Appeal details
Counselvise Citation
[2022] 107 COUNSELVISE.COM (IT) 0965 (ITAT-BANGALORE)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 month(s) 16 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
01-09-2022
Appeal Filed By
Assessee
Order Result
Dismissed
Bench Allotted
A
Assessment Year
2020-2021
Appeal Filed On
16-06-2022
Judgement Text
ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore IN THE INCOME TAX APPELLATE TRIBUNAL “A’’ BENCH: BANGALORE BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SMT. BEENA PILLAI, JUDICIAL MEMBER ITA Nos.513 & 526/Bang/2022 Assessment Year: 2019-2020 & 2020-2021 M/s. GMR Energy Limited No.25/1, Skip House, Museum Road Bangalore 560 025. PAN NO : AAACT8420A Vs. ADIT, CPC Bangalore APPELLANT RESPONDENT Appellant by : Shri Jagdish K. Jogi, A.R. Respondent by : Shri Sumer Singh Meena, D.R. Date of Hearing : 03.08.2022 Date of Pronouncement : 02.09.2022 O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER: These appeals filed by the assessee are directed against different orders of CIT(A)-11, Bangalore for the assessment years 2019-20 & 2020-21 dated 22.4.2022 and 11.5.2022 respectively. Both these appeals belong to same assessee. These are clubbed, heard together and disposed of by this common order for the sake of convenience. ITA Nos.513 & 526/Bang/2022 for the A.Ys 2019-20 & 2020-21:- 2. We consider the facts in assessment year 2019-20 as the facts are similar in nature. The first common issue in these appeals are ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 2 of 22 with regard to non-allowing deduction towards expenditure disallowed in previous year of Rs.21,24,36,180/-. 3. Facts of the issue are that the assessee filed return of income declaring a loss of Rs.70,89,74,367/-. The return of income was processed by the CPC and the total loss of the assessee was accepted as declared by CPC while processing the return of income u/s 143(1) of the Act vide intimation dated 28.4.2020. The claim of the assessee that an amount of Rs.21,24,36,180/- towards unamortized amount of processing charges and other expenses debited to the P&L account disallowed while completing the assessment of previous assessment years and held to be amortized and allowed as deduction over the tenure of loan period. However, Ld. CIT(A) observed that while processing the return u/s 143(1) of the Income-tax Act,1961 ['the Act' for short], assessee declared income which has been accepted by the department. Further, the assessment u/s 143(1)(a) of the Act is to be limited to the arithmetical errors are certain disallowance, which need to be made or certain additions which need to be made to the declared income. It does not refer to any relief to be allowed to the assessee, which the assessee has not claimed in the return of income. The option available to the assessee in this regard is to file a revised return of income and to claim the same. However, in the present case, assessee has not filed the revised return of income. Hence, it is not open to the assessee to seek such claim by way of appeal before the Ld. CIT(A). Accordingly, he dismissed the ground raised by the assessee on this issue. Against this assessee is in appeal before us. 3.1 The Ld. A.R. submitted that the assessment for Assessment Year 2013-14 and 2018-19, was completed by the Assessing Officer, wherein it has held that deduction for loan processing charges and other expenses shall be allowed over the tenure of loan and not in ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 3 of 22 the year of incurring of same as was claimed in the return of income by the assessee. 3.2 Ld. A.R. submitted that the treatment of allowing the processing fees over the tenure of loan given by the Assessing Officer has been upheld by the Ld. CIT(A) in AY 2013-14 and further by the Tribunal in a consolidated order passed for AY 2009-10 to 2013-14. 3.3 Based on treatment given in regard to allowing the claim towards loan processing fees over the tenure of loan in completing the assessment for earlier years and such decision upheld in appeal by the Ld. CIT(A) and further by the Bangalore bench of Tribunal, an amount of Rs.21,24,36,180/-, out of expenses incurred in AY 2013-14 and 2018-19, is to be allowed as deduction for Assessment Year 2019-20 as the assessee company has not claimed the amount of Rs.21,86,56,068/- as deduction in the income tax return filed for AY 2019-20 as it has claimed the entire amount in AY 2013-14, and 2018-19 but the same was disallowed by the Assessing Officer while completing the assessment for said assessment years in view of litigating the issue before ld. CIT(A) and further to Tribunal, which finally upheld the view taken by the Assessing Officer in allowing deduction towards loan processing fees to be amortized over the tenure of loan. 3.4 Ld. A.R. referred relevant para from Tribunal’s Order in ITA No.1638 & 1661 to 1664/Bang/2017 