JSW ENERGY LIMITED, MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 8(3) , MUMBAI

MA 829/MUM/2017

• Counselvise Citation: [2019] 111 COUNSELVISE.COM (IT) 5295 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 3 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-07-2019
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: J
• Assessment Year: 2008-2009
• Appeal Filed On: 07-11-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHAITANYA ANJARIA
• Keywords: Opportunity of being heard; Capital receipt; Set aside
• Section: 143(3); 153A; 115JB; 254(2)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES J , MUMBAI BEFORE S HRI SHAMIM YAHYA (AM) AND SHRI RAM LAL NEGI (JM) M .A. N O. 829 / MUM /2017 ( ARISING OUT OF ITA N O. 1334 /MUM /201 5 ) ( ASSESSMENT YEAR : 2008 09 ) M/S JSW ENERGY LIMITED, JSW CENTRE, BANDRA KURLA COMPLEX, BANDRA (E), MUMBAI - 400051 PAN: AAACJ8109N VS. T HE DCIT - CENTRAL CIRCLE - 8(3), ROOM NO. 659, 6 TH FLOOR, AAYKAR BHAVAN, M.K. ROAD, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI RAKESH JOSHI (A R) REVENUE BY : SHRI CHAITANYA ANJARIA (DR) DATE OF HEARING: 12 / 04 / 2019 DATE OF PRONOUNCEMENT: 10 / 0 7 /201 9 O R D E R PER RAM LAL NEGI, JM THE ASSESSEE HAS FILED THE PRESENT MISCELLANEOUS APPLICATION FOR RECTIFICATION/ RECALLIN G OF ORDER DATED 02.06.2017 PASSED BY THE J BENCH OF THE ITAT MUMBAI IN ASSESSEES APPEAL ITA NO . 1334 /M UM /2015 PERTAI NING TO THE ASSESSMENT YEAR 2008 - 09 ON THE GROUND THAT THE FINDINGS OF THE TRIBUNAL ON GROUND NO 4 OF THE REVENUES APPEAL ARE C ONTRARY TO ITS FINDINGS IN ASSESSEES APPEAL AGAINST ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT FOR THE SAME ASSESSMENT YEAR. 2. THE LD. COUNSEL SUBMITTED BEFORE US THAT VIDE GROUND NO 4, THE REVENUE HAS CHALLENGED THE ACTION OF THE LD. CIT(A) IN DIREC TING THE AO TO TREAT THE 2 M.A. NO . 829/MUM/2017 ASSESSMENT YEAR S : 2008 - 09 INCOME ON SALE OF (CERTIFICATE EMISSION REDUCTION ) CERS AS CAPITAL RECEIPTS. THE TRIBUNAL RESTORED BACK THIS GROUND OF APPEAL TO THE AO FOR DECIDING THE ISSUE AFRESH HOLDING THAT THE TRIBUNAL HAS ALREADY DEALT WITH THIS ISSUE AS W HILE DECIDING THE APPEAL FILED BY THE ASSESSEE THE TRIBUNAL HAS RESTORED BACK THE ISSUE OF SALE OF CER TO THE FILE OF AO FOR FRESH ADJUDICATION. 3. THE LD. COUNSEL CONTENDED THAT THE FINDINGS OF THE TRIBUNAL ARE INCORRECT AS THE TRIBUNAL HAS ALREADY DECIDE D THIS ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSEES OWN APPEAL PERTAINING TO THE SAME ASSESSMENT YEAR, FILED AGAINST THE ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. THE LD. COUNSEL FURTHER CONTENDED THAT SINCE THE FINDINGS OF THE TRIBUNAL ON THIS ISSUE ARE CONTRARY TO THE EARLIER FINDINGS OF THE TRIBUNAL IN ASSESSEES OWN APPEAL, THE SAME IS MISTAKE APPARENT WITHIN THE MEANING OF SECTION 254(2) OF THE ACT WHICH IS REQUIRED TO BE RECTIFIED. 4. ON THE OTHER HAND, THE LD. DEPARTMENTAL REPRESENTATIVE (DR) F AIRLY ADMITTED THAT THE TRIBUNAL HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE IN ASSESSEES APPEAL FILED AGAINST ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT. 5. WE HAVE CAREFULLY GONE THROUGH THE RELEVANT MATERIAL ON RECORD IN THE LIGHT OF T HE CONTENTION OF THE APPLICANT/ASSESSEE. THE ONLY GRIEVANCE OF THE ASSESSEE IS THAT THE TRIBUNAL HAS WRONGLY SET ASIDE THE ISSUE PERTAINING TO SALE OF CER TO THE FILE OF AO WRONGLY OBSERVING THAT THE TRIBUNAL HAS RESTORED THIS ISSUE BACK TO THE AO FOR DETE RMINING THE ISSUE AFRESH WHILE DECIDING ASSESSEES APPEAL FILED AGAINST ASSESSMENT ORDER PASSED U/S 143(3) OF THE ACT, FOR THE SAME ASSESSMENT YEAR. WE FURTHER NOTICE THAT IN FACT THE TRIBUNAL IN THE ASSESSEES APPEAL , ITA NO. 463/MUM/2014 AGAINST THE ASSES SMENT ORDER PASSED U/S 143(3) OF THE ACT HAS DEALT WITH THIS ISSUE HOLDING AS UNDER: 23. BOTH THE ADDITIONAL GROUNDS OF APPEAL RAISED BY THE ASSESSEE RELATE TO THE MANNER OF COMPUTATION OF BOOK PROFIT FOR THE PURPOSES OF SECTION 115JB OF THE ACT. IN AD DITIONAL GROUND NO. 3 M.A. NO . 829/MUM/2017 ASSESSMENT YEAR S : 2008 - 09 1, THE PLEA OF ASSESSEE IS THAT THE CERS OR CARBON CREDITS ARE IN THE NATURE OF A CAPITAL RECEIPT AND, THEREFORE, THE SAME IS LIABLE TO BE REDUCED WHILE COMPUTING THE BOOK PROFIT FOR THE PURPOSES OF SECTION 115JB OF THE ACT. T HE POINT MADE OUT BY THE APPELLANT IS THAT IF THE RECEIPTS ON ACCOUNT OF SALE OF CARBON CREDITS ARE HELD TO BE CAPITAL RECEIPTS NOT CHARGEABLE TO TAX, IT WOULD AUTOMATICALLY HAVE THE EFFECT OF ALTERING THE BOOK PROFIT COMPUTABLE FOR THE PURPOSE OF SECTION 115JB OF THE ACT. SINCE IN THE EARLIER PART OF THIS ORDER, WE HAVE ALREADY UPHELD THE PLEA OF THE ASSESSEE THAT CARBON CREDIT RECEIPTS ARE IN THE NATURE OF A CAPITAL RECEIPT NOT CHARGEABLE TO TAX FOLLOWING THE JUDGMENT OF HONBLE ANDHRA PRADESH HIGH COURT IN TH E CASE OF MY HOME POWER LTD. (SUPRA), THEREFORE, THE PLEA OF THE ASSESSEE BY WAY OF ADDITIONAL GROUNDS OF APPEAL NO. 1 SPRINGS UP. INSOFAR AS THE ADMISSION OF SUCH AN ADDITIONAL GROUND IS CONCERNED, WE FIND THAT IT INVOLVES A POINT OF LAW AND THE SAME IS A LSO RELEVANT IN DETERMINING APPROPRIATE TAX LIABILITY OF THE ASSESSEE AND, THEREFORE, FOLLOWING THE JUDGMENT OF HONBLE SUPREME COURT IN THE CASE OF NATIONAL THERMAL POWER CORPORATION (SUPRA), THE SAME IS LIABLE TO ADMITTED. NEVERTHELESS, THE SAID GROUND OF APPEAL WAS NOT HITHERTO RAISED BY THE ASSESSEE BEFORE THE LOWER AUTHORITIES, THEREFORE, THE SAME IS OUGHT TO BE EXAMINED APPROPRIATELY BY THE INCOME TAX AUTHORITIES. THUS, THE ADDITIONAL GROUND OF APPEAL NO. 1 IS ADMITTED AND THE SAME IS RESTORED BACK T O THE FILE OF THE ASSESSING OFFICER FOR ADJUDICATION ON MERITS AS PER LAW AFTER ALLOWING THE ASSESSEE A REASONABLE OPPORTUNITY OF BEING HEARD. 6. THE FINDINGS OF THE COORDINATE BENCH AFORESAID PRIMA FACIE ESTABLISH THAT THE TRIBUNAL HAS ALREADY DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE. FROM THE AFORESAID FACTS , IT IS APPARENT THAT THE TRIBUNAL HAS INADVERTENTLY RESTORED GROUND NO. 4 OF THE REVENUES APPEAL FILED AGAINST THE ASSESSMENT ORDER PASSED U/S 143 (3) R.W.S. 153A PERTAINING TO THE A SSESSMENT YEAR UNDER CONSIDERATION. HENCE, IN OUR CONSIDERED VIEW, THE IMPUGNED ORDER SUFFERS FROM MISTAKE APPARENT AND THE SAME IS REQUIRED TO BE RECTIFIED. WE THEREFORE, ALLOW THE MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE AND RECALL ORDER DATED 02. 06.2017 PASSED BY THE J BENCH OF THE TRIBUNAL IN ASSESSEES APPEAL ITA 4 M.A. NO . 829/MUM/2017 ASSESSMENT YEAR S : 2008 - 09 NO. 1334/MUM/2015 FOR THE AY 2008 - 09 FOR A LIMITED PURPOSE I.E, FOR DECIDING GROUND NO. 4 OF THE REVENUES APPEAL AFRESH BY A REGULAR BENCH IN THE ORDINARY COURSE. THE REGISTRY IS DI RECTED TO FIX THE APPEAL FOR HEARING. IN THE RESULT, MISC. APPLICATION FILED BY THE ASSESSEE FOR A SSESSMENT YEAR 2008 - 09 IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10TH JULY , 2019 . SD/ - SD/ - ( SHAMIM YAHYA ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 10 / 0 7 / 2019 ALINDRA, PS / COPY O F THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI