M/s G.S.ATWAL &CO (ENGG) PVT LTD., Kolkata V. A.C.I.T.Cir - XX, KOL, Kolkata

CO 144/KOL/2012

• Counselvise Citation: [2017] 123 COUNSELVISE.COM (IT) 2979 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 4 month(s) 22 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 26-04-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Next Hearing Date: 13-02-2017
• Assessment Year: 2009-2010
• Appeal Filed On: 04-12-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NIRAJ KUMAR
• Keywords: Depreciation; Additional depreciation; Revised return
• Section: 143(3); 142(1); 56

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI WASEEM AHMED, ACCOUNTANT MEMBER AND SHRI S.S.VISWANETHRA RAVI, JUDICIAL MEMBER ITA NO.1516/KOL/2012 ASSESSMENT YEAR:2009-10 JCIT (OSD), CENTRAL CIRCLE-XX, 110, AAYAKAR BHAWN, PURVA, 5 TH FLOOR, SHANTI PALLI, KOLKATA-107 / V/S . M/S G.S. ATWAL & CO. (ENGG) PVT. LTD., 4B LITTLE RUSSELL STREET, KOLKATA-71 [ PAN NO.AABCG 0816 E ] /APPELLANT .. /RESPONDENT C.O. NO.144/KOL/2012 (A/O ITA NO. 1516/KOL/2012) ASSESSMENT YEAR: 2009-10 M/S G.S. ATWAL & CO. (ENGG) PVT. LTD., 4B LITTLE RUSSELL STREET, KOLKATA-71 / V/S . JCIT (OSD), CENTRAL CIRCLE-XX, 110, AAYAKAR BHAWN, PURVA, 5 TH FLOOR, SHANTI PALLI, KOLKATA-107 /RESPONDENT/CO- OBJECTOR .. /APPELLANT /BY ASSESSEE SHRI SOUMITRA CHOUDHURY, ADVOCATE /BY REVENUE SHRI NIRAJ KUMAR, CIT-DR /DATE OF HEARING 13-02-2017 /DATE OF PRONOUNCEMENT 26-04-2017 /O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 2 THIS APPEAL IS PREFERRED BY THE REVENUE AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-CENTRAL-III, KOLKATA DATED 20. 07.2012 FOR THE ASSESSMENT YEAR 2009-10 AND THE SAME IS BEING DISPOSED OF ALONG WIT H CROSS OBJECTION (CO) FILED BY THE ASSESSEE BEING CO. NO.144/KOL/2012. ASSESSMENT WAS FRAMED BY JCIT (OSD), CC-XX, KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 19 61 (HEREINAFTER REFERRED TO AS THE ACT) VIDE HIS ORDER DATED 29.12.2011. SHRI NIRAJ KUMAR, LD. DEPARTMENTAL REPRESENTATIVE R EPRESENTED ON BEHALF OF REVENUE AND SHRI SOUMITRA CHOUDHURY, LD. ADVOCATE APPEARED ON BEHALF OF ASSESSEE. FIRST WE TAKE UP REVENUES APPEAL IN ITA NO.1516/KO L/2012 . 2. BRIEFLY STATED FACTS ARE THAT ASSESSEE IN THE PR ESENT CASE IS A PRIVATE LIMITED COMPANY AND ENGAGED IN BUSINESS OF ENGINEERING AND CONTRACTORS. THE ASSESSEE FOR THE YEAR UNDER CONSTRUCTION FILED ITS RETURN OF INC OME DECLARING TOTAL INCOME OF 7,06,59,912/- WHICH WAS PROCESSED U/S 143(1) OF THE ACT. SUBSEQUENTLY THE CASE WAS SELECTED UNDER SCRUTINY AND ACCORDINGLY NOTICES U/S 143(2) / 142(1) WERE ISSUED UPON ASSESSEE. THE ASSESSMENT WAS FRAMED U/S 143(3) OF T HE ACT AT A TOTAL INCOME OF 17,68,15,880/- AFTER MAKING CERTAIN ADDITIONS / DIS ALLOWANCES TO THE TOTAL INCOME OF THE ASSESSEE. 3. FIRST ISSUE RAISED BY REVENUE IN GROUND NO. 1, 2 & 2.1 ARE INTER-RELATED AND THEREFORE BEING TAKEN UP TOGETHER THAT LD. CIT(A) E RRED IN DELETING THE ADDITION MADE BY ASSESSING OFFICER FOR 10,58,25,030/- ON ACCOUNT OF INTEREST RECEIVED ON DELAYED PAYMENTS/ COMPENSATION. THE ASSESSEE IN THE YEAR UNDER CONSIDERATION HAS A PAYMENT OF 7.78 CRORES FROM M/S HINDUSTAN STEELWORKS CONSTRUCTION LTD. (HSCL IN SHO RT) ON ACCOUNT OF WORK EXECUTED IN LIBYA IN THE YEAR 1984. THE IMPUGNED AMOUNT WAS AWARDED BY THE HON'BLE JURISDICTIONAL HIGH COURT IN ITS ORDER DATED 17.04. 