BULK CEMENT CORPORATION (INDIA)LTD., RAIGAD V. ACIT, RAIGAD

ITA 7498/MUM/2013

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 7819 (ITAT-MUMBAI)
• Duration Of Justice: 4 year(s) 7 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 20-12-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S K BEPARI
• Assessee Lawyers: MAYUR DESAIAR
• Keywords: Depreciation; Unabsorbed depreciation
• Section: 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH B, MU MBAI BEFORE SHRI PAWAN SINGH, JUDICIAL MEMBER AND SHRI RAJESH KUMAR, ACCOUNTNAT MEMBER ITA NO.7498 & 7499/MUM/2013 (ASSESSMENT YEAR- 2011- 12) BULK CEMENT CORPORATION (INDIA) LTD. PLOT NO. W-7, KWC, KALAMBOLI, DIST. RAIGAD, MAHARASHTRA-410218. PAN: AABCB1655J VS. ACIT, PANVEL CIRCLE, PANVEL, DISTRICT-RAIGAD, MAHARASHTRA. (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI MAYUR DESAI(AR) REVENUE BY : SHRI S .K. BEPARI (DR) DATE OF HEARING : 10.08.2018 DATE OF PRONOUNCEMENT : 10.08.2018 ORDER UNDER SECTION 254(1) OF INCOME TAX ACT PER PAWAN SINGH, JUDICIAL MEMBER: 1. THESE AFORESAID TWO APPEALS BY ASSESSEE UNDER SECTI ON 253 OF THE INCOME TAX ACT (THE ACT) ARE DIRECTED AGAINST SEPARATE ORD ER OF LD. COMMISSIONER (APPEALS)-II, THANE DATED 4 TH OCTOBER 2013 FOR ASSESSMENT YEAR 2011-12. ITA NO. 7498/M/2013 ARISES FROM THE ASSESSMENT ORDER UNDER SECTION 143(1), WHEREIN THE ASSESSING OFFICER DISALLOWED SET OFF OF BROUGHT FORWARD UNABSORBED DE PRICIATION AND MAT CREDIT OF EARLIER YEARS. ITA NO.7499/M/2013 ARISES AGAINST THE DISMISSAL OF APPLICATION UNDER SECTION 154 OF THE ACT. 2. BRIEF FACTS OF THE CASE ARE THAT ASSESSEE IS A PUBL IC LIMITED COMPANY AND IN THE BUSINESS OF TRANSPORTATION AND DISTRIBUTION OF BULK CEMENT. THE ASSESSEE FILED ITS RETURN OF INCOME FOR ASSESSMENT YEAR 2011-12 ON 30 TH ITA NO. 7498 & 7499/M/2013- BULK CEMENT CORPORATION (INDIA) LTD. 2 SEPTEMBER 2011 SHOWING TOTAL INCOME AT RS. NIL COMP UTED UNDER THE PROVISIONS OF THE ACT OTHER THAN SECTION 115JB AND PROFIT UNDER THE PROVISIONS OF SECTION 115JB WAS COMPUTED AT RS. 23, 55,204/-. THE ASSESSEE COMPUTED THE TAX THEREON AT RS. 6,22,055/- . IN THE RETURN OF INCOME THE ASSESSEE CLAIMED SET-OFF OF BROUGHT FORW ARD UNABSORBED APPRECIATION OF RS.1,57,59,037/- FOR ASSESSMENT YEA R 2001-02 AND RS. 1,38,12,563/-FOR ASSESSMENT YEAR 2002-03, THUS TOTA LLING OF RS. 2,95,71,600/-. THE ASSESSEE ALSO CLAIMED SET-OFF OF MAT CREDIT BROUGHT FORWARD FOR EARLIER YEARS. THE ASSESSMENT WAS PROCE SSED UNDER SECTION 143(1) ON 16 TH FEBRUARY 2012. THE ASSESSING OFFICER WHILE PROCESS ING THE RETURN, NOT ALLOWED BROUGHT FORWARD UNABSORBED DEPRECIATION OF RS. 2,95,71,600 AND RAISE DEMAND OF RS. 87,93,350/-. TH E ASSESSING OFFICER DENIED THE UNABSORBED DEPRECIATION FOR ASSESSMENT Y EAR 2001-02 AND 2002-03 AND ALSO DISALLOWED SET-OFF OF MAT CREDIT B ROUGHT FORWARD. BEING AGGRIEVED THE ASSESSEE FILED APPEAL BEFORE CO MMISSIONER (APPEALS). THE COMMISSIONER (APPEALS) GRANTED PARTI AL RELIEF TO THE ASSESSEE DIRECTING THE ASSESSING OFFICER TO ALLOWED BROUGHT FORWARD UNABSORBED DEPRECIATION FOR ASSESSMENT YEAR 2002-03 ONLY. FOR CLAIM OF BROUGHT FORWARD MAT CREDIT BROUGHT FORWARD, THE LEA RNED CIT(A) HOLD THAT NO SUCH CLAIM WAS MADE BY THE ASSESSEE IN THE RETURN OF INCOME, THEREFORE, THE SAME WAS BEYOND THE SCOPE OF PROVISI ON OF SECTION 143(1). THEREFORE, FURTHER AGGRIEVED BY THE ORDER OF COMMIS SIONER (APPEALS) THE ITA NO. 7498 & 7499/M/2013- BULK CEMENT CORPORATION (INDIA) LTD. 3 ASSESSEE HAS FILED THE PRESENT APPEAL BEFORE US VID E ITA NO.7498/M/2012. 3. THE FILED AN APPLICATION FOR RECTIFICATION OF THE O RDER VIDE APPLICATION DATED 30.04.2012, WHICH WAS DISMISSED VIDE ORDER DA TED 29.05.2012. THE ASSESSEE AGAIN FILED APPLICATION UNDER SECTION 154 ON 29.05.2012, WHICH WAS AGAIN DISMISSED BY ASSESSING OFFICER VIDE ORDER DATED 16.08.2012. ON APPEAL BEFORE LD CIT(A) THE ACTION OF THE ASSESSING OFFICER WAS UPHELD, THUS, THE ASSESSEE FILED SECOND APPEAL VIDE ITA NO. 7499/M/2013 4. IN ITA 7498/M/2013, THE ASSESSEE HAS RAISED THE FOL LOWING GROUNDS OF APPEAL: (1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, LEARNED COMMISSIONER (APPEALS) GROSSLY ERRED IN NOT DELETIN G THE ADJUSTMENT MADE BY ASSISTANT COMMISSIONER OF INCOME TAX ACT /AO IN INTIMATION UNDER SECTION 143(1) WITHOUT APPRECIATING THE FACT THAT S UCH ADJUSTMENTS ARE NOT PERMISSIBLE UNDER SECTION 143(1). (2) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, WITHOUT PREJUDICE TO THE GROUND NUMBER ONE THE LEARNED COMMISSIONER (APP EALS) WAS GROSSLY UNJUSTIFIED AND ERRED IN CONFIRMING THE ACTION OF A SSESSING OFFICER IN NOT ALLOWING THE CLAIM OF ASSESSEE FOR SET OFF OF BROUG HT FORWARD UNABSORBED DEPRECIATION OF RS. 1,57,59,037 /- FOR AY 2001-02. (3) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, WITHOUT PREJUDICE TO GROUND NO.1 & 2, THE LD. CIT(A) GROSSLY ERRED IN NO T ALLOWING SET OFF OF BROUGHT FORWARD MAT CREDIT OF EARLIER YEARS AGAINST THE TAX LIABILITY COMPUTED BY THE AO IN INSTANT YEAR UNDER THE PROVIS IONS OF THE ACT OTHER THAN SEC. 115JB. (4) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE, WITHOUT PREJUDICE TO GROUND NO.1 & 2, THE LD. CIT(A) ERRED IN DIRECTING THE AO TO ALLOW CONSEQUENTIAL RELIEF IN RESPECT OF INTEREST U/S 234 C WITHOUT APPRECIATING THE FACT THAT INTEREST U/S 234C IS NOT LEVIABLE IN THE INSTANT CASE. 5. WE HAVE HEARD THE LD. AUTHORISED REPRESENTATIVE (AR ) FOR THE ASSESSEE AND THE LD. DEPARTMENTAL REPRESENTATIVE (DR) FOR THE RE VENUE AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE LD AR FOR THE ASSESSEE ITA NO. 7498 & 7499/M/2013- BULK CEMENT CORPORATION (INDIA) LTD. 4 SUBMITS THAT THE ASSESSING OFFICER /ACIT CENTRAL PR OCESSING CENTRE (CPC) BANGALORE PASSED ASSESSMENT ORDER AND DENIED SETTING OFF BROUGHT FORWARD UNABSORBED DEPRECIATION OF RS. 