Asian Peroxides Ltd., CHENNAI V. DCIT Corporate Circle 1(1), CHENNAI

ITA 2538/CHNY/2018

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4575 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-05-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 31-08-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: TDS
• Section: 143(3); 143(1); 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : CHENNAI , , BEFORE SHRI GEORGE MATHAN, JUDICIAL MEMBER AND SHRI INTURI RAMA RAO, ACCOUNTANT MEMBER ./I.T.A. NO.2538/CHNY/2018 ! ' / ASSESSMENT YEAR : 2009-2010. M/S. ASIAN PEROXIDES LTD, NO.44, ISPAHANI BUILDING, ARMENIAN STREET, CHENNAI 600 001. VS. THE DEPUTY COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 1(1) CHENNAI. [PAN AAACA 6213G] ( / APPELLANT) ( /RESPONDENT) # $ % / APPELLANT BY : SHRI. R. VIJAYARAGHAVAN, ADVOCATE &' # $ % /RESPONDENT BY : SHRI. AR.V. SREENIVASAN, JCIT. ( ) $ * /DATE OF HEARING : 17-05-2019 +,'! $ * /DATE OF PRONOUNCEMENT : 23-05-2019 / O R D E R PER INTURI RAMA RAO , ACCOUNTANT MEMBER: THIS IS AN APPEAL FILED BY THE ASSESSEE DIRECTED AG AINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, CHEN NAI (CIT(A) FOR SHORT) DATED 26.06.2018 FOR THE ASSESSMENT YEAR (AY ) 2009-2010. 2. THE ASSESSEE RAISED THE FOLLOWING GROUNDS OF APPEAL : ITA NO.2538-2018 :- 2 -: 1. THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) IS CONTRARY TO LAW, FACTS AND IN THE CIRCUMSTANCES OF THE CASE. 2. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN DISREGARDING THE SUBMISSION OF THE APPELLANT THAT MAT CREDIT IS TO BE CALCULATED UNDER SECTION 115JAA AFTER CONSIDERING THE INCOME TAX PAID INCLUDING SURCHARGE AND EDUCATION CESS. 3. THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN HOLDING THAT RECTIFICATION OF AN INTIMATION UNDE R SECTION 143(1) COULD NOT BE MADE BY THE ASSESSING OFFICER UNDER SECTION 155 4 AS THE ISSUE REGARDING WHETHER MAT CREDIT WAS AVAILABLE ONLY IN RESPECT OF TAX PAID AND COULD NOT BE EXTENDED TO SURCHARGE AND EDUCATION CESS WAS HIGHLY DEBATABLE. 4 THE COMMISSIONER OF INCOME TAX (APPEALS) ERRED IN NOT CONSIDERING THE JUDICIAL PRECEDENT IN THE CA SE K. SRINIVASAN VS CIT (1972) 83 ITR 346 (SC) WHEREIN THE APEX COURT HAS HELD THAT THE TERM 'TAX' INCLUDES SURCHARGE AND EDUCATION CESS. 5. THE APPELLANT SUBMITS THAT THE ITAT CHENNAI IN DCLT VS L.S.MILIS LIMITED IN I. T.A. NO.1918/CHNY /2018 HAS HELD 'HON'BLE APEX COURT IN THE CASE OF CIT VS K. SRINIVASAN 83 ITR 346 HAS CLEARLY HELD THAT INCOME TAX INCLUDED SURCHARGE AND EDUCATIONAL CESS. 6. THE COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE APPRECIATED THAT THE ASSESSEE HAD RELIED ON THE ITR - 6 FOMAT TO ARRIVE AT THE TOTAL LIABILI TY AS WELL AS THE MAT CREDIT CALCULATIONS AND PAID TAX ACCORDINGLY. 7. THE APPELLANT SUBMIT THAT THE ITAT HYD IN VIRTUS A (INDIA) PRIVATE LIMITED VS DCIT ITA NO. 146/HYD/ 2015 HAS HELD 'ASSESSING OFFICER CANNOT OVERLOOK THESE FORMATS AND (INTERPRE IT IN HIS OWN METHOD OF CALCULATING TAX CREDIT WHILE MAKING ASSESSMENT U/S 143 OF THE ACT.) PROCEED TO CALCULATE THE MAT CREDIT TO COMPUTE ASSESSMENT U/S 143 (1) APPLYING DIFFERENT METHODS WHEN THE ITA NO.2538-2018 :- 3 -: PROPER AND CORRECT METHOD AS PROPOSED BY CBDT IN ITR- THE ASSESSING OFFICER IS EXPECTED TO FOLLOW THE ITR-6 FORMAT TO COMPLETE THE ASSESSMENT U/S 143(1) OR 143(3) OF THE ACT. 8. THE APPELLANT CRAVES LEAVE TO ADDUCE ADDITIONAL GROUNDS AT THE HEARING. 