BSES Yamuna Power Ltd, New Delhi V. DCIT Circle-3 (1), New Delhi

ITA 2914/DEL/2008

• Counselvise Citation: [2009] 115 COUNSELVISE.COM (IT) 1327 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 1 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-10-2009
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 05-10-2009
• Assessment Year: 2003-2004
• Appeal Filed On: 12-09-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: PRATIMA KAUSHIK
• Assessee Lawyers: S K AGARWAL CAS
• Keywords: Depreciation; Revised return; Capital expenditure
• Section: 143(3); 72(1); 139(1); 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A : NEW DELHI BEFORE SHRI I.P.BANSAL, JM AND SHRI R.C.SHARMA, AM ITA NO.2912/DEL/2008 ASSESSMENT YEAR : 2003-04 M/S BSES YAMUNA POWER LIMITED, SHAKTI KIRAN BUILDING, KARKARDOOMA, DELHI. PAN NO.AABCC8569N. VS. DY.COMMISSIONER OF INCOME TAX, CIRCLE-3(1), NEW DELHI. (APPELLANT) (RESPONDENT) ITA NO.2914/DEL/2008 ASSESSMENT YEAR : 2003-04 M/S BSES RAJDHANI POWER LIMITED, BSES BHAWAN, NEHRU PLACE, NEW DELHI 110 019. PAN NO.AAGCS3187H. VS. DY.COMMISSIONER OF INCOME TAX, CIRCLE-3(1), NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI SUMANT CHADHA AND SHRI S.K. AGARWAL, CAS. RESPONDENT BY : MS.PRATIMA KAUSHIK, SR.DR. ORDER PER R.C.SHARMA, AM : THESE ARE THE APPEALS FILED BY THE ASSESSEES AGAIN ST THE ORDER OF CIT(A) DATED 18.12.2007 FOR AY 2003-04. 2. IN BOTH THESE APPEALS, THE ASSESSEE IS AGGRIEVED BY THE ACTION OF CIT(A) FOR NOT ALLOWING ADDITIONAL CLAIM OF EXPENDITURE ON REP AIR AND MAINTENANCE AND DEPRECIATION ON CAPITAL EXPENDITURE. FACTS IN BRIE F ARE THAT THE ASSESSEE COMPANY IS INTO THE BUSINESS OF DISTRIBUTION OF ELECTRICITY. RETURN OF INCOME IN CASE OF BOTH THE ASSESSEES WERE FILED AT A LOSS AND IT WAS FINAL LY ASSESSED U/S 143(3) AT A LOSS. IT ITA-2912 & 2914/D/2008 2 WAS CONTENTION OF THE LEARNED AR THAT DURING THE CO URSE OF ASSESSMENT PROCEEDINGS, ADDITIONAL CLAIM OF EXPENDITURE ON ACC OUNT OF REPAIRS AND MAINTENANCE AND DEPRECIATION ON CAPITAL EXPENDITURE WAS AGITATED BEFORE THE AO BUT THE SAME WAS DECLINED ON THE PLEA THAT ASSESSEE HAS NOT FILED THE CLAIM THROUGH REVISED RETURN. FROM THE ORDER OF THE AO, WE DO NO T FIND ANY MENTION OF EXPENDITURE HAVING BEEN CLAIMED DURING THE COURSE O F SCRUTINY ASSESSMENT AND WHICH HAS BEEN DECLINED. FROM THE ORDER OF CIT(A), IT APPEARS THAT DEDUCTION OF ADDITIONAL EXPENDITURE WAS DECLINED ON THE PLEA THA T SUCH CLAIM OF ADDITIONAL EXPENDITURE WAS FILED AFTER EXPIRY OF ABOUT THREE Y EARS PERIOD FROM THE ENDING OF THE RELEVANT PREVIOUS YEAR WHICH, AS PER THE CIT(A) , CANNOT BE CALLED EITHER AS A CLAIM THROUGH REVISION OF RETURN OR THROUGH REVISIO N OF COMPUTATION. LEARNED CIT(A) ALSO REFERRED TO PROVISIONS OF SECTION 139(5 ) ACCORDING TO WHICH ANY PERSON HAVING FURNISHED RETURN U/S 139(1) DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YE AR OR BEFORE THE COMPLETION OF THE ASSESSMENT WHICHEVER IS EARLIER. SINCE THE PER IOD OF REVISION WAS EXPIRED, THE ASSESSEE WAS DEBARRED FROM REVISING THE RETURN. AC CORDINGLY, CIT(A) DISMISSED THE ASSESSEES APPEAL FOR ALLOWING ADDITIONAL CLAIM FOR EXPENSES AND DEPRECIATION ON CAPITAL EXPENDITURE. AGGRIEVED BY THE SAME, BOT H THE ASSESSEES ARE IN FURTHER APPEAL BEFORE US. LEARNED COUNSEL FOR THE ASSESSEE SHRI SUMANT CHADHA ARGUED THAT ASSESSEES CLAIM FOR ADDITIONAL EXPENDITURE MA DE DURING THE COURSE OF ASSESSMENT PROCEEDINGS WAS DECLINED BY THE AO FOLLO WING THE JUDGMENT OF GOETZE (INDIA) LTD. 284 ITR 323 WHEREIN IT WAS HELD THAT CLAIM CAN BE MADE BY REVISING THE RETURN AND NOT THROUGH REVISED COMPUTATION. HE CONTENDED THAT THE PROPOSITION LAID DOWN BY HON'BLE SUPREME COURT LIMITS THE POWER OF THE AO AND DOES NOT IMPEACH THE POWER OF THE INCOME TAX APPELLATE TRIBU NAL U/S 254 OF THE IT ACT. HE ALSO RELIED ON THE DECISION OF BOMBAY BENCH IN T HE CASE OF CHICAGO PNEUMATICS LIMITED 15 SOT 252 WHEREIN AFTER CONSI DERING THE FACTS OF GOETZE (INDIA) LTD., IT WAS HELD THAT CIT(A) HAVING CO-TER MINUS POWERS OF THE AO AND THE FACT THAT THE APPELLATE PROCEEDINGS ARE THE CONTINU ATION OF THE ORIGINAL PROCEEDINGS, ITA-2912 & 2914/D/2008 3 THE CIT(A) SHOULD HAVE ENTERTAINED THE CLAIM OF THE ASSESSEE AND ALLOWED THE SAME IF OTHER PROVISIONS OF LAW ARE SATISFIED. REFERENC E WAS ALSO MADE OF COCHIN BENCH OF ITAT IN THE CASE OF THOMAS KURIAN 108 TTJ 439. IN VIEW OF THESE DECISIONS, CONTENTION OF LEARNED AR WAS THAT TRIBUNAL HAVING P OWER TO ENTERTAIN THE CLAIM MADE DURING ASSESSMENT PROCEEDINGS, MATTER SHOULD B E RESTORED BACK TO THE FILE OF THE AO FOR DECIDING THE SAME ON MERITS. 3. ON THE OTHER HAND, LEARNED DR SUBMITTED THAT SIN CE ASSESSEE HAS NOT REVISED ITS CLAIM OF ADDITIONAL EXPENDITURE BY FILING REVIS ED RETURN U/S 139(5), THE SAME CANNOT BE ENTERTAINED AT THIS LEVEL. SHE FURTHER R ELIED ON THE FINDINGS RECORDED BY THE LOWER AUTHORITIES IN THEIR RESPECTIVE ORDERS. 4. WE HAVE CONSIDERED THE RIVAL CONTENTIONS, CAREFU LLY GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AND THE PROPOSITION OF LAW LAID DOWN IN THE JUDICIAL PRONOUNCEMENTS CITED BEFORE US. THERE IS NO DISPUT E TO THE FACT THAT IN BOTH THE YEARS, THE RETURN OF INCOME WAS FILED AT A LOSS, IF THE ASSESSEES CLAIM FOR ADDITIONAL EXPENDITURE IS BEING ACCEPTED AT THIS LEVEL, IT AMO UNTS TO ENHANCEMENT OF THE RETURNED LOSS. AS PER PROVISIONS OF SECTION 80, NO LOSS WHICH HAS NOT BEEN DETERMINED IN PURSUANCE OF THE RETURN FILED U/S 139 (3) SHALL BE ALLOWED TO BE CARRIED FORWARD AND SET OFF U/S 72(1) OR 73(2) OR 7 4(3) OR 74A(3). AS PER PROVISIONS OF SECTION 139(3), IF ANY PERSON WHO HAS SUSTAINED A LOSS IN ANY PREVIOUS YEAR UNDER THE HEAD PROFITS AND GAINS OF B USINESS OR PROFESSION AND CLAIMS THAT LOSS OR ANY PART THEREOF SHOULD BE CARR IED FORWARD, HE MAY FURNISH WITHIN THE TIME ALLOWED UNDER SUB-SECTION (1) OF SE CTION 139, A RETURN OF LOSS IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND CONTAINING SUCH PARTICULARS AS MAY BE PRESCRIBED AND ALL THE PROVIS IONS OF THIS ACT SHALL APPLY AS IF IT WERE A RETURN U/S 139(1). IT IS CRYSTAL CLEAR F ROM THE PLAIN READING OF SECTION 80 READ WITH SECTION 139(3) THAT FOR CLAIMING ANY LOSS TO BE SET OFF OR CARRIED FORWARD, THE ASSESSEE MUST HAVE FILED ITS RETURN OF LOSS WIT HIN THE PERIOD PRESCRIBED U/S 139(1). IT HAS BEEN CLEARLY PROVIDED IN SECTION 80 THAT NO LOSS WHICH HAS NOT BEEN ITA-2912 & 2914/D/2008 4 DETERMINED IN PURSUANCE OF THE RETURN FILED U/S 139 (3) SHALL BE ALLOWED TO BE SET OFF AND CARRIED FORWARD. THE WORD DETERMINED AS USED IN SECTION 80 CLEARLY SPEAKS OF THE FIGURE OF LOSS WHICH IS IN PURSUANCE OF THE RETURN FILED U/S 139(3). IN THE INSTANT CASE WITHOUT DETERMINING THE LOSS AS PER RE TURN FILED U/S 139(1) OR REVISED RETURN U/S 139(5), THE ASSESSEE WANTS US TO ALLOW C LAIM OF HIGHER LOSS RESULTING FROM ADDITIONAL CLAIM OF EXPENDITURE, WHICH IS NOT PERMISSIBLE AS PER LAW. ACCORDINGLY, KEEPING IN VIEW THE PROVISIONS OF SECT ION 80 READ WITH SECTION 139(3) AND 139(5), WE DO NOT FIND ANY JUSTIFICATION FOR ALLOWING ASSESSEES CLAIM FOR HIGHER LOSS AT THIS JUNCTURE. HERE IT IS NOT T HE QUESTION OF ENTERTAINING CLAIM OF ADDITIONAL EXPENDITURE WHICH MAY RESULT INTO REDUCT ION IN ASSESSEES INCOME BUT THE MOOT QUESTION PERTAINS TO ALLOWING ADDITIONAL E XPENDITURE WHICH RESULTS INTO HIGHER LOSS TO BE SET OFF AND CARRIED FORWARD WITHO UT DETERMINING SUCH HIGHER LOSS AS PER THE PROVISIONS OF SECTION 80 OF THE IT ACT. SINCE THE LOSS ATTRIBUTABLE TO SUCH ADDITIONAL EXPENDITURE HAS NOT BEEN DETERMINED IN PURSUANCE OF RETURN FILED U/S 139(3), WE DO NOT SEE ANY JUSTIFICATION IN ALLO WING ASSESSEES CLAIM OF ADDITIONAL EXPENDITURE AND DEPRECIATION ON CAPITAL EXPENDITURE. 5. IN THE RESULT, BOTH THE APPEALS OF THE ASSESSEE ARE DISMISSED. DECISION PRONOUNCED IN THE OPEN COURT ON 16 TH OCTOBER, 2009. SD/- SD/- (I.P.BANSAL) (R.C.SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 16.10.2009. VK. COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR ITA-2912 & 2914/D/2008 5