Income Tax Appellate Tribunal - Ahmedabad
Gujarar State Petroleum Corpn.Ltd.,, ... vs Assessee on 20 April, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
"C " BENCH, AHMEDABAD
Before Shri D. K. TYAGI, JUDICIAL MEMBER
and Shri A. K. GARODIA, ACCOUNTANT MEMBER
M.A.No.221/Ahd/2009
IN
I.T.A. No. 3031/ Ahd/2003
(Assessment year 1999-2000)
Gujarat State Petroleum Corpn. Vs. ITO, Ward 3,
Ltd., GPSC Bhavan, Gandhinagar
B/h Udyog Bhavan, Sector 11,
Gandhinagar
PAN/GIR No. : AABCG4502F
(APPELLANT) .. (RESPONDENT)
Appellant by: Shri S N Soparkar, Sr. Adv.
Respondent by: Shri Vinod Tanwani, Sr.
DR
Date of hearing: 20.04.2012
Date of pronouncement: 11.05.2012
ORDER
PER SHRI A. K. GARODIA, AM:-
This miscellaneous application is filed by the assessee pointing out certain mistakes in the tribunal order. The contentions of the miscellaneous application are reproduced below:
"1. The present application is filed by the applicant/appellant above named for setting aside the order dated 20/02/2009 passed by this Hon'ble Tribunal reversing the order of the CIT (A) allowing claim of deduction u/s 80IB (9) of the Act in respect of profits earned from production of mineral oil and thus allowing the appeal of Revenue. It is most respectfully submitted that in the said order of the Hon'ble ITAT, there is an error apparent on the record.2 M.A.No.221/Ahd/2009
2. The Hon'ble ITAT while disposing of the appeal, reproduced the grounds raised by Revenue from page 6 Para 11 serially at no. 1 to 7 wherein the ground at # 6 on page 7 read as under: -
6. The Ld. CIT (A) has erred in law and on facts in ignoring the fact that in the original return of income) no claim for deduction u/s 80IB (9) was made and therefore in the reassessment u/s 147, the assessee is precluded from inducting new claim of deduction u/s 80IB (9) which was not made in the original return of income in view of the Supreme Court's decision in the case of CIT Vs. Sun Engineering Works P. Ltd. 198 ITR 97 (SC).
3. The Hon'ble ITAT after noting the submissions made by learned DR and reproducing the view held by the apex court in the case of Sun Engineering Works (supra) adjudicated the issue in Para 14 on page 11 & 12 as under; -
u In view of the above decision of the Supreme Court, we are of the opinion that deduction claimed by the assessee under Section 80IB (9) which has no relation to the re - computation of profit under Section 115JA of the Act cannot be claimed or allowed by the AO, The determination of the issue of allowability' of claim is therefore not in accordance with the law.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXX xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx We accordingly reverse the order of the CIT (A) and allow revenue's appeal on this issue.
4. The applicant most respectfully submits that the Hon'ble ITAT while reproducing the ratio of the Sun Engineering (supra) on page 10 of the order though having noted in the 9th line from top as below: -Indeed, in the reassessment proceedings for bringing to tax items which had escaped assessment, it would be open to the assessee to put forward claims for deduction of any expenditure in respect of that income or \ regarding the non - taxability of the items at all has held exactly contrary to the ratio as laid down by the Hon'ble Supreme Court.
5. Now appreciating the facts of the case, the applicant claimed deduction u/s 42 of the Act in normal computation as well as for the purpose of provisions of section 115JA of the Act. The Assessing Officer issued notice u/s 148 of the Act since he was of the view that the assessee was not entitled to such deduction in computing book profit u/s 115JA. The assessee in return filed in 3 M.A.No.221/Ahd/2009 response to the notice, did not return any positive income and therefore had no occasion to claim deduction under Chapter VI - A. Therefore to its Return of Income appended a note that "in the event of the assessment resulting in a positive gross total income, the company claims that deduction be allowed in respect of profits and from the production of mineral oil in accordance with the provision of sec. 80IB" In light of the above facts the ratio of the decision of the Apex Court in the case of Sun Engineering (supra) would entitle the applicant to claim the deduction u/s 80IB(9) of the Act. Further the Hon'ble ITAT in the order of the assessee passed on the same day for other years has held profits of the business of extraction of mineral oil as eligible for deduction u/s 80IB(9) of the Act by holding that each well is a separate undertaking.
