HINDUSTAN SHIPYARD LIMITED, Visakhapatnam V. ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE-3(1), Visakhapatnam

CO 9/VIZ/2023

• Counselvise Citation: [2024] 100 COUNSELVISE.COM (IT) 1502 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 1 year(s) 4 month(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 24-06-2024
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 12-06-2024
• Assessment Year: 2011-2012
• Appeal Filed On: 23-02-2023
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Depreciation; TDS
• Section: 143(3); 142(1); 40(a)(ia); 194C; 195; 143(2); 113

Judgement Text

आयकरअपीलीयअधधकरण, धिशाखापटणमपीठ, धिशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्रीदुव्िूरुआरएलरेड्डी, न्याधयकसदस्यएिंश्रीएसबालाकृष्णन, लेखासदस्यकेसमक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकरअपीलसं./ I.T.A. Nos.202, 198, 199, 188, 200/Viz/2022 (धनधाारणिर्ा/ Assessment Year : 2009-10, 2011-12, 2012-13, 2013-14 & 2014-15) Asst. Commissioner of Income Tax, Circle-3(1), Visakhapatnam. Vs. M/s. Hindustan Shipyard Limited, Visakhapatnam. PAN: AACH 4275 P (अपीलाथी/ Appellant) (प्रत्यथी/ Respondent) C.Os. No. 08, 09, 10, 11 & 12/Viz/2023 आयकरअपीलसं./ I.T.A. Nos.202, 198, 199, 188, 200/Viz/2022 (धनधाारणिर्ा/ Assessment Year : 2009-10, 2011-12, 2012-13, 2013-14 & 2014-15) M/s. Hindustan Shipyard Limited, Visakhapatnam. PAN: AACH 4275 P Vs. Asst. Commissioner of Income Tax, Range-3, Visakhapatnam. (अपीलाथी/ Appellant) (प्रत्यथी/ Respondent) आयकरअपीलसं./ I.T.A. No.203/Viz/2022 (धनधाारणिर्ा/ Assessment Year : 2011-12) M/s. Hindustan Shipyard Limited, Visakhapatnam. PAN: AACH 4275 P Vs. Asst. Commissioner of Income Tax, Range-3, Visakhapatnam. (अपीलाथी/ Appellant) (प्रत्यथी/ Respondent) अपीलाथीकीओरसे/ Assessee by : Sri GVN Hari, AR प्रत्याथीकीओरसे/ Revenue by : Dr. Satyasai Rath, CIT-DR 2 सुनिाईकीतारीख/ Date of Hearing : 13/06/2024 घोर्णाकीतारीख/Date of Pronouncement : 25/06/2024 O R D E R PER BENCH : These Appeals are filed by the Revenue in I.T.A. Nos.202, 198, 199, 188, 200/Viz/2022are filed against the respective orders of the Learned Commissioner of Income Tax (Appeals), National Faceless Appeal Centre, Delhi [“Ld. CIT(A)-NFAC”] arising out of the orders passed U/s. 143(3) of the Income Tax Act, 1961 [“the Act”]. The details of DIN & Order No. and dates of the Ld.CIT(A)-NFAC order are given as below: The assessee has also filed the captioned Cross Objections (C.Os. No. 08, 09, 10, 11 & 12/Viz/2023). The assessee also filed cross appeal I.T.A. No.203/Viz/2022 (AY: 2011-12) against the order of the Ld. CIT(A)- NFAC, Delhi vide DIN & Order No. ITBA/NFAC/S/250/2022- 23/1044871759(1), dated 23/08/2022 arising out of the order passed U/s. 143(3) of the Income Tax Act, 1961 [“the Act”]. Since the issues Sl No DIN & Order No. of CIT(A)-NFAC Date of order AY 1. ITBA/NFAC/S/250/2022-23/1045062316(1) 30/08/2022 2009-10 2. ITBA/NFAC/S/250/2022-23/1044871759(1) 23/08/2022 2011-12 3. ITBA/NFAC/S/250/2022-23/1044871971(1) 23/08/2022 2012-13 4. ITBA/NFAC/S/250/2022-23/1044555810(1) 08/08/2022 2013-14 5. ITBA/NFAC/S/250/2022-23/1044838255(1) 23/08/2022 2014-15 3 raised in all the Revenue’s appeals are identical, so also the Cross Objections raised by the assessee are identical, for the sake of convenience, all these appeals are clubbed, heard together and disposed off in this consolidated order. Appeal wise adjudication is given in the following paras of this order. ITA No. 188/Viz/2022 (AY: 2013-14) 2. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2013-14. 3. Briefly stated the facts of the case are that the assessee is Public Sector Undertaking engaged in the business of construction and repairs of ocean-going ships, ship repairs and refitting of submarines, filed its return of income for the AY 2013-14 on 20/09/2013 admitting a loss of Rs. 32,50,35,169/- and claiming a refund of Rs. 3,43,42,010/-. The case was selected for scrutiny under CASS and accordingly statutory notices U/s. 143(2) & 142(1) of the Act were issued and served on the assessee calling for information. The assessee’s Authorized Representative appeared from time to time and furnished the relevant information as called for by the Ld. AO. After examination of the documents submitted, information filed by the 4 assessee and after discussing the case with the assessee’s AR, the Ld. AO made addition towards prior period expenses amounting to