Tamil Nadu Cements Corporation Limited, CHENNAI V. ACIT, CHENNAI

ITA 216/CHNY/2015

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86252 (ITAT-CHENNAI)
• Duration Of Justice: 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-02-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2010-2011
• Appeal Filed On: 27-01-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N MADHAVAN
• Assessee Lawyers: DR ANITA SUMANTH
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 115JB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH, CHENNAI .. , !' # , $ %& BEFORE SHRI B.R. BASKARAN, ACCOUNTANT MEMBER AND SHRI CHALLA NAGENDRA PRASAD, JUDICIAL MEMBER S.P. NO. 74/MDS/2015 (IN I.T.A. NO.216/MDS/2015) & I.T.A. NO. 216/MDS/2015 $ ' (' / ASSESSMENT YEAR : 2010-11 M/S TAMIL NADU CEMENTS CORPORATION LIMITED, LLA BUILDING, 735, ANNA SALAI, CHENNAI - 600 002. PAN : AABCT 1819 J V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE III(1), CHENNAI - 600 034. ( PETITIONER & APPELLANT) ( RESPONDENT) PETITIONER/APPELLANT BY : DR. ANITA SUMANTH, A DVOCATE RESPONDENT BY : SHRI N. MADHAVAN, JCIT * + , / DATE OF HEARING : 06.02.2015 -.( + , / DATE OF PRONOUNCEMENT : 06.02.2015 / O R D E R PER B.R. BASKARAN, ACCOUNTANT MEMBER: THE ASSESSEE HAS FILED THE STAY PETITION SEEKING STAY OF OUTSTANDING DEMAND OF ` 5.95 CRORES RAISED UPON IT THROUGH 2 S.P. NO.74/MDS/15 I.T.A. NO. 216/MDS/15 INTIMATION ISSUED UNDER SECTION 143(1) OF THE INCOM E-TAX ACT, 1961 (IN SHORT 'THE ACT') FOR ASSESSMENT YEAR 2010-11. 2. THE LD. COUNSEL APPEARING FOR THE ASSESSEE SUBMI TTED THAT THE ASSESSEE HAD HUGE BROUGHT FORWARD LOSSES AND UN ABSORBED DEPRECIATION AND HENCE IT RETURNED NIL INCOME BOTH UNDER NORMAL PROVISIONS OF THE ACT AS WELL AS SECTION 115JB OF T HE ACT. HOWEVER, WHILE UPLOADING IN THE RETURN OF INCOME ELECTRONICA LLY, THE DETAILS RELATING TO BROUGHT FORWARD LOSSES AND UNABSORBED D EPRECIATION WERE OMITTED TO BE UPLOADED AND HENCE WHILE PROCESS ING RETURN UNDER SECTION 143(1) OF THE ACT, A HUGE DEMAND OF ` 5.95 CRORES HAS BEEN RAISED UPON THE ASSESSEE. 3. THE LD. COUNSEL SUBMITTED THAT THE ASSESSEE IS A STATE GOVERNMENT UNDERTAKING AND THE SAID MISTAKE WAS COM MITTED BY THE STAFF WHO UPLOADED THE RETURN. THE ASSESSEE FI LED THE APPEAL SEEKING RELIEF FROM LD. CIT(APPEALS). HOWEVER, THE FIRST APPELLATE AUTHORITY HAS REJECTED THE APPEAL ON TECHNICAL GROU ND THAT THERE IS NO MISTAKE IN PROCESSING THE RETURN UNDER SECTION 1 43(1) OF THE ACT. THE LD. COUNSEL SUBMITTED THAT THE RETURN OF INCOME WAS NOT TAKEN UP FOR SCRUTINY AND HENCE THE PRESENT INTIMATION HA S REACHED FINALITY. ACCORDINGLY, THE LD. COUNSEL SUBMITTED T HAT THE ASSESSEE WOULD BE PUT INTO GREAT LOSS, IF THE OUTSTANDING DE MAND IS NOT 3 S.P. NO.74/MDS/15 I.T.A. NO. 216/MDS/15 STAYED. ACCORDINGLY, THE LD. COUNSEL PRAYED THAT THE ENTIRE OUTSTANDING DEMAND BE STAYED. 4. ON THE CONTRARY, THE LD. D.R. VEHEMENTLY OPPOSED THE PETITION FILED BY THE ASSESSEE BY STATING THAT THER E IS NO MISTAKE IN THE INTIMATION ISSUED TO THE ASSESSEE UNDER SECTION 143(1) OF THE ACT. 5. WITH THE CONSENT OF BOTH THE PARTIES, THE APPEAL WAS TAKEN UP FOR FINAL DISPOSAL. 6. WE HEARD THE PARTIES AND PERUSED THE RECORD. AS SUBMITTED BY THE LD. COUNSEL, THE IMPUGNED DEMAND HAS ARISEN DUE TO NON- UPLOADING OF DETAILS OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION IN THE ELECTRONIC RETURN FILED BY THE ASSESSEE. OTHERWISE, THERE IS NO DISPUTE WITH REGARD TO THE F ACT THAT THE ASSESSEE IS ENTITLED FOR SET OFF OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION. IT IS FURTHER NOTICED THA T DETAILS RELATING TO THE SAME ARE OMITTED TO BE UPLOADED INADVERTENTLY. UNDER THESE CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ASSESSEE