TaxTMI 
TaxTMI 
2022 (2) TMI 30
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....isallowing 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 that the assesseee is an individual, derived income from salary, business or profession and other sources. The assessee files his return of income on 29/09/2011 declaring total income of Rs. 93,97,830/-. On 16/03/2011, search & seizure action was conducted on busi....
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....t is a headless income and accordingly it cannot be treated as income from other sources. Therefore, the Assessing Officer disallowed the above set-off of business losses and carried forward losses against the undisclosed income. 3. Being aggrieved by the order of the A.O., the assessee carried the matter before the ld. CIT(A), who, after considering the submissions of both the parties and material placed on record and after relying on the decision of the Hon'ble Kerala High Court in the case of Kerala Spone Iron Ltd (379 ITR 330) (Ker) upheld the action taken by the A.O. Against the said order of the ld. CIT(A), the assessee has preferred the present appeal before the ITAT on the grounds mentioned above. 4. Having considered the riva....
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....e' and accordingly it cannot be treated as income from other sources. Therefore, the A.O. disallowed the above set-off of business losses and carried forward losses against the undisclosed income. 5. We also observed from perusal of the impugned order that the ld. CIT(A) has upheld the action of the A.O. by relying on the judgment of the Hon'ble Kerala High Court in the case of CIT Vs Kerala Sponge Iron Ltd. 379 ITR 330 (Ker) dated 19/08/2015 wherein the it was held as under: 6. In our view, answer to this question should be in the negative. This is evident from the judgment of the Gujarat High Court in Fakir Mohmed Haji Hasan Vs. Commissioner of Income Tax, (2001) 247 ITR 290 distinguished by the Tribunal itself where it has be....
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....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 ....
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..... 68 of the Act. The Ground of appeal No. 2 raised by the revenue is dismissed." The above CBDT Circular was also considered by the Coordinate Bench of Kolkata Tribunal in the case of M/s Amrit Hatcheries Pvt Ltd Vs PCIT, ITA 915/Kol/2019 dated 06/09/2019, where in it was held that "We further find that the contention of the appellant now stands further fortified by the Circular No. 11/2019 dated 19.06.2019 issued by the CBDT. The relevant extracts of the Circular is as follows: "With effect from 1-4-2017, sub-section (2) of section 115BBE of the Income-tax Act, 1961 (Act) provides that where total income of an assessee includes any income referred to in section(s) 68/69/69A/69B/69C/69D of the Act, no deduction in respe....
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....BE. It also further mentions that the pre-amended provision of section 115BBEof the Act did not convey the intention that losses shall not be allowed to be AY 2014-15 setoff against income referred to in section 115BBE of the Act and hence, the amendment was made vide the Finance Act, 2016. 4. 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 Act2016, w.e.f. 1-42017, 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. 5....