TMI Blog2022 (5) TMI 1488X X X X Extracts X X X X X X X X Extracts X X X X ..... ance Act, 2016 and the CBDT Circular No. 11/2019 has held that once loss is determined, the same should be set off against the income determined under any other head of income including undisclosed income . Amendment brought in section 115BBE vide Finance Act, 2016 and CBDT Circular No. 11/2019 have been taken into consideration by various High Courts including case of PCIT vs. Aacharan Enterprises (P) Ltd. [ 2020 (1) TMI 1351 - RAJASTHAN HIGH COURT] and even by Delhi Tribunal in the case of Ace Infracity Developers P. Ltd. [ 2021 (3) TMI 267 - ITAT DELHI] and clearly held that the amendment made vide Finance Act, 2016 to the provisions of section 115BBE providing that no set off of any loss shall be allowed to the Assessee against deemed income u/s. 68, 69, 69A to 69D, could not be applied retrospectively and shall be applicable from assessment year 2017-18 onwards, as clarified by the CBDT vide Circular No. 11/2019 - We are also in agreement with the claim of the Assessee that the facts in the case of Kim PharmaPvt. Ltd. [ 2013 (1) TMI 495 - PUNJAB AND HARYANA HIGH COURT] wherein as followed the ratio laid down in the case of Fakir MohmedHaji Hasan[ 2000 (8) TMI 44 - GUJAR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertently omitted to consider the turnover in other accounts and filed its return u/s. 44AD of the Act. The Assessee further claimed that during the year it has suffered a huge loss of Rs.1,52,32,097/- in Future Options. 2.2 The Assessing Officer considered the claim of the Assessee, but did not get impressed and made the addition of Rs.1,34,70,000/- as unexplained cash credits. Further, the Assessing Officer also determined the amount of Rs.1,52,32,097/- as speculative loss claimed by the Assessee, being non-genuine and non-bonafide, and therefore the same cannot be set off against the business income. 3 The Assessee being aggrieved, preferred first appeal before the ld. Commissioner, who vide impugned order, though sought report of the Assessing Officer, however, affirmed the action of the Assessing Officer in making the addition of Rs.1,34,70,000/- as income of the Assessee from undisclosed sources and is taxable u/s. 69 of the Act by holding as under : 5.4 I have carefully considered the appellant's submissions. It is evident from the detailed discussion in the assessment order that the appellant had no evidence with regard to its claim that he was carrying on c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n support of its case, mainly emphasised that though the Assessee has preferred the appeal against affirmation of the disallowance and sustenance of disallowing the set off of business loss amounting to Rs.1,49,01,258/-, however, the main grievance of the Assessee is non-allowing the set off of business losses from the income including deemed income u/s. 68 determined against the Assessee. The Assessee also claimed that the ld. Commissioner, while sustaining the disallowance of set off of determined business losses from the deemed income u/s. 68 of the Act, relied upon the judgment in Kim Pharma (P) Ltd. (supra) by Hon ble Punjab Haryana High court, in which the judgment of Hon ble Gujrat High Court in Fakir Mohamed Haji Hasan vs. CIT, 247 ITR 290 (2001) was followed, wherein there was no determined loss and the main issue before the courts in both the aforementioned cases was whether a deemed income be taxed outside the ambit of heads of income as classified under section 14 of the Act. The Assessee further claimed that Hon ble Gujrat High Court in the case of CIT vs. Shilpa Dyeing Printing Mills P. Ltd., 219 taxman 279 (2013), has clearly held that once loss is determined, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Assessee relates to non-allowing of set off of business losses against the income determined u/s. 69 of the Act. The Assessee in the instant case, after filing of the original return of income on dated 9.09.014, wherein an income of Rs.7,27,940/- on turnover of Rs.97,60,257/- u/s. 44AD of the Act, was declared, claimed that the amount of Rs.1,34,30,000/- relating to the construction business remained omitted while filing the original return of income and, therefore, on difference of Rs.1,34,30,000/- in the turnover of the Assessee, the addition in profit @ 8% amounting to Rs.10,74,400/- may be added to the income of the Assessee. The Assessing Officer by considering the fact that the Assessee has not maintained any books of account during the year, though it was supposed to do, added the amount of Rs.1,34,70,000/- as unexplained cash credits in the income of the Assessee and also did not allow the claim of the Assesseequa set off of losses against the business income by determining the amount of Rs.1,52,32,097/- as speculative losses, being nongenuine and non-bona fide. 6.1 The ld. Commissioner while considering the appeal of the Assessee sought remand report from the Assessi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pra), has held that once loss is determined, the same should be set off against the income determined under any other head of income including undisclosed income . 6.7 We further like to add that amendment brought in section 115BBE vide Finance Act, 2016 and CBDT Circular No. 11/2019 (supra) have been taken into consideration by various High Courts including Rajasthan High Court in the case of PCIT vs. Aacharan Enterprises (P) Ltd., 273 Taxman 85 (Raj. HC)(2020) and even by Delhi Tribunal in the case of Ace Infracity Developers P. Ltd. vs. DCIT (ITA No. 1087/Del/2018) decided on 05.03.2021 and clearly held that the amendment made vide Finance Act, 2016 to the provisions of section 115BBE providing that no set off of any loss shall be allowed to the Assessee against deemed income u/s. 68, 69, 69A to 69D, could not be applied retrospectively and shall be applicable from assessment year 2017-18 onwards, as clarified by the CBDT vide Circular No. 11/2019 (supra). We are also in agreement with the claim of the Assessee that the facts in the case of Kim PharmaPvt. Ltd. (supra) wherein the Hon ble Punjab Haryana High Court has followed the ratio laid down in the case of Fakir Mohmed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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