M/s Tata Sponge Iron Ltd, Keonjhar V. DCIT, Bhubaneswar

ITA 494/CTK/2011

• Counselvise Citation: 49422114 RSA 2011
• Duration Of Justice: 1 year(s) 9 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-10-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Next Hearing Date: 03-10-2013
• Assessment Year: 2008-2009
• Appeal Filed On: 08-12-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K AJAY KUMAR
• Keywords: Depreciation; Revised return
• Section: 143(3); 139(5); 154; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, CUTTACK BENCH, CUTTACK BEFORE SHRI P.K.BANSAL(ACCOUNTANT MEMBER) AND SHRI D.T.GARASIA (JUDICIAL MEMBER) I.T.A NO.494/CTK/2011 ASSESSMENT YEAR: 2008 - 09 M/S. TATA SPONGE IRON LTD., BILEIPADA, JODA - 758034 DIST: KEIONJHAR PA NO.AABCT 0230 D VS DCIT, CIRCLE 2(2), BHUBANESWAR APPELLANT RESPONDENT APPELLANT BY: NONE RESPONDENT BY : SHRI K AJAY KUMAR DATE OF HEARING: 04/10/2013 DATE OF PRONOUNCEMENT: 04.10.2013 O R D E R PER D. T. GARASIA, JM THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST ORDER DATED 12.09.2011 OF LD. CIT(A) - II, BHUBANESWAR PERTAINING TO ASSESSMENT YEAR 2008 - 09, IN THE MATTER OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT. 2. WHEN THE MATTER WAS CALLED ON FOR HEARING, THERE WAS NO RE SPONSE FROM THE SIDE OF THE ASSESSEE. HENCE, WE DECIDE THE APPEAL OF THE ASSESSEE EX - PARTE AFTER HEARING LD. DR AND ON THE BASIS OF MATERIAL AVAILABLE ON RECORD. 2 3. THE ASSESSEE HAS TAKEN AS MANY AS 13 GROUNDS BUT THE EFFECT GROUND FOR CONSIDERATION IS GR OUND NO. 1, WHICH IS AS UNDER: 1.THAT LD. CIT(A) HAS ERRED IN STATING THAT THE REVISED RETURN FILED U/S. 139(5) OF THE INCOME TAX ACT, 1961 CANNOT BE CONSIDERED, SINCE THE SAME WAS FILED BEFORE THE COMPLETION OF ASSESSMENT U/S. 143(3), AND IT CANNOT BE RE JECTED ON THE GROUND THAT INTIMATION U/S. 143(1) HAS BEEN PASSED, BECAUSE PROCESSING OF RETURN U/S. 143(1) IS NOT AN ASSESSMENT IN THE LIGHT OF THE JUDGMENT IN CIT VS. OMPRAKAKSH BAGRIA (HUF)(2004) 287 ITR 523 (MP) AND OTHER CASE LAWS AND ALSO BECAUSE THE INTIMATION WAS ISSUED MUCH LATER THAN THE DATE OF THE REVISED RETURN. 4. THE SHORT FACTS OF THE CASE ARE THAT THE ASSESSEE COMPANY IS IN THE BUSINESS OF MANUFACTURING THE SALE OF SPONGE IRON AND ALSO EARNS INCOME FROM SALE OF POWER FROM ITS POWER PLANT UN DERTAKINGS. THE ORIGINAL RETURN OF INCOME WAS FILED ELECTRONICALLY ON 27.09.2009 SHOWING TOTAL INCOME OF RS. 67,22,43,976/ - . THEREFORE, THE REVISED RETURN OF INCOME WAS FILED ELECTRONICALLY ON 12.11.2009 SHOWING THE TOTAL INCOME AT RS. 66,08,44,927/ - . THE AO HAS PROCESSED THE ORIGINAL RETURN U/S. 143(1) ON 15.09.2009. HOWEVER, ASSESSEE RECEIVED INTIMATION ON 09.12.2009. IN RESPONSE TO SAID INTIMATION, ASSESSEE FILED A PETITION UNDER SECTION 154 TO CONSIDER THE REVISED RETURN WHICH WAS FILED ON 12.11.2009. SUBSEQUENTLY, ASSESSEE RECEIVED 2 ND INTIMATION U/S. 143(1) DATED 26.02.2010 AND WHILE GIVING SECOND INTIMATION, REVISED RETURN WAS NOT CONSIDERED. ASSESSEE HAS TAKEN THE CONTENTION THAT THE REVISED RETURN WAS FILED BEFORE ISSUING FIRST INTIMATION. THUS , NON - CONSIDERATION OF REVISED RETURN IN SECOND INTIMATION IS IMPROPER