ACIT, CHENNAI V. M/s. Appaswamy Real Estates Ltd., CHENNAI

ITA 1828/CHNY/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1126 (ITAT-CHENNAI)
• Duration Of Justice: 5 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-03-2013
• Assessment Year: 2011-2012
• Appeal Filed On: 05-10-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S DAS GUPTA IRS
• Assessee Lawyers: S RAMACHANDRA RAO

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI BEFORE DR. O.K.NARAYANAN, VICE-PRESIDENT AND SHRI S.S.GODARA, JUDICIAL MEMBER ITA NOS.1827 & 1828(MDS)/2012 ASSESSMENT YEARS : 2010-11 AND 2011-12 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE IV(2), CHENNAI. VS. M/S.APPASWAMY REAL ESTATES LTD., MANGESH ST., T.NAGAR, CHENNAI -600 017. PAN AACCA8397H. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI S.DAS GUPT A, IRS, JCIT RESPONDENT BY : SHRI S.RAMACHANDRA RAO, C.A. DATE OF HEARING : 18 TH MARCH, 2013 DATE OF PRONOUNCEMENT : 18 TH MARCH, 2013 O R D E R PER DR.O.K.NARAYANAN, VICE PRESIDENT THESE TWO APPEALS ARE FILED BY THE REVENUE. THE RELEVANT ASSESSMENT YEARS ARE 2010-11 AND 2011-12. THE APPEALS ARE DIRECTED AGAINST THE COMMON ORDER PASSE D BY THE COMMISSIONER OF INCOME-TAX(APPEALS)-I AT CHENNAI, D ATED 26-7-2012 AND ARISE OUT OF THE PROCEEDINGS COMPLETE D UNDER SECTION 143(1) OF THE INCOME-TAX ACT, 1961. - - ITA 1827 & 1828 OF 2012 2 2. THE GROUNDS RAISED BY THE REVENUE IN THESE TWO APPEALS ARE COMMON. THEY ARE AS FOLLOWS:- 1. THE ORDER OF THE LEARNED CIT(A) AGAINST THE INTIMATION U/S 143(1) ISSUED BY THE ASSISTANT COMMISSIONER OF INCOME-TAX, CPC, BENGALURU IS WITHOUT JURISDICTION SINCE THERE IS NO ADJUSTMENT T O THE TOTAL INCOME AND THERE IS NO PROVISION TO FILE APPEAL U/S 246A(1)(A) WHEN THERE IS NO ADJUSTMENT TO THE TOTAL INCOME. 2. THE LEARNED CIT(A) HAS FAILED TO CONSIDER THE RATIO OF THE JUDGMENT OF THE HONBLE ITAT C BENCH MUMBAI IN ITA NO.5869/MUM/2007 DATED 23.7.2010 IN THE CASE OF M/S.CLASSIC SHARES & STOCK BROKING SERVICES LTD. VS. ASST. CIT CENTRAL CIRCLE 40, WHER EIN IT IS HELD THAT SURCHARGE HAS TO BE CALCULATED ON THE TAX PAYABLE BEFORE GIVING MAT CREDIT. 3. ANY PROCEEDING OF AN ASSESSING AUTHORITY CREATI NG A LIABILITY AGAINST THE ASSESSEE IS SUBJECT TO APPEAL BEFORE THE - - ITA 1827 & 1828 OF 2012 3 COMMISSIONER OF INCOME-TAX(APPEALS) SO LONG AS THE DEMAND IS CREATED AS PART OF THE ASSESSMENT PROCEEDINGS UNDER ANY OF THE PROVISIONS OF THE INCOME-TAX ACT,1961. THEREFORE, THE LEGAL GROUNDS RAISED BY THE REVENUE DO NOT SURVIVE. 4. NOW, COMING TO THE MERITS OF THE CASE, THE COMMISSIONER OF INCOME-TAX(APPEALS) HAS HELD AS FOL LOWS: I HAVE CONSIDERED THE SUBMISSIONS MADE. THE SURCHARGE AND EDUCATION CESS LEVIES SHOULD BE ON THE TAX PAYABLE BY THE APPELLANT AFTER GIVING EFFEC T 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 O F INCOME-TAX(APPEALS). IN FACT, AN ANALOGOUS CASE, B UT NOT EXACTLY THE SAME, WAS CONSIDERED BY THE INCOME-TAX APPELLAT E TRIBUNAL, COCHIN BENCH IN THE CASE OF SYNTHETIC INDUSTRIAL CH EMICALS LTD. VS. DCIT, 270 ITR (AT) 98. IN THAT CASE THE TRIBU NAL HELD THAT THE MAT CREDIT WAS AVAILABLE TO THE ASSESSEE FROM T HE BEGINNING - - ITA 1827 & 1828 OF 2012 4 OF THE CONCERNED PREVIOUS YEAR ITSELF. THE LAW REL ATING TO SUCH CREDIT AVAILABLE TO AN ASSESSEE IS DISCUSSED IN THE SAID ORDER OF THE TRIBUNAL. THEREFORE, TAX CREDIT UNDER SECTION 115JAA MUST BE FIRST GIVEN CREDIT AND THE LIABILITY SHOULD BE D ETERMINED ONLY THEREAFTER. SURCHARGE AND EDUCATION 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 OF INCOME-TAX( APPEALS). 6. IN RESULT, THESE APPEALS FILED BY THE REVENUE A RE DEVOID OF ANY MERIT AND HENCE THEY ARE DISMISSED. ORDERS PRONOUNCED IN THE OPEN COURT AT THE TIME O F HEARING ON MONDAY, THE 18 TH OF MARCH, 2013 AT CHENNAI. SD/- SD/- (S.S.GODARA) (DR. O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED, THE 18 TH MARCH, 2013. V.A.P. COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR 6. GF.