South Asia LPG Company Private Limited, Visakhapatnam V. The Assistant Commissioner of Income Tax, Circle-4(1), Visakhaptnam

ITA 66/VIZ/2020

• Counselvise Citation: [2022] 106 COUNSELVISE.COM (IT) 7539 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-06-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 10-02-2020
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P. SANKAR PANDI
• Assessee Lawyers: GS GIRIDHARAN
• Section: 154; 115JB; 143(1)

Judgement Text

आयकर अपीऱीयअधिकरण, विशाखापटणम पीठ, विशाखापटणम IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM श्री द ु व्ि ू रु आर एऱ रेड्डी, न्याययक सदस्य एिं श्री एस बाऱाक ृ ष्णन, ऱेखा सदस्य के समक्ष BEFORE SHRI DUVVURU RL REDDY, HON’BLE JUDICIAL MEMBER & SHRI S BALAKRISHNAN, HON’BLE ACCOUNTANT MEMBER आयकर अऩीऱ सं./ I.T.A. No.66/Viz/2020 (ननधधारण वषा / Assessment Year: 2010-11) South Asia LPG Company Private Limited, Visakhapatnam. PAN: AAECS 2507 D Vs. Asst. Commissioner of Income Tax, Circle-4(1), Visakhapatnam. (अऩीऱधथी/ Appellant) (प्रत्यथी/ Respondent) अऩीऱधथी की ओर से/ Appellant by : Sri GS Giridharan प्रत्यधथी की ओर से / Respondent by : Sri P. Sankar Pandi, Sr. AR स ु नवधई की तधरीख / Date of Hearing : 23/05/2022 घोषणध की तधरीख/Date of Pronouncement : 14/06/2022 O R D E R PER S. BALAKRISHNAN, Accountant Member : This appeal filed by the assessee against the order of the Ld. CIT(A)-2, Visakhapatnam in appeal No. 057/2012-13/ACIT/C- 4(1)VSP/VSP/2019-20, dated 24/9/2019 passed U/s. 154and U/s. 250(6) of the Act for the AY 2010-11. 2. The assessee has raised the following grounds of appeal: 2 “1. The order of the CIT(A) is contrary to the f acts and also the law applicable to the f acts of the case. 2. The AO erred in giving MAT credit only for Rs. 65,63,413/- as against the MAT credit of Rs. 74,36,347/- available to the appellant company. 3. The AO erred in not considering the surcharge and education cess paid by the appellant company as part of book prof it tax and giving MAT credit only f or Rs. 65,63,413/-. 4. Opportunity of personal hearing was not properly given stating intimation sent to old address, which was not received by SALPG, one more opportunity f or hearing was requested but no response f rom the off ice of CIT(A). 5. Any other grounds that may be urged at the time of appeal hearing with additional submissions.” 3. Brief facts of the case are that the assessee company filed its return of income for the AY 2010-11 admitting total income of Rs.40,10,52,760/-. Assessee company for the AY 2008-09 has paid book profit tax u/s. 115JB of the Act amounting to Rs. 1,76,66,345/-. The MAT credit available for the assessee company for the AY 2010-11 was Rs.74,36,347/-. While processing the return of income U/s. 143(1) the MAT credit given was only for Rs. 65,63,413/-. Against this, the assessee filed the rectification petition U/s. 154 of the Act wherein the order passed U/s. 154 confirmed the MAT credit of Rs. 65,63,413/-. Aggrieved by the order of the Ld. AO, the assessee preferred an appeal before the CIT(A). Since none appeared on behalf of the assessee before the CIT(A), the Ld. CIT(A) considered that there is no explanation to offer by the assessee and hence dismissed the 3 appeal. Aggrieved by the order of the Ld. CIT (A), the assessee is in appeal before us. 4. The issue to be decided in this appeal is whether credit for surcharge and cess while computing the tax credit U/s. 115JAA of the Act to be allowed or not? The Ld. AR argued that this matter is covered by the decision of the Hon’ble Tribunal at Hyderabad and the decision of the Delhi Tribunal in the case of Virtusa (India) (P.) Ltd vs. DCIT [2016] 67 taxmann.com 65. The Ld. DR supported the order of the Authorities below. 5. We have heard the rival submissions and perused the materials available on record. Admitted facts are that the assessee is entitled for a MAT credit of Rs. 74,36,347/- which was not disputed by the Revenue Authorities in the earlier assessment years. We find that the issue under dispute has been addressed in the case of CIT vs. K. Srinivasan [1972] 83 ITR 346 (SC) and held that tax includes surcharge and cess which have to be reckoned for calculating the MAT credit u/s. 115JAA of the Act. We also find that the Hon’ble Supreme Court in the case of K. Srinivasan (supra) had held that the meaning of the word ‘surcharge’ is nothing but an ‘additional tax’. The bifurcation of the total payment of taxes by way of tax, surcharge and cess is 4 only for the administrative convenience of the Government of India in order to know for the purpose for which the said portion of the amount to be utilized for their intended purposes. Further, there is no dispute that the surcharge and cess portion was not paid by the assessee along with the tax portion. As far as the assessee is concerned, it had simply discharged the statutory dues comprising of tax, surcharge and cess to the Government of India and hence if paid in excess would be eligible for either refund or adjustment as contemplated U/s. 115JAA of the Act. It is a well settled principle that the tax has to be collected only to the extent as authorized by law in terms of Article 265 of the Constitution and Department cannot be unjustly enriched with the surcharge and cess portion of the amounts actually paid by the assessee. In view of the above discussions, we hold that the decision of the Hyderabad Bench of the Tribunal is well connected and squarely applies to the appeal before us. Accordingly, Grounds No. 2 & 3 raised by the assessee are allowed. 6. Grounds No.1, 4 and 5 are general in nature and need no adjudication. 7. In the result appeal of the assessee is allowed. 5 Pronounced in the open Court on the 14 th June, 2022. Sd/- Sd/- (द ु व्ि ू रु आर.एऱ रेड्डी) (एस बाऱाक ृ ष्णन) (DUVVURU RL REDDY) (S.BALAKRISHNAN) न्याययकसदस्य/JUDICIAL MEMBER ऱेखा सदस्य/ACCOUNTANT MEMBER Dated : 14.06.2022 OKK - SPS आदेश की प्रतिलिपि अग्रेपिि/Copy of the order forwarded to:- 1. ननधधाररती/ The Assessee – South Asia LPG Company Private Limited, 501 & 502, Kotu Empire, VIP Road, Siripuram, Visakhapatnam, AP-530003. 2. रधजस्व/The Revenue – ACIT, Circle-4(1), Visakhapatnam. 3. The Principal Commissioner of Income Tax-2, Visakhapatnam. 4. आयकर आय ु क्त (अऩीऱ)/ The Commissioner of Income Tax(A)-2, Visakhapatnam. 5. ववभधगीय प्रनतननधध, आयकर अऩीऱीय अधधकरण, ववशधखधऩटणम/ DR, ITAT, Visakhapatnam 6. गधर्ा फ़धईऱ / Guard file आदेशधन ु सधर / BY ORDER Sr. Private Secretary ITAT, Visakhapatnam