M/s S S Translogistics Pvt Ltd, Nagpur V. C.I.T -II, Nagpur

ITA 218/NAG/2013

• Counselvise Citation: [2015] 134 COUNSELVISE.COM (IT) 1673 (ITAT-NAGPUR)
• Duration Of Justice: 2 year(s) 3 month(s) 8 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-08-2015
• Appeal Filed By: Assessee
• Bench Allotted: DB
• Assessment Year: 2008-2009
• Appeal Filed On: 20-05-2013
• Court: TRIBUNAL
• Department Lawyers: NARENDRA KANE
• Assessee Lawyers: C J THAKAR AW SHRI S C THAKAR
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 143(3); 115JB; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR BENCH, NAGPUR BEFORE SHRI MUKUL K. SHRAWAT, JUDICIAL MEMBER AND SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER ITA NO. 218/NAG./2013 ( ASSESSMENT YEAR : 200809 ) S.S. TRANSLOGISTICS PVT. LTD. 305, HEERA PLAZA CENTRAL AVENUE NEAR TELEPHONE EXCHANGE NAGPUR PAN AAHCS7479K APPELLANT V/S INCOME TAX OFFICER WARD4(4), SARAF CHAMBER SADAR, NAGPUR 440 001 .... RESPONDENT ASSESSEE BY : SHRI C.J. THAKAR A/W SHRI S.C. T HAKAR REVENUE BY : SHRI NARENDRA KANE DATE OF HEARING 04.08.2015 DATE OF ORDER 28.08 .2015 O R D E R PER SHAMIM YAHYA, A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINS T THE IMPUGNED ORDER DATED 22 ND MARCH 2013, PASSED UNDER SECTION 263 OF THE INCOME TAX ACT, 1961 (FOR SHORT 'THE ACT' ) BY THE LEARNED COMMISSIONER OF INCOME TAX-II, NAGPUR, FOR THE ASSES SMENT YEAR 200809, ON THE FOLLOWING REVISED GROUNDS OF APPEAL :- 1. THE ORIGINAL ORDER PASSED BY THE ASSESSING OFFI CER ON 20 TH DECEMBER 2010 UNDER SECTION 143(3) OF THE ACT WAS AFTER DUE INQUIRY AND IT WAS NEITHER ERRONEOUS NOR S.S. TRANSLOGISTICS PVT. LTD. 2 PREJUDICIAL TO THE INTERESTS OF REVENUE AND HENCE, TH E LEARNED CIT HAD NO JURISDICTION UNDER SECTION 263 OF THE ACT TO REVISE THE SAID ORDER. 2. FACTS IN BRIEF : IN THIS CASE, THE LEARNED CIT OBSERVED THAT ON EXAMINATION OF THE RECORDS / RETURN OF INCOME, IT IS S EEN THAT THE ASSESSEE BEING A COMPANY WAS LIABLE TO PAY TAX @ 10% ON BOOK PROFIT UNDER SECTION 115JB OF THE ACT. HOWEVER, THE ASSESSING OFFICER FAILED TO APPLY THE PROVISIONS OF SECTION 115JB OF THE ACT. 3. ACCORDINGLY, THE LEARNED CIT OPINED THAT THE ORDER UN DER SECTION 143(3) DATED 20 TH DECEMBER 2010, PASSED BY THE ASSESSING OFFICER IS FOUND TO BE ERRONEOUS INSOFAR AS IT IS PREJUDICIAL TO THE INTERESTS OF REVENUE. THEREFORE, ON THE BASIS OF ABOVE ISSUE, IT WAS PROPOSED TO TAKE REMEDIAL ACTION UNDER SECTION 263 OF THE ACT FOR UPWARD REVISION OF THE ASSESSMENT. 4. ACCORDINGLY, A NOTICE GIVING AN OPPORTUNITY OF BEING H EARD WAS ISSUED ON 17 TH JANUARY 2013, FIXING THE CASE FOR HEARING ON 30 TH JANUARY 2013. IN RESPONSE TO THE SAID NOTICE, ASSESS EE FILED HIS WRITTEN SUBMISSION ON 14 TH FEBRUARY 2013, AS UNDER: YOU YOURSELF HAS MENTIONED IN THE NOTICE THAT THE A SSESSMENT IN THE CASE OF ASSESSEE FOR THE ABOVE A.Y. WAS FRAM ED UNDER SECTION 143(3) OF THE I.T. ACT, 1961. AS YOUR HONOU R AWARE THAT THE ASSESSMENT UNDER SECTION 143(3) IS FRAMED AFTER THROUGH SCRUTINY OF THE RECORDS. THE QUESTION REGARDING APP LICABILITY OF PROVISION OF SECTION 115JB WAS ORALLY DISCUSSED AT THE TIME OF ASSESSMENT. HOWEVER, BASED ON THE MATERIAL AVAILABL E ON RECORDS THE ASSESSING OFFICER WAS CONVINCED THAT TH E PROVISION S.S. TRANSLOGISTICS PVT. LTD. 3 OF SECTION 115JB OF THE I.T. ACT, 1961, WERE NOT AP PLICABLE IN CASE OF THE ASSESSEE FOR THE ABOVE ASSESSMENT YEAR. THE ASSESSEE IS ENCLOSING HEREWITH WORKING SHOWING CLEA RLY THAT PROVISIONS OF SECTION 115JB FOR THE ABOVE ASSESSMEN T YEAR ARE NOT