Best 7 Crompton Engineering Projects Limited, CHENNAI V. ACIT, CHENNAI

ITA 843/CHNY/2015

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 7726 (ITAT-CHENNAI)
• Duration Of Justice: 11 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-03-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Next Hearing Date: 02-02-2016
• Assessment Year: 2010-2011
• Appeal Filed On: 15-04-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B NISCHAL
• Assessee Lawyers: S SUBRAMANIAM
• Keywords: Revised return
• Section: 43B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, CHENNAI . . . , . !'# ! , % !& BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ ITA NO.843/MDS/2015 ( )( / ASSESSMENT YEAR : 2010-11 M/S BEST & CROMPTON ENGINEERING PROJECTS LIMITED, C/O SREEDHAR, SURESH RAJAGOPALAN, CHARTERED ACCOUNTANTS, FLAT 3B, GREEN HAVEN, NEW NO.26, GANDHI NAGAR 3 RD MAIN ROAD, ADYAR, CHENNAI - 600 020. PAN : AABCB 5248 H V. THE ASSISTANT COMMISSIONER OF INCOME TAX, COMPANY CIRCLE I(2), CHENNAI - 600 034. (+,/ APPELLANT) (-.+,/ RESPONDENT) +, / 0 / APPELLANT BY : SHRI S. SUBRAMANIAM, FCA -.+, / 0 / RESPONDENT BY : DR. B. NISCHAL, JCIT 1 / 2% / DATE OF HEARING : 02.02.2016 3') / 2% / DATE OF PRONOUNCEMENT : 18.03.2016 / O R D E R PER N.R.S. GANESAN, JUDICIAL MEMBER: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-1, CHENNAI , DATED 29.12.2014 AND PERTAINS TO ASSESSMENT YEAR 2010-11. 2 I.T.A. NO.843/MDS/15 2. SHRI S. SUBRAMANIAM, THE LD. REPRESENTATIVE FOR THE ASSESSEE, SUBMITTED THAT THE ASSESSEE CLAIMED DEDUC TION OF ` 1,12,93,407/- UNDER SECTION 43B OF THE INCOME-TAX A CT, 1961 (IN SHORT 'THE ACT'). THE ASSESSING OFFICER MADE DISAL LOWANCE OF ` 2,35,60,889/-. IN THE COURSE OF ASSESSMENT PROCEED ING, THE ASSESSEE CLAIMED THAT THE DISALLOWANCE SHOULD BE ` 1,59,48,406/-. THIS WAS SUBMITTED BY THE ASSESSEE BY A LETTER DATE D 12.12.2012. THE ASSESSING OFFICER REJECTED THE REVISED DISALLOW ANCE MADE UNDER SECTION 43B OF THE ACT AND COMPLETED THE ASSE SSMENT BY DISALLOWING THE ENTIRE SUM OF ` 2,35,60,889/-. THE CIT(APPEALS) CONFIRMED THE ORDER OF THE ASSESSING OFFICER. ACCO RDING TO THE LD. REPRESENTATIVE, THE CIT(APPEALS) OUGHT TO HAVE ALLO WED THE CLAIM OF THE ASSESSEE. 3. ON THE CONTRARY, DR. B. NISCHAL, THE LD. DEPARTM ENTAL REPRESENTATIVE, SUBMITTED THAT THE ASSESSEE CLAIMED DISALLOWANCE UNDER SECTION 43B OF THE ACT TO THE EXTENT OF ` 2,35,60,889/- INSTEAD OF ` 1,59,48,406/-. INSTEAD OF FILING THE REVISED RETUR N, THE ASSESSEE FILED REVISED STATEMENT BEFORE THE ASSESSING OFFICE R. REFERRING TO THE JUDGMENT OF APEX COURT IN GOETZE (INDIA) LTD. V . CIT (2006) 284 ITR 323, THE LD. D.R. SUBMITTED THAT THE ASSESSEE C ANNOT MAKE ANY 3 I.T.A. NO.843/MDS/15 CLAIM BY WAY OF STATEMENT. IF AT ALL THE ASSESSEE INTENDS TO MAKE ANY CLAIM, A REVISED RETURN HAS TO BE FILED AS HELD BY THE APEX COURT. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EITH ER SIDE AND PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. THE ASSESSEE DISALLOWED A SUM OF ` 2,35,60,889/- UNDER SECTION 43B OF THE ACT. THE NATURE OF EXPENDITURE INCURRED BY THE ASSESSEE IS NOT AVAILABLE ON RECORD. DURING THE COURSE OF ASSESSMENT PROCEED ING, THE ASSESSEE APPEARS TO HAVE FILED A REVISED STATEMENT AND RESTRICTED THE DISALLOWANCE TO ` 1,59,48,406/-. ACCORDINGLY, THE ASSESSEE CLAIMED THE DIFFERENCE OF ` 76,12,483/- TO BE ALLOWED. THE ASSESSING OFFICER, HOWEVER, DISALLOWED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THERE WAS NO REVISED RETURN FILE D BY THE ASSESSEE. AS FOUND BY THE APEX COURT IN GOETZE (IN DIA) LTD. (SUPRA), ANY CLAIM BEFORE THE ASSESSING OFFICER HAS TO BE SUBMITTED BY WAY OF REVISED RETURN. 5. WE HAVE CAREFULLY GONE THROUGH THE JUDGMENT OF T HE APEX COURT IN GOETZE (INDIA) LTD. IN THE CASE BEFORE TH E APEX COURT, THE ASSESSEE MADE A CLAIM OF DEDUCTION OTHERWISE THAN F ILING A REVISED RETURN. THE DEDUCTION WAS DISALLOWED BY THE ASSESS ING OFFICER ON 4 I.T.A. NO.843/MDS/15 THE GROUND THAT THERE WAS NO PROVISION IN THE INCOM E-TAX ACT TO MAKE AMENDMENT IN THE RETURN OF INCOME. THE APEX C OURT FOUND THAT THE DECISION DOES NOT IN ANY WAY RELATE TO THE POWER OF THE TRIBUNAL TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWI SE THAN BY FILING A REVISED RETURN. THE APEX COURT ALSO OBSERVED THAT THE ISSUE BEFORE THE APEX COURT WAS LIMITED TO THE POWER OF THE ASSE SSING AUTHORITY AND DOES NOT IMPINGE ON THE POWER OF THE TRIBUNAL U NDER SECTION 254 OF THE ACT. IN FACT, THE APEX COURT OBSERVED A S FOLLOWS:- 3. THIS APPELLANTS APPEAL BEFORE THE COMMISSIONER O F INCOME-TAX (APPEALS) WAS ALLOWED. HOWEVER, THE ORDER OF THE FURTHER APPEAL OF THE DEPARTMENT BEFORE THE INCOME-TAX APPELLATE TRIBUNAL WAS ALLOWED. THE APPEL LANT HAS APPROACHED THIS COURT AND HAS SUBMITTED THAT TH E TRIBUNAL WAS WRONG IN UPHOLDING THE ASSESSING OFFIC ERS ORDER. HE HAS RELIED UPON THE DECISION OF THIS COUR T IN NATIONAL THERMAL POWER COMPANY LTD. V. CIT [1998] 229 ITR 383 , TO CONTEND THAT IT WAS OPEN TO THE ASSESSEE TO RAISE THE POINTS OF LAW EVEN BEFORE THE APPELLATE TRIBUNAL. 4. THE DECISION IN QUESTION IS THAT THE POWER OF TH E TRIBUNAL UNDER SECTION 254 OF THE INCOME-TAX ACT, 1961, IS TO ENTERTAIN FOR THE FIRST TIME A POINT OF LAW P ROVIDED THE FACT ON THE BASIS OF WHICH THE ISSUE OF LAW CAN BE RAISED BEFORE THE TRIBUNAL. THE DECISION DOES NOT I N ANY WAY RELATE TO THE POWER OF THE ASSESSING OFFICER TO ENTERTAIN A CLAIM FOR DEDUCTION OTHERWISE THAN BY F ILING A REVISED RETURN. IN THE CIRCUMSTANCES OF THE CASE, W E DISMISS THE CIVIL APPEAL. HOWEVER, WE MAKE IT CLEAR THAT THE ISSUE IN THIS CASE IS LIMITED TO THE POWER OF T HE ASSESSING AUTHORITY AND DOES NOT IMPINGE ON THE POW ER OF THE INCOME-TAX APPELLATE TRIBUNAL UNDER SECTION 254 OF 5 I.T.A. NO.843/MDS/15 THE INCOME-TAX ACT, 1961. THERE SHALL BE NO ORDER AS T O COSTS. IN VIEW OF THE ABOVE, THIS TRIBUNAL IS OF THE CONSI DERED OPINION THAT THE MATTER NEEDS TO BE RECONSIDERED BY THE ASSESSIN G OFFICER. ACCORDINGLY, THE ORDERS OF THE LOWER AUTHORITIES AR E SET ASIDE AND THE ISSUE OF DISALLOWANCE UNDER SECTION 43B OF THE ACT IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER. THE ASSESSIN G OFFICER SHALL BRING ON RECORD THE NATURE OF EXPENDITURE INCURRED BY THE ASSESSEE AND THEREAFTER DECIDE THE ISSUE IN ACCORDANCE WITH LAW AFTER GIVING REASONABLE OPPORTUNITY TO THE ASSESSEE. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED ON 18 TH MARCH, 2016 AT CHENNAI. SD/- SD/- (. !'# ! ) ( . . . ) (A. MOHAN ALANKAMONY) (N.R.S. GANESAN) % / ACCOUNTANT MEMBER /JUDICIAL MEMBER /CHENNAI, 5 /DATED, THE 18 TH MARCH, 2016. KRI. 6 I.T.A. NO.843/MDS/15 / -267 87)2 /COPY TO: 1. +, /APPELLANT 2. -.+, /RESPONDENT 3. 1 92 () /CIT(A)-1, CHENNAI 4. 1 92 /CIT, CHENNAI-1, CHENNAI 5. 7: -2 /DR 6. ( ; /GF.