dated 23.10.2019 for the AY 2013-14 (para 14, page no. 25 of ITAT order), which is reproduced as under: "Further on perusal of the decision of the Hon'ble Supreme Court in the case of Taparia Tools Ltd. Vs. JCIT (supra) the assessee company has issued debentures for five years and made one time upfront discounted interest payment instead of periodical interest ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 4 of 22 payment and claimed deduction in the year of payment. But whereas in the present case, the assessee company has claimed the amortization fees paid to Axis Bank for structuring processing and advisory fees which is different from interest payment and distinguishable and accordingly, the decision of Taparia Tools Ltd. Vs. JCIT (supra) is not applicable to assessee, therefore we considering the provisions and judicial decisions and the findings of the learned CIT (Appeals) are of the opinion that the expenses claimed by the assessee as fees cannot be equated to interest payment on debentures. Further we find the learned CIT (Appeals) considered the submissions of both the parties, provisions of law and also tenure of the debentures and upheld the Amortisation of amount over the tenure which we are inclined to interfere and CIT(Appeals) has passed a reasonable, logical order on the ground of appeal and upheld the same and dismiss the ground of appeal of assessee." 3.5 Ld. A.R. submitted that consistent with the view taken by the Assessing Officer and finally upheld by the Tribunal, the assessee should be allowed deduction for an amount of Rs.21,24,36,180/- in AY 2019-20 as per stand taken by him for the assessment year under consideration, which was not claimed while filing the return since the same was litigated and got finality after Tribunal’s order. 3.6 Ld. A.R. further submitted that the Ld CIT(A)-11, Bangalore in the appeal filed has dismissed the appeal of the assessee. The relevant para 5.2 and 5.3 of the Ld. CIT(A) order (page no. 11 of CIT(A) order) of AY 2019-20 are as under: "5.2 The submissions of the appellant have duly been considered. In this regard it is important to look into the scope of adjustment which can be carried out by the AO while processing a return of income under Section 143(1) of the Act. The same is limited by the provisions of Section 143(1)(a) of the Act. The same refers to arithmetical errors or certain disallowances which need to be made or certain additions which need to be made to the declared income. It doesn't refer to any relief to be allowed to the assessee which the assessee has not claimed in its return of income. For this the option available to the assessee is filing a revised return of income. In the case under consideration no such revised return ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 5 of 22 of income had been filed by the appellant. It is not an issue of arithmetical error also. So the AO cannot be faulted for not allowing the deduction, as being claimed by the appellant now. 5.3 Considering above, the ground of appeal I as raised by the appellant is dismissed." 3.7 The Ld. A.R. for the assessee placed reliance in support of aforesaid claim on the following Judicial Precedents: S N Particulars LPB Page No. Para No. Page No. I Amortisation of loan processing fees as per stand taken by the Assessing Officer to be allowed over the tenure of the loan period is legal issue can be raised before Assessing Officer / 1. National Thermal Power Co.Ltd. Vs. C.I.T. (229 ITR 383) (SC) 1-4 Held 1 2. Jute Corpn. of India Ltd. v. CIT [1990] 53 Taxman 85 (SC) 5-10 Held 5 — 6 3. C.I.T. Vs. Prabhu Steel Industries Pvt. Ltd. (171 ITR 530) (Born.) 11-12 Held 11 4. Steel Ingots (P.) Ltd. Vs. C.I.T. (86 Taxman 440) (MP) 13-14 Held 13 5. C.I.T. Vs. Bhopal Sugar Industries Ltd. (233 ITR 429) (MP) 15-16 Held 15 6. C.I.T. Vs. Motor Industries Co. Ltd. (229 ITR 137) (Karn.) 17-28 Held 17 II Income of an assessee to be computed as per the provisions of IT law and deduction / relief not claimed should be allowed if the same is permissible in law: . 7. CBDT Circular No. 14(XL-35), dated 11-4-1955 29-31 29-31 8. Kerala High Court in the case of Raghavan Nair v. Asstt. CIT [2018] (402 ITR 400) 32-36 10 35 9. Parekh Bros. vs CIT (150 ITR 105) / (15 Taxman 539) (Kerala High Court) 37-46 Held 37- 38 10. ITAT Chennai Bench in the case of Perlos Telecommunication & Electronic Components India (P) Ltd. v. Asst. CIT (IT Appeal No.1037 (Mad.) of 2013, dated 18.11.2013) 47-59 8 59 ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 6 of 22 11. ITAT Chennai Bench in the case of ITO v. Sri Balaji Sago & Starch Products [2012] 19 taxmann.com 313/53 SOT 15 60-64 20 & 21 64 12. Punjab & Haryana High Court in the case of CIT v. Ramco International [2009] 180 Taxman 584/[2011] (332 ITR 306) 65-66 Headnote 65 13. Delhi High Court in DIT (Exemption) v. Ajay G. Piramal Foundation [2014] 52 taxmann.com 226/[2015] 228 Taxman 332 67-73 8,9 & 11 68 14. CIT v. Pruthvi Brokers & Shareholders [2012] 208 Taxman 498/23 taxmann.com 23 (Born.) 74-82 Held 75 15. ITAT Mumbai Bench in Chicago Pneumatic India Ltd. v. Dy. CIT [2007] 15 SOT 252 83-95 Head note 83 16. ITAT Kolkata Bench in the case of Gifford & Partners Ltd. v. Dy. Director of International Taxation [2016] 68 taxmann.com 142 96-139 28 & 29 112 & 113 17. Allahabad High Court in the case of Universal Subscription Agency (P.) Ltd. v. Jt. CIT [2007] 159 Taxman 64 140-148 34 & 35 140 & 141 18. Rakesh Singh vs ACIT (26 taxmann.com 240) (Bangalore Tribunal) 149-156 10 - 10.2 152 & 153 19. Sri Lakhan Sing vs ACIT in ITA No.1025/Bang/2011 (Bangalore Tribunal) 157-171 10 - 10.2 160 & 162 20. DCIT vs Sobha Developers (58 taxmann.com 107) (Bangalore Tribunal) 172-186 28 182- 183 21. CIT vs Bharat Aluminium Ltd (163 Taxman 430) (Delhi High Court) 187-192 Headnote 187 22. Thomas Kurian vs ACIT (106 ITD 158) (Cochin Tribunal) 193-197 Headnote 193 23. Xerox India Ltd vs DCIT New Delhi (ITA No.1580/Del/2010) (URO) (Delhi Tribunal) 198-204 Last para 203 & 204 24. GMR Vemagiri Power Generation Ltd vs DCIT (ITA No.3082/Mum/2013) (Mumbai Tribunal) 205-210 5 208 & 209 ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 7 of 22 25. CIT vs Mitesh Impex (46 taxmann.com 30) (Gujarat High Court) 211-222 20 217 & 218 26. Franco-Indian Pharmaceuticals (P.) Ltd. vs ITO (195 TAXMAN 30) (Mum.) (MAG) 22'3-225 Held 223 27. Smt. Raj Rani Gulati vs CIT (33 taxmann.com 670) (Allahabad High Court) 226-230 Held 226 28. Balmukund Acharya vs DCIT (176 Taxman 316) (Bombay High Court) 231-237 33 237 29. S R Koshti vs CIT (146 TAXMAN 335) (Gujarat High Court) 238-243 Headnote 18 238 242 30. CIT vs Jai Parabolic Springs Ltd (172 Taxman 258) (Delhi High Court) 244-246 19 246 31 CIT Vs .Shelly Products (129 Taxman 271) (Supreme Court) 247-258 Head note 247 4. The Ld. D.R. relied on the orders of the lower authorities. 5. We have heard the rival submissions and perused the materials available on record. In this case, assessee has filed the return of income for the assessment year 2019-20 on 30.11.2019 declaring a loss of Rs.70,89,74,367/-. The return of income was processed by ADIT, CPC, Bangalore (AO) on 28.4.2020, wherein the loss of the assessee has been accepted as filed by the assessee at Rs.70,80,74,367/- (Column No.18 of said intimation u/s 143(1) of the Act). The said intimation was served to the assessee on 30.4.2020. The contention of the assessee’s counsel is that the assessee is entitled for deduction of Rs.21,86,56,068/- towards unamortized amount of processing charges and other expenses debited to the P&L account disallowed while completing the assessment of previous assessment years and held to be amortized and to be allowed as a deduction for the tenure of loan in view of the order of the Tribunal for the assessment year 2013-14 dated 23.10.2019, which has not been claimed by the assessee in its return ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 8 of 22 of income filed on 30.11.2019. This claim has been made by assessee before Ld. CIT(A) by filing the appeal against the intimation u/s 143(1) of the Act dated 28.4.2020. This has been rejected by Ld. CIT(A) by observing that there is no arithmetic errors in the said intimation by the AO (CPC) and the returned income has been accepted as reflected in the return of income. Thus, it is the case of the revenue that income of the assessee could not be revised u/s 143(1) of the Act to bring down the assessed income below the returned income. 5.1 For the purpose of answering the question that whether such recourse was available with the assessee, we have to refer to section 143(1) of the Act as applicable to relevant assessment year. “143(1) Where a return has been made under section 139, or in response to a notice under sub-section (1) of section 142:- (i) if any tax or interest is found due on the basis of such return, after adjustment of any tax deducted at source, any advance tax paid, any tax paid on self-assessment and any amount paid otherwise by way of tax or interest, then, without prejudice to the provisions of sub- section (2), an intimation shall be sent to the assessee specifying the sum so payable, and such intimation shall be deemed to be a notice of demand issued under section 156 and all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee and an intimation to this effect shall be sent to th assessee: Provided that except as otherwise provided in this sub-section, the acknowledgement of the return shall be deemed to be an intimation under this sub-section where either no sum is payable by the assessee or no refund is due to him: Provided further that no intimation under this sub-section shall be sent after the expiry of one year from the end of the financial year in which the return is made: Provided also that where the return made is in respect of the