Income Tax Appellate Tribunal - Kolkata
Allied Resins & Chemicals Ltd., Kolkata vs Department Of Income Tax on 2 August, 2012
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IN THE INCOME TAX APPELLATE TRIBUNAL,
KOLKATA 'B' BENCH, KOLKATA
Before Shri Pramod Kumar (Accountant Member),
and Shri Mahavir Singh (Judicial Member)
I.T.A. No .: 59/ Kol/2010
Asse ssment yea r 2007-08
Assistan t Commissi one r of Income Tax
Central Ci rcl e IV, K olka ta ....................App ellant
Vs.
Allied R esins & Chemicals L td
...............R espo ndent
13, Camac Street, Kol kat a 7 00017
[PAN : AACCA8557 D]
Appearances
Niraj Kumar for the appellant
V N Purohit for the respondent
Date of co ncluding t he hea ri ng : Mar ch 2 8, 2012
Date of prono unci ng the o rde r : April 30, 2012
O R D E R
Per Pramod Kumar:
1. This is an appeal filed by the Assessing Officer and is directed against the order dated 14 t h October 2009, passed by the CIT(A) in the matter of assessment under section 143(3) of the Income Tax Act, 1961, for the assessment year 2007-08.
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2. Grounds of appeal raised by the Assessing Officer, which are somewhat interconnected and which will, therefore, be taken up together, are as follows:
1. In the facts and circumstances of the case, the learned CIT(A) erred in holding that due to some mistake tax of Rs 15,57,89,653 has been calculated in the intimation dated 31.03.2009 though the income was computed under section 115 JB.
2. In the facts and circumstances of the case, the learned CIT(A) erred in directing the Assessing Officer to rectify the mistake in the intimation under section 143(1) inspite of the fact that the assessee itself has shown the book profit of Rs 107,62,81,756 and no deduction has been claimed in the relevant column 5(e) of the schedule for MAT in the return of incom e.
3. Learned CIT (A)'s decision to allow a deduction not claimed in the return is contrary to Hon'ble Supreme Court's decision in the case of Goetze India Ltd (284 ITR 323) wherein it has been held that claim of deduction which has not been m ade in the return of income is not allowable.
3. The issue in appeal lies in a narrow compass of material facts. The assessee's claim is that the assessee has become a sick industrial company within meanings of section 17(1) of the Sick Companies (Special Provisions) Act and that the provisions of Section 115JB donot, I . T. A . N o . : 5 9 / K o l / 2 0 1 0 A s s e ss m e nt y e a r 2 0 0 7- 0 8 Page 3 of 6 therefore, apply on the assessee. While processing the return, however, a demand of Rs 15,57,89,653 was raised. Aggrieved, assessee carried the matter in appeal. Learned CIT (A) noted that the income returned by the assessee was 'nil' and the provisions of MAT under section 115 JB did not apply to the assessee. He also noted that even in the income processed by way of intimation under section 143(1)(a), it is nowhere stated that the demand has been raised under section 115 JB. He was, therefore, of the view that the demand of Rs 15,57, 89,653 has been wrongly raised on the assessee. The grievance of the assessee was thus upheld. Now the Assessing Officer is aggrieved of the relief so given by the CIT(A) and is in appeal before us.
4. We have heard the rival contention , perused the material on record and duly considered factual matrix of the case as also the applicable legal position.
5. We find that there is no dispute that the assessee has returned a nil income and that no additions have been made in respect of the same. The assessee's claim, as set out in the statement of facts as well, is that the provisions of Section 115JB donot apply to the assessee. Yet, without rejecting the said claim, a demand has been raised on the assessee by way of computer p rocessed intimation, and, as the intimation clearly states in the bottom portion, it is in respect of "book profit u/s 115JA/aa5JB". Apparently, the Assessing Officer has proceeded on the basis that minimum alternate tax on the book profits I . T. A . N o . : 5 9 / K o l / 2 0 1 0 A s s e ss m e nt y e a r 2 0 0 7- 0 8 Page 4 of 6 under section 115 JB is applicable on the facts of this case. As evident from the ground of appeal by the Assessing Officer, this processing mistake has occurred as the relevant column in the income tax return was not duly filled in. A column having been left blank due to inadvertent error can not be visited with denial of claim when such claim is admissible on the basis of material on record and in accordance with the law. Therefore, the matter should be restored to the file of the Assessing Officer for limited verification about the provisions of Section 115 JB being inapplicable on the facts of this case on the ground that the assessee company is a sick company within meanings of Section 17(1) of the Sick Companies (Special Provisions) Act. In this view of the matter, we see no infirmity in the conclusions arrived at by the CIT(A) to the effect that the Assessing Officer has to rectify the said mistake and issue correct intimation to the assessee, but then we make it specifically clear that the Assessing Officer will examine the fact regarding the assessee company being a sick company, and, therefore, outside the ambit of Section 115 JB. While upholding the stand of the CT(A) in principle, we modify the directions to the extent indicated above.
6. Having upheld the action of the CIT(A) on merits, we may clarify that while the CIT(A) has mentioned that there is no mention of impugned demand having been made under section 115 JB in the intimation under section 115 JB, we find that this observation is incorrect inasmuch as the said intimation specifically states the demand having been made in respect of "Section 115 JA/ Section 115 JB". However, as the matter has been remitted to the file of the verification of claim about inapplicability of Section 115 JB, nothing I . T. A . N o . : 5 9 / K o l / 2 0 1 0 A s s e ss m e nt y e a r 2 0 0 7- 0 8 Page 5 of 6 really tu rns on this aspect of the matter. There is also a mention about fresh claim having been made in the appeal proceedings but then, in our considered view, leaving a column blank is not the same thing as not making a claim - more so when the claim is said to have been made in the computation of income by way of a specific note. It is not, therefore, necessary to deal with these aspects in greater detail.
7. In the result, the appeal is allowed for statistical purposes in the terms indicated above. Pronounced in the open court today on 30th day of April, 2012.
Sd/- Sd/-
Mahavir Singh Pramod Kum ar
(Judicial Member) (Accountant Member)
Kolkata, the 30 t h day of April, 2012
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Copies to : (1) Th e app ell ant
(2) Th e respon dent
(3) CIT
(4) CIT(A)
(5) Th e D ep artment al Rep resentativ e
(6) Guard File
By order etc
Assis tant Registrar
Income Tax Appe llate Tribunal
Kolkata benches, Kolkata