ACIT, Trivandrum V. KSEB, Trivandrum

MA 114/COCH/2014

• Counselvise Citation: [2015] 124 COUNSELVISE.COM (IT) 2670 (ITAT-COCHIN)
• Duration Of Justice: 4 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 09-01-2015
• Appeal Filed By: Department
• Bench Allotted: DB
• Assessment Year: 2007-2008
• Appeal Filed On: 08-09-2014
• Court: TRIBUNAL
• Department Lawyers: K K JOHN
• Keywords: Revision of order; Depreciation
• Section: 143(3); 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE S/SHRI N.R.S.GANESAN, JM AND CHANDRA POOJ ARI, AM M.A. NO. 114/COCH/2014 (ARSG. OUT OF I.T.A. NO. 124/COCH/2014) ASSESSMENT YEARS : 2007-08 THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), TRIVANDRUM. VS. KERALA STATE ELECTRICITY BOARD LIMITED, PATTOM, TRIVANDRUM. [PAN:AABCK 5896J] (REVENUE -APPELLANT) (ASSESSEE-RESPONDEN T) REVENUE BY SHRI K.K. JOHN, SR. DR ASSESSEE BY NONE DATE OF HEARING 12/12/2014 DATE OF PRONOUNCEMENT 09/01/2015 CORRINGEND UM PER CHANDRA POOJARI, ACCOUNTANT MEMBER: THIS MISCELLANEOUS PETITION HAS BEEN FILED BY THE DEPARTMENT POINTING OUT CERTAIN TYPOGRAPHICAL ERRORS CREPT IN THE ORDER OF THE TRIBUNAL IN I.T.A. NO.124/COCH/2014 DATED 04/07/201 4. 2. THE LD. DR POINTED OUT ERRORS IN THE ABOVE ORDER AS FOLLOWS: M.P. NO. 114/COCH/2014 2 ERROR NO. DESCRIPTION PAGER NO. LINE NO. ET. 1. REPETITION OF TEXT FROM LINE 7 (STARTING FROM THE LEARNED CIT(A).) OF SUB SECTION 1 OF PARAGRAPH 2 IN SUB SECTION 2 OF PARAGRAPH 2. PAGE NO. 2 LINE 7 OF SUB SECTION OF PARAGRAPH 2. 2. DATE OF PRONOUNCEMENT OF TRIBUNALS ORDER IN I.T.A. NO. 648/COCH/2010 IS 09/03/2011 WHEREAS IN LINE 5 AND 6 OF PARAGRAPH 3 TWO DATES ARE GIVEN AS 11-12- 2013 AND 09-03-2010 RESPECTIVELY. KSEB APPEALED AGAINST THE ORDER OF CIT(A)-I, TRIVANDRUM IN IT NO. 165-T/09-10 DATED 05/10/2010 WHERE IT IS RECORDED AS THE CASE WAS THE SUBJECT MATTER OF REVISION BY CIT U/S 263 OF THE IT ACT VIDE ORDER DATED 01-02- 2012. PAGE NO. 2 LINE 5 AND 6 OF PARAGRAPH 3 PAGE NO. 2 SENTENCE 2 OF PARAGRAPH 3. 3. DATE OF ITATS ORDER IN 148/COCH/2012 IS 21/01/2013 WHEREAS IN LINE 5 OF PARAGRAPH 5 THE DATE GIVEN IS 11- 10-2013 PAGE NO. 3 LINE 5 OF PARAGRAPH 5 M.P. NO. 114/COCH/2014 3 3. AFTER CONSIDERING THE ABOVE MISTAKES POINTED OUT BY THE LD. DR, WE ARE INCLINED TO RECTIFY THE ABOVE ORDER AS FOLLOWS: 4. PARA 2 WILL READ AS FOLLOWS: 2. THE LEARNED CIT(A) OUGHT TO HAVE NOTED THAT I N TERMS OF THE PROVISIONS OF SEC. 43(6)(C) OF THE I.T. ACT, ONLY ADJUSTMENTS PERMITTED ARE THE ADDITIONS ON ACCOUNT OF ASSETS ACQUIRED DURING THE YEAR AND THE SALE/ADJUSTMENT IN RESPECT OF WDV ASSETS SOLD/DISPO SED DURING THE YEAR AND ONLY SUBSIDY RECEIVED DURING THE YEAR COULD BE REDU CED FROM THE ACTUAL COST OF ASSETS ACQUIRED DURING THE YEAR AS PER THE PROVI SIONS OF SUB-SEC(1) OF SEC. 43 OF THE INCOME TAX ACT, 1961. IT IS THEREFO RE, HUMBLY PRAYED THAT DIRECTION BE ISSUED TO WITHDRAW THE ADJUSTMENT MADE REDUCING THE CUMULATIVE SUBSIDY UPTO THE BEGINNING OF THE YEAR A