income first assessable in the assessment year commencing on the 1 st day of April, 1999, such intimation may be sent at any time up to the 31 st day of March, 2002”. The above section is substituted with effect from 1.6.1999 by Finance Act, 1999. The analysis of the section is as under:- It enacts that where a return has been made under section 139, or in response to a notice under section 142(1),-- ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 9 of 22 - any tax deducted at source. - any advance tax paid, - any tax paid on self-assessment and - any amount paid otherwise by way of tax or interest, then without prejudice to the provisions of section 143(2),-- - an intimation shall be sent to the assessee specifying the sum so payable, and - such intimation shall be deemed to be a notice of demand issued under section 156; and - all the provisions of this Act shall apply accordingly; and (ii) if any refund is due on the basis of such return, it shall be granted to the assessee and an intimation to this effect shall be sent to the assessee.” 5.2 The cumulative effect of this section substituted and omission w.e.f. 1.6.1999 of section 143(1A), 143(1B) & 143(5) of the Act is that neither prima facie adjustments can be made nor any levy of additional income tax can be made on or after 1 st , June, 1999. Thus, the power of AO under this section are very limited and restricted only to the returned income filed by the assessee. The A.O. cannot visit beyond the return except to compute tax or interest after adjustment of pre-paid tax as mentioned above. Therefore, according to the clear provisions of section 143(1) of the Act, it would be beyond the jurisdiction of AO to compute income as requested by assessee that assessee is entitled for deduction towards expenditure which was said to be decided by the Tribunal in assessment year 2009-10 to 2013-14 in ITA Nos.1638, 1661 to 1664/Bang/2017 dated 23.10.2019. In other words, assessee in the present appeal is seeking relief which is not found in the return of income filed by the assessee. The assessment in the present case is framed u/s 143(1) of the Act on the basis of return of income. The request of the assessee is that Tribunal held in this order that amortization of fees paid to Axis bank for structuring the processing and advisory fees which is different from interest payment and cannot be equated to the interest payment to debenture and it should be amortized over the tenure of debenture. The claim of the assessee is not emanated ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 10 of 22 from the return of income filed by the assessee for the year under consideration and the AO cannot go beyond such return of income. Thus, in absence of power to make any adjustment in the returned income, the Ld. CIT(A) has rightly denied to rectify the order passed u/s 143(1) of the Act. In our opinion, what cannot be done u/s 143(1) cannot be done by Ld. CIT(A) or u/s 154 of the Act. As per provisions of section 154(1)(b) of the Act, the A.O. cannot go beyond any intimation passed u/s 143(1) of the Act. We may note that what cannot be done u/s 143(1) of the Act cannot be done by taking resort to section 154(1)(b) of the Act. Making any adjustment to the returned income by way of provisions of section 154 of the Act will amounting to do an Act, which cannot be done directly under the provisions of section 143(1) of the Act. The proposition of law is well settled that what cannot be done “Per directum” is not permissible to be done “per obliquum”, meaning thereby whatever is prohibited by law to be done, cannot legally be effected by an indirect and circuitous contrivance on the principle of “quando aliquid prohibetur, prohibetur at omne per quod devenitur ad illud”. This principle of law has been explained by Hon’ble Allahabad High Court in the case of Anupam Susil Garg V. CIT (2004) 265 ITR 474 as under:-- “There is another aspect of the matter that under the garb of rectification, the appellant cannot have an opportunity of review of the order passed earlier in the absence of any provisions for substantive review under the said provisions of law. It is a settled proposition of law that what cannot be done “per directum is not permissible to be done per obliquum”, meaning thereby whatever is prohibited by law to be done, cannot legally be affected by an indirect and circuitous contrivance on the principle of “qundo aliquid prohibetur, prohibetur at omne per quod devenitur ad illud”. ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 11 of 22 5.3 In Jagir Singh v. Ranbir Singh AIR 1979 SC 381, the Apex Court has observed that an authority cannot be permitted to evade a law by “shift or contrivance”. While deciding the said case, the Supreme Court placed reliance on the judgement in Fax v. Bishop of Chester (1824) 2 B & C 635, wherein it has been observed as under (page 384): ‘To carry out effectually the object of a statute, it must be construed as to defeat all attempts to do, or avoid doing, in an indirect or circuitous manner that which it has prohibited or enjoined.’ 5.4 Law prohibits to do something indirectly which is prohibited to be done directly. Similar view has been reiterated by the Apex Court in M.C. Mehta V. Kamal Nath AIR 2000 SC 1997, wherein it has been held that even the Supreme Court cannot achieve something indirectly which cannot be achieved directly by resorting to the provisions of article 142 of the Constitution, which empowers the court to pass any order in a case in order to do ‘complete justice’. (pp 477 and 478 of the report) 5.5 This well-settled principle of law has also been accepted in the following decisions: (1) CIT V. Kalvinator of India Ltd (2002) 256 ITR 1 (Delhi)(FB). In this case assessment was reopened on the basis of change of opinion and it was held by Hon’ble Delhi High Court that such assessment could not be reopened as it was based on change of opinion, the Assessing Officer did not have such power as it will be tentamounting to do an act which could not be directly under the statute. Thus, the Assessing Officer was lacking jurisdiction to achieve the object of making addition on the issue which was well considered during the course of original assessment by adopting the recourse to reassessment proceedings. ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 12 of 22 (2) J.N. Sahni v. ITAT (2002) 257 ITR 16 (Delhi). In this case, discussing the power of Tribunal to pass an order under section 254(2) it was held that review of an order cannot be done under the garb of section 254(2) as the powers of Tribunal was regarding rectification of a mistake which is apparent from record. The Tribunal cannot do an act which was not directly permitted to be done by resorting to section 254(2). (3) CIT v. Paharpur Cooling Towers (P) Ltd. (1996) 219 ITR 618 (SC). While discussing the powers of Settlement Commission in the said case under section 245E it was held by Hon’ble Supreme Court that penalty proceedings do not fall within the ambit of section 245E of the Act and the Commission exceeded its jurisdiction in dropping penalty proceedings for assessment years 1970-71 to 1974-75 while deciding settlement application for assessment year 1975- 76 and further assuming that section 147 was available to the Commission. Thus, it was held that assessment would be reopened only for the limited purpose of spread over of addition and not as a whole so as to include the penalty proceedings more so when the concealment did not have nexus with the income disclosed and thus, what the Commission could not do directly, cannot be allowed to do indirectly. 5.6 Applying the above-mentioned principles we hold that the CIT(A) has rightly rejected the claim made by the assessee. 5.7 We are aware that it will be a case of hardship to the assessee but as per principle of law explained by Hon’ble Allahabad High Court in the case of Anupam Susil Garg (supra) no court/authority can allow something indirectly which cannot be allowed directly. The remedy for assessee may be lying somewhere else and not under ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 13 of 22 section 154 of the Act. The Assessee could have filed a revised return of income to claim higher depreciation which assessee did not choose to adopt. Having not done so, he cannot seek any relief either under section 154 or under section 143(1) as Assessing Officer has necessarily to proceed on the basis of income declared in the return of income filed by the assessee. 5.8 Now coming to the case law relied by the Ld. Counsel for the assessee, we note that these cases are not applicable to the facts of the present case. According to the facts of the present case, no option is available with the AO as per law to dispute the returned income by the assessee in the intimation framed by him. Thus, the ratio laid down in various judgements relied by the assessee are not applicable to the facts of the present case. In our opinion, there is no doubt that while dealing with the assessment or sending intimation u/s 143(1) of the Act, AO had no power as argued by assessee to go beyond the return of income. The assessee failed to explore the remedy available to it under the provisions of law by filing revised return of income. Now the assessee wants to do the same indirectly which is not permitted by law. In view of the above, we uphold the order of Ld. CIT(A) on this issue and dismiss the ground taken by the assessee. 6. Next common ground in these appeals in both the years is with regard to short granting of interest u/s 244A of the Act. 6.1 Facts of the issue are that the intimation u/s 143(1) of the Act was passed by AO on 28.4.2020 in which refund was determined and interest u/s 244A of the Act was also computed. Intimation was duly served upon the assessee on 30.4.2020. The contention of the Ld. A.R. is that interest u/s 244A of the Act has not been computed ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 14 of 22 correctly. The Ld. A.R. submitted that the facts leading to issue involved in the grounds of appeal relating to short grant of interest on tax refund amount of Rs.2,990/- for delayed period of 1 month in granting the tax refund amount which was determined in the intimation order dated April 28, 2020 but was actually granted on May 2020 are tabulated below: Sr No Particulars Particulars / Amount (Rs.) FPB Page No 1. Assessment Year 2019-20 2. Date of filing of Return of income Nov 30, 2019 1 3. Income as per normal provision (70,89,74,367) 1 / 106 4. Tax payable thereon NIL 1 / 106 5. Income as per section 115JB (92,88,80,592) 1 / 107 6. Tax payable on income as per section 115JB NIL 1 / 107 7. Prepaid taxes (comprising of TDS) 5,98,101 1 / 107 8. Tax Refund claimed in the return of income 5,98,101 1 / 107 9. Date of processing of return vide intimation order u/s. 143(1) April 28, 2020 118 10. Income under normal provisions as per Intimation order (70,89,74,367) 119 11. Tax payable thereon NIL 120 12. Book Profit u/s. 115JB as per Intimation NIL 119 13. Tax Payable on Book Profit as Intimation NIL 119 14. Tax Refund amount determined in the intimation order 6,36,980 (5,98,101 + interest Rs. 38,879) 121 15. Document evidencing credit of tax refund amount in appellant's Bank account May 27t h 2020 128 16. Non grant of interest with respect to delayed grant of tax refund amount from November 2019 to June 2020 For a period of 1 months 17. Interest amount on tax refund for delayed period 2,990 6.2 Ld. A.R. submitted that the Ld CIT(A)-11, Bangalore in the appeal filed has dismissed the appeal of the assessee. The relevant para 4.2 to 4.4 of the CIT(A) order (page no. 7 & 8 of CIT(A) order) of AY 2019-20 are as under: ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 15 of 22 “4.2 The submissions of the appellant have duly been considered. The undisputed fact is that the order under Section 143(1) of the Act was passed by the AO on 28.0,4.2020 and it is not denied by the appellant that the intimation under Section 143(1) of the Act was served upon it on 30.04.2020. The argument of the appellant is that the refund got credited to its bank account on much later i.e. on 27.05.2020 and that the interest should have been computed up to 27.05.2020. However, this argument of the appellant is found to be devoid of any merit. The reply of the appellant itself shows that the appellant is not aggrieved by the order under Section 143(1) of the Act, which was passed on 30.03.2021. Instead, it is aggrieved by a subsequent action of the AO in not issuing the refund timely. The disputed issue does not arise out of the order under Section 143(1) of the Act. Thus the ground of appeal II is not arising out of the impugned order. The computation of interest under Section 244A of the Act in the intimation issued under Section 143(1) of the Act is found to be correct as the same is up to the date of said intimation i.e. 28.04.2020. Whatever has happened post the issue of said intimation i.e delay in issue of refund, does not make the order under Section 143(1) of the Act faulty. So the solution is not in filing appeal against the order under Section 143(1) of the Act but somewhere else. 4.3 The case laws relied upon by the appellant are on different facts and thus not relevant. In addition the appellant has also relied upon some decisions of National Faceless Appeal Centre to support its contention. However, copies of such orders have not been made available and as such it is not possible to comment in detail on the same. Anyhow, the brief details given by the appellant in its -written- submissions shows that the issue involved therein was adopting incorrect date of filing return of income by the AO. The NFAC has allowed interest only up to the date of order under Section 143(1) of the. Act. The issue of subsequent delay in issue of refund was not involved therein. So these decisions do not help the appellant. 4.4Considering above, there isn't any merit in the arguments of the appellant and the ground of appeal II is dismissed as the issues raised in the ground of appeal is not arising out of the impugned order but a subsequent action of the AO in not issuing the refund on time. The appellant is free to take suitable remedial action to get its grievance addressed as per law. The ground of appeal II is accordingly dismissed." ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 16 of 22 6.3 The Ld. A.R. submitted that the issue whether the assessee would be entitled to interest for delay in grant of tax refund amount determined in the intimation order dated April 28, 2020 but was actually granted on May 27, 2020 has been examined by the Hon'ble Supreme Court, Jurisdictional High Court and various High Courts and ITAT in the judicial precedent relied upon as under: S N Particulars LBP Page Nos Para No Page No. III Where excess amounts of tax are collected from an assessee or any amount is wrongfully withheld from an assessee without authority of law, revenue must compensate assessee by paying interest on 32. Supreme Court in the case of Sandvik Asia Ltd 259-284 15, 24, 278 to (280 ITR 643) 27 to 30, 284 36, 38 to 41 IV When refund is of any advance tax (including TDS), interest is payable for the period starting from the first day of the assessment year to the date of grant of refund and no interest is payable for the period for which the proceedings resulting in the refund are delayed for the reasons attributable to the assessee (wholly or partly). The rate of interest and entitlement to interest on excess tax are determined by the statutory provisions of the Act. 33. Supreme Court decision in Tata Chemicals Ltd. (43 taxmann.com 240) 285-296 39 296 V Where assessee's claim for refund of excess tax Collected was withheld and refunded by department after a huge delay, assessee would be entitled to compensation by way of interest for such delay 34. Bangalore ITAT in the case of Delhi International Airport Limited in ITA No.127/Bang/2022 for AY 2016- 17 297-308 9 & 10 307 & 308 ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 17 of 22 35. Bangalore ITAT in the case of GMR Infrastructure Limited in ITA No.362/Bang/2022 for AY 2020-21 309-316 8 314 & 315 VI Interest under section 244A to be allowed when assessee is not at fault and on the amount of tax refund due 36. Delhi High Court in the case of Own Motion Vs CIT(352 ITR 273) 317-359 16,18,26 27,33,34 49,50 & 57 341,342, 346,347, 355-356, 358-359 37. Circular No.20-D (XXII-22) dated August 20, 1968 360 360 38. CBDT Instruction No. 7/2013, dated 15-7-2013 361-362 361-362 7. The Ld. D.R. submitted that the intimation u/s 143(1) of the Act has been passed on 28.4.2020, which has been served to the assessee on 30.4.2020. The refund has been credited to the assessee’s account on 27.5.2020. The assessee wants interest upto 27.5.2020. According to the Ld. D.R., there is no error in computing the interest u/s 244A of the Act in the intimation sent to the assessee u/s 143(1) of the Act dated 28.4.2020. Interest has been up to that date. The assessee wants interest u/s 244A of the Act upto 27.5.2020 when the interest has been credited to the assessee’s account. According to the Ld. D.R., if there is a short charging of interest u/s 244A of the Act, the remedy lies in filing appeal against the intimation u/s 143(1) of the Act. On the other hand, the assessee has to seek the additional interest by way of petition before AO. Accordingly, he relied on the order of Ld. CIT(A). 8. We have heard the rival submissions and perused the materials available on record. As seen from the intimation passed u/s 143(1) of the Act in assessment year 2019-20, it was passed on ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 18 of 22 28.4.2020 and the AO has granted interest u/s 244A of the Act upto 30.4.2020. The refund was actually credited to the assessee’s bank account on 27.5.2020. Now the claim of the assessee is that interest should have been granted to the assessee from 27.5.2020 to till the date of credit of interest to assessee’s bank account. In our opinion, here the assessee has been granted interest till the date of end of the month in which intimation has been sent u/s 143(1) of the Act i.e. 30.4.2020. There is no loss of interest to the assessee upto date of seeking the intimation to the assessee. However, the claim of the assessee is that interest to be allowed u/s 244a of the Act till it is to be credited to the bank account of the assessee. If there is a delay in crediting the interest to the assessee’s bank account that cannot lead to the conclusion that there is a mistake apparent in the intimation sent by the department u/s 143(1) of the Act and it cannot make the intimation sent u/s 143(1) of the Act as faulty. If there is a failure of the AO in granting the interest u/s 244A of the Act till the date of credit of interest to the assessee’s account, remedy lies elsewhere not seeking rectification of intimation sent to the assessee u/s 143(1) of the Act. Being so, we do not find any merit in the argument of the assessee’s counsel. Accordingly, this ground of assessee is dismissed. ITA No.526/Bang/2022:- 9. The last ground only in appeal No.526/Bang/2022 for the A.Y. 2020-21 is with regard to disallowance u/s 143(1)(a) of the Act at Rs.21,37,13,822/-. 10. Facts of the issue are that originally the assessee had filed its return of income on 15.2.2021, declaring a loss of Rs.207,95,82,100/-. An order u/s 143(1) of the Act was passed by the AO on 29.9.2021, determining the loss of the assessee at ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 19 of 22 Rs.1,61,49,78,848/-. Prior to that the assessee had already filed a revised return of income on 29.5.2021. On receipt of intimation dated 29.9.2021 in relation to the original return of income, the assessee filed a request for rectification before the AO. The AO passed an order u/s 154 of the Act on 18.11.2021, rejecting the request of the assessee. Thereafter, the revised return of income was processed by the AO on 23.12.2021, wherein the loss of the assessee was computed at Rs.186,58,68,132/-. Thus, the assessee has already got a part relief when its revised return of income was processed. 10.1 During the appellate proceedings the assessee has filed detailed written submissions on the merits of the case. However, the assessee has already filed a revised return of income and the same has already been processed by the AO. So, the intimation dated 29.9.2021 issued against the original return of income no longer survives. The issue of subsequent rectification of the same thus would not arise. So, the remedy available with the assessee is to file appeal against intimation passed in relation to the revised return of income, if it has any grievance left. 11. In this regard, the Ld. A.R. submitted that while passing the intimation order, the CPC has disallowed a sum of Rs.20,07,33,092/- towards increase in the profit or decrease in loss because of deviation, if any, as per Income Computation Disclosure Standards notified under section 145(2) [column 11a(iii) of Schedule ICDS], the said sum of Rs.20,07,33,092/- was already disallowed by the assessee company in ITR-6 in Page No. 64 column no. 11a. ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 20 of 22 11.1 Ld. A.R. further submitted that, in the intimation order, the CPC has disallowed a sum of Rs.1,29,80,7361- any amount of profit chargeable to tax under section 41 of the Act. Clause 25 of Form 3CD is related to section 41 of the Act which is only for reporting purposes, the assessee company has already offered said sum of Rs.1,29,80,736/- in its return of income. Detail of said sum is as under: S. No. Name of Person Amount of Income Section Description of transaction Computation if any 1. United India Insurance Corporation Limited 5,82,959 Sec 41(1)(a) Refund of excess payment made towards Mediclaim Amount credited to statement of profit and loss 2. Adani Transmission 77,70,656 Sec 41(1)(a) Additional amount received for sale of investment Amount Credited to Statement of profit and loss 3. IQuippo Services Limited 10,000 Sec 41(1)(a) Refund of Security Deposit forfeited Amount Credited to Statement of profit and loss 4. Afcons Infrastructure Limited 46,17,121 Sec 41(1)(a) Interest no longer payable, written back Amount Credited to Statement of profit and loss Total 1,29,80,736 11.2 The above has resulted in double disallowance / double taxing of same amount which is not permissible in law and the reliance in this respect is placed on the following judicial precedents: S N Particulars LBP Page Para No Page No. Nos 1. Hon'ble Supreme Court in case of 363-371 Held 363 & Singhania vs CIT, 72 ITR 291 SC 364 2. Hon'ble Bombay High Court in case of M/s. Sahney Kirkwood Private Limited v. ACIT (ITA No: 1517/2007) 372-375 3 373 & 374 ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 21 of 22 3. Hon'ble Gujrat High Court in case of CIT v. Gujarat Co-op Milk Marketing Federation Ltd (228 Taxman 267) 376-387 15 387 4. Hon'ble Mumbai Tribunal in case of Jackie Shroff v. ITO (19 ITR(T) 83) 388-397 Head Note, 8 388-389 392-393 11.3 Further Ld. A.R. submitted that with respect to disallowance U/s 36 (1)(va) of the Act, for inconsistency in any sum received from employees as contribution to any provident fund or superannuation fund or any fund set up under ESI Act or any other fund for the welfare of employees to the extent not credited to the employees account on or before the due date [36(1)(va)] claimed in return in schedule 01 and audit report. The CPC has considered the amount of Rs.2,07,983/- as per the reporting done by the tax auditor in tax audit as against the correct amount of Rs.2,07,843/- resulting in disallowance of Rs.140/-. 11.4 The Ld. D.R. relied on the order of Ld. CIT(A). 11.5 We have heard the rival submissions and perused the materials available on record. As discussed in para 5 to 5.8 with regard to ground No.1 in not allowing deduction towards expenditure, this ground of appeal of the assessee in assessment year 2020-21 is dismissed on similar lines. 12.In the result, both the appeals of the assessee are dismissed. Order pronounced in the open court on 2 nd Sept 2022 Sd/- (Beena Pillai) Judicial Member Sd/- (Chandra Poojari) Accountant Member Bangalore, Dated 2 nd Sept, 2022. VG/SPS ITA Nos.513 & 526/Bang/2022 M/s. GMR Energy Limited, Bangalore Page 22 of 22 Copy to: 1. The Applicant 2. The Respondent 3. The CIT 4. The CIT(A) 5. The DR, ITAT, Bangalore. 6. Guard file By order Asst. Registrar, ITAT, Bangalore.