Rs. 8,41,04,723/- and disallowance towards demurrage charges of Rs. 13,92,693/-. The Ld. AO considered the demurrage charges are in the nature of ground rent / detention charges payable to the freight and fowarders and clearing agents in respect of space occupied by the goods / materials to be lifted by the assessee and therefore concluded that the provisions of section 194I are attracted. Since the assessee did not deduct tax at source as required U/s. 194I of the Act, the Ld. AO disallowed the demurrage charges U/s. 40(a)(ia) of the Act. Aggrieved by the additions made by the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)-NFAC. 4. The Ld. CIT(A)-NFAC considered the submissions made by the assessee-company and observed that in the assessee’s own case for the AY 2002-03 and 2015-16, the ITAT, Visakhapatnam Bench has decided the issue in favour of the assessee with respect to prior period expenses. However, the Ld. CIT(A)-NFAC also observed that there are contrary submissions between the Ld.AO and the assessee with respect to adding back of depreciation in the computation of income for Rs. 27,12,133/-. 5 The Ld. CIT(A)-NFAC therefore allowed the other expenditure under the head “prior period expenditure” and directed the Ld. AO to verify the claim of depreciation and allow the same if the assessee has established that it has been added back as stated. With respect to the demurrage charges, the Ld.CIT(A)-NFAC relied on the orders of his predecessor Ld. CIT(A) for the AY 2008-09 and allowed the same for the impugned assessment year. Aggrieved by the order of the Ld. CIT(A)-NFAC, the Revenue is in appeal before us by raising the following grounds of appeal: “1. The order of the Ld. CIT(A)is erroneous both on f acts and in law. 2. The Ld. CIT(A) has erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 8,41,04,723/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a f inding that the assessee has not made out a case th at the expenditure is allowable in the current year under consideration. 4. The appellant craves leave to add or delete or amend or substitute any ground of appeal.” 5. Grounds No.1 and 4 are general in nature and they need no adjudication. 6. Grounds No.2 & 3 pertain to the deletion of addition made by the Ld. AO towards prior period expenses of Rs.8,41,04,723/-. 6 At the outset, the Ld. AR submitted that the issue of prior period expenses has already been considered by the Hon’ble ITAT, Visakhapatnam Bench in the assessee’s own case for the AY 2002-03 and 2015-16 in favour of the assessee. The Ld. AR submitted copy of the order of the ITAT, Visakhapatnam Bench in the assessee’s own case for the AY 2007-08 and 2008-09 (ITA No. 102 & 103/Vizag/2012), dated 28/07/2015 wherein on the similar issue the Bench has held in favour of the assessee. The Ld. AR therefore pleaded that the order of the Ld. CIT(A)-NFAC be upheld. Per contra, the Ld. Departmental Representative [“Ld. DR”] relied on the order of the Ld. AO. 7. We have heard both the sides and perused the material available on record as well as the orders of the Ld. Revenue Authorities. It is an admitted fact that the assessee has incurred the following expenditure pertaining to prior periods: Particulars Amount (In Rupees) EXPENDITURE SC Direct Expenses 6,54,000 Berth hire charges 17,76,000 Materials, freight & CIF Charges 7,62,18,000 Taxes & Duties 1,72,000 Rent 7,000 7 Depreciation 28,52,000 Miscellaneous 24,25,723 Total 8,41,04,723 8. The Coordinate Bench of the ITAT, Visakhapatnam in the assessee’s own case for the AY 2007-08 and 2008-09 (supra) vide paragraphs 7 & 8 has held as follows: “7. Vide ground no.3, the assessee contends that the Ld.CIT(A) erred in deleting the addition of Rs. 2.16 Crs. According to the Assessing Officer, it is a prior period expenditure which cannot be claimed as deduction in the year under consideration. The case of the assessee, on the other hand, was that the liabilities created were based on estimated expenditure in the respective years as the bills submitted by various agencies are not certif ied by various departments in the assessee company, due to delay in verification of various work orders, quality check, etc. Assessee’s contention is that it got crystalized only during the previous year relevant to the assessment year under consideration. In this regard, the Ld. Cit(a) observed as under: “It is but natural that some of the approvals / f inalization etc., get delayed and spill over to the next year. The said expenditure thus, can be said to be crystalized during the year under consideration. The decisions cited by the assessee are applicable to these expenses as it is beyond the control of the assessee to claim these expenditures in the year of billing. Assessee also admitted prior income of Rs. 1.21 Crs on account of ship repaid. Considering all these aspects it is held that the said expenditure having been crystalized during the year under consideration is an allowable expenditure in the assessment year 2007-08. Assessing Off icer is thus directed to delete the addition made of Rs. 216.66 lakhs.” 8. Ld. DR did not bring any material to contradict the findings of the Ld. CIT(A). We therefore do not f ind any inf irmity in the order passed by the Ld. CIT(A) and hence reject ground no.3 of the Revenue. In the result, the appeal f iled by the Revenue is dismissed.” 9. Further, we also observed that it has been consistently held in favour of the assessee by the ITAT, Visakhapatnam Bench for 8 the earlier years in the assessee’s own case. In this regard, we also extract below the findings of the Hon’ble ITAT, Visakhapatnam Bench for the AY 2002-03 in the assessee’s own case: “4. Having heard the rival submissions and from a careful perusal of the orders of the authorities below, we f ind that assessee has offered the prior period income along with the expenditure during the impugned assessment year. The assessing off icer has accepted the prior period income in this year but disallowed the prior period expenditure. This action of the assessing officer is not proper as he has to take into the account the status as a whole and not to make a pick and choose. We however, carefully examined the order of the Ld. CIT(A) and we f ind that the Ld. CIT(A) has adjudicated the issue in the light of judgment of the Delhi High Court in the case of Additional CIT vs. Jay Engineering Works Limited 113 ITR 389. Our attention was also invited to the other judgment of the Delhi High Court in the case of CIT vs. Mobile Pvt Ltd 328 ITR 17 on the impugned proposition of law. Since the CIT(A) has properly adjudicated the issue and we find no infirmity therein, we confirm his order.” Following the principle of consistency, we have no hesitation to uphold the order of the Ld. CIT(A)-NFAC thereby dismissing the Grounds 2 & 3 raised by the Revenue. It is ordered accordingly. 10. In the result, appeal of the Revenue (ITA No. 188/Viz/2022) is dismissed. 9 ITA No.200/Viz/2022 (AY: 2014-15) 11. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2014-15. 12. In this appeal, the Revenue has raised the following grounds of appeal: “1. The order of the Ld. CIT(A) is erroneous both on f acts and in law. 2. The Ld. CIT(A) has erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 8,12,82,701/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a f inding that the assessee has not made out a case th at the expenditure is allowable in the current year under consideration. 4. The appellant craves leave to add or delete or amend or substitute any ground of appeal.” 13. The above grounds of appeal raised by the Revenue for the AY 2014-15 are identical to that of the grounds raised by the Revenue in its appeal in ITA No. 188/Viz/2022for the AY 2013- 14 which is adjudicated in the foregoing paragraphs of this order. Considering the identical facts involved in these appeals as well as similarity of the grounds raised by the Revenue in both the appeals, our adjudication given on the grounds raised by the 10 Revenue for the AY 2013-14 mutatis mutandis applies to the grounds raised in the AY 2014-15 also. Accordingly, the appeal of the Revenue for the AY 2014-15 is dismissed. 14. In the result, appeal of the Revenue (ITA No. 200/Viz/2022) is dismissed. ITA No.198/Viz/2022 (AY: 2011-12) 15. This appeal filed by the Revenue is against the order of the Ld. CIT(A)-NFAC for the AY 2011-12. 