2,95,71,600 AND SET-OFF OF MAT CREDIT BROUGHT FORWARD BY THE ASSESSEE. THE LD AR F OR THE ASSESSEE SUBMITS THAT THE ASSESSEE WAS ENTITLED FOR FORWARD UNABSORBED DEPRECIATION OF RS. 2,95,71,600 AND ALSO FOR SET-O FF OF MAT CREDIT BROUGHT FORWARD AVAILABLE TO THE ASSESSEE. THE LD A R FOR THE ASSESSEE HAS SHOWN TO US THE AVAILABILITY OF BROUGHT FORWARD UNA BSORBED DEPRECIATION OF RS. 2,95,71,600 AND MAT CREDIT CLAIMED IN THE AS SESSMENT RECORD OF ASSESSMENT YEAR 2010-11. THE LD. AR FOR THE ASSESSE E PRAYED FOR SETTING ASIDE OF THE ASSESSMENT ORDER. 6. ON THE OTHER HAND THE LD. DR FOR THE REVENUE SUPPOR TED THE ORDER OF THE AUTHORITIES BELOW. THE LD. DR SUBMITS THAT UNABSORB ED DEPRICIATION CANNOT BE ALLOWED TO THE BROUGHT FORWARD FOR MORE T HAN EIGHT YEARS. 7. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS OF THE PAR TIES AND HAVE PERUSED THE ORDERS OF THE LOWER AUTHORITIES AND THE CASE RE CORD PLACED BEFORE US. THE ASSESSING OFFICER/ ACIT CPC BANGALORE PROCESSED THE RETURN AND ISSUED INTIMATION UNDER SECTION 143(1) OF THE ACT. THE LD CIT(A) CONFIRMED THE ACTION OF ASSESSING OFFICER IN DISALL OWANCE OF UNABSORBED DEPRICIATION HOLDING THAT IT IS OF MORE THAN EIGHT YEARS, WITHOUT CONSIDERING THE AMENDED PROVISION OF SECTION 32(2). AT OUR INSTANCE THE LD AR FOR THE ASSESSEE FILED COPY OF RETURN OF INCO ME FOR AY 2006-07 TO ITA NO. 7498 & 7499/M/2013- BULK CEMENT CORPORATION (INDIA) LTD. 5 2010-11ALONGWITH THE COMPUTATION OF INCOME FOR AY 2 010-11 AND THE STATEMENT OF UNABSORBED DEPRICIATION, WHICH IS IN O UR VIEW FOUND TO BE IN ORDER AND IN ACCORDANCE WITH THE CLAIM OF THE ASSE SSEE. THE LD. AR ALSO FILED STATEMENT OF MAT CREDIT, WHICH IS ALSO FOUND TO BE IN ORDER AND IN ACCORDANCE WITH THE CLAIM OF THE ASSESSEE. HOWEVER, TO VERIFY THE FACTS BOTH THE CLAIMS RAISED IN GROUND NO.2 AND 3 ARE RES TORE TO THE ASSESSING OFFICER TO VERIFY THE FACTS AND ALLOW RELIEF TO THE ASSESSEE IN ACCORDANCE WITH LAW. 8. AS WE HAVE ALLOWED THE GROUND NO. 2 AND 3 IN FAVOUR OF THE ASSESSEE HENCE, THE DISCUSSION ON GROUND NO. 1 HAS BECOME AC ADEMIC. GROUND NO. 4 IS CONSEQUENTIAL WHICH NEEDS NO SPECIFIC ADJUDICA TION. 9. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLOWED . ITA NO. 7499/M/2013 10. THE ASSESSEE HAS CLAIMED SIMILAR RELIEF WHICH WE HA VE ALLOWED TO THE ASSESSEE IN ITA NO. 7498/M/2013; THEREFORE, THE DIS CUSSION ON THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE HAS BECOME ACADEMIC. 11. IN THE RESULT BOTH THE APPEAL FILED BY THE ASSESSEE ARE ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH DAY OF AUGUST 2018. SD/- SD/- (RAJESH KUMAR) (PAW AN SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI; DATED 10/08/2017 S.K.PS ITA NO. 7498 & 7499/M/2013- BULK CEMENT CORPORATION (INDIA) LTD. 6 COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT.REGISTRAR) ITAT, M UMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY/