Income Tax Appellate Tribunal - Pune
Aqua Alloys (P) Ltd. vs Deputy Commissioner Of Income-Tax on 17 May, 1999
ORDER
K. C. Singhal, J.M.
1. The only issue arising out of this appeal is whether additional tax under s. 143(1A) can be levied where the total income even after adjustment remains the same.
2. The relevant facts giving rise to this appeal are these. The assessee is a private limited company. It filed its return of income declaring total income at 'Nil' for the year under consideration in the following manner :
Rs.
Total business income after adjustment 65,10,059
Set off against the carried forward losses as
assessed and claimed. 65,10,059
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Total income Nil
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3. The said return was processed under s. 143(1)(a) by the AO, who made the adjustment of Rs. 2,52,763 on account of excess depreciation to the business income declared by the assessee which was set off against the carried forward losses of earlier years and finally assessed the total income at 'Nil' in the following manner :
Rs.
Returned total income 65,10,059
Adjustments under s. 143(1)(a) :
Add : Excess depreciation claimed
(25% of Rs. 10,11,054) 2,52,763
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Adjusted total income 67,62,822
Less : C/f losses of earlier years to the
extent of profit 67,62,822
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Nil
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Thereafter, assessee moved an application under s. 154 contending that adjustment made by AO was incorrect and consequently the levy of additional tax was bad in law. The AO partially accepted the contention of the assessee and modified the intimation in the following manner :
Rs.
Total income as per return, as per Adjustment
Explanatory sheet, dt. 28th February, 1992 165,10,059
Add : Excess depreciation claimed as worked out
in para 1 above 60,837
-----------
Revised adjusted total income 65,70,896
Less : C/f losses of earlier years to the extent
of profit 65,70,896
-----------
Total income Nil
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The additional tax levied by him was also modified accordingly. The appeal before the CIT(A) against the levy of additional tax remained unsuccessful. Hence, this appeal before the Tribunal.
4. The learned counsel for the assessee Mr. Bagwat took us through the amended provisions of s. 143(1A) and submitted that two conditions are to be satisfied before levy of additional tax. Firstly, there must be increase in the income declared by the assessee on account of adjustment made under first proviso to s. 143(1)(a). Secondly, such increase in the income must result in the increase of total income. So, if the total income still remains the same despite the adjustment made by the AO, the additional tax cannot be levied in view of the clear and unambiguous language of s. 143(1A).
5. On the other hand, the learned Departmental Representative has contended that total income should be understood as computed for the year under consideration without set off of carry forward losses, otherwise the purpose of the enactment would be defeated. According to him, the provisions as originally enacted were amended retrospectively to cover such mischief. Even in loss cases, where no tax is payable, the legislature has intended to levy additional tax..
6. Rival submissions have been considered carefully. The relevant portion of s. 143(1A) is reproduced as under :
"(1A) (a) Where as a result of the adjustments made under the first proviso to cl. (a) of sub-s. (1),
(i) the income declared by any person in the return is increased; or
(ii) xxxxx xxxxx xxxxx the AO shall, (A) in a case where the increase in income under sub-cl. (i) of this clause has increased the total income of such person, further increase the amount of tax payable under sub-s. (1) by an additional income-tax calculated at the rate of twenty percent on the difference between the tax on the total income so increased and the tax that would have been chargeable had such total income been reduced by the amount of adjustments and specify the additional income-tax in the intimation to be sent under sub-cl. (i) of cl. (a) of sub-s. (1);
(B) xxxxx xxxxx xxxxx (C) xxxxx xxxxx xxxxx"
A bare reading of the aforesaid provisions clearly shows that legislature has deliberately used two words "income" in cl. (i) and "total income" in sub-cl. (A). Under the scheme of the Act, each assessee has to compute and declare his income under various heads under Chapter IV. The sum total of such income is not the total income. In computing the total income, the provisions of Chapter V, VI and VI-A are also to be taken into consideration. Carried forward loss of earlier years has to be set off under Chapter VI against the income declared by the assessee under Chapter IV. If there is still positive income, it has to be adjusted against deduction or allowance provided in Chapter VI-A. Therefore, as per the scheme of the Act, the total income is different from the income declared under various heads. It is because of such scheme of the Act, the legislature has used two different expressions in s. 143(1A) i.e. "Income" and "total income". Sub-cl. (A) provides in clear terms that total income must increase as a result of increase in the income declared by the assessee as specified in cl. (i). The provisions are clear and unambiguous and, therefore, question of applying any rule of interpretation does not arise. So, the word income in cl. (i) would mean income declared by the assessee under various heads while the words "total income" would mean income as finally computed under IT Act. Therefore, the contention of the learned Departmental Representative that total income should include only sum total of the income before the set off of carried forward losses of earlier years cannot be accepted since total income has to be computed by applying the provisions of Chapters VI and VI-A.
7. In the present case, no doubt, there is increase in the income declared by the assessee under the head "profits from business and profession" and therefore, condition specified in cl. (i) is satisfied. But, despite that increase, the total income still remains as 'Nil' as declared by assessee. Therefore, the second condition specified in sub-cl. (A) is not satisfied. Hence, levy of additional tax is bad in law and therefore, cannot be sustained. The order of CIT(A), is therefore, set aside and levy of additional tax by AO is hereby cancelled.
8. In the result, appeal is allowed.