TMI Blog2022 (3) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee before the AO, therefore, we direct the assessee to file the confirmations from Jayesh K. Sheth for receipt as advance for the flat - we direct the AO on receipt of confirmation of the above said advance, we direct the Assessing Officer to delete the addition since it is not an unsecured loan and on submission of the above confirmation it proves that assessee has proved the genuineness of the receipt of the above said advance. Accordingly, Ground raised by the assessee is allowed for statistical purpose. Set off of unabsorbed business loss of earlier year - AO denied the profit declared by the assessee in the return of income filed u/s. 139 of the Act and while filing the return u/s. 153A of the Act, assessee has adjusted the profit declared u/s. 139(1) of the Act against in the unclaimed business loss and unabsorbed depreciation - HELD THAT:- We noticed that Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd. [ 2017 (3) TMI 879 - BOMBAY HIGH COURT ] has held that the return filed u/s. 153A is a return furnished u/s. 139 and therefore the provisions of the Act which apply in case of return filed in regular course u/s. 139(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered as income of the assessee in the previous year. 5. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed detailed submissions. After considering the submissions of the assessee Ld.CIT(A) dismissed the ground raised by the assessee with the observation that assessee was asked to furnish the confirmations from various lenders of the unsecured loans. Wherever the Assessing Officer not received the confirmations, he issued notice u/s. 133(6) of the Act. The Ld.CIT(A) observed that it is fact on record that one of the party Jayesh K. Sheth had failed to furnish the reply to the notice issued u/s.133(6) of the Act. Since there was no response from lender, he was in agreement with the Assessing Officer who had held the unsecured loans from Jayesh K. Sheth as unexplained cash credit u/s. 68 of the Act. 6. Aggrieved assessee is in appeal before us and Ld. AR submitted that the Assessing Officer made the addition considering the amount received from Jayesh K. Sheth as unsecured loans whereas the actual transaction is relating to receipt of flat advance. In this regard she brought to our notice Page No. 19 of the Paper Book which is the audited financial statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficer observed that assessee has filed return u/s. 139 of the Act and it has declared its income at ₹.3,00,970/-. However, while filing return u/s. 153A of the Act assessee has declared its income at ₹.NIL. Assessing Officer observed that as no fresh claim is allowed in the return filed u/s. 153A, accordingly ₹.3,00,970/- is added to the income of the assessee. Aggrieved assessee preferred an appeal before the Ld.CIT(A) and filed the detailed submissions before him, for the sake of clarity it is reproduced below: - 24.0 During the course of appellate proceedings, the AR of the Appellant Company had submitted as under: - ASSESSING OFFICER'S CONTENTION 48. In the return u/s. 153A of the Act, the Appellant has set off its income of ₹ 3,00,970/- against carried forward loss of ₹ 5,12,069/- anti ₹ 3,07,740/- which pertains to AY 2009-10 and A.Y. 2010-11 respectively. The said loss is due to ordinary business of ₹ 49,747/- and unabsorbed depreciation of ₹ 4,62,322/-which were claimed in return filed u/s 153A of the Act and not in the return filed u/s. 139 of the Act. Vide order dated 28.03.2014 passed u/s. 153A r.w.s. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r reassessment has abated under the second proviso), specify the class or classes of cases in which the Assessing Officer shall not be required to issue notice for assessing or reassessing the total income for six assessment years immediately preceding the assessment year relevant to the previous year in which search is conducted or requisition is made.] [(2) If any proceeding initiated or any order of assessment or reassessment made under sub-section (1) has been annulled in appeal or any other legal proceeding, then, notwithstanding anything contained in Sub-section (1) or section 153, the assessment or reassessment relating to any assessment year which has abated under the second proviso to subsection (I), shall stand revived with effect from the date of receipt of the order of such annulment by the [Principal Commissioner or] Commissioner: Provided that such revival shall cease to have effect, if such order of annulment is set aside.] Explanation. -For the removal of doubts, it is hereby declared that, - (i) save as otherwise provided in this section, section 153B and section 153C, all other provisions of this Act shall apply to the assessment made under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... submitted that while passing the order u/s.153A/ 153C r.w.s. 143(3) of the Act, the AO has overlooked the above facts viz, provisions of section 153A of the Act and merely disallowed the claim without giving any reasons. 