3. THE BRIEF FACTS OF THE CASE ARE AS UNDER: THE APPELLANT NAMELY M/S. ASIAN PEROXIDES LTD. IS A COMPANY INCORPORATED UNDER THE PROVISIONS OF THE COMPANIES ACT, 1956. THE RETURN OF INCOME FOR THE AY 2009-10 WAS FILED ON 24 .09.2009 DISCLOSING TOTAL INCOME OF RS.11,71,43,560/- AGAINST THE SAID RETURN OF INCOME, INTIMATION U/S.143(1) OF THE INCOME TAX ACT,1961 ( IN SHORT THE ACT) WAS PASSED ON 16.10.2014 WHEREIN MAT CREDIT AVAILAB LE U/S.115JAA OF THE ACT WAS NOT GRANTED TO THE APPELLANT COMPANY. BEING AGGRIEVED, ASSESSEE MOVED PETITION U/S.154 OF THE ACT. BASE D ON THIS PETITION, ASSESSING OFFICER HAD RECTIFIED THE INTIMATION VIDE ORDER DATED 22.09.2015 PASSED U/S.154 OF THE ACT GRANTING MAT C REDIT TO THE ASSESSEE, AFTER RECEIPT OF THE ORDER U/S. 154 OF TH E ACT, ASSESSEE MOVED ANOTHER PETITION DATED 20.09.2017 STATING THA T MAT CREDIT INCLUDING SURCHARGE AND EDUCATION CESS, WAS NOT GRA NTED. HOWEVER, ASSESSING OFFICER VIDE ORDER DATED 06.11.2017 REJE CTED THE PETITION PLACING RELIANCE ON THE DECISION OF DELHI BENCH OF THE TRIBUNAL IN THE ITA NO.2538-2018 :- 4 -: CASE OF RICHA GLOBAL EXPORTS (P) LTD VS. ACIT, IN I TA NO.2303/DEL/2012. 4. B EING AGGRIEVED, AN APPEAL WAS PREFERRED BEFORE THE LD.CIT(A) WHO VIDE IMPUGNED ORDER PARTLY ALLOWED T HE RELIEF BY DIRECTING THE LD. ASSESSING OFFICER TO CALCULATE I NTEREST U/S.234B AND 234C OF THE ACT AFTER GRANTING MAT CREDIT INCLUDIN G SURCHARGE AND EDUCATIONAL CESS. 5. BEING AGGRIEVED BY THIS ORDER, ASSESSEE IS IN APPEA L BEFORE US CONTENDING THAT MAT CREDIT IS NOT CALCULATED BY INCLUDING SURCHARGE AND EDUCATIONAL CESS.AND THE MAT CREDIT SHOULD BE A S PER THE FORMAT RETURN OF INCOME IN ITR FORM NO.6. 6. ON THE OTHER HAND, THE LD. SR. DEPARTMENTAL REPRESE NTATIVE PLACED RELIANCE ON THE ORDERS OF LOWER AUTHORITIES. 7. WE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATE RIAL ON RECORD. FROM THE PERUSAL OF THE MATERIAL ON RECORD, IT IS CLEAR THAT LD. ASSESSING OFFICER HAD GIVEN THE SAME AMOUNT OF MAT CREDIT AS CLAIMED BY THE ASSESSEE. DIFFERENCE IN DEMAND HAD ARISEN ON LY ON ACCOUNT OF SETTING OFF MAT CREDIT OF INTEREST U/S.234B AND 2 34C OF THE ACT. THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. TULSYAN NEC LTD, 330 ITR 226 HAD LAID DOWN THE PROPOSITION THAT MAT CREDIT SHO ULD BE ITA NO.2538-2018 :- 5 -: GIVEN IN THE SAME MANNER AS ADVANCE TAXES PAID, S ELF ASSESSMENT TAXES PAID OR TDS PAID AND ALSO FURTHER RELIED THA T FORM ITR 6 CANNOT OVERRIDE THE PROVISIONS OF INCOME TAX ACT AND THE M ANNER OF CHARGING INTEREST. THE DECISION OF LD. COMMISSIONER OF INCO ME TAX (APPEALS) IS IN CONSONANCE WITH THE LAW LAID DOWN BY THE HONBL E SUPREME COURT IN THE CASE OF TULSYAN NEC LTD (SUPRA ). WE THEREFORE DO NOT FIND ANY MERITS IN THE APPEAL FILED BY THE ASSESSEE. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED ON 23RD DAY OF MAY, 2019, AT CHEN NAI. SD/- SD/- ( ) (GEORGE MATHAN) /JUDICIAL MEMBER ( ) (INTURI RAMA RAO) /ACCOUNTANT MEMBER -) / CHENNAI . / DATED: 23RD MAY, 2019. KV /0 $0& *12032'* / COPY TO: 0 1 . # / APPELLANT 3. 0 ( 4*056 / CIT(A) 5. 278 0& * 9 / DR 2. &' # / RESPONDENT 4. 0 ( 4* / CIT 6. 8:0;) / GF