2008. HOWEVER, HON'BLE JURISDICTIONAL HIGH COURT ALSO DIRECTED THE HSCL TO MAKE THE PAYMENT OF INTEREST FOR 10.58 CRORES ON ACCOUNT OF DELAYED PAYMENT OF THE A FORESAID AMOUNT. THE IMPUGNED INTEREST WAS PERTAINING TO THE PERIOD BEGI NNING FROM 28.11.1998 TO 31.03.2008. THE ASSESSEE HAS OFFERED THE PRINCIPAL AMOUNT RECEIVED DURING THE YEAR OF 7.78 CRORES TO TAX. HOWEVER, THE ASSESSEE CLAIMED T HAT IMPUGNED INTEREST PERTAINS TO ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 3 THE PERIOD BEGINNING FROM 28.11.1998 TO 31.03.2008 AND THEREFORE THE SAME IS NOT TAXABLE IN THE YEAR UNDER CONSIDERATION. 3.1 THE ASSESSEE ALSO SUBMITTED THAT THE PROVISIONS OF SEC. 145A(B) OF THE ACT ARE APPLICABLE FROM THE ASSESSMENT YEAR 2010-11 AND THE REFORE THE SAME CANNOT BE TAXED IN THE CURRENT YEAR. THUS THE IMPUGNED INTEREST SHA LL BE TAXABLE IN THE YEARS TO WHICH IT PERTAINS. THE ASSESSEE ALSO RELIED IN SUPPORT OF IT S COTENTIN IN THE CIRCULAR NO. 5/2010 [F.142/13/2010-SO (TPL)] DATED 03.06.2010. HOWEVER, THE AO OBSERVED THAT THE IMPUGNED INTEREST INCOME WAS CRYSTALLIZED IN THE YE AR UNDER CONSIDERATION BY THE ORDER OF HON'BLE JURISDICTIONAL HIGH COURT AND THER EFORE THERE WAS NO POSSIBILITY OF RECOGNIZING THE INTEREST INCOME IN THE EARLIER YEAR TO WHICH IT PERTAINS. THE RIGHT TO RECEIVE THE IMPUGNED INTEREST WAS ESTABLISHED BY TH E ASSESSEE ONLY AFTER THE VERDICT OF THE HON'BLE JURISDICTIONAL HIGH COURT. THE AO ALSO OBSERVED THAT IT IS THE SETTLED PRINCIPLE THAT ANY RECEIPT WHICH IS TAXABLE, THEN T HE SAME CAN NEVER BE ALLOWED TO ESCAPE FROM THE ASSESSMENT. ACCORDINGLY, THE AO TRE ATED THE RECEIPT OF 10.58 CRORES PERTAINING TO THE ASSESSMENT YEAR UNDER CONSIDERATI ON AS INCOME. ACCORDINGLY, THE IMPUGNED INTEREST INCOME WAS ADDED TO THE TOTAL INC OME OF ASSESSEE. 4. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT THE IMPUGNED INTER EST INCOME PERTAINS TO THE EARLIER YEARS AND THEREFORE THE SAME SHOULD BE TAXED IN THE RESPECTIVE ASSESSMENT YEAR TO WHICH IT PERTAINS. THE ASSESSEE IN SUPPORT OF ITS C LAIM HAS RELIED IN THE JUDGMENTS OF HON'BLE SUPREME COURT IN THE CASE OF RAMA BAI V. CIT REPORTED IN 181 ITR 400 (SC) AND CIT VS. TNK GOBINDARAJUALAU CHETTY REPORTED IN 165 ITR 231 (SC). THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF ASSESSE E HAS DELETED THE ADDITION MADE BY AO BY OBSERVING AS UNDER:- .. IN THE INSTANT CASE THE AWARD OF RS.7,78,13,6 92/- (LIBYAN DINAR 22,50,000/- + RS.39,00,000/-) WAS AWARDED BY THE AR BITRATORS BY AN ARBITRATION AWARD DATED 28.11.1998. THE HIGH COURT VIDE ITS ORDER DATED 17.04.2008 DIRECTED THE HSCL TO PAY INTEREST TO THE ASSESSEE FOR THE PERIOD 28.11.1998 TO 31.03.2008, I.E., FOR THE PERIOD OF D ELAY IN PAYMENT FROM THE DATE WHEN THE ORIGINAL AWARD WAS AWARDED ON THE AMOUNT O F AWARD DELIVERED ON 28.11.1998. SINCE, THE INTEREST IN QUESTION WAS ON ACCOUNT OF DELAY IN PAYMENT OF AWARD MONEY AND THE COURT HAD SPECIFIED THAT SUC H INTEREST WAS AWARDED FOR THE PERIOD 28.11.1998 TO 31.03.2008, AS PER LAW LAID DOWN BY SUPREME COURT IN RAMA BAI V. CIT (SUPRA) AND CIT V. TNK GOB INDARAJULAU CHETTY ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 4 (SUPRA), SUCH INTEREST ON DELAYED PAYMENT OF AWARDE D AMOUNT CANNOT BE ASSESSED TO INCOME-TAX IN ONE LUMP SUM IN THE YEAR IN WHICH THE SAME WAS RECEIVED, RATHER IT IS TO BE ASSESSED IN THE RESPEC TIVE YEARS IN WHICH THE SAME HAD ACCRUED. ACCORDINGLY, THE ENTIRE INTEREST OF RS .10,58,25,030/- AWARDED BY THE COURT CANNOT BE ASSESSED AS ASSESSEES INCOME O F THE YEAR UNDER APPEAL SINCE, THE INTEREST WAS AWARDED BY THE COURT FOR T HE PERIOD 28.11.1998 TO 31.03.2008, NO PART OF SUCH INTEREST ACCRUED DURING THE ASSESSMENT YEAR UNDER APPEAL, THEREFORE, NO PART OF SUCH INCOME IS ASSESS ABLE AS INCOME OF THE ASSESSMENT YEAR 2009-10. AS REGARDS AMENDED SECTION 145A IT IS OBSERVED THAT THE SAME HAS BEEN AMENDED BY THE FINANCE ACT, 2009 WITH EFFECT FROM 0 1.04.2010 WHEREIN IN SUB- CLAUSE (B) THIS HAS BEEN INSERTED AS UNDER: INTEREST RECEIVED BY AN ASSESSEE ON COMPENSATION O R ON ENHANCED COMPENSATION, AS THE CASE MAY BE, SHALL BE DEEMED T O BE THE INCOME OF THE YEAR IN WHICH IT IS RECEIVED. CBDT HAS ISSUED CIRCULAR NO.05/2010 DATED 3 RD JUNE, 2010, WHEREIN PARA 46 IT HAS IN PARA 46.4 CLARIFIED: THIS AMENDMENT HAS BEEN MADE APPLICABLE WITH EFFEC T FROM 1 ST APRIL, 2010, AND WILL ACCORDINGLY APPLY IN RELATION TO ASS ESSMENT YEAR 2010-11 AND SUBSEQUENT ASSESSMENT YEARS FOLLOWING THE ABOVE REFERRED TO JUDGEMENTS AS WELL AS THE AMENDMENT OF SEC. 145A AND THE CBDTS CIRCULAR, IT IS AMPLY CLEAR THA T THE INTEREST ON DELAYED PAYMENT OF ARBITRATION AWARD AMOUNT CANNOT BE ASSES SED TO INCOME-TAX IN ONE LUMP-SUM IN THE YEAR UNDER APPEAL IN WHICH THE SAME WAS RECEIVED, RATHER IT IS TO BE ASSESSED IN THE RESPECTIVE YEARS IN WHICH THE SAME HAD ACCRUED. HENCE, THE AO IS DIRECTED TO DELETE THE ADDITION OF RS.10, 58,25,030/- MADE BY HIM. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE ON THE FOLLOWING GROUNDS:- 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.10,58,25,030/- MADE ON ACCOUNT OF INTEREST RECEIVED ON DELAY IN AWARDING PAYMENTS TOWARDS WORK CONTRACT IGNORING THE FACT THAT NO INCOME CAN ESCAPE TAXATION AND ALSO THAT THE AMOUNT WAS DETERMINED AND ACCRUED IN THE RELEVANT YEAR ITSELF BY AN ORDER OF THE HIGH COURT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.10,58,25,030/- MADE BY THE AO ON ACCOUNT OF INTEREST ACCRUED AND RECEIVED IN THIS YEAR, ON THE GROUND TH AT THE SAME WOULD BE TAXABLE IN EARLIER YEARS, WITHOUT CONSIDERING THE J UDGMENT OF THE APEX COURT IN CIT VS. HINDUSTAN HOUSING & LAND DEVELOPMENT TRUST LTD. 11 ITR 524 (SC), WHEREIN IT WAS HELD THAT THE DISPUTED ADDITIONAL CO MPENSATION DOES NOT ACCRUE TILL SUCH TIME THE DISPUTE RELATING THERETO IS SETT LED AND THE QUESTION OF TAXING ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 5 INTEREST THEREON SHOULD NOT ARISE AT ALL, AS THE SA ME HAS ALSO NOT ACCRUED TILL THEN. 2.1 THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , LD. CIT(A) ERRED IN DELETING THE ADDITION OF RS.10,58,25,030/- ON ACCRU AL BASIS, WITHOUT CONSIDERING THE JUDGMENT OF THE DELHI HIGH COURT IN PARAGON CONSTRUCTIONS (I) (P) LTD. VS- CIT & ANR., 274 ITR 413, WHEREIN IT WAS HELD THAT IN A MATTER PERTAINING TO ARBITRATION WHERE THE AMOUNT OF ARBIT RATION AWARD RECEIVED BY THE ASSESSEE WAS NOT HELD TO BE TAXABLE TILL THE PR OCEEDINGS ATTAINED A FINALITY. 5. THE DEPARTMENT HAS REALIZED THE FOLLOWING ADDITI ONAL GROUND, WE FOR THE SAKE OF CONVENIENCE TREAT THE SAME IN CONTINUATION WITH EARLIER GROUNDS WHILE CONSIDERING THE SAME ON MERIT. ADDITIONAL GROUND IS REPRODUCED BELOW:- ON THE FACTS AND IN LAW, THE CIT(A) ERRED IN NOT C ONSIDERING THE FACT THAT WHILE THE ASSESSEE HAD CONTENDED FOR THE A.Y 2009-1 0 BEFORE THE CIT(A) THAT THE INTEREST AMOUNTING TO RS.10,58,25,030/- PERTAIN ED TO THE PERIOD FROM A.Y 1999-2000 TO A.Y 2008-09, SUBSEQUENTLY IN APPEALS A GAINST ORDERS FROM A.Y. 1999-2000 TO A.Y 2008-09 BEFORE CIT(A) ASSERTED THA T THE INTEREST OF RS.10,58,25,030/- HAD ACCRUED ON MERCANTILE BASIS O NLY IN THE AY 2009-10. 6. BEFORE US LD.DR SUBMITTED THAT IN THE INSTANT CA SE THE IMPUGNED INTEREST AMOUNT WAS CRYSTALLIZED IN THE YEAR UNDER CONSIDERA TION AND THEREFORE THE SAME SHOULD BE TAXABLE IN THE YEAR UNDER CONSIDERATION. IT WAS ALSO SUBMITTED THAT ASSESSEE FOR THE EARLIER ASSESSMENT YEARS WHICH WAS RE-OPENED BY THE REVENUE FOR TAXING INTEREST INCOME HAS TAKEN A STAND THAT THE SAME SHOULD BE TA XABLE IN THE AY 2009-10 AS IT WAS CRYSTALLIZED IN THAT YEAR. HE FURTHER SUBMITTED THA T ASSESSEE HAS TAKEN DIFFERENT STANDS IN THE EARLIER YEARS WITH THE SOLE PURPOSE OF ESCAP ING THE ASSESSMENT OF INTEREST INCOME FROM TAX. HE IN SUPPORT OF HIS CONTENTION HAS FILED THE ADDITIONAL GROUND OF APPEAL BEFORE LD. CIT(A) FOR AY 2010-1 WHICH IS PLACED ON RECORD. HE IN SUPPORT OF HIS CLAIM ALSO RELIED ON THE JUDGMENT OF HON'BLE DELHI HIGH COURT IN THE CASE OF PARAGON CONSTRUCTIONS (I) (P) VS. CIT (2004) REPORTED IN 274 ITR 413 (DEL). LD. DR FURTH ER ALSO RELIED IN THE JUDGMENT OF HON'BLE SUPREME COUR T IN THE CASE OF CIT VS. HINDUSTAN HOUSING & LAND DEVELOPMENT TRUST LTD. (1986) 161 ITR 524 (SC) AND VEHEMENTLY RELIED ON THE ORDER OF AO. ON THE OTHER HAND, LD. AR BEFORE US FILED PAPER BOO K COMPRISING PAGES FROM 1 TO 60 AND STATED THAT THE ASSESSEE IN THE EARLIER YEAR HA S ITSELF TAKEN THE STAND FOR TAXING THE INTEREST INCOME ON THE BASIS OF ACCRUAL SYSTEM OF A CCOUNTING. LD. AR REITERATED THE ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 6 ARGUMENTS THAT WERE MADE BEFORE THE LD. CIT(A) AND HE RELIED ON THE ORDER OF LD. CIT(A). 7. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED CAREFULLY CONSIDERED THE MATERIALS ON RECORD; INCLUDING THE J UDICIAL PRONOUNCEMENTS CITED AND PLACED RELIANCE UPON. THE ISSUE IN THE INSTANT CASE RELATES TO THE CHARGEABILITY OF TAX TO THE INTEREST INCOME WHICH PERTAINS TO THE PERIOD BE GINNING FROM 28.11.1998 TO 31.03.2008 WHICH WAS AWARDED ALONG WITH THE COMPENS ATION. THE IMPUGNED INTEREST WAS AWARDED BY HON'BLE JURISDICTIONAL HIGH COURT WH ICH WAS DELIVERED ON 17.04.2008. THE AO CONTENDED THAT THE INTEREST WAS CRYSTALLIZED IN THE CURRENT YEAR AS IT WAS ASCERTAINED AFTER THE VERDICT OF HON'BLE JUR ISDICTIONAL HIGH COURT. THEREFORE, THE SAME SHOULD BE TAXABLE IN THE CURRENT YEAR. HOWEVER , LD. CIT(A) DISAGREED WITH THE ACTION OF AO ON THE GROUND THAT THE AMENDMENT IN SE CTION 145A(B) OF THE ACT FOR CHARGING THE INTEREST INCOME ON THE COMPENSATION WA S MADE EFFECTIVE FROM AY 2010- 11. PRIOR TO THIS PROVISION OF THE ACT THE INTEREST INCOME ON THE COMPENSATION AMOUNT WAS TAXABLE IN THE YEAR TO WHICH IT PERTAINS. NOW T HE ISSUE BEFORE US ARISES SO AS TO WHETHER THE IMPUGNED INTEREST IS TAXABLE IN THE YEA R UNDER CONSIDERATION OR IN THE YEAR TO WHICH IT PERTAINS. THE PROVISION FOR TAXING THE INTEREST INCOME RECEIVED ON THE COMPENSATION ARE DEALT UNDER SEC. 145A(B) OF THE AC T WHICH READS AS UNDER:- [ METHOD OF ACCOUNTING IN CERTAIN CASE S. 145A . NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINE D IN SECTION 145,- (A) (B) INTEREST RECEIVED BY AN ASSESSEE ON COMPENSATIO N OR ON ENHANCED COMPENSATION, AS THE CASE MAY BE, SHALL BE DEEMED T O BE THE INCOME OF THE YEAR IN WHICH IT IS RECEIVED.] A PLAIN LOOK AT THE ABOVE STATUTORY PROVISION MAKES IT CLEAR THAT THE INTEREST RECEIVED ON COMPENSATION SHALL BE TAXED IN THE YEAR IN WHICH IT IS RECEIVED. HOWEVER, THE SAID PROVISION IS APPLICABLE FROM THE AY 2010-11 AS CLAR IFIED BY THE CBDTS CIRCULAR NO. 05/2010 ISSUED DATED 03.06.2010 WHICH READS AS UNDE R:- 46. RATIONALIZING THE PROVISIONS FOR TAXATION OF I NTEREST RECEIVED ON DELAYED COMPENSATION OR ON ENHANCED COMPENSATION 46.1 THE EXISTING PROVISIONS OF INCOME-TAX ACT PROV IDE THAT INCOME CHARGEABLE UNDER THE HEAD PROFITS AND GAINS OF BUSINESS OR PROFESSION OR INCOME FROM OTHER SOURCES , SHALL BE COMPUTED IN ACCORDANCE WITH EITHER CASH OR MERCANTILE SYSTEM OF ACCOUNTING REGULARLY EMPLOYED BY THE ASSESSEE. FURTHER, ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 7 THE HON'BLE SUPREME COURT IN THE CASE OF RAMA BAI V . CIT (181 ITR 400) HAS HELD THAT ARREARS OF INTEREST COMPUTED ON DELAYED O R ENHANCED COMPENSATION SHALL BE TAXABLE ON ACCRUAL BASIS. THIS HAS CAUSED UNDUE HARDSHIP TO THE TAXPAYERS. 46.2 WITH A VIEW TO MITIGATE THE HARDSHIP, SECTION 145A IS AMENDED TO PROVIDE THAT THE INTEREST RECEIVED BY AN ASSESSEE ON COMPEN SATION OR ENHANCED COMPENSATION SHALL BE DEEMED TO BE HIS INCOME FOR T HE YEAR IN WHICH IT WAS RECEIVED, IRRESPECTIVE OF THE METHOD OF ACCOUNTING FOLLOWED BY THE ASSESSEE. 46.3 FURTHER, CLAUSE (VIII) IS INSERTED IN THE SUB- SECTION (2) OF THE SECTION 56 SO AS TO PROVIDE THAT INCOME BY WAY OF INTEREST RECEIV ED ON COMPENSATION OR N ENHANCED COMPENSATION REFERRED TO IN CLAUSE (B) OF SECTION 145A SHALL BE ASSESSED AS INCOME FROM OTHER SOURCES IN THE EAR IN WHICH IT IS RECEIVED. THUS, FROM THE ABOVE CIRCULAR WHICH IS BINDING ON T HE INCOME TAX AUTHORITY, IT IS CLEAR THAT THE IMPUGNED INTEREST CANNOT BE TAXED ON RECEIVED BASIS FOR THE YEARS PRIOR TO THE AYS 2010-11. THEREFORE THE ISSUE OF CHARGING THE INCOME ON THE IMPUGNED INTEREST WILL BE GOVERNED BY THE JUDGMENT OF HON'BL E SUPREME COURT IN THE CASE OF RAMA BAI (SUPRA) AND THE RELEVANT EXTRACT OF THE JUDGMENT O F HON'BLE APEX COURT IS REPRODUCED BELOW:- THE EFFECT OF THE DECISION, WE MAY CLARIFY, IS THAT THE INTEREST CANNOT BE TAKEN TO HAVE ACCRUED ON THE DATE OF THE ORDER OF THE COU RT GRANTING ENHANCED COMPENSATION BUT HAS TO BE TAKEN AS HAVING ACCRUED YEAR AFTER YEAR FROM THE DATE OF DELIVERY OF POSSESSION OF THE LANDS TILL TH E DATE OF SUCH ORDER. FROM THE ABOVE JUDGMENT, THE HON'BLE SUPREME COURT HAS LAID DOWN THE PRINCIPLE FOR TAXING THE INTEREST INCOME AND ACCORDINGLY IT WILL BE TAXABLE IN THE YEAR TO WHICH IT PERTAINS. WE FIND THAT THE CASE LAW CITED BY LD. DR ARE DISTINGUISHABLE FROM THE INSTANT FACTS OF THE CASE AS IT WAS NOT RELATED TO THE INTEREST INCOME RECEIVED ON THE COMPENSATION. THEREFORE, THE PRINCIPLE LAID DOWN BY HON'BLE SUPREME COURT IN THE CASE BEFORE US, CANNOT BE IMPORTED TO THE FACTS OF THE CASE ON HAND. IN VIEW OF THE ABOVE, WE FIND THAT THE PROVISION OF SEC. 145A(B) O F THE ACT IS NOT APPLICABLE BY THE CBDT IN ITS CIRCULAR FOR THE YEAR UNDER CONSIDERATI ON. IT IS BECAUSE IT HAS BEEN CLARIFIED TO BE APPLICABLE WITH EFFECT FROM AY 2010 -11. THUS, THE ISSUE OF IMPUGNED INTEREST IS DULY COVERED BY THE JUDGMENT OF HON'BLE SUPREME COURT IN THE CASE OF RAMA BAI (SUPRA). ACCORDINGLY, RESPECTFULLY, FOLLOWING THE P RECEDENT AS ABOVE WE HOLD THAT THERE IS NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). IT IS ALSO IMPORTANT TO NOTE THAT THE REVENUE IS AT LIBERTY TO TAX THE IMPU GNED INTEREST INCOME IN THE ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 8 RESPECTIVE ASSESSMENT YEARS AS PER THE PROVISIONS O F LAW. ACCORDINGLY, WE UPHOLD THE SAME. 8. NEXT ISSUE RAISED BY REVENUE IN THIS APPEAL IS T HAT LD. CIT(A) ERRED IN ALLOWING CREDIT FOR 5,84,508/- THOUGH THE CORRESPONDING INCOME WAS INCL UDED IN EARLIER YEAR. 9. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT ASSESSEE HAS CLAIMED THE AMOUNT OF TDS FOR 9,06,400/- BUT THE CORRESPONDING INCOME TO THE EXTENT OF TDS AMOUNTING TO 5,84,508/- WAS NOT OFFERED TO TAX IN THE YEAR UNDER CONSIDERATION. THEREFORE, THE AO DID NOT ALLOW THE TDS CREDIT OF 5,84,508/- WHILE DETERMINING THE TAX LIABILITY OF ASSESSEE. 10. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A). THE ASSESSEE BEFORE LD. CIT(A) SUBMITTED THAT IT HAS RECEIVED MO BILIZATION ADVANCE OF 4 CRORES FROM TISCO AFTER THE DEDUCTION OF TDS FOR 9,06,400/-. THEREAFTER THE AFORESAID ADVANCE WAS ADJUSTED AGAINST THE BILLS RAISED BY AS SESSEE TO TISCO ON THE SETTLEMENT OF THE SAID BILLS WITHOUT TDS DEDUCTION BY TISCO. T HEREFORE THERE IS NO QUESTION OF CLAIMING TDS AMOUNT TWICE. THE ASSESSEE IN SUPPORT OF ITS CLAIM HAS RECONCILED THE TDS AMOUNT WITH THE GROSS RECEIPT VIS--VIS FORM NO . 26AS. THE ASSESSEE ALSO ENCLOSED AUDITORS CERTIFICATE IN SUPPORT OF ITS CO NTENTION. THE LD. CIT(A) AFTER CONSIDERING THE SUBMISSION OF ASSESSEE GRANTED RELI EF TO ASSESSEE BY OBSERVING AS UNDER:- THE A/R HAS IN HIS SUBMISSIONS EXPLAINED THAT IN A LL THE EARLIER YEARS, ON SIMILAR FACTS, TDS ON MOBILIZATION ADVANCE HAD ALWA YS BEEN ALLOWED, THEREFORE, THE AO IS DIRECTED TO CONSIDER THE CLAIM OF THE ASSESSEE IN LIGHT OF THE PAST HISTORY OF THE CASE AND ALLOW CREDIT OF TDS ON MOBILIZATION ADVANCE AS PER LAW AS PER THE METHOD BEEN CONSISTENTLY FOLLOWE D FROM YEAR TO YEAR. THEREFORE, THIS GROUND IS TREATED TO HAVE BEEN ALLO WED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE IS IN APPEAL BEFORE US ON FOLLOWING GROUND:- THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE, L D. CIT(A) ERRED IN DIRECTING TO ALLOW CREDIT OF TDS OF RS.5,84,508/- IN THIS YEA R, ALTHOUGH THE CORRESPONDING INCOME(S) WERE INCLUDED IN TOTAL INCOME FOR EARLIER YEARS. ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 9 11. BEFORE US BOTH PARTIES RELIED ON THE ORDER OF A UTHORITIES BELOW AS FAVOURABLE TO THEM. 12. WE HAVE HEARD THE RIVAL CONTENTIONS OF BOTH THE PARTIES AND PERUSED THE MATERIALS AVAILABLE ON RECORD. IN THE INSTANT CASE, ISSUE RELATES TO THE DISALLOWANCE OF THE TDS CLAIMED BY ASSESSEE. THE AO DISALLOWED THE SAME BY OBSERVING THAT THE CORRESPONDING INCOME WAS OFFERED TO TAX IN THE EARL IER YEAR AND THEREFORE THE AMOUNT OF TDS TO THE EXTENT OF 5,84,608/- WHICH PERTAINING TO THE INCOME WHICH HAS BEEN OFFERED TO TAX IN EARLIER YEAR WAS NOT ALLOWED. HOW EVER, THE LD. CIT(A) OBSERVED THAT ASSESSEE HAS BEEN CLAIMING THE DEDUCTION OF TDS AMO UNT DEDUCTED ON THE ADVANCE PAYMENT CONSISTENTLY AND NO DISALLOWANCE WAS MADE I N THE EARLIER YEARS. FORM THE ABOVE FACTS OF THE CASE WE FIND THAT THE A SSESSEE HAS BEEN FOLLOWING SYSTEM TO CLAIM THE BENEFIT OF TDS AMOUNT DEDUCTED BY THE PARTY CONSISTENTLY AND NO DISALLOWANCE HAS BEEN MADE BY THE REVENUE. MOREOVER THE LD. DR HAS NOT BROUGHT ANYTHING ON RECORD ANYTHING CONTRARY TO THE FINDING S OF LD. CIT(A). THUS IN OUR CONSIDERED VIEW THERE IS NO DEFECT IN THE ORDER OF LD. CIT(A). BESIDES THE ABOVE WE ALSO FIND THAT THE ASSESSEE HA S ALREADY SHOWN INCOME CORRESPONDING TO THE TDS OF RS. 51,615.00 IN THE EA RLIER YEARS WHICH SHOWS THAT THE ASSESSEE HAS ALREADY SUFFERED THE BURDEN OF INCOME TAX IN THE EARLIER YEARS WITHOUT CLAIMING THE BENEFIT OF TDS. INDEED IN THIS CASE TH E ASSESSEE HAS BORNE THE BURDEN OF THE TAX OUT OF HIS OWN FUND. MOREOVER IF THE PARTY HAS NOT DEDUCTED THE TDS IN THE RELEVANT YEAR, THERE IS NO FAULT OF THE ASSESSEE. T HERE IS ALSO NO LOSS TO THE REVENUE. THEREFORE WE FIND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A). ACCORDINGLY, WE UPHOLD THE SAME. 13. IN THE RESULT, REVENUES APPEAL IS DISMISSED. COMING TO ASSESSEES CO NO.144/KOL/2012 . 14. AT THE TIME OF HEARING LD. AR FOR THE ASSESSEE STATED THAT HE HAS NOT PRESSED THE GROUND NO.1, HENCE, SAME IS DISMISSED AS NOT PRESSE D. 15. ONLY REMAINING ISSUE RAISED BY ASSESSEE IS THAT LD. CIT(A) ERRED IN CONFIRMING THE ORDER OF ASSESSING OFFICER BY SUSTAINING THE DI SALLOWANCE FOR THE AMOUNT OF ADDITIONAL DEPRECIATION FOR 3,25,63,383/- U/S. 32(1)(IIA) OF THE ACT. ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 10 16. DURING THE COURSE OF ASSESSMENT PROCEEDINGS, AO OBSERVED THAT ASSESSEE CLAIMED ADDITIONAL DEPRECIATION ON CERTAIN MACHINER IES VIDE LETTER DATED 19.12.2011 WITHOUT FILING THE REVISED RETURN OF INCOME. HOWEVE R THE AO DISREGARDED THE PLEA OF ASSESSEE BY OBSERVING THAT ASSESSEE IS NOT ENGAGED IN ANY MANUFACTURING ACTIVITIES THEREFORE, ASSESSEE IS NOT ENTITLED FOR ADDITIONAL DEPRECIATION. 17. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE LD. CIT(A) WHO CONFIRMED THE ORDER OF AO BY OBSERVING AS UNDER:- DURING THE APPELLATE PROCEEDINGS THE ASSESSEE ONLY CLAIMED THAT IT WAS INVOLVED IN PRODUCTION OF AN ARTICLE OR A THING. TH E ASSESSEE IS, PRIMA FACIE, A CONTRACTOR, AND IT HAS NOT BROUGHT ANYTHING ON RECO RD TO EVEN SUGGEST, LEAVE ASIDE PROVE, THAT IT WAS INVOLVED IN PRODUCTION OF AN ARTICLE OR A THING. FOR THE REASONS STATED ABOVE, I FIND THAT ASSESSEE S CLAIM OF ADDITIONAL DEPRECIATION HAS RIGHTLY BEEN DISALLOWED BY THE AO. HENCE, THE DISALLOWANCE OF RS.3,25,63,383/- IS CONFIRMED. THIS GROUND IS, THER EFORE, DISMISSED. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) ASSESSE E HAS COME UP IN CROSS OBJECTION BEFORE US. 18. BEFORE US LD. AR SUBMITTED THAT ASSESSEE ENGAGE D IN MINING ACTIVITIES AND ADDITIONAL DEPRECIATION HAS BEEN ALLOWED ON MININ G ACTIVITIES BY THE ORDER OF THIS CO- ORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF M/S INTEGRATED COAL MINING LTD. VS. DCIT IN ITA NO.1146/KOL/2012 FOR A.Y 2008-09 DATED 30.11.2015. ON THE OTHER HAND, LD. DR SUBMITTED THAT THE ISSUE OF ADDITIONAL DEPRECIATION HAS NOT BEEN EXAMINED BY THE AUTHORITIES BELOW AND THEREFOR E MATTER BE RESTORED TO THE FILE OF AO FOR FRESH VERIFICATION. HE VEHEMENTLY RELIED ON THE ORDER OF AUTHORITIES BELOW. IN REJOINDER LD.AR SUBMITTED THAT THE ORIGINAL DEPR ECIATION HAS BEEN ALLOWED ON THE SAME MACHINERIES AND NO DISALLOWANCE WHATSOEVER WAS MADE BY THE AUTHORITIES BELOW. 19. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE ISSUE IN THE INSTANT CASE RELATES TO TH E DISALLOWANCE OF ADDITIONAL DEPRECIATION CLAIMED BY ASSESSEE. AO DISALLOWED THE CLAIM OF ADDITIONAL DEPRECIATION ON THE GROUND THAT THE ASSESSEE IS NOT ENGAGED IN A NY MANUFACTURING ACTIVITIES. THE ACTION OF AO WAS ALSO SUBSEQUENTLY CONFIRMED BY LD. CIT(A). FROM THE ORDER OF AO WE FIND THAT HE HAS GIVEN THE FINDING THAT THE ISSU E OF ADDITIONAL DEPRECIATION WAS ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 11 DISCUSSED ELABORATELY BUT NO SATISFACTORILY REPLY W AS FILED. HOWEVER WE FIND THAT ALL THE DETAILS OF NEW PLANT & MACHINERIES WERE DULY FI LED BEFORE THE LOWER AUTHORITIES WHICH ARE PLACED ON PAGES 54 TO 60 OF THE PB ALONG WITH THE REPORT IN FORM 3AA FOR ADDITIONAL DEPRECIATION. THUS THE AO HAS DISALLOWED ON THE GROUND THAT THE ASSESSEE IS NOT ENGAGED IN THE MANUFACTURE ACTIVITIES. IN THIS REGARD AT THE OUTSET, WE FIND THAT INSTANT ISSUE IS ALREADY COVERED BY THE DECISION OF JURISDICTIONAL HIGH COURT IN THE SISTER CONCERN OF ASSESSEE IN THE CASE OF CIT VS. G.S. ATWAL & CO . REPORTED 254 ITR 592 (CAL). THE RELEVANT OPERATIVE PORTION OF THE JU DGMENT IS REPRODUCED BELOW:- 13. FOLLOWING AN OLD AND LONG STANDING DECISION GI VEN BY CHAKRAVARTI C.J. IN 1959, WHICH WAS LATER APPROVE BY THE SUPREME COURT, THE DIVISION BENCH OPINED THAT THE WINNING OF COAL IS NOT DOUBT PRODUC TION. AT PARAGRAPH 12 OF THE JUDGMENT IT SAID THAT AFTER WINNING COAL SOMETHING THAT WAS NOT THEE COMES UP, AND IT IS, THEREFORE, A PRODUCTION OF COAL. THE DIV ISION BENCH ALLOWED ITS OWN DECISION IN THE LATER CASE OF KHALSA BROS VS. CIT [ 1996] 217 ITR 185. MR. BAJORIA ALSO RELIED ON THE INTERESTING CASE OF CIT V. SHANN FINANCE (P) LTD [1998] ITA NO. 1146, 1138/KOL/2012-C-AM INTEGRATED COAL MINING LTD 23 231 ITR 308 WHERE THE SUPREME COURT OPINED THAT A F INANCIER OWNING MACHINERY MIGHT STILL BE ENTITLED TO INVESTMENT ALL OWANCE EVEN IF THE MACHINERY IS ACTUALLY USED BY ITS LESSEE FOR THE PURPOSE OF P RODUCTION. IT IS ALSO IMPORTANT TO NOTE THAT SIMILAR ISSUE IS ALSO COVERED BY THE ORDER OF ITAT IN THE CASE OF INTEGRATED COAL MINING LIMITED VS DCIT IN ITA 1146/KOL/2012 & 1138/KOL/2012 VIDE ORDER DATED 30-11-2015. RESPECTF ULLY FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF G.S.ATWALA & CO. (SUPRA) WE REVERSE THE ORDER OF LD. CIT(A) IN THIS REGARD AND DIRECT T HE AO TO DELETE THE ADDITION. THIS GROUND OF ASSESSEES CO IS ALLOWED. 20. IN THE RESULT, ASSESSEES CO IS PARTLY ALLOWED. 21. IN THE RESULT, APPEAL OF REVENUE STANDS DISMISSED A ND THAT OF ASSESSEES CO IS PARTLY ALLOWED. ORDER PRONOUNCED IN OPEN COURT ON 26/04/2017 SD/- SD/- (S.S.VISWANETHRA RAVI) (WASEEM AHMED) JUDICIAL MEMBER ACCOUNTANT MEMBER *DKP, SR.P.S '#$ - 26 /04/2017 / KOLKATA ITA NO.1516/KOL/2012 & CO NO.144/KOL/2012 A.Y. 20 09-10 JCIT(OSD0, CC-KOL VS. M/S G.S.ATWAL & CO. (ENGG) PVT. LTD. PAGE 12 / COPY OF ORDER FORWARDED TO:- 1. /ASSESSEE-M/S G.S.ATWAL &CO.(ENGG)PVT. LTD., 4B, LI TTLE RUSSELL ST.KOL-71 2. /REVENUE-JCIT(OSD),CENTRAL CIRCLE-XX, AAYAKAR BHAWA N, 5 TH FLOOR,110 SHANTIPALLY, KOLKATA-107 3. ##%& ' / CONCERNED CIT 4. ' - / CIT (A) 5. ()* ++%& , %& / DR, ITAT, KOLKATA 6. *,- / GUARD FILE. BY ORDER/ , /TRUE COPY/ / # %&,