SHOULD NOT BE DENIED THE BENEFIT, WHICH OTHERWISE IT IS ELIGIBLE FOR, ON TECHNICAL REASONS. AT THIS JUNCTURE, WE FEEL THAT IT IS PERT INENT TO REFER TO THE 4 S.P. NO.74/MDS/15 I.T.A. NO. 216/MDS/15 FOLLOWING OBSERVATION MADE BY THE HON'BLE SUPREME C OURT IN THE CASE OF CIT V. SHELLY PRODUCTS AND ANOTHER (261 ITR 367) (SC):- WE CANNOT LOSE SIGHT OF THE FACT THAT THE FAILURE O R INABILITY OF THE REVENUE TO FRAME A FRESH ASSESSMEN T SHOULD NOT PLACE THE ASSESSEE IN A MORE DISADVANTAGEOUS PO SITION THAN IN WHAT HE WOULD HAVE BEEN IF A FRESH ASSESSME NT WAS MADE. IN A CASE WHERE AN ASSESSEE CHOOSES TO DEPOS IT BY WAY OF ABUNDANT CAUTION ADVANCE TAX OR SELF-ASSESSME NT TAX WHICH IS IN EXCESS OF HIS LIABILITY ON THE BASIS OF THE RETURN FURNISHED OR THERE IS ANY ARITHMETICAL ERROR OR INA CCURACY, IT IS OPEN TO HIM TO CLAIM REFUND OF THE EXCESS TAX PAID IN THE COURSE OF THE ASSESSMENT PROCEEDING. HE CAN CERTAI NLY MAKE SUCH A CLAIM ALSO BEFORE THE CONCERNED AUTHORI TY CALCULATING THE REFUND. SIMILARLY, IF HE HAS BY MI STAKE OR INADVERTENCE OR ON ACCOUNT OF IGNORANCE, INCLUDED I N THE INCOME ANY AMOUNT WHICH IS EXEMPTED FROM PAYMENT OF INCOME-TAX, OR IS NOT INCOME WITHIN THE CONTEMPLATIO N OF LAW, HE MAY LIKEWISE BRING THIS TO THE NOTICE OF THE ASS ESSING AUTHORITY, WHICH IF SATISFIED, MAY GRANT HIM RELIEF AND REFUND THE TAX PAID IN EXCESS, IF ANY. SUCH MATTERS CAN BE BROUGHT TO THE NOTICE OF THE CONCERNED AUTHORITY IN A CASE WHEN REFUND IS DUE AND PAYABLE, AND THE AUTHORITY CONCERNED, ON BEING SATISFIED, SHALL GRANT APPROPRI ATE RELIEF. IN CASES GOVERNED BY SECTION 240 OF THE ACT, AN OBLIGA TION IS CAST UPON THE REVENUE TO REFUND THE AMOUNT TO TH E ASSESSEE WITHOUT HIS HAVING TO MAKE ANY CLAIM IN TH AT BEHALF. 5 S.P. NO.74/MDS/15 I.T.A. NO. 216/MDS/15 IN APPROPRIATE CASES THEREFORE, IT IS OPEN TO THE A SSESSEE TO BRING FACTS TO THE NOTICE OF THE CONCERNED AUTHORIT Y ON THE BASIS OF THE RETURN FURNISHED, WHICH MAY HAVE A BEA RING ON THE QUANTUM OF THE REFUND, SUCH AS THOSE THE ASSESS EE COULD HAVE URGED UNDER SECTION 237 OF THE ACT. THE CONCERNE D AUTHORITY, FOR THE LIMITED PURPOSE OF CALCULATING T HE AMOUNT TO BE REFUNDED UNDER SECTION 240 OF THE ACT, MAY TAKE ALL SUCH FACTS INTO CONSIDERATION AND CALCULATE THE AMO UNT TO BE REFUNDED. SO VIEWED, AN ASSESSEE WILL NOT BE PLACE D IN A MORE DISADVANTAGEOUS POSITION THAT WHAT HE WOULD HA VE BEEN, HAD AN ASSESSMENT BEEN MADE IN ACCORDANCE WIT H LAW. EVEN THOUGH THE ABOVE SAID OBSERVATIONS WERE MADE B Y THE HON'BLE SUPREME COURT IN THE CONTEXT OF SECTION 240 OF THE ACT, WE ARE OF THE VIEW THAT THE RATIO OF THE SAID OBSERVATIONS SH ALL APPLY TO THE INSTANT CASE ALSO. ACCORDINGLY, WE ARE OF THE VIEW THAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN REJECTING THE CLA IM OF THE ASSESSEE ON TECHNICAL REASONS. ACCORDINGLY, WE SET ASIDE TH E ORDER OF THE LD. CIT(APPEALS) AND RESTORE THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH A DIRECTION TO EXAMINE THE CLAIM OF SE T OFF OF BROUGHT FORWARD LOSSES AND UNABSORBED DEPRECIATION AND AMEN D THE INTIMATION ISSUED UNDER SECTION 143(1) OF THE ACT A CCORDINGLY. 6 S.P. NO.74/MDS/15 I.T.A. NO. 216/MDS/15 8. IN THE RESULT, THE STAY PETITION FILED BY THE AS SESSEE IS DISMISSED AND THE APPEAL IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AFTER CONCLUSI ON OF HEARING ON THE 6 TH DAY OF FEBRUARY, 2015 AT CHENNAI. SD/- SD/- ( !' # ) ( .. ) (CHALLA NAGENDRA PRASAD) (B.R. BASKARAN) $ /JUDICIAL MEMBER /ACCOUNTANT MEMBER /CHENNAI, ? /DATED, THE 6 TH FEBRUARY, 2015. KRI. @ + #$,AB CB(, /COPY TO: 1. DE /APPELLANT 2. #FDE /RESPONDENT 3. * G, () /CIT(A)-III, CHENNAI-34 4. * G, /CIT, CHENNAI-III, CHENNAI-34 5. BH! #$,$ /DR 6. !I' J /GF.