DCIT, CHENNAI V. Appaswamy Real Estates Ltd., CHENNAI

ITA 1665/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 96639 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-12-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 08-12-2015
• Assessment Year: 2012-2013
• Appeal Filed On: 20-07-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR MILIND BHUSARI
• Assessee Lawyers: S RAMACHANDRA RAO

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , C B ENCH, CHENNAI . , ! # $ , % & BEFORE SHRI A.MOHAN ALANKAMONY ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER ./ I.T.A.NO.1665/MDS/2015 ( / ASSESSMENT YEAR: 2012-13) THE DEPUTY COMMISSIONER OF INCOME TAX, CENTRAL CIRCLE-I(2), 46, NH ROAD, CHENNAI-34. VS M/S. APPASWAMY REAL ESTATES LTD., 3, MANGESH STREET, T.NAGAR, CHENNAI-600 017. PAN:AACCA8397H ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : DR. MILIND BHUSARI, CIT /RESPONDENT BY : MR.S.RAMACHANDRA RAO, C.A /DATE OF HEARING : 8 TH DECEMBER, 2015 /DATE OF PRONOUNCEMENT : 30 TH DECEMBER, 2015 / O R D E R PER CHALLA NAGENDRA PRASAD, JM: THIS APPEAL IS FILED BY THE REVENUE AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-18, CHE NNAI DATED 26.02.2015 FOR THE ASSESSMENT YEAR 2012-13. THE ONLY ISSUE IN THE APPEAL OF THE REVENUE IS THAT COM MISSIONER OF INCOME TAX (APPEALS) ERRED IN DIRECTING THE ASSE SSING OFFICER TO GIVE CREDIT UNDER SECTION 115JAA OF THE ACT FIRST AND THEREAFTER ONLY TO LEVY SURCHARGE AND EDUCATION CES S ON THE NET TAX LIABILITY. 2. COUNSEL FOR THE ASSESSEE SUBMITS THAT THE ISSUE IN APPEAL IS DECIDED IN FAVOUR OF THE ASSESSEE IN ASSE SSEES 2 ITA NO.1665 /MDS/2015 OWN CASE FOR THE ASSESSMENT YEARS 2010-11 AND 2011- 12 BY THE CO-ORDINATE BENCH IN ITA NO.1827 & 1828/MDS/201 2 DATED 18.03.2013, COPY OF THE ORDER IS PLACED ON R ECORD. COUNSEL SUBMITS THAT THE SAID ORDER OF THE CO-ORDIN ATE BENCH MAY BE FOLLOWED FOR THIS ASSESSMENT YEAR ALSO. 3. DEPARTMENTAL REPRESENTATIVE SUPPORTS THE ORDER O F THE ASSESSING OFFICER. 4. HEARD BOTH SIDES. PERUSED ORDERS OF LOWER AUTHOR ITIES AND THE DECISION RELIED ON. THE ONLY ISSUE TO BE DE CIDED IN THIS CASE IS WHETHER SURCHARGE AND EDUCATION CESS T O BE LEVIED BEFORE ALLOWING CREDIT FOR TAXES PAID UNDER SECTION 115JAA OR AFTER GIVING CREDIT. ON A PERUSAL OF THE CO-ORDINATE BENCH DECISION IN ASSESSEES OWN CASE FOR THE ASSES SMENT YEARS 2010-11 AND 2011-12 IN ITA NOS. 1827 & 1828/MDS/2012 DATED 18 TH MARCH, 2013, WE FIND THAT THIS ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE WH EREIN THE TRIBUNAL HELD AS UNDER:- 4. NOW COMING TO THE MERITS OF THE CASE, THE COMMISSIONER OF INCOME TAX (APPEALS) HAS HELD AS FOLLOWS:- I HAVE CONSIDERED THE SUBMISSIONS MADE. THE SURCHARGE AND EDUCATION CESS LEVIES SHOULD BE ON THE TAX PAYABLE BY THE APPELLANT AFTER GIVING EFFE CT 3 ITA NO.1665 /MDS/2015 TO TAXES U/S.115JAA AND NOT ON THE GROSS TAXES AND THE ASSESSING OFFICER IS ACCORDINGLY DIRECTED FOR BOTH A.YS.2010-11 AND 2011-12. 5. WE AGREE WITH THE FINDING OF THE COMMISSIONER OF INCOME TAX (APPEALS). IN FACT, AN ANALOGOUS CASE, B UT NOT EXACTLY THE SAME, WAS CONSIDERED BY THE ITAT., COCH IN BENCH IN THE CASE OF SYNTHETIC INDUSTRIAL CHEMICALS LTD. VS. DCIT (270 ITR (AT) 98). IN THAT CASE THE TRIBUN AL HELD THAT THE MAT CREDIT WAS AVAILABLE TO THE ASSESSEE F ROM THE BEGINNING OF THE CONCERNED PREVIOUS YEAR ITSELF. T HE LAW RELATING TO SUCH CREDIT AVAILABLE TO AN ASSESSEE IS DISCUSSED IN THE SAID ORDER OF THE TRIBUNAL. THERE FORE, TAX CREDIT UNDER SECTION 115JAA MUST BE FIRST GIVEN C REDIT AND THE LIABILITY SHOULD BE DETERMINED ONLY THEREAFTER. SURCHARGE AND EDUCATION CESS CAN BE LEVIED ONLY ON THAT NET LIABILITY OF TAX PAYABLE BY THE ASSESSEE. WE FI ND NO INFIRMITY IN THE ORDER PASSED BY THE COMMISSIONER O F INCOME TAX (APPEALS). 5. RESPECTFULLY FOLLOWING THE SAID ORDER, WE AFFIRM THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) A ND DISMISS THE GROUNDS RAISED BY THE REVENUE. 6. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSE D. ORDER PRONOUNCED IN THE OPEN COURT ON 30 TH DECEMBER, 2015. SD/- SD/- ( . ) ( ( *+ ) ( A.MOHAN ALANKAMONY ) ( CHALLA NAGENDR A PRASAD ) - / ACCOUNTANT MEMBER * - / JUDICIAL MEMBER * /CHENNAI, / /DATED 30 TH DECEMBER, 2015 SOMU 12 32 /COPY TO: 1. APPELLANT 2.RESPONDENT 3. 4 () /CIT(A) 4. 4 /CIT 5. 2 7 /DR 6. /GF .