TMI Blog2023 (5) TMI 1258X X X X Extracts X X X X X X X X Extracts X X X X ..... he original return of income u/s 153A or claim of short term capital loss filed in the revised return of income u/s 153A - assessee submitted that this loss from the sale of the shares was revised as shares were held only for a period of 35 ( thirty five) months and therefore eligible for short term capital loss only. HELD THAT:- As decided in the case of JSW Steel Ltd. [ 2020 (2) TMI 307 - BOMBAY HIGH COURT] wherein it is held that in case of the abated assessment new/fresh claim made in the return of income filed u/s 153A of the Act is eligible for deduction. Since, in the case of the assessee the decision of the Jurisdictional High Court has not been considered which is a mistake of the law apparent from record as held in the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ss of Rs.8,88,04,541/- and offered the same as short term capital loss of Rs.57,74,866/-. The Ld. Counsel of the assessee before us submitted that this loss from the sale of the shares was revised as shares of Intime Properties Pvt. Ltd . were held only for a period of 35 ( thirty five) months and therefore eligible for short term capital loss only. The Ld. Counsel submitted that the Tribunal has not allowed either the claim of the long term capital loss filed in the original return of income u/s 153A or claim of short term capital loss filed in the revised return of income u/s 153A of the Act. According to him, the finding of the Tribunal are inconsistent with the finding of the Hon ble Bombay High Court in the case of PCIT v. JSW Ste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of time assessment in the case of assessee for the assessment year 2008-09 was pending scrutiny since notice under Section 143(2) of the Act was issued and assessment was not completed. Therefore, in view of the second proviso to Section 153A of the said Act, once assessment got abated, it meant that it was open for both the parties, i.e. the assessee as well as revenue to make claims for allowance or to make disallowance, as the case may be, etc. That apart, assessee could lodge a new claim for deduction etc. which remained to be claimed in his earlier/ regular return of income. This is so because assessment was never made in the case of the assessee in such a situation. It is fortified that once the assessment gets abated, the original ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xchange Ltd. [2008] 173 Taxman 322 (SC) that nonconsideration of decision of the Jurisdictional High Court or Supreme Court is a mistake apparent from record and which can be rectified u/s 254(1) of the Act. Thus, the ratio of in the case of Reliance Telecom Ltd. (supra) by the Ld. DR is not applicable in the facts of the instant case. Accordingly, the order of the Tribunal dated 14.06.2022 is recalled for deciding in the light of the decision of the Hon ble Jurisdictional High Court in the case of JSW Steel Ltd. (supra). As both parties agreed to argue the main appeal , same was heard today itself. 5. In the result, the Miscellaneous Application of the assessee is allowed. Order pronounced in the open Court on 04/05/2023 - - Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X
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