APPLICABLE IN THE CASE OF THE ASSESSEE. ON PURS UING THE ENCLOSED WORKING YOUR HONOUR WILL BE CONVINCED THAT THE AS IS NOT LIABLE TO PAY TAX ON BOOK PROFIT UNDER SECTION 115JB OF THE I.T. ACT, 1961, FOR THE ABOVE ASSESSMENT YEAR. 5. CONSIDERING THE ABOVE, THE LEARNED CIT HELD AS UNDE R: 5. THE SUBMISSION OF THE ASSESSEE IS NOT ACCEPTABL E. THE TAX ON BOOK PROFIT AS PER PROVISIONS OF SECTION 115JB A RE ATTRACTED, HOWEVER, THE UNABSORBED DEPRECIATION AND CARRY FORW ARD OF BUSINESS LOSS TO BE RECKONED FOR COMPLYING WITH THE SAID PROVISIONS NEEDS VERIFICATION. 6. IN VIEW OF ABOVE, THE ORDER OF THE ASSESSING OFF ICER DATED 20.12.2010, IS SET ASIDE WITH THE DIRECTION TO THE A.O. TO EXAMINE ABOVE ISSUE AS PER THE SPECIFIC PROVISIONS OF THE ACT AND AFTER TAKING INTO ACCOUNT ALL THE OTHER RELEVAN T FACTORS. THE ASSESSMENT IS THUS SET ASIDE ON ABOVE ISSUE TO BE M ADE AFRESH AFTER GIVING PROPER OPPORTUNITY TO THE ASSESSEE OF BEING HEARD . AGAINST THE ABOVE ORDER, THE ASSESSEE IS IN APPEAL B EFORE US. 6. WE HAVE HEARD BOTH THE PARTIES AND HAVE PERUSED THE RECORDS. WE FIND THAT SECTION 263 OF THE ACT POSTULATES REVISION OF ASSESSING OFFICERS ASSESSMENT ORDER BY THE COMMISSIONER OF IN COME TAX, IF THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS SO AS TO BE PREJUDICIAL TO THE INTERESTS OF REVENUE. IN THIS CASE, I T IS UNDISPUTED THAT THE ASSESSEE COMPANY BEING A COMPANY, THE PROVISIO NS OF SECTION 115JB WERE APPLICABLE AS THERE WAS NO TAX PAYABLE UND ER THE NORMAL PROVISIONS OF THE ACT. HOWEVER, THE ASSESSING OFFICE R HAS TOTALLY IGNORED THIS ASPECT. THERE IS NO DISCUSSION WHATSOEVER ON THIS ASPECT IN S.S. TRANSLOGISTICS PVT. LTD. 4 THE ASSESSING OFFICERS ORDER. THE LEARNED COUNSEL F OR THE ASSESSEE CLAIMED THAT THE ISSUE WAS ORALLY DISCUSSED BY THE ASS ESSING OFFICER AND HE HAS AGREED WITH THE ASSESSEE. 7. HOWEVER, WE FIND THAT, FIRSTLY, THERE IS NO EVIDENCE ON RECORD THAT THIS ASPECT WAS CONSIDERED BY THE ASSESSING OFFICER O R THERE WAS ANY APPLICATION OF MIND ON THIS ASPECT BY THE ASSESSING O FFICER. SECONDLY, EVEN IF IT IS CONSIDERED, THEN THE ASSESSING OFFICE RS VIEW IS TOTALLY ERRONEOUS AND CERTAINLY PREJUDICIAL TO THE INTERESTS OF REVENUE. BY NO STRETCH OF IMAGINATION, IT CAN BE SAID THAT THE ASSESSIN G OFFICERS VIEW WAS A POSSIBLE VIEW. HENCE, IN OUR CONSIDERED OPINI ON, THERE IS NO INFIRMITY IN THE ORDER OF THE LEARNED COMMISSIONER IN INVOKING THE JURISDICTION UNDER SECTION 263 OF THE ACT. WE ALSO NOT E THAT THE LEARNED COMMISSIONER, IN HIS ORDER PASSED UNDER SECTION 263, HAS DIRECTED THE ASSESSING OFFICER TO CONSIDER THE TAX ON BOOK PROFIT AS PER THE PROVISIONS OF SECTION 115JB AND ALSO CONSIDER THE U NABSORBED DEPRECIATION AND CARRY FORWARD OF BUSINESS LOSS TO BE RECKONED FOR COMPLYING WITH THE SAID PROVISION AS IS NEEDED VERI FICATION. THE LEARNED COMMISSIONER HAS SET ASIDE THE ISSUE TO BE MADE AFR ESH AFTER GIVING PROPER OPPORTUNITY OF HEARING TO THE ASSESSEE. HENCE, WE HOLD THAT THERE IS NO INFIRMITY IN THE ORDER PASSED BY THE LEARNE D COMMISSIONER WHICH IS HEREBY UPHELD. S.S. TRANSLOGISTICS PVT. LTD. 5 8. IN THE RESULT, ASSESSEES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 28.08.2015 SD/ - MUKUL K. SHRAWAT JUDICIAL MEMBER SD/ - SHAMIM YAHYA ACCOUNTANT MEMBER NAGPUR, DATED: 28.08.2015 COPY OF THE ORDER FORWARDED TO : (1) THE ASSESSEE; (2) THE REVENUE; (3) THE CIT(A); (4) THE CIT, NAGPUR CITY CONCERNED; (5) THE DR, ITAT, NAGPUR; (6) GUARD FILE. TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY A SSISTANT REGISTRAR ITAT, NAGPUR