M/s. Super Smelters Ltd., Kolkata V. JCIT (OSD), CC-V, KOLKATA, Kolkata

ITSSA 137/KOL/2014

• Counselvise Citation: [2017] 122 COUNSELVISE.COM (IT) 3277 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 8 month(s) 7 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 03-05-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 27-08-2014
• Court: TRIBUNAL
• Department Lawyers: GOULEN HANGSHING
• Assessee Lawyers: A K TULSIYAN
• Section: 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL C BENCH : KOLKATA [BEFORE HONBLE SRI N.V.VASUDEVAN, JM & SHRI WASE EM AHMED, AM ] I.T.(SS)A NOS. 137 TO 139/KOL/2014 ASSESSMENT YEARS : 2006-07, 20 09-10 & 2010-11 M/S. SUPER SMELTERS LTD. . -VS.- J.C.I.T. (OSD)CENTRAL CIRCLE-V, KOLKATA KOLKATA [PAN : AAFCS 1116 F] (APPELLANT) (RESPONDENT) FOR THE APPELLANT : SHRI A.K.TULSIYAN, FCA FOR THE RESPONDENT : SHRI GOULEN HANGSHING, CIT(DR) DATE OF HEARING : 26.04.2017. DATE OF PRONOUNCEMENT : 03.05.2017. ORDER PER BENCH THESE ARE APPEALS BY THE ASSESSEE AGAINST THREE OR DERS ALL DATED 30.06.2014 OF CIT(A)-CENTRAL-I, KOLKATA RELATING TO AY 2006-07, 2009-10 AND 2010-11. 2. THE ONLY COMMON ISSUE THAT ARISES FOR CONSIDER ATION IN THESE THREE APPEALS IS AS TO WHETHER CARRY FORWARD OF CREDIT OF SURCHARGE AND ED UCATION CESS SHOULD ALSO BE ALLOWED WHILE ALLOWING CREIDT FOR MAT U/S 115JB OF THE INCO ME TAX ACT, 1961 (ACT). THE GRIEVANCE OF THE ASSESEE IN THIS REGARD IS PROJECTE D IN THE FOLLOWING GROUNDS OF APPEAL : 1. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE , THE LD. CIT(A) ERRED IN NOT ALLOWING CARRY FORWARD OF CREDIT OF SURCHARGE AND E DUCATION CESS OF RS.4,64,027/- AND RS.1,02,086/- RESPECTIVELY WHILE ALLOWING THE C REDIT FOR MAT U/S 115JB OF THE INCOME TAX ACT, 1961. THE CARRY FORWARD CREDIT OF S URCHARGE AND EDUCATION CESS NEEDS TO BE ALLOWED. 2. THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AM END OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARING. 3. AT THE TIME OF HEARING THE LD. COUNSEL FOR TH E ASSESSEE BROUGHT TO OUR NOTICE THAT IDENTICAL ISSUE HAD COME UP FOR CONSIDERATION IN AS SESSEES OWN CASE FOR A.Y.2007-08 IN IT(SS)A.NO.87/KOL/2014 BY THIS TRIBUNAL VIDE ORDE R DATED 02.12.2016. THE TRIBUNAL 2 IT(SS)A.NOS.137 TO 139/KOL/2014 M/S. SUPER SMELTERS LTD. A.YR.2006-07, 2009-10& 2010-11 2 WAS PLEASED TO HOLD THAT CARRY FORWARD OF CREDIT OF SURCHARGE AND EDUCATION CESS WHILE ALLOWING CREDIT FOR MAT U/S 115JB OF THE ACT SHOULD BE ALLOWED. THE FOLLOWING ARE THE RELEVANT OBSERVATIONS OF THIS TRIBUNAL : 4. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AND ALSO PERUSED THE RELEVANT MATERIAL AVAILABLE ON RECORD. IN SUPPORT OF THE ASS ESSEE'S CLAIM FOR MAT CREDIT ON ACCOUNT OF SURCHARGE AND EDUCATION CESS, THE ID. CO UNSEL FOR THE ASSESSEE HAS CITED VARIOUS JUDICIAL PRONOUNCEMENTS. IN ONE OF THE CASE S SO CITED, NAMELY WYETH LIMITED -VS.- ACIT (ITA NO. 7682/MUM./2011 DATED 09 .01.2015), A SIMILAR ISSUE HAD COME UP FOR CONSIDERATION BEFORE THE COORDINATE BENCH OF THIS TRIBUNAL AT MUMBAI AND THE SAME WAS DECIDED BY THE TRTBUNAL VID E PARAGRAPH NO. 5 OF ITS ORDER WHICH READS AS UNDER:- '5. THUS IT IS CLEAR THAT THE HON 'BLE HIGH COURT H AS TAKEN INTO ACCOUNT THE ORDER OF ENTRIES IN THE FORM ITR-6 FOR THE A. Y. 2011-12 IN THE SAID CASE AND HELD THAT AS PER FORM ITR-6, THE MAT CREDIT HAS TO BE GIVEN A GAINST THE GROSS TAX PAYABLE EXCLUSIVE OF SURCHARGE / CESS AND ONLY AFTER THE MA T CREDIT TAX LIABILITY, THE SURCHARGE AND CESS HAS TO BE CALCULATED FOR THE PUR POSE OF WORKING OUT THE GRAND TAX LIABILITY. WE ALSO FIND MERIT AND SUBSTAN CE IN THE ALTERNATIVE CONTENTION OF THE ASSESSEE THAT IF THE MAT CREDIT I S TAKEN INTO ACCOUNT WITHOUT INCLUDING THE SURCHARGE AND EDUCATION CESS THEN THE SURCHARGE AND EDUCATION CESS ON THE TAX LIABILITY HAS TO BE CALCULATED ONLY AFTER ALLOWING THE MAT CREDIT. ALTERNATIVELY, THE AMOUNT OF MAT CREDIT SHOULD ALSO INCLUDE SURCHARGE AND EDUCATION CESS FOR THE PURPOSE OF ALLOWING THE CRED IT AGAINST THE TAX LIABILITY INCLUSIVE OF SURCBARGE AND EDUCATION CESS'. 5. THE DELHI BENCH OF THIS TRIBUNAL ALSO HAD AN OCC ASION TO CONSIDER SIMILAR ISSUE IN THE CASE OF AMQ AGRO INDIA PVT. LIMITED -VS.- AC IT AND WHILE DECIDING THE SAME IN FAVOUR OF THE ASSESSEE VIDE ITS ORDER DATED 29.04.2016 PASSED IN ITA NO. 666/DEI./2014, IT WAS HELD BY THE TRIBUNAL THAT AS PER THE PROVISIONS CONTAINED IN EXPLANATION (2) UNDER SECTION 115JB. THE ASSESSEE I S ENTITLED TO MAT CREDIT ON ACCOUNT OF SURCHARGE AS WELL AS EDUCATION, CESS, WH ICH WAS UNDISPUTEDLY PAID BY THE ASSESSEE. THE ID. COUNSEL FOR THE ASSESSEE HAS ALSO RELIED ON THE DECISION OF THE HON'BIE SUPREME COURT IN THE CASE OF CIT -VS.- K. S RINIVASAN [83 ITR 346 (SC), WHEREIN IT WAS HELD BY THE HON'BIE APEX COURT THAT THE TERM 'INCOME-TAX' AS EMPLOYED IN SECTION 2 INCLUDES SURCHARGE AND ADDITI ONAL SURCHARGE WHENEVER PROVIDED. THE ID. D.R., ON THE OTHER HAND, HAS NOT BROUGHT TO OUR NOTICE ANY JUDICIAL PRONOUNCEMENT WHEREIN A DIFFERENT VIEW ON THIS ISSUE HAS BEEN EXPRESSED. WE, THEREFORE, RESPECTFULLY FOLLOW THE JUDICIAL PRO NOUNCEMENTS CITED BY THE LD. COUNSEL FOR THE ASSESSEE AS DISCUSSED ABOVE AND DIR ECT THE ASSESSING OFFICER TO 3 IT(SS)A.NOS.137 TO 139/KOL/2014 M/S. SUPER SMELTERS LTD. A.YR.2006-07, 2009-10& 2010-11 3 ALLOW THE MAT CREDIT ON ACCOUNT OF SURCHARGE AND ED UCATION CESS PAID BY THE ASSESSEE. 4. RESPECTFULLY FOLLOWING THE VIEW TAKEN BY THE TRIBUNAL IN ASSESSEES OWN CASE WE HOLD THAT CARRY FORWARD OF MAT CREDIT ON ACCOUNT OF SURCHAGE AND EDUCATION CESS SHOULD BE ALLOWED. 5. IN THE RESULT ALL THE APPEALS OF THE ASSESEE ARE ALLOWED. ORDER PRONOUNCED IN THE COURT O N 03.05.2017. SD/- SD/- [WASEEM AHMED] [ N.V.VASUDEVAN ] ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 03.05.2017. [RG PS] COPY OF THE ORDER FORWARDED TO: 1.M/S. SUPER SMELTERS LTD., 39, SHAKESPEARE SARANI, 3 RD FLOOR, KOLKATA-700017. 2. J.C.I.T., (OSD), CENTRAL CIRCLE-V, KOLKATA. 3. CIT(A)- CENTRAL-I, KOLKATA. 4. CIT- CENTRA L-I, KOLKATA 3..CIT(DR), KOLKATA BENCHES, KOLKATA. TRUE COPY BY ORDER ASSTT.REGISTRAR, ITAT, KOLKATA BENCHES 4 IT(SS)A.NOS.137 TO 139/KOL/2014 M/S. SUPER SMELTERS LTD. A.YR.2006-07, 2009-10& 2010-11 4