16. Briefly stated the facts of the case are that the assessee filed its return of income for the AY 2011-12 on 26/09/2011 declaring a total income of Rs. NIL after set-off of carry forward loses of Rs. 298,36,33,885/-. The assessee has paid MAT of Rs. 43,88,02,107/-. The return was summarily processed U/s. 143(1) of the Act and thereafter it was selected for scrutiny and statutory notices U/s. 143(2) and 142(1) of the Act along with the questionnaire were issued and served on the assessee. The assessee’s Representative appeared from time to time before the Ld. AO and filed various submissions. Considering the assessee’s submissions, the Ld. AO made addition towards prior period expenses amounting to Rs. 5,62,78,000/- and disallowance U/s. 11 40(a)(ia) of the Act towards demurrage charges amounting to Rs. 73,31,800/-. Aggrieved by the additions made by the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)-NFAC. 17. On appeal, the Ld. CIT(A)-NFAC considering the submissions made by the assessee’s Authorized Representative and following the orders of the ITAT, Visakhapatnam Bench on the issues in the assessee’s own case, the Ld.CIT(A)-NFAC partly allowed the appeal of the assessee. Aggrieved by the order of the Ld. CIT(A)- NFAC, the Revenue is in appeal before the Tribunal by raising the following grounds of appeal: “1. The order of the Ld. CIT(A) is erroneous both on f acts and in law. 2. The Ld. CIT(A) erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 5,62,78,000/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a f inding that the assessee has not made out a case that the expenditure is allowable in the current year under consideration. 4. The Ld. CIT(A) erred in deleting the addition made by the AO towards demurrage charges of Rs. 73,31,800/- U/s. 40(a)(ia) of the Act. 5. The Ld. CIT(A) erred in observing the claim of demurrage charges which are in the nature of ground rent / detention charges raised by the f reight f orwarders and clearance agents in respect of the space occupied by the goods / materials to be lif ted by the assessee and hence the same squarely full under the ambit of section 194I of the Act. 12 6. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that the disallowance / additions made by the AO be restored.” 18. Grounds No. 1 and 6 are general in nature and therefore they need no adjudication. 19. Grounds No. 2 and 3 regarding the disallowance of prior period expenses. We have already taken up this issue while adjudicating the Revenue’s appeal for the AY 2013-14 in ITA No. 188/Viz/2022 in the foregoing paragraphs of this order. Considering the similar facts and circumstances of the case as well as the identicalness of the issue involved in both the appeals, our decision given on the issue of prior period expenses for the AY 2013-14 (ITA No. 188/Viz/2022) mutatis mutandis applies to the identical issue involved in the appeal for the AY 2011-12 (ITA No. 198/Viz/2011) also. Accordingly, we hereby dismiss the Grounds No. 2 and 3 raised by the Revenue. 20. With respect to Grounds No. 4 & 5 regarding the disallowance of demurrage charges of Rs. 73,31,800/- U/s. 40(a)(ia) of the Act, the Ld. AR submitted that these expenditures are in the nature of payment made to shipping companies in foreign currency. He therefore pleaded that as per the Central 13 Board of Direct Taxes [“CBDT”] Circular No. 723, dated 19/9/1995 deduction of tax is not applicable to various foreign shipping companies and the provisions of section 194C and 195 will not apply. The Ld. AR vehemently argued that since these payments are made to various foreign shipping companies, section 194I has no application. He therefore pleaded that the Ld. AO has erred in invoking the provisions of section 194I of the Act thereby disallowing the expenditure U/s. 40(a)(ia) of the Act. Further, the Ld. AR referred to page 126 of the paper book wherein the copy of the sample invoice has been produced for verification before the Ld. Revenue Authorities which states that the detention charges are payable to foreign shipping companies in foreign currency. He therefore pleaded that the order of the Ld. CIT(A)-NFAC be upheld. 21. Per contra, the Ld. DR heavily placed reliance on the order of the Ld. AO and argued that demurrage charges are in the nature of ground rent payable. He also referred to Explanation to section 194I of the Act wherein “any other agreement” has been mentioned and hence this agreement for detention of goods amounts to rental charges attracting the provisions of section 14 194I of the Act. He therefore pleaded that the order of the Ld. AO be upheld. 22. We have heard both the sides and perused the material available on record as well as the orders of the Ld. Revenue Authorities. From the submissions of the Ld. AR, we find that the payment are made to foreign shipping companies as demonstrated by the Ld. AR through the documents which are available in the paper book at page no. 126. These are in the nature of detention charges paid to foreign shipping companies and therefore the Board Circular No. 723, dated 19/9/1995 is applicable. We therefore are of the view that invoking the provisions of section 194I in the case of the assessee is not valid in law and thereby we reject the grounds No. 4 & 5 raised by the Revenue on this issue. 23. In the result, appeal of the Revenue (ITA No. 198/Viz/2022) is dismissed. ITA No.199/Viz/2022 (AY 2012-13) 24. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2012-13. 15 25. In this appeal, the Revenue has raised the following grounds of appeal: “1. The order of the Ld. CIT(A) is erroneous both on f acts and in law. 2. The Ld. CIT(A) erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 5,21,58,000/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a f inding that the assessee has not made out a case that the expenditure is allowable in the current year under consideration. 4. The Ld. CIT(A) erred in deleting the addition made by the AO towards demurrage charges of Rs. 1,52,33,572/- U/s. 40(a)(ia) of the Act. 5. The Ld. CIT(A) erred in observing the claim of demurrage charges which are in the nature of ground rent / detention charges raised by the f reight f orwarders and clearance agents in respect of the space occupied by the goods / materials to be lif ted by the assessee and hence the same squarely full under the ambit of section 194I of the Act. 6. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that the disallowance / additions made by the AO be restored.” 26. The above grounds of appeal raised by the Revenue for the AY 2012-13 are identical to that of the grounds raised by the Revenue in its appeal for the AY 2011-12 (ITA No.198/Viz/2022) which is adjudicated in the foregoing paragraphs of this order. Considering the identical facts involved in these appeals as well as similarity of the grounds raised by the Revenue in both the appeals, our adjudication given on the grounds raised by the 16 Revenue for the AY 2011-12mutatis mutandis applies to the grounds raised in the AY 2012-13 also. Accordingly, the appeal of the Revenue for the AY 2012-13 is dismissed. 27. In the result, appeal of the Revenue (ITA No.199/Viz/2022) is dismissed. ITA No.202/Viz/2022 (AY 2009-10) 28. This appeal filed by the Revenue against the order of the Ld. CIT(A)-NFAC for the AY 2009-10. 29. In this appeal, the Revenue has raised the following grounds of appeal: “1. The order of the Ld. CIT(A) is erroneous both on f acts and in law. 2. The Ld. CIT(A) erred in deleting the addition made by the Ld. AO towards prior period expenses of Rs. 54,43,79,000/- though same do not pertains to the year under consideration. 3. The Ld. CIT(A) erred in allowing the claim of prior period expenses even though the AO made a f inding that the assessee has not made out a case that the expenditure is allowable in the current year under consideration. 4. The Ld. CIT(A) erred in deleting the addition made by the AO towards demurrage charges of Rs. 1,73,000/- U/s. 40(a)(ia) of the Act. 5. The Ld. CIT(A) erred in observing the claim of demurrage charges which are in the nature of ground rent / detention charges raised by the f reight f orwarders and clearance agents in respect of the space occupied by the goods / 17 materials to be lif ted by the assessee and hence the same squarely full under the ambit of section 194I of the Act. 6. For these and other grounds that may be urged at the time of appeal hearing, it is prayed that the disallowance / additions made by the AO be restored.” 30. The above grounds of appeal raised by the Revenue for the AY 2009-10 are identical to that of the grounds raised by the Revenue in its appeal for the AY 2011-12 (ITA No.198/Viz/2022) which is adjudicated in the foregoing paragraphs of this order. Considering the identical facts involved in these appeals as well as similarity of the grounds raised by the Revenue in both the appeals, our adjudication given on the grounds raised by the Revenue for the AY 2011-12 mutatis mutandis applies to the grounds raised in the AY 2009-10 also. Accordingly, the appeal of the Revenue for the AY 2009-10 is dismissed. 31. In the result, appeal of the Revenue (ITA No.202/Viz/2022) is dismissed. C.Os. No. 08, 09, 10, 11 & 12/Viz/2023 आयकरअपीलसं./ I.T.A. Nos.202, 198, 199, 188, 200/Viz/2022 (धनधाारणिर्ा/ Assessment Year : 2009-10, 2011-12, 2012-13, 2013-14 & 2014-15) 32. All these cross objections raised by the assessee are in support of the decision taken by the Ld. CIT(A)-NFAC. Therefore, 18 while adjudicating the Revenue’s appeals for the AYs 2009-10, 2011-12, 2012-13, 2013-14 & 2014-15 in the aforesaid paragraphs of this order, we have upheld the decision of the Ld. CIT(A)-NFAC on the issues raised in the Revenue’s appeals and dismissed the grounds raised by the Revenue. Accordingly, the adjudication of these cross objection raised by the assessee becomes merely an academic exercise and therefore they are dismissed as infructuous. 33. In the result, all the cross objections raised by the assessee are dismissed as infructuous. ITA No.203/Viz/2022 (AY 2011-12) (By Assessee) 34. This cross appeal filed by the assessee against the order of the Ld. CIT(A)-NFAC vide DIN & Order No. ITBA/NFAC/S/250/2022-23/1044871759(1), dated 23/08/2022 arising out of the order passed U/s. 143(3) of the Act for the AY 2011-12. 35. Briefly stated the facts of the case are that the assessee filed its return of income for the AY 2011-12 on 26/09/2011 declaring a total income of Rs. NIL after set-off of carry forward loses of Rs. 298,36,33,885/-. The assessee has paid MAT of Rs. 19 43,88,02,107/-. The return was summarily processed U/s. 143(1) of the Act and thereafter it was selected for scrutiny and statutory notices U/s. 143(2) and 142(1) of the Act along with the questionnaire were issued and served on the assessee. The assessee’s Representative appeared from time to time before the Ld. AO and filed various submissions. Considering the assessee’s submissions, the Ld. AO made addition towards prior period expenses amounting to Rs. 5,62,78,000/- and disallowance U/s. 40(a)(ia) of the Act towards demurrage charges amounting to Rs. 73,31,800/-. Aggrieved by the additions made by the Ld. AO, the assessee preferred an appeal before the Ld. CIT(A)-NFAC. 36. On appeal, the Ld. CIT(A)-NFAC considering the submissions made by the assessee’s Authorized Representative and following the orders of the ITAT, Visakhapatnam Bench on the issues in the assessee’s own case, the Ld.CIT(A)-NFAC partly allowed the appeal of the assessee. However, the Ld. CIT(A)-NFAC denied the TDS credit as it was not reflecting in Form-26AS and also upheld the order of the Ld. AO with regard to interest U/s. 234C of the Act. Aggrieved by the order of the Ld. CIT(A)-NFAC, the assessee is in appeal before the Tribunal by raising the following grounds of appeal: 20 “1. The order of the Ld. CIT(A) is contrary to the f acts and also the law applicable to the f acts of the case. 2. The Ld. CIT(A) ought to have directed the assessing off icer to gran t credit f or TDS of Rs. 9,08,06,937/- on the basis of tax deduction certif icate issued by the diductors. 3. (a) The Ld. CIT(A) is not justif ied in not directing the Assessing Officer to cancel the interest charged U/s. 234C of the Act. (b) The Ld. CIT(A) ought to have appreciated that the advance tax liability arise on account of restructuring package granted on 23/03/2011 subsequent to 15/03/2011 being the due date f or last installment of payment of advance tax and hence it is impossible to have estimated and paid advance tax on this income at the time when for the payment of installments advance tax have f allen due. 4. Any other grounds may be urged at the time of hearing.” 37. The issue raised in these grounds of appeal by the assessee is with respect to the non-granting of credit for the TDS of Rs. 9,08,06,937/- by the Ld.AO. On this ground, the Ld. AR submitted that the TDS credit was denied by the Ld. AO since it was not appearing in Form No. 26AS of the assessee. He further reiterated that the tax at source has been deducted by the Government Departments who have issued Form-16A as available in page 18 to 21 of the paper book submitted by the assessee. He therefore pleaded that the credit for TDS may be granted based on the original Form-16A available and produced before the Ld. Revenue Authorities. 21 38. Per contra, the Ld. DR relied on the orders of the Ld. Revenue Authorities and argued in support of the same. 39. We have heard both the sides and perused the material available on record as well as the orders of the Ld. Revenue Authorities. Admittedly, the credit for TDS amounting to Rs. 9,08,06,937/- was denied to the assessee since it is not reflecting in Form-26AS of the assessee for the impugned assessment year. In this connection, the Circular No 5/2013 wherein it was clearly clarified by the CBDT to allow and grant credit for TDS based on the original Form-16A submitted by the assessee even though it is not reflected in the Form-26AS. This instruction was issued by the CBDT to eliminate the hardships faced by the assessee in the initial assessment years during the implementation of Form- 26AS. Therefore, we are inclined to remit the matter to the file of the Ld. AO and direct the assessee to produce the original Form- 16A before the Ld. AO for verification. The Ld. AO is directed to verify the genuineness of the credit for TDS and thereby grant credit if it is found to be correct. Accordingly, Ground No.2 raised by the assessee is allowed for statistical purposes. 40. Ground No.3 pertains to charging of interest U/s. 234C of the Act amounting to Rs. 1,98,38,798/-. The Ld. AR submitted 22 that the assessee received the restructuring package on 23/3/2011 which is subsequent to the due dates for the payment of advance tax liability. The Ld. AR further submitted that since the assessee was not sure about the granting of the restructuring of the package, the assessee could not take into consideration the grant to be received and hence there is a short fall for the payment of advance tax liability which leads to charging of interest U/s. 234C of the Act. The Ld. AR submitted that the details of sanction letter dated 23/3/2011 has been produced before the Ld. Revenue Authorities. However, these were not considered by the Ld. Revenue Authorities. He therefore pleaded that the waiver of interest U/s. 234C may be granted to the assessee. 41. Per contra, the Ld. DR submitted that there is no provision in the Income Tax Act, 1961 to grant exemption from the levy of interest U/s. 234C of the Act. He therefore submitted that the Ld.CIT(A)-NFAC has rightly rejected the plea of the assessee. Further, the Ld. DR also argued that the assessee has not filed any request to the appropriate authority for waiver of interest. He therefore pleaded that in this issue, the order of the Ld. CIT(A)- NFAC be upheld. 23 42. We have heard both the sides and perused material available on record and the orders of the Ld. Revenue Authorities. From the submissions made by the Ld. AR we find that the Department of Defence Produce has granted a financial restructuring package to the assessee on 23/03/2011. The assessee has also failed to seek exemption from the waiver of interest with the appropriate authorities within the time limit specified. In the facts and circumstances of the case, we are of the view that there is no provision in the Act to grant waiver from levy of interest U/s. 234C of the Act. We therefore find no infirmity in the order of the Ld. CIT(A)-NFAC thereby dismiss this ground raised by the assessee. 43. In the result, appeal of the assessee is partly allowed for statistical purposes. 44. Ex-consequenti the appeals of the Revenue in I.T.A. Nos.202, 198, 199, 188, 200/Viz/2022 are dismissed. AlsoC.Os. No. 08, 09, 10, 11 & 12/Viz/2023are dismissed as infructuous. The appeal of the assessee in ITA No.203/Viz/2022 is partly allowed for statistical purposes. 24 Pronounced in the open Court on 25 th June, 2024. Sd/- Sd/- (दुव्िूरु आर.एलरेड्डी) (एस बालाकृष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याधयकसदस्य/JUDICIAL MEMBER लेखासदस्य/ACCOUNTANT MEMBER Dated : 25.06.2024 OKK - SPS Copy of the order forwarded to:- 1. धनधााररती/ The Assessee–M/s. Hindustan Shipyard Limited, 1-1, Gandhigram, Visakhapatnam, Andhra Pradesh – 530005. 2. राजस्ि/The Revenue –ACIT, Circle-3(1), O/o. Income Tax Office, Infinity Tower, Shankaramatham Road, Santhipuram, Visakhapatnam, Andhra Pradesh – 530016. (ii) Addl. Commissioner of Income Tax, Range-3, Visakhapatnam, Andhra Pradesh. 3. The Principal Commissioner of Income Tax, 4. आयकरआयुक्त (अपील)/ The Commissioner of Income Tax 5. धिभागीयप्रधतधनधध, आयकरअपीलीयअधधकरण, धिशाखापटणम/ DR,ITAT, Visakhapatnam 6. गाडाफ़ाईल / Guard file आदेशानुसार / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam