Kisan Sahkari Chini Mills Ltd, Sitapur V. Asstt. Commissioner of Income Tax, Sitapur

ITA 67/LKW/2014

• Counselvise Citation: 6723714 RSA 2014
• Duration Of Justice: 1 year(s) 8 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 29-10-2015
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-09-2015
• Assessment Year: 1989-1990
• Appeal Filed On: 07-02-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Keywords: Retrospective amendment; Revised return
• Section: 43B; 143(3); 28; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL LUCKNOW BENCH A, LUCKNOW BEFORE SHRI SUNIL KUMAR YADAV, JUDICIAL MEMBER AND SHRI A.K. GARODIA, ACCOUNTANT MEMBER ITA NO.67/LKW/2014 ASSESSMENT YEAR:1989-90 A.C.I.T., SITAPUR. VS KISAN SAHKARI CHINI MILLS LTD., MAHMUDABAD, DISTRICT-SITAPUR. PAN:AAAAK1132A (RESPONDENT) (APPELLANT) SHRI S. K. ARORA, C.A. APPELLANT BY SHRI AMIT NIGAM, D.R. RESPONDENT BY 17/09/2015 DATE OF HEARING 29/10/2015 DATE OF PRONOUNCEMENT O R D E R PER A. K. GARODIA, A.M. THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE OR DER PASSED BY LEARNED CIT(A), DEHRADUN HOLDING CONCURRENT JURISDICTION OF CIT(A), BAREILLY DATED 31/10/2013 FOR THE ASSESSMENT YEAR 1989-90. 2. IN THIS APPEAL, THE ASSESSEE HAS RAISED THE FOLLO WING GROUNDS: 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS ) BAREILLY HAS ERRED ON FACTS AND IN LAW IN CONFIRMING THE ACT ION OF A.O. IN NOT ALLOWING REFUND OF ADDITIONAL TAX AMOUNTING TO RS.2,56,274.00 ALONG WITH INTEREST DEPOSITED BY THE ASSESSEE AS THE RETURNED INCOME WAS LOSS AND FINAL ASSESSED INCOME IS LOSS U/S. 143(1)(A) AND 143(3) OF I.T.ACT 1961. 2. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) BAREILLY HAS ALSO ERRED ON FACTS AND IN LAW IN CONFIRMING TH E ACTION OF A.O. IN NOT ALLOWING REFUND OF ADDITIONAL TAX AMOUN TING TO RS.2,56,274.00 ALONG WITH INTEREST DEPOSITED BY THE ASSESSEE AS BOTH THE RETURNED INCOME AS WELL AS ASSESSED INC OME WAS LOSS AS THE ADJUSTMENT MADE WHILE PROCESSING THE IN TIMATION U/S. 143(1)(A) HAS ALSO BEEN MADE BY THE LEARNED A. O. WHILE FINALIZING THE ASSESSMENT U/S. 143(3) ON THE BASIS OF REVISED RETURN. 2 3. THAT THE LEARNED CIT(A) HAS ERRED IN LAW AS WELL AS ON FACTS AND CIRCUMSTANCES OF THE CASE IN NOT APPRECIATING T HAT THE ADDITIONAL TAX LEVIED PURSUANT TO THE INTIMATION U/ S. 143(1)(A) WAS REFUNDABLE TO THE APPELLANT AS THE APPELLANT HA D FILED A REVISED RETURN WITHIN TIME CONSEQUENT TO WHICH ASSE SSMENT WAS FRAMED U/S. 143(3) BUT THE INTIMATION U/S. 143( 1)(A) WAS NOT REVISED IN RESPONSE TO THE REVISED RETURN FILED BY THE APPELLANT AND THE ADJUSTMENTS MADE IN INTIMATION U/ S. 143(1)(A) WERE ALREADY GIVEN EFFECT TO IN THE REVIS ED RETURN. 3. IT WAS SUBMITTED BY LEARNED A. R. OF THE ASSESSE E THAT THE ISSUE IN THE PRESENT APPEAL IS SQUARELY COVERED IN FAVOUR OF THE ASSESSEE BY THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDERED IN THE CASE O F SHRAVASTI KISAN SAHKARI CHINI MILLS LTD., BAHRAICH VS. CIT IN INCOME TAX APPEAL NO . 8 OF 2001 DATED 03/01/2003, COPY AVAILABLE ON PAGES 14 TO 18 OF THE PAPER BOOK. HE ALSO SUBMITTED THAT ON PAGE NO. 21 OF THE PAPER BOOK IS THE EARLIER ORDER PASSED BY THE ASSESSING OFFICER ON 28/10/95 IN RESPECT OF ASSESSEES APPLICATION U/ S 154 OF THE ACT. HE ALSO SUBMITTED THAT ON PAGES 22 AND 23 TO 26 ARE THE COP IES OF APPLICATION OF THE ASSESSEE FOR RECTIFICATION U/S 154 OF THE ACT. 4. LEARNED D.R. OF THE REVENUE SUPPORTED THE ORDER OF LEARNED CIT(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FI ND THAT THE ISSUE IN DISPUTE WAS DECIDED BY LEARNED CIT(A) AS PER PARA 1.4 OF HI S ORDER, WHICH IS REPRODUCED BELOW FOR THE SAKE OF READY REFERENCE: 1.4 IT WAS CLEAR AFTER THE RETROSPECTIVE AMENDMENT DISCUSSED ABOVE THAT ADDITIONAL TAX SHOULD BE LEVIED EVEN IN CASES WHERE, AS A RESULT OF PRIMA FACIE ADJUSTMENTS, THE LOSS SHOWN I N THE RETURN WAS REDUCED. IN THE CASE OF HINDUSTAN ELECTRO GRAPHITE LTD., THE HON'BLE SUPREME COURT WAS CONSIDERING RECEIPT BY WAY OF CAS H COMPENSATORY SUPPORT WHICH BECAME INCOME DUE TO THE RETROSPECTIV E EFFECT OF THE AMENDMENT OF SECTION 28 BY THE FINANCE ACT, 1990. IN THAT SITUATION, THE HON'BLE COURT HELD THAT, WHEN THE RETURN HAD BE EN FURNISHED, THE ASSESSEE COULD NOT ANTICIPATE THAT SUCH RETROSPECTI VE AMENDMENT WOULD BE MADE IN FUTURE AND, HENCE, WAS CORRECT IN NOT SHOWING THE AMOUNT OF CASH COMPENSATORY SUPPORT AS INCOME. THAT BEING THE CASE, ADDITIONAL TAX SHOULD NOT BE LEVIED EVEN THOU GH THE RECEIPT WAS TREATED AS INCOME BY WAY OF PRIMA FACIE ADJUSTMENT, ACCORDING TO THE COURT. IN THIS CASE, ALL THE ITEMS OF ADDITIONS BY WAY OF PRIMA FACIE ADJUSTMENTS ARE SUCH WHICH WERE KNOWN TO BE O F THE NATURE OF 3 INCOME AT THE TIME OF FILING OF THE RETURN. THE ASS ESSEE MIGHT HAVE FELT THAT THEY WERE NOT OF THE NATURE OF INCOME BUT THE AO TREATED THE SAME AS SUCH. WHETHER THE PRIMA FACIE ADJUSTMEN TS WERE CORRECT OR NOT NEED NOT BE ADJUDICATED BECAUSE THE ASSESSEE HAS CHOSEN NOT TO PRESS THE ISSUE OF PRIMA FACIE ADJOURNMENTS AS S UCH. ITS CONTENTION IS LIMITED TO THE FACT THAT ADDITIONAL T AX SHOULD NOT BE IMPOSED BECAUSE THE TOTAL INCOME, EVEN AFTER THE SA ID ADJUSTMENTS, WAS A LOSS. 5.1 FROM THE ABOVE PARA FROM THE ORDER OF LEARNED C IT(A), IT IS SEEN THAT CIT(A) HAS DULY CONSIDERED THE JUDGMENT OF HON'BLE APEX COURT RENDERED IN THE CASE OF CIT VS. HINDUSTAN ELECTRO GRAPHITES LTD. [2 000] 243 ITR 48 (SC) AND BY FOLLOWING THIS VERY JUDGMENT OF HON'BLE APEX COURT, THE ISSUE WAS DECIDED BY HON'BLE ALLAHABAD HIGH COURT IN FAVOUR OF THE ASSES SEE IN THE CASE OF SHRAVASTI KISAN SAHKARI CHINI MILLS LTD. (SUPRA) ON WHICH REL IANCE HAS BEEN PLACED BY LEARNED A. R. OF THE ASSESSEE. WE FIND THAT IN THI S JUDGMENT OF HON'BLE APEX COURT AND ALSO IN THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT ON WHICH RELIANCE HAS BEEN PLACED BY LEARNED A. R. OF THE ASSESSEE, T HE FACTS WERE DIFFERENT. IN THESE CASES, THE ADDITION IN DISPUTE WAS MADE BY TH E ASSESSING OFFICER ON THE BASIS OF RETROSPECTIVE AMENDMENT IN INCOME TAX ACT MADE AFTER FILING OF RETURN BY THE ASSESSEE AND UNDER THESE FACTS, IT WAS HELD IN THESE JUDGMENTS THAT ONE HAS TO SEE THE NATURE OF OBLIGATION TO WHICH AN ASSESSEE I S SUBJECTED IN FILING HIS RETURN AND THE OBJECT SOUGHT TO BE ACHIEVED OF THE INTRODU CTION OF SECTION 143(1A) AND SECTION 143(1) (A) REGARDING LEVY OF ADDITIONAL TAX . 5.2 NOW WE EXAMINE THE FACTS OF THE PRESENT CASE. IN THE PRESENT CASE, THE DISPUTED ADDITIONS ARE REGARDING DEDUCTION U/S 80P OF THE ACT RS.55,541/-, DISALLOWANCE OF ENTERTAINMENT EXPENSES RS.5,435/-, DISALLOWANCE U/S 43B RS.28,74,774/-, DISALLOWANCE OUT OF TRAVELLING EXPE NSES RS.1,162/- AND DISALLOWANCE OUT OF GUEST HOUSE EXPENSES RS.1,24,26 3/-. THIS IS NOT THE CASE OF THE ASSESSEE THAT ANY OF THESE DISALLOWANCES WAS MA DE ON THE BASIS OF ANY SUBSEQUENT RETROSPECTIVE AMENDMENT MADE IN INCOME TA X ACT AFTER FILING OF THE RETURN OF INCOME BY THE ASSESSEE AND THEREFORE, THE ASSESSEE COULD NOT HAVE INCLUDED THESE DISALLOWANCES IN ITS RETURN OF INCOM E BECAUSE THE ASSESSEE COULD NOT ANTICIPATE THE RETROSPECTIVE AMENDMENT IN THE A CT. HENCE, IT IS SEEN THAT THE 4 FACTS IN THE PRESENT CASE ARE TOTALLY DIFFERENT AND THEREFORE, NEITHER THE JUDGMENT OF HON'BLE APEX COURT IN THE CASE OF HINDUSTAN ELEC TRO GRAPHITES LTD. (SUPRA) NOR THE JUDGMENT OF HON'BLE ALLAHABAD HIGH COURT RENDER ED IN THE CASE OF SHRAVASTI KISAN SAHKARI CHINI MILLS LTD. (SUPRA) IS RENDERING ANY HELP TO THE ASSESSEE IN THE PRESENT CASE. WE ALSO FIND THAT IT IS ALSO OBSERVE D BY LEARNED CIT(A) IN PARA 1.4 REPRODUCED ABOVE THAT WHETHER THE PRIMA FACIE ADJUS TMENTS WERE CORRECT OR NOT NEED NOT BE ADJUDICATED BECAUSE THE ASSESSEE HAS CH OSEN NOT TO PRESS THE ISSUE OF PRIMA FACIE ADJOURNMENTS AS SUCH AND THE ASSESSE ES CONTENTION IS LIMITED TO THIS ASPECT THAT THE ADDITIONAL TAX SHOULD NOT BE I MPOSED BECAUSE THE TOTAL INCOME EVEN AFTER THE ADJUSTMENTS WAS A LOSS. HENCE, CONS IDERING THE FACTS OF THE PRESENT CASE IN ITS ENTIRETY AND AS PER ABOVE DISCUSSION, W E FIND NO INFIRMITY IN THE ORDER OF CIT(A) AND THEREFORE, WE DECLINE TO INTERFERE THERE IN. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISM ISSED. (ORDER WAS PRONOUNCED IN THE OPEN COURT ON THE DATE MENTIONED ON THE CAPTION PAGE) SD/. SD/. (SUNIL KUMAR YADAV) ( A. K. GAROD IA ) JUDICIAL MEMBER ACCOUNTANT MEM BER DATED:29/10/2015 *SINGH COPY OF THE ORDER FORWARDED TO : 1.THE APPELLANT 2.THE RESPONDENT. 3.CONCERNED CIT 4.THE CIT(A) 5.D.R., I.T.A.T., LUCKNOW ASSTT. REGI STRAR