CARGOTEC INDIA PVT. LTD, MUMBAI V. THE ACIT 15(1) (2), MUMBAI

ITA 256/MUM/2022

• Counselvise Citation: [2022] 107 COUNSELVISE.COM (IT) 0537 (ITAT-MUMBAI)
• Duration Of Justice: 5 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: H
• Assessment Year: 2010-2011
• Appeal Filed On: 09-02-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Depreciation; Principle of natural justice; Unabsorbed depreciation; TDS; FORM 26AS
• Section: 143(3); 244A; 143(1)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH “H”, MUMBAI BEFORE SHRI KULDIP SINGH, JUDICIAL MEMBER AND SHRI GAGAN GOYAL, ACCOUNTANT MEMBER ITA No.256/M/2022 Assessment Year: 2010-11 M/s. Cargotec India Pvt. Ltd., WeWork, 10A117 & 10A126, 10 th Floor, Tower-1, Seawoods Grand Central, Sector 40, Seawoods, Navi Mumbai – 400 706 PAN: AABCH8289A Vs. The Asst. Commissioner of Income Tax-15(1)(2), Aayakar Bhavan, M.K. Road, Mumbai (Appellant) (Respondent) Present for: Assessee by : Shri Ketan K. Ved, A.R. Shri Ninand Patade, A.R. Revenue by : Shri Tejinder Pal Singh, D.R. Date of Hearing : 14 . 07 . 2022 Date of Pronouncement : 04 . 08 . 2022 O R D E R Per : Kuldip Singh, Judicial Member: The appellant, M/s. Cargotec India Pvt. Ltd. (hereinafter referred to as ‘the assessee’) by filing the present appeal, sought to set aside the impugned order dated 17.12.2021 passed by the National Faceless Appeal Centre(NFAC) [Commissioner of Income Tax (Appeals), Delhi] (hereinafter referred to as CIT(A)] qua the assessment year 2010-11 on the grounds inter alia that:- “Natural Justice (1) The order passed by the learned Commissioner (Appeals) is contrary to the provisions of law and has been passed in violation of the principles of natural justice and therefore ought to be quashed. ITA No.256/M/2022 M/s. Cargotec India Pvt. Ltd. 2 Brought forward losses (2) The learned Commissioner (Appeals) erred in not directing the learned Assessing Officer to specifically quantify and specifically allow the carry forward of accumulated losses / unabsorbed depreciation of earlier years for set off in subsequent assessment years. Advance tax in respect of fringe benefit tax (3) The learned Commissioner (Appeals) erred in not taking cognizance of the Ground No. 3 in respect of the advance tax. (4) The learned Commissioner (Appeals) erred in not directing the learned Assessing Officer to grant credit for advance tax of Rs.2,92,490. Tax deducted at source (5) The learned Commissioner (Appeals) erred in not directing the learned Assessing Officer to grant credit for tax deducted at source as claimed by the appellant as per Form 26AS. Interest under section 244A (6) The learned Commissioner (Appeals) erred in not specifically directing the learned Assessing Officer to grant interest under section 244A from the first day of the assessment year till the date of grant of refund. Factual errors (7) The learned Commissioner (Appeals) erred in making certain factual errors in the order, viz. a. In the Table on page 1, the amount against Income/Loss Assessed is mentioned as Rs.7,80,18,784 instead of (Rs.7,80,18,784) b. at para 1 on page 1 and para 2 on page 3, it is mentioned that the appeal is filed against order under section 143(3) instead of section 154” 2. Briefly stated facts necessary for adjudication of the controversy at hand are : the assessee is into the business of manufacturing, trading, servicing, distributing, re-engineering and designing of materializing handling equipment and machinery parts. Assessee has filed the return of income for the year under assessment declaring a business loss of Rs.8,43,87,450/-. 3. The said return was processed under section 143(1) of the Income Tax Act, 1961 (for short ‘the Act’) generating a refund of Rs.42,93,075/- after adjusting demand of earlier years of ITA No.256/M/2022 M/s. Cargotec India Pvt. Ltd. 3 Rs.3,80,285/-, which was credited to the assessee’s account on 22.06.2012. Thereafter, after scrutiny proceedings assessment has been framed under section 143(3) of the Act assessing a total loss of Rs.1,80,78,184/-. 4. Assessee thereafter filed a rectification application for short credit of TDS, which was decided vide order dated 18.01.2016 giving credit for TDS to the tune of Rs.96,72,524/- generating a refund, which was credited into the assessee’s account. Thereafter, assessee again moved an application for rectification that he had received short credit of TDS by Rs.21,592/-. Assessee also claimed to have received short grant of interest under section 244A of the Act to the tune of Rs.15,40,449/-. AO disallowed the interest claimed by the assessee under section 244A of the Act on additional TDS. AO also disallowed the claim of the assessee to quantify/allow the carry forward of accumulated losses/unabsorbed depreciation of earlier years for set off in the subsequent assessment years and thereby dismissed the application. 