55. Further, it may be noted that the AO has not discussed the merits of allowability of the claim made by the Appellant in the return filed u/s. 153A of the Act. 56. In the present case, the Appellant has set off its income against carried forward loss of ₹ 5,12,069/- and ₹ 3,07,740/- which pertains to AY 2009-10 and AY 2010-11. The said loss is due to ordinary business of ₹ 49.747/- and unabsorbed depreciation of ₹ 4,62,322/- which were not claimed in the return filed u/s. 139 of the Act but was claimed u/s 153A of the Act. The loss claimed was disallowed by the AO. 57. Further, we would like to invite Your Honor's kind attention towards the following extract from the decision of Mumbai Bench of Hon'ble Tribunal in the case of DCIT v. M/s Eversmile Construction Co. Pvt. Ltd. which is reproduced herein below: A close look at the above provision manifests that the Assessing Officer is required to make assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come u/s. 153A/ 153C of the Act, the merits have to be examined afresh by the AG and the claim cannot be denied only on the ground that such claim had not been made in the original proceedings/return of income. Accordingly, even in the Appellants case the AG ought to have examined the merits of the claim made by the Appellant. 59. We would further like to rely upon decision of Mumbai bench of Hon'ble ITAT in the case of Faisal Abbas v. DCIT, Central Circle 2, (ITA No. 3838/Mum/i 1). In the said case also, Hon'ble Tribunal instructed the Assessing Officer to allow the loss which was initially disallowed by the Assessing Officer due to late filing of return u/s. 139 (5). Tribunal held following: In so far as the reliance of the Id. CIT(A) on the case of E.K. Lingamurthy (supra) is concerned, we find that the same is misplaced because this judgment has been rendered in the context of block assessment under ITA N6.3838 of 2011 Faisal Abbas Mumbai Chapter XIVB. Section 158BA requires the assessment of undisclosed income as ci result of search. Section 1 58BB(4) clearly provides that the losses brought forward etc. shall not be set off against the undisclosed income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Avarsekar, Mumbai vs AsstCit Cen Cir 8(2) (ITA No.1090/PN/2013). In this case, the assessee is aggrieved by the decision of the learned CIT(A) in confirming the disallowance of exemption claimed by the assessee u/s. 153A of the Act on 31.1.2014, wherein the assessee claimed deduction u/s 54F. The Assessing Officer rejected the claim of the assessee on the following grounds:- The assessee already owns a property at Avarsekar Heights and the same has been let out. The learned AR submitted that Hon'ble Bombay High Court has considered an identical issue in the case of CIT Vs. B.G. Shirke Construction Technology Ltd. 293 CTR 505, wherein Hon'ble Bombay High Court has held that the assessee could make fresh claim before the Assessing Officer in 153A proceedings, even if the said claim is not made in the return filed under that section. Accordingly, ITAT set aside the order passed by Ld. CIT(A) and restore the same to the Assessing Officer with the direction to allow the claim of the assessee u/s. 54F of the Act after satisfying himself about the claim of the assessee. In the result, appeal filed by the assessee is allowed. 62. Further, we place reliance upon decision of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e time of hearing Ld. AR submitted that the issue involved is covered in favour of the assessee and she brought to our notice decision of the Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd., [79 taxamann.com 306] and she relied on other case law filed in the Paper Book. 12. On the other hand, Ld. DR submitted that the facts have to be verified with the case law relied by the assessee and it is distinguishable to the facts of the present case. 13. Considered the rival submissions and material placed on record, we observe from the record that Ld.CIT(A) and Assessing Officer has denied the profit declared by the assessee in the return of income filed u/s. 139 of the Act and while filing the return u/s. 153A of the Act, assessee has adjusted the profit declared u/s. 139(1) of the Act against in the unclaimed business loss and unabsorbed depreciation. We noticed that Hon'ble Bombay High Court in the case of CIT v. B.G. Shrike Construction Technology Pvt. Ltd., (supra) has held that the return filed u/s. 153A is a return furnished u/s. 139 and therefore the provisions of the Act which apply in case of return filed in regular cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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