MOUNTING TO R.1678,97,65,098 FROM THE WDV OF ASSETS FOR THE PUR POSES OF COMPUTING DEPRECIATION FOR THE YEAR. 5. PARA 3 WILL READ AS FOLLOWS: 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ORIGIN AL ASSESSMENT ORDER WAS PASSED U/S. 143(3) ON 17-12-2009 DETERMINING TH E INCOME OF THE ASSESSEE AT RS. 44,20,13,027/-. THIS CASE WAS THE SUBJECT MATTER OF APPEAL BEFORE THE CIT(A)-I, TRIVANDRUM IN IT NO. 165-T/09- 10 AND THE SAME WAS DISPOSED OF BY THE CIT(A) VIDE ORDER DATED 05/10/20 10. AGAINST THIS, THE ASSESSEE WENT IN APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 09-03-2011 IN I.T.A. NO. 648/COCH/2010 REMAND ED THE MATTER TO THE ASSESSING OFFICER TO RECOMPUTE THE DEDUCTION U/S. 1 15JB ON THE BASIS OF THE JUDGMENT OF JURISDICTIONAL HIGH COURT IN ASSESSEES OWN CASE REPORTED IN 329 ITR 91. IN THE MEANTIME, THE CIT PASSED REVISIO N ORDER DATED 01-02- 2012 U/S. 263 OF THE I.T. ACT. AGAINST THIS, THE A SSESSEE FILED APPEAL BEFORE THE TRIBUNAL AND THE TRIBUNAL VIDE ORDER DATED 21/0 1/2013 IN I.T.A. NO. M.P. NO. 114/COCH/2014 4 148/COCH/2012 DISMISSED THE ASSESSEES APPEAL FOR N ON PROSECUTION. THEREAFTER, THE ORDER WAS RECALLED AND DISPOSED OF ALONG WITH I.T. A. NO. 457/COCH/2013 FOR A.Y. 2008-09 AND THE TRIBUNAL CON FIRMED THE ORDER OF THE CIT PASSED U/S. 263 OF THE ACT VIDE ORDER DATED 11-10-2013 ON THE REASONING THAT THERE IS NON APPLICATION OF MIND BY THE ASSESSING OFFICER TO THE ISSUE RAISED BY THE CIT WITH REGARD TO CARRY FO RWARD OF LOSSES AND DEPRECIATION IN HIS ASSESSMENT ORDER AND IT IS AN E RROR WITHIN THE MEANING OF SEC. 263 OF THE ACT. THE ASSESSING OFFICER PASSED THE IMPUGNEDORDER U/S. 143(3) R.W.S. 263 OF THE I.T. ACT DATED 31-03-2013 AND MADE FOLLOWING ADDITIONS: 1. CLAIM OF EXCESS DEPRECIATION ON ACCOUNT OF NON DEDUCTION OF THE SUBSIDY RECEIVED TO THE TUNE OF RS. 18,95,09,66,56 9 FROM THE WDV RS. 284,26,44,985/- 2. ELECTRICITY DUTY (TREATED AS INCOME) PAYABLE U/S. 3(1) OF THE ELECTRICITY DUTY ACT, 1963, 71,77,92,000/- 6. IN PARA 5, THERE IS NO MISTAKE WITH REFERENCE TO THE DATE OF TRIBUNAL ORDER IN I.T.A. NO. 148/COCH/2012 AND THE DATE SHOULD BE READ AS 11/10/2013 ONLY. 7. ACCORDINGLY, THE EARLIER ORDER IS TO BE READ A S ABOVE. HOWEVER WE MAKE IT CLEAR THAT THERE ARE NO OTHER CHANGES IN THIS ORDER AND THE FINDINGS OF THE EARLIER ORDER WOULD REMAIN THE SAME. M.P. NO. 114/COCH/2014 5 8. IN THE RESULT, MISCELLANEOUS APPLICATION FILED B Y THE REVENUE IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COU RT ON 09-01-2015. SD/- SD/- (N.R.S.GANESAN) (CHANDRA POOJARI) JUDICIAL MEMBER ACCOUNTANT MEMBER PLACE: KOCHI DATED: 9 TH JAN 2015 GJ COPY TO: 1. KERALA STATE ELECTRICITY BOARD LIMITED, PATTOM, T RIVANDRUM. 2. THE ASSISTANT COMMISSIONER OF INCOME-TAX, CIRC LE-1(1), TRIVANDRUM. 3. THE COMMISSIONER OF INCOME-TAX(APPEALS), TRIVAND RUM 4. THE COMMISSIONER OF INCOME-TAX, TRIVANDRUM. 5. D.R., I.T.A.T., COCHIN BENCH, COCHIN. 6. GUARD FILE. BY ORDER (ASSISTANT REGISTRAR) I.T.A.T, COCHIN