5. Assessee carried the matter before the Ld. CIT(A) by way of filing appeal challenging the order passed by the AO under section 154 of the Act which has been dismissed. Feeling aggrieved assessee has come up before the Tribunal by way of filing present appeal. 6. We have heard the Ld. Authorised Representatives of the parties to the appeal, perused the orders passed by the Ld. Lower Revenue Authorities and documents available on record in the light of the facts and circumstances of the case and law applicable thereto. ITA No.256/M/2022 M/s. Cargotec India Pvt. Ltd. 4 7. Assessee by filing the present appeal sought four reliefs inter alia that AO has failed to quantify and allow the carry forward of accumulated losses/unabsorbed depreciation of earlier years for set off in the subsequent assessment years; that to direct the AO to grant the credit for advance tax of Rs.2,92,490/- in respect of fringe benefit tax; that not granting the credit for tax deducted at source as per form 26AS by the AO; that interest has not been granted under section 244A of the Act from the first day of assessment year till the date of grant of return and has also sought rectification of factual error. 8. Ld. CIT(A) while disposing of the appeal passed following order. “In the order u/s.154 of the Act dated 06.08.2019 I observe that the A.O has taken into account the objections of the appellant pertaining to TDS, brought forwarded losses and claims of interest u/s.244A. I am in the agreement with the views of the A.O as under: Vide letter dated 11.07.2019 the assessee has once again filed rectification application that it has received short credit of RDS by 21,592/~. However, as per 26AS, the credit is shown only to the tune of Rs. 96,72,5247- and the same has been credited to the assessee's account as per the rectification order passed on 18.01.2016. Besides this, the assessee has a/so requested that it had received short grant of interest u/s.244A to the tune of Rs. 15,40,449/-. In this regard, it is to submit that in the return of income, the assessee has claimed TDS only to the tune of Rs.41,73,047/-. The assessee has not filed any revised return of income for the year under consideration, however, relying on the decisions of Hon'ble Gujarat High Court in the case of Vaghijibhai S Bishonoui vs. ITO JJ(2013) taxman.com 371 has granted addition TDS credit as per 26AS. However, as per the provisions of section 244A of the I.T. Act 'if the proceedings resulting in the refund are delayed for reasons attributable to the assessee, whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable and where any question arises as to the period to be excluded, if shall be decided by the Chief Commissioner or Commissioner whose decision thereon shall be final. Therefore, from the above provisions, the assesses cannot be allowed interest u/s.244A on the additional IDS credited to it. Hence, the assesses's plea /request cannot be accepted and is hereby rejected. Further, vide its letter dated 11.07.2019, the assesses has requested for bifurcation of current year loss. In this regard, it is to submit that the addition made has been ITA No.256/M/2022 M/s. Cargotec India Pvt. Ltd. 5 deducted from the unabsorbed business loss and total current year loss (including depreciation loss) has been reduced to Rs.7,80,18,784/-. The depreciation loss has not been changed, the same is as claimed in your return of income filed for the year under consideration. As regards the first installment of fringe benefit tax paid to the tune of Rs.2,92,490/- it is seen that the FBT return has been processed on 08.02.2010, thereby generating refund of Rs.2,90,630/- which has been credited to the assessee's account. Copy of FBT return processed is enclosed for ready reference. In view of the above facts on record, the issues have been duly considered by the A.O. The appeal is hence not maintainable and accordingly dismissed.” 9. Bare perusal of aforesaid order passed by the Ld. CIT(A) goes to prove that no finding whatsoever by examining the issues raised by the assessee have been returned by the Ld. CIT)(A) but he has simply agreed with the views expressed by the AO qua the grounds raised by the assessee and simply observed that “the issues raised by the assessee have been duly considered by the AO, hence appeal filed by the assessee is not maintainable and accordingly dismissed.” 10. When no findings have been returned by the Ld. CIT(A) qua the grounds raised by the assessee this bench has no option except to remand the case back to the Ld. CIT(A) to decide afresh by passing speaking order in accordance with law by providing an opportunity of being heard to the assessee. Accordingly, appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 04.08.2022. Sd/- Sd/- (GAGAN GOYAL) (KULDIP SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai, Dated: 04.08.2022. * Kishore, Sr. P.S. Copy to: The Appellant The Respondent ITA No.256/M/2022 M/s. Cargotec India Pvt. Ltd. 6 The CIT, Concerned, Mumbai The CIT (A) Concerned, Mumbai The DR Concerned Bench //True Copy// By Order Dy/Asstt. Registrar, ITAT, Mumbai.