AND INCONSISTENT WITH LAW. AO HAS ALSO ISSUED NOTICED U/S. 143(2) AND ASSESSEE HAD MADE DUE COMPLIANCE AND ALSO PRODUCED BOOKS OF ACCOUNT AND RELEVANT DOCUMENTS. AO HAS CONSIDERED THE ASSESSMENT ORDER BY MAKING VARIOUS DISALLOWANCES IGNORING THE VARIOUS 3 DEDUCTION WHICH WERE MADE IN THE REVISED RETURN. THE FOLLOWING DEDUCTIONS WERE CLAIMED IN THE REVISED RETURN, WHICH ARE AS UNDER: A) EDUCATION CESS ON DIVIDEND TAX RS. 5,33,610/ - B)SURCHARGE ON DIVIDEND TAX RS. 16,17,000/ - C) EDUCATION CESS ON FBT RS. 89,030/ - D) SURCHARGE ON FBT RS. 2,69,789/ - E) EDUCATION CESS ON INCOME TAX RS. 66,07,782/ - F) DEPRECIATION (DIFF IN CLAIM BETWEEN THE REVISED RETURN AND ORIGINAL RETURN I.E. (RS. 44,12,450 ( - ) RS. 43,89,80,612) RS. 22,81,838/ - 5. THE ASSESSEE HAS ALSO FILED APPEAL CLAIMING VARIOUS DEDUCTION IN GROUND NOS. 2,3,4,5, & 6. 6. IN THE FIRST APPEAL, LD. CIT(A) HAS CONFIRMED THE ACTION OF THE ASSESSING OFFICER, INTER ALIA, BY OBSERVING AS UNDER: GROUNDS NO. 1 IS DIRECTED AGAINST AOS NOT CONSIDERING THE REVISED RETURN FILED. I FIND FROM THE STATEMENT OF FACTS THAT THE APPELLANT HAS FILED THE ORIGINAL RETURN OF INCOME ON 27.09.2008. THE RETURN WAS PROCESSED U/S. 143(1) OF THE ACT ON 15.09.2009. SUBSEQUENTLY, A REVISED RETURN WAS FILED ON 12/11/2009. SINCE THE REVISED RETURN WAS FILED AFTER THE ASSESSMENT HAS BEEN MADE, THE AO SEND THE INTIMATION TO THE APPELLANT STATING REVISED RETURN FILED AFTER THE ASSESSMENT, HENCE NOT CONSIDERED. AGAINST THE DECISION OF THE AO, THE APPELLANT HAS FILED AN APPEAL BEFORE LD. CIT(A), CUTTACK ON 23.07.2010 AND THE ISSUE IS SUBJUDICED BEFORE CIT(A), CUTTACK. SINE THE REVISED RETURN WAS FILED AFTER THE ASSESSMENT WA S CONSIDERED. IN ANY CASE THE ISSUE IS BEFORE LD. CIT(A). THEREFORE, THIS GROUND IS DISMISSED. 4 7. HAVING HEARD LD. DR WE ARE OF THE VIEW THAT IS AN ADMITTED FACT ON RECORD THAT ASSESSEE HAS FILED THE ORIGINAL RETURN OF INCOME ELECTRONICALLY ON 27.09.20 08 AND REVISED RETURN OF INCOME WAS FILED ELECTRONICALLY ON 12.11.2009. AO HAS PROCESSED THE INCOME ORIGINAL U/S. 143(1) ON 15.09.2009. WHILE PROCESSING THE ORIGINAL RETURN, AO HAS NOT CONSIDERED THE REVISED RETURN. AO HAS ISSUED SECOND INTIMATION U/S. 1 43(30 ON 25.06.2010 STATING THAT REVISED RETURN IS FILED AFTER THE ASSESSMENT, HENCE NOT CONSIDERED. SUCH INTIMATION WAS RECEIVED ON 25.06.2010. ASSESSEE HAD FILED THE APPEAL BEFORE LD. CIT(A), WHO HAS CONSIDERED THE REVISED RETURN. AO HAS ISSUED NOTICE U/S. 143(1)/142(1) AND MADE ASSESSMENT UNDER SECTION 143(3) OF THE ACT. WHILE FRAMING THE ASSESSMENT ORDER, AO HAS NOT CONSIDERED THE REVISED RETURN. ASSESSEE HAS GONE BEFORE LD. CIT(A) AND LD. CIT(A) HAS SIMPLE DISMISSED THIS GROUND ON THE GROUND THAT A PPEAL FILED BEFORE LD. CIT(A) FOR CONSIDERING REVISED RETURN IS PENDING BEFORE LD. CIT(A). THEREFORE, THE APPEAL WAS DISMISSED ON THIS GROUND. VARIOUS GROUNDS WERE TAKEN BEFORE LD. CIT(A), WHO HAS CONFIRMED VARIOUS DISALLOWANCE FOR WHICH ASSESSEE HAS COM E UP APPEAL BY GROUND NOS. 2 TO GROUND NO. 10 BEFORE US. 8. IN GROUND NO. 1 OF APPEAL, ASSESSEE HAS OBJECTED FOR NOT CONSIDERING THE REVISED RETURN AND FOR THIS, ASSESSEE HAS RELIED UPON THE DECISION OF HONBLE MADHYA PRADESH HIGH COURT IN THE CASE OF OM PRAKASH BAGRIA (HUF)(SUPRA). WE HAVE GONE THROUGH THE DECISION IN THE CASE OF OMPRAKASH BAGRIA (SUPRA), WHEREIN, HONBLE HIGH COURT HAS DISCUSSED THE VARIOUS PROVISIONS OF LAW AND HELD AS UNDER: THAT THE INTIMATION DATED OCTOBER 17, 1994 DID NOT PARTAKE OF THE CHARACTER OF REGULAR ASSESSMENT. SINCE NO ASSESSMENT WAS MADE PURSUANT TO THE ORIGINAL RETURN, THE ASSESSEE COULD FILE A REVISED RETURN UNDER SUB - 5 SECTION (50 OF SECTION 139 OF THE ACT AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RE LEVANT ASSESSMENT YEAR 1994 - 95 I.E. BEFORE MARCH 31, 1995, IT WAS A VALID REVISED RETURN UNDER SUB - SECTION (5) OF SECTION 139 OF THE ACT AND THE ASSESSMENT MADE PURSUANT TO THE SAID REVISED RETURN BY THE AO WAS A VALID ASSESSMENT. 9. IN THE CASE BEFORE U S, WE FIND THAT ASSESSEE HAS FILED THE ORIGINAL RETURN ON 27.09.2008 AND REVISED RETURN ON 12.11.2009, WHICH IS BEFORE THE ASSESSMENT FRAMED BY THE AO ON 30.12.2010. WE ALSO OBSERVE AS PER THE DECISION OF HONBLE M.P. HIGH COURT IN THE CASE OF OMPRAKASH B AGRIA (SUPRA) AND AS PER SUB - SECTION (5) OF SECTION 139 OF THE ACT, ASSESSEE CAN FILE THE REVISED RETURN UNDER THIS SECTION AT ANY TIME BEFORE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT ASSESSMENT YEAR. SECTION 139(5) READS AS UNDER: IF ANY PERSON, HAVING FURNISHED A RETURN UNDER SUB - SECTION(1), OR IN PURSUANCE OF A NOTICE ISSUED UNDER SUB - SECTION(10 OF SECTION 142, DISCOVERS ANY OMISSION OR ANY WRONG STATEMENT THEREIN, HE MAY FURNISH A REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM TH E END OF THE RELEVANT ASSESSMENT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. 10. ON A BARE PERUSAL OF ABOVE SECTION, IT IS OBSERVED THAT ASSESSEE IS REQUIRED TO FILE REVISED RETURN AT ANY TIME BEFORE THE EXPIRY OF ONE YEAR FROM THE END OF THE RELEVANT YEAR OR BEFORE THE COMPLETION OF THE ASSESSMENT, WHICHEVER IS EARLIER. LOOKING TO THIS SECTION, WE FIND THAT ASSESSEE HAS FILED THE REVISED RETURN ON 12.11.2009 AND THE ASSESSMENT HAS BEEN COMPLETED ON 30.12.2010. THEREFORE, REVI SED RETURN HAS TO BE CONSIDERED WHILE MAKING THE ASSESSMENT ORDER U/S. 143(30 OF THE ACT. THEREFORE, RESPECTFULLY FOLLOWING THE DECISION OF HONBLE M.P. HIGH COURT IN THE CASE OF OMPRAKASH BAGRIA (SUPRA) AND ALSO AS PER THE PROVISIONS CONTAINED IN SECTION 139(5), WE REVERSE THE FINDINGS OF LD. CIT(A) IN ALL THE GROUNDS AND RESTORE THIS 6 ISSUE TO THE FILE OF THE AO TO RE - DECIDE THE ISSUE AFTER CONSIDERING THE REVISED RETURN AFTER GIVING DUE OPPORTUNITY OF HEARING TO THE ASSESSEE. 11 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. PRONOUNCED IN THE OPEN COURT ON 4 TH OCTOBER, 2013. SD/ - (P.K.BANSAL ) (ACCOUNTANT MEMBER) (D.T.GARASIA ) (JUDICIAL MEMBER) CUTTACK: DATED 4 /10/2013 PARIDA COPY TO: 1. THE APPELLANT: M/S. TATA SPONE IRON LTD., BILEIPADA, JODA - 758034, DIST: KEONJHAR 2. THE RESPONDENT : DCIT, CIRCLE 2(2), BHUBANESWAR 3. COMMISSIONER OF INCOME TAX (APPEAL), II, BHUBANESWAR 4. COMMISSIO NER OF INCOME TAX, BHUBANESWAR 5. DEPARTMENTAL REPRESENTATIVE, ITAT, CUTT ACK //TRUE COPY// BY ORDER SR. PS, ITAT, CUTTACK