6. The Applicant therefore, respectfully submits that in the larger interest of justice the Hon'ble Tribunal be pleased to accept the prayer of the applicant/appellant and rectify the order as stated above so as to be in consonance with the ratio of the decision of Sun Engineering Works P. Ltd., 198ITR97(SC)."
2. It was submitted by the Ld. A.R. before us in the course of hearing of the miscellaneous application that the view taken by the Tribunal in the order is opposite to the judgment of Hon'ble Apex Court rendered in the case of Sun Engineering Works P. Ltd. 198 ITR 97 (S.C.) and therefore, it is an apparent mistake which should be rectified. In reply, it was submitted by the Ld. D.R. that there is no apparent mistake in the tribunal order. He placed reliance on the following judgments:
(a) 203 ITR 497 (Bby.) CIT Vs Ramesh Electric & Trading Co.
(b) 202 ITR 14 CIT Vs Gokul Chand Agarwal
(c) 176 ITR 535 CIT Vs Karam Chand Thapar & Bros. P. Ltd.
3. We have considered the rival submissions, perused the material on record and the impugned Tribunal order. As per the miscellaneous application, the mistake pointed out by the assessee in the miscellaneous 4 M.A.No.221/Ahd/2009 application is in para 14 of the impugned tribunal order and for the sake of ready reference, this para of the tribunal order is reproduced below:
"14.In view of the above decision of the Supreme Court, we are of the opinion that deduction claimed by the assessee under Section 80IB(9) which has no relation to the re-computation of profit under Section 115JA of the Act cannot be claimed or allowed by the AO. The determination of the issue of allowability of claim is therefore not in accordance with the law. Reliance by the assessee on the decision of Tribunal in the case of ACIT Vs. Niko Resources Ltd., ITA No.661/Ahd/2005 and 789/Ahd/2005 dated 29-2-2008 would be of no help to the assessee as in that case the claim was determined and allowed in the normal assessment proceedings and the ground was raised in the appeal there against. We accordingly reverse the order of the CIT(A) and allow revenue's appeal on this issue."
4. From the above para of the tribunal order, it is seen that the tribunal decision is on this basis that for the deduction claimed by the assessee u/s 80IB(9), there is no relation of the same to the recomputation of the profit u/s 115JA of the Income tax Act, 1961 and hence, it cannot be claimed or allowed by the A.O. and for this reason, it was held that the determination of the issue of allowability of this claim is, therefore, not in accordance with law. We find that as per the reassessment order passed by the A.O. on 07.03.2003 as per the assessment order u/s 143(3) read with Section 147 of the Income tax Act, 1961, the normal income has been computed by the A.O. at a loss of Rs.1365.99 lacs and the book profit was computed as income of Rs.2045.80 lacs. Since there is loss computed under regular provisions of the Income tax Act, 1961, no deduction is allowable to the assessee u/s 80IB and for the purpose of computation of book profit, deduction allowable u/s 80-IB is not required to be considered either for addition or subtraction from the profit/loss as per P & L account. Hence, there is no mistake in the tribunal order as per 5 M.A.No.221/Ahd/2009 which, it is held by the tribunal that deduction u/s 80-IB(9) has no relation to the computation of the profit u/s 115JA of the Income tax Act, 1961. This finding of the Tribunal has got no connection with the judgment of Hon'ble Apex Court rendered in the case of Sun Engineering Works P. Ltd. (supra) and therefore, we find no merit in the miscellaneous application filed by the assessee.
5. In the result, miscellaneous application of the assessee is dismissed.
6. Order pronounced in the open court on the date mentioned hereinabove.
Sd./- Sd./-
(D. K. TYAGI) (A. K. GARODIA)
JUDICIAL MEMBER ACCOUNTANT MEMBER
Sp
Copy of the Order forwarded to:
1. The applicant
2. The Respondent
3. The CIT Concerned
4. The Ld. CIT (Appeals)
5. The DR, Ahmedabad By order
6. The Guard File
AR,ITAT,Ahmedabad
1. Date of dictation......3/5
2. Date on which the typed draft is placed before the Dictating Member...4/5 .Other Member ............
3. Date on which the approved draft comes to the Sr. P.S./P.S.
4. Date on which the fair order is placed before the Dictating Member for pronouncement ............11/5
5. Date on which the fair order comes back to the Sr. P.S./P.S.11/5
6. Date on which the file goes to the Bench Clerk ... 11/5/2012
7. Date on which the file goes to the Head Clerk .......................
8. The date on which the file goes to the Assistant Registrar for signature on the order .........................
9. Date of Despatch of the order. ......................