M/s. RRB Energy Limited, New Delhi V. DCIT, New Delhi

ITA 6449/DEL/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 4106 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-10-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Assessment Year: 2010-2011
• Appeal Filed On: 25-11-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 142(1); 154; 15

Judgement Text

1 ITA NOS. 6446-6449/DEL/2014 IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH F NEW DELHI BEFORE SH. R.K.PANDA, ACCOUNTANT MEMBER AND MS SUCHITRA KAMBLE, JUDICIAL MEMBER ITA NOS. 6446-6449/DEL/2014 (ASSESSMENT YEARS: 2007-08 TO 2010-11) APPELLANT BY SH. V.RAJA KUMAR, ADV. RESPONDENT BY SH. ATIQ AHMAD, SR.DR DATE OF HEARING 03.10.2017 DATE OF PRONOUNCEMENT 0 6 .10.2017 ORDER PER BENCH THESE FOUR APPEALS PREFERRED BY THE ASSESSEE, ARE D IRECTED AGAINST THE ORDER DATED 09.09.2014 OF THE COMMISSIONER OF INCOM E TAX (APPEAL) [IN SHORT CIT(A)]-XVIII, NEW DELHI FOR 2007-08 TO 2010-11 A SSESSMENT YEARS. 2. THE GROUNDS OF APPEAL ARE AS UNDER:- (ITA NO. 6446/DEL/2014 ( A.Y 2007-08) 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE AUTHORITIES BELOW ERRED IN HOLDING THE RECTIFICATIO N APPLICATION OF THE APPELLANT AS NOT FALLING UNDER THE PURVIEW OF SECTI ON 154 OF THE I.T ACT, 1961. THE GROUNDS OF APPEAL IN ALL THE FOUR APPEALS ARE C OMMON. FOR THE SAKE OF CONVENIENCE, WE ARE TAKING THE FACTS OF THE CASE FO R ASSESSMENT YEAR 2007-08. RRB ENERGY LIMITED, GA-1/B-1, EXTENSION, MOHAN COOPERATIVE INDUSTRIAL ESTATE, MATHURA ROAD, NEW DELHI-110044. PAN-AAACV0109N VS DCIT, CIRCLE-15(1), NEW DELHI. (APPELLANT) (RESPONDENT) 2 ITA NOS. 6446-6449/DEL/2014 3. THE ASSESSEE IS A COMPANY ENGAGED IN THE MANUFAC TURING OF WIND ELECTRIC GENERATORS (WEGS) IN INDIA FOR HARNESSING POWER FOR M WIND AT DIFFERENT LOCATIONS IN INDIA. THE ASSESSEE FILED ITS RETURN O F INCOME FOR ASSESSMENT YEAR 2007-08 ON 29/10/2007 AT AN INCOME OF RS.77,38,98,8 24/-. THE CASE WAS PROCESSED U/S 143(1) OF THE INCOME TAX ACT, 1961 ON 14/3/2009. THE CASE WAS SELECTED FOR SCRUTINY AND NOTICE U/S 143(2) OF THE INCOME TAX ACT, 1961 WAS ISSUED AND SERVED ON 22/9/2006. NOTICE U/S 142(1) ALONG WITH QUESTIONNAIRE WERE ISSUED IN THIS CASE AND IN RESPONSE THERE TO T HE ASSESSEES REPRESENTATIVE ATTENDED THE OFFICE FROM TIME TO TIME. INFORMATION SOUGHT FOR WAS FURNISHED, BOOKS OF ACCOUNTS WERE PRODUCED AND WERE EXAMINED O N TEST CHECK BASIS. THE ASSESSING OFFICER MADE ADDITION IN RESPECT OF SECT ION 40(A) (IA) OF THE INCOME TAX ACT, 1961 FOR RS.1,23,35,991/- AND ALSO THE ADD ITION OF RS.62,120/- U/S 40A (3) OF THE INCOME TAX ACT, 1961. 