeal raised by the assessee are as under 1. On the facts and circumstances of the case, the ld. CIT(A)-III, erred in indorsing Assessing Officer s order disallowing sett off of losses claimed by the appellant. 2. On the facts and circumstances of the case, CIT(A) erred in not following judgment of various High Courts which were in the favour of the appellant, in the absence of any judgment of jurisdictional High Court and conflicting judgments of non-jurisdictional High Courts. 3. Assessee craves leave to add or alter any ground that may be taken during the course of hearing. 2. The brief facts of the case are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 4. Having considered the rival contentions and carefully perused the material placed on record. From perusal of the record and as per the facts of the case, we observed that a search seizure action was conducted on business premises of M/s Mahavir Global Coal Ltd and residential premises of directors other related concerns on 16/03/2011 and the assesesee being one of the member of above group, was also searched. During the search, certain incriminating materials were found and seized from the premises of the assessee. To cover discrepancies and also to buy peace of mind assessee voluntarily offered income of ₹ 50,00,000/- for taxation. The assessee reported said income as income from other sources and filed a return of income on 29/09/2011 declaring total income of ₹ 93,97,830/-(Inclusive of income offered during search proceedings). The A.O. re-opened the proceedings U/s 147 of the Act with a view to disallow the set off lossess claimed by the assessee. During the year under consideration, the assessee had disclosed an amount of ₹ 50,00,000/- du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E (Section 68 to 69D) can be used for setting off losses if any. For sake of brevity, the relevant portion i.e. para 4 of circular is reproduced as under: Thus keeping the legislative intent behind amendment in section 115BBE(2) vide the Finance Act, 2016 to remove any ambiguity of interpretation, the Board is of the view that since the term 'or set off of any loss' was specifically inserted only vide the Finance Act 2016, w.e.f. 01.04.2017, an assessee is entitled to claim set-off of loss against income determined under section 115BBE of the Act till the assessment year 2016-17. The judgment relied by the ld. CIT(A) in the case of CIT Vs Kerala Sponge Ltd. (supra) was rendered on 19/08/2015 and CBDT Circular is dated 19/06/2019. The above CBDT Circular was also considered by the Coordinate Bench of Kolkata Tribunal in the case of M/s Atbir Hightech Pvt Ltd Vs DCIT, ITA 1747/Kol/2017 dated 29/03/2019, wherein it was held that: 6. We shall now advert to the observation of the CIT(A) that the loss suffered by the assessee from F O transactions could be 'set off against the income of ₹ 5,73,96,307/- assessed by the A.O under Sec. 68 of the Act. We find ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in assessments prior to assessment year 2017-18, while some of the Assessing Officers have allowed set off of losses against the additions made by them under section(s) 68/69/69A/69B/69C/69D, in some cases, set off of losses against the additions made under section 115BBE(1) of the Act have not been allowed. As the amendment inserting the words 'or set off of any loss' is applicable with effect from 1st of April, 2017 and applies from assessment year 201718 onwards, conflicting views have been taken by the Assessing Officers in assessments for years prior to assessment year 2017-18. The matter has been referred to the Board so that a consistent approach is adopted by the Assessing Officers while applying provision of section 115BBE in assessments for period prior to the assessment year 2017-18. 3. The Board has examined the matter. The Circular No. 3/2017 of the Board dated 20th January, 2017 which contains Explanatory notes to the provisions of the Finance Act, 2016, at para 46.2, regarding amendment made in section 115BBE(2) of the Act mentions that currently there is uncertainty on the issue of set-off of losses against income referred to in section 115BBE. It a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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