ACIT, CHENNAI V. Vishnukumar Traders Private Limited, CHENNAI

ITA 1328/CHNY/2015

• Counselvise Citation: [2017] 130 COUNSELVISE.COM (IT) 7673 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 8 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-02-2017
• Appeal Filed By: Department
• Bench Allotted: C
• Next Hearing Date: 15-02-2017
• Assessment Year: 2010-2011
• Appeal Filed On: 29-05-2015
• Court: TRIBUNAL
• Department Lawyers: A V SREEKANTH
• Keywords: Capital receipt

Judgement Text

, , IN THE INCOME - TAX APPELLATE TRIBUNAL C BENCH, CHENNAI . , . , BEFORE SHRI M. BALAGANESH , ACCOUNTANT MEMBER & SHRI DUVVURU RL REDDY, J UDICIAL MEMBER ./ I.T.A. NO. 1328 /MDS/201 5 / ASSESSMENT YEAR :20 1 0 - 1 1 THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 3 ( 2 ), CHENNAI 600 0 34. VS. M/S. VISHNUKUMAR TRADERS PRIVATE LIMITED, NO. 112B, POONAMALLEE HIGH ROA D, VELAPPANCHAVADI, CHENNAI 600 0 77 . [PAN:AA B C V1856H ] ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI A.V. SREEKANTH, JCIT / RESPONDENT BY : NONE / DATE OF HEARING : 15 . 02 .201 7 / DATE OF P RONOUNCEMENT : 28 . 02 .201 7 / O R D E R PER DUVVURU RL REDDY , JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) 11, CHENNA I, DATED 30.01.2015 FOR THE ASSESSMENT YEAR 2010 - 11. IN THIS APPEAL, THE REVENUE HAS RAISED TWO EFFECTIVE GROUNDS VIZ., (I) RECEIPTS ON SALE OF CARBON CREDIT AND DEDUCTION UNDER SECTION 80IA OF THE ACT. INADVERTENTLY, THE FIRST GROUND RAISED BY THE REVENUE HAS NOT BEEN DISPOSED OFF WHILE DECIDING THE APPEAL OF THE REVENUE ON 07.08.2015, AND THUS, THE ORDER OF THE TRIBUNAL HAS BEEN I.T.A . NO . 1328 /M/ 1 5 2 RECALLED FOR LIMITED PURPOSE VIDE M.P. NO. 19/MDS/2016 DATED 29.04.2016 TO ADJUDICATE THE SPECIFIC GROUND RAISED BY THE REVENUE IN GROUND NO. 2.1 WITH REGARD TO CARBON CREDIT. 2. WITH REGARD TO THIS ISSUE, BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE HAS CLAIMED DEDUCTION UNDER SECTION 80IA OF THE INCOME TAX ACT, 1961 [ ACT IN SHORT]. FROM THE FORM 3CD, COLUMN 13(E), THE ASSES SING OFFICER HAS OBSERVED THAT THE ASSESSEE HAS RECEIVED THE CARBON CREDIT OF .15,31,997/ - AND CLAIMED IT AS CAPITAL SUBSIDY. IN SUPPORT OF ITS CLAIM, THE ASSESSEE HAS RELIED ON THE DECISION OF THE HYDERABAD BENCHES OF THE TRIBUNAL IN THE CASE OF MY HOME POWER LTD. V. DCIT IN I.T.A. NO. 1114(HYD)/2009 FOR THE ASSESSMENT YEAR 2007 - 0 8 DATED 02.12.2012. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE CASE LAW RELIED UPON, THE ASSESSING OFFICER HAS NOT ACCEPTED ON THE GROUND THAT THE DEPARTMENT HAS FILED FURTHER APPEAL AGAINST THE ORDER OF THE TRIBUNAL AND THE SAME HAS NOT REA CHED ITS FINALITY. THEREFORE, THE ASSESSING OFFICER TREATED THE SAME AS CAPITAL RECEIPTS AND ADDED BACK TO THE TOTAL INCOME OF THE ASSESSEE. 3. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A). IN VIEW OF THE VARIOUS DECISIONS OF THE TRIBU NAL TREATING THE RECEIPTS ON SALE OF CARBON CREDIT AS CAPITAL IN NATURE, THE LD. CIT(A) ALSO DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE BY DELETING THE DISALLOWANCE MADE ON THIS ACCOUNT. I.T.A . NO . 1328 /M/ 1 5 3 4. ON BEING AGGRIEVED, THE REVENUE IS IN APPEAL BEFORE THE TRIBUN AL. BEFORE US, THE L D. DR ARGUED IN SUPPORT OF THE ORDER OF THE ASSESSING OFFICER. THE L D. DR FURTHER SUBMITTED THAT THE ASSESSING OFFICER HAD ARRIVED AT THIS DECISION OUT OF ABUNDANT CAUTION, BECAUSE THE REVENUE HAS CARRIED THE MATTER IN APPEAL . 5. N ONE APPEARED ON BEHALF OF THE ASSESSEE, DESPITE ISSUANCE OF NOTICE OF HEARING. HENCE, WE PROCEED TO DECIDE THE APPEAL AFTER HEARING THE LD. DR AND CONSIDERING THE FACTS OF THE CASE. 6. WE HAVE HEARD THE LD. DR, PERUSED THE MATERIALS AVAILABLE ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE ASSESSEE HAS CLAIMED THE RECEIPTS ON SALE OF CARBON CREDIT AS CAPITAL SUBSIDY IN SUPPORT OF THE DECISION OF THE HYDERABAD BENCHES OF THE TRIBUNAL IN THE CASE OF MY HOME POWER LTD. V. DCIT (SUPRA) . HOWEVER, THE ASSESSING OFFICER TREATED THE SAME AS REVENUE RECEIPT SINCE THE DEPARTMENT HAS FILED FURTHER APPEAL AGAINST THE ORDER OF THE TRIBUNAL IN THE CASE OF MY HOME POWER LTD. V. DCIT (SUPRA). ON PERUSAL OF THE ORDER IN THE CASE OF MY HOME POWER LTD . V. DCIT (SUPRA), THE TRIBUNAL HAS HELD THAT THE RECEIPTS OF CARBON CREDIT IS A CAPITAL RECEIPT. AGAINST THE ORDER OF THE TRIBUNAL, THE DEPARTMENT HAS PREFERRED FURTHER APPEAL BEFORE THE HON BLE ANDHRA PRADESH HIGH COURT, AND THE HIGH COURT HAS SUSTAINED THE ORDER OF THE TRIBUNAL VIDE ITS ORDER IN CIT V. MY HOME POWER LTD. [2014] (6) TMI 82. THOUGH THE LD. DR HAS ARGUED THAT THE I.T.A . NO . 1328 /M/ 1 5 4 DEPARTMENT FILED FURTHER APPEAL, BUT HE COULD NOT FILE ANY ORDER OF THE HIGHER FORUM HAVING MODIFIED OR STAYED THE OPERATION THE ORDERS OF HIGH COURT/TRIBUNAL. UNDER THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIND IT NECESSARY TO INTERFERE WITH THE ORDERS OF THE L D.CIT(A) ON THIS ISSUE . THUS, THE GROUND RAISED BY THE REVENUE IS DISMISSED. 7. IN THE RESULT, THE APPEAL OF REVENU E IS DISMISSED. ORDER PRONOUNCED ON THE 28 TH FEBRUARY , 201 7 AT CHENNAI. SD/ - SD/ - ( M. BALAGANESH ) ACCOUNTANT MEMBER ( DUVVURU RL REDDY ) JUDICIAL MEMBER CHENNAI, DATED, THE 28 . 02 .201 7 VM/ - / COPY TO: 1. / APPELLANT , 2 . / RESPONDENT , 3. ( ) / CIT(A) , 4. / CIT , 5. / DR & 6. / GF.