4. THE ASSESSEE FILED APPLICATION U/S 154 OF THE IN COME TAX ACT, 1961 ON 18/10/2013 REQUESTING THEREIN DUE CREDIT OF ADDITIO NAL TDS OF RS.47,56,311/- WHICH IS OVER AND ABOVE OF TDS OF RS.2,34,09,576/- WHICH WAS CLAIMED BY IT IN ITS RETURN OF INCOME WHICH WAS E-FILED ON 29/10/200 7 FOR ASSESSMENT YEAR 2007-08 DECLARING AN INCOME OF RS.77,38,98,824/-. THE RETURN OF INCOME WAS FILED IN THE NAME OF M/S VESTAS RRB INDIA LTD WHICH IS NOW KNOWN AS RRB ENERGY LTD. THE ASSESSING OFFICER VIDE ORDER DATED 21/10/2013 DECIDED THE APPLICATION BY HOLDING AS UNDER:- 3 ITA NOS. 6446-6449/DEL/2014 THE APPLICANT OF THE ASSESSEE HAS BEEN CAREFULLY E XAMINED AND OBSERVED:- 1. THAT THE SAID ROI WAS NEVER REVISED AND ALSO THE CREDIT OF ADDITIONAL TDS WAS NOT CLAIMED BY IT IN ITS ROI ORIGINALLY FILED. 2. THAT THE CLAIM OF REFUND IS GOVERNED BY SECTION 239 OF THE INCOME TAX ACT, 1961 WHICH PROVIDES AS :- 239 (1) EVERY CLAIM FOR REFUND UNDER THIS CHAPTER S HALL BE MADE IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANN ER HEREUNDER, NAMELY:- (A) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH I S ASSESSABLE FOR ANY ASSESSMENT YEAR COMMENCING ON OR BEFORE THE 1 ST DAY OF APRIL, 1967, FOUR YEARS FROM THE LAST DAY OF SUCH ASSESSMENT YEAR. B) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH I S ASSESSABLE FOR THE ASSESSMENT YEAR COMMENCING ON THE FIRST DAY OF APRI L, 1968, THREE YEARS FROM THE LAST OF THE ASSESSMENT YEAR. C) WHERE THE CLAIM IS IN RESPECT OF INCOME WHICH IS ASSESSABLE FOR ANY OTHER ASSESSMENT YEAR (ONE) YEAR FROM THE LAST DAY OF SUC H ASSESSMENT YEAR. IN VIEW OF ABOVE, RECTIFICATION APPLICATION DATED 1 8/10/2013 IS DISPOSED OFF AS IT DOES NOT FALL UNDER THE PURVIEW OF SECTION 15 4 OF THE ACT. 5. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFOR E THE CIT(A). THE CIT(A) HELD THAT THIS IS NOT A CASE OF MISTAKE APPARENT FR OM RECORD AND IS A CASE OF OMISSION ON THE PART OF THE ASSESSEE. THEREFORE, T HE APPEAL OF THE ASSESSEE WAS DISMISSED BY THE CIT(A). 6. THE LD. AR SUBMITTED THAT THE CIT(A) AS WELL AS THE ASSESSING OFFICER HAS NOT TAKEN THE COGNIZANCE OF THE CONTENTIONS IN THE RECTIFICATION APPLICATION. THE CIT(A) HIMSELF STATED THAT ASSESSING OFFICER H AS NOT PASSED SPEAKING ORDER THAT MEANS THE CIT(A) SHOULD HAVE TAKEN PROPER MAJO RS BY DIRECTING THE ASSESSING OFFICER TO PASS SPEAKING ORDER WHICH THE CIT(A) FAILED TO DO SO. 4 ITA NOS. 6446-6449/DEL/2014 7. THE LD. DR RELIED UPON THE ORDER OF THE ASSESSIN G OFFICER AS WELL AS CIT(A). 8. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE M ATERIAL AVAILABLE ON RECORD. THE CIT(A) HAS NOT TAKEN THE COGNIZANCE OF THE ASSESSEES APPLICATION U/S 154 OF THE INCOME TAX ACT, 1961 WHEREIN HE HAS CLEARLY MADE OUT THE CASE. THE ACTUAL FACTS OF THE CASE U/S 154 OF THE INCOME TAX ACT, 1961, THE ASSESSING OFFICER HAS POWER TO DO SO. IN THE PRESENT CASE, TH E ASSESSEE COMPANY SUBMITTED A RETURN OF ITS INCOME U/S 139(1) OF THE ACT ON 29.10.2007 DECLARING AN INCOME OF RS. 77,38,98,824/-. INTIMATION IN RESP ECT OF THIS RETURN WAS ISSUED ON 14.03.2009. CREDIT FOR TAX PAID AND TDS W AS PARTLY ALLOWED BY THE ASSESSING OFFICER. WHEN THE ASSESSEE RECEIVED FURTH ER RECEIPT OF TDS CERTIFICATES, THE ASSESSEE COMPANY MOVED A SECOND A PPLICATION FOR RECTIFICATION U/S 154 OF THE ACT ON 09.03.2010 WHICH WAS NOT DECI DED BY THE ASSESSING OFFICER. THEREFORE ONCE AGAIN THE RECTIFICATION APP LICATION WAS FILED ON 11.03.2013 FOLLOWED BY REMINDER APPLICATION DATED 1 8.10.2013. THUS, ON REMINDER THE ASSESSING OFFICER REJECTED THE ASSESSE ES CLAIM OF GIVING EFFECT OF TDS CERTIFICATES RECEIVED BY THE ASSESSEE. THE CONT ENTIONS OF THE LD. AR THAT AS TO THE REQUIREMENT OF SECTION 239 AS SPELT OUT B Y THE ASSESSING OFFICER, THE SAME WOULD ARISE, IF NEED BE, ONLY AFTER THE DETERM INATION OF THE REFUND. SUCH SITUATION WOULD NOT ARISE EVEN BEFORE THE STATEMENT OF TAXES PAID IS CORRECTED AND CREDIT IS GIVEN FOR THE AMOUNTS AS PAID, SEEMS TO BE ACCORDING TO THE PROVISIONS OF THE SECTION 239 AND THE SAME SHOULD H AVE BEEN CONSIDERED BY THE 5 ITA NOS. 6446-6449/DEL/2014 ASSESSING OFFICER AND CIT(A) WHICH BOTH THE AUTHORI TIES FAILED TO DO SO. SIMPLY GRANTING CREDIT AS SOUGHT UNDER THE APPLICATION ORI GINALLY MADE U/S 154 OF THE ACT ON 08.03.2013 WITHIN A PERIOD OF 4 YEARS OF THE ORDER AS PASSED U/S. 143(1) OF THE ACT WOULD HAVE BEEN RIGHT TO DO AS IT IS A R ECTIFICATION AND NOT A DEBATABLE ISSUE. IN FACT ASSESSING OFFICER HAS GIVE N THE CREDIT OF THE TDS RECEIPTS WHICH WERE PRODUCED AT THE TIME OF THE ASS ESSMENT PROCEEDINGS. BUT ADDITIONAL TDS CERTIFICATES WHEN PRODUCED THROUGH R ECTIFICATION APPLICATION, THE ASSESSING OFFICER AS WELL AS THE CIT(A) HAS FAI LED TO TAKE COGNIZANCE OF THE SAME. THEREFORE, THE ORDER OF THE CIT(A) ARE SET AS IDE. IN OTHER THREE APPEALS BEING ITA NOS. 6447, 6448 & 6449/DEL/2014 FOR A.Y. 2008-09, 2009-10 & 2010-11RESPECTIVELY, THE ISSUE IS COMMON, THEREFORE , THE ORDERS OF THE CIT(A) ARE SET ASIDE. 9. IN THE RESULT, ALL THE FOUR APPEALS OF THE ASSES SEE ARE ALLOWED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 06 TH OCTOBER, 2017. SD/- SD/- (R.K.PANDA) (SUCHITRA KAMBLE) ACCOUNTANT MEMBER JUDICIAL MEMBER DATE:- 06.10.2017 R. NAHEED COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(APPEALS) 5. DR: ITAT ASS ISTANT REGISTRAR ITAT NEW DELHI 6 ITA NOS. 6446-6449/DEL/2014 DATE 1. DRAFT DICTATED 04.10.2017 PS 2. DRAFT PLACED BEFORE AUTHOR 04.10.2017 PS 3. DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4. DRAFT DISCUSSED/APPROVED BY SECOND MEMBER. JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS 06.10.2017 PS/PS 6. KEPT FOR PRONOUNCEMENT ON PS 7. FILE SENT TO THE BENCH CLERK 06.10.2017 PS 8. DATE ON WHICH FILE GOES TO THE AR 9. DATE ON WHICH FILE GOES TO THE HEAD CLERK. 10. DATE OF DISPATCH OF ORDER.