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05-12-2018, Universal Medicare, Section 153A, 132(1), 153A(l)(a),Tribunal Mumbai

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1 week 2 days ago #7975 by amit
Section - 153A, 132(1), 153A(l)(a), 139, 801B(3)(ii), 148
Order Date - 05-12-2018
Favouring - Partly allowed for statistical purposes
Court - Tribunal Mumbai
Appellant - Universal Medicare Pvt. Ltd.
Respondent - DCIT
Justice - SHAMIM YAHYA, AM & SANDEEP GOSAIN, JM
Citation - 1218Taxpundit125
Appeal No. - I.T.A. No. 910/Kol/2018
Asstt. Year - 2006-07 to 2010-11

Order

PER : SHAMIM YAHYA

These are appeals by the assessee against the respective orders of the learned Commissioner of Income Tax (Appeals), Mumbai (‘ld.CIT(A) for short), pertaining to the concerned assessment years.

2. Since the issues are common and connected and the appeals were heard together these are being consolidated and disposed of for the sake of convenience.

3. One common issue raised in all these appeals is for the proposition that whether the assessee can claim or raise additional grounds in assessment done u/s.153A of the Income Tax Act, 1961 (the Act for short), when the said grounds were not raised in the original assessment passed u/s.143 of the Act.

4. In this regard we note that the learned counsel of the assessee has placed reliance upon following case laws in support of the proposition that assessee is entitled to make such claim in assessment proceedings pursuant to notice u/s.153A of the act:

1. Dorf Ketal Chemicals (I) P. Ltd. vs. DCIT (ITA No. 3736/M/2012)(MumTrib).

2. M/s. Narendra Vegetable Products Pvt. Ltd. vs. ACIT (ITA No.118/Nag/2013)(Mum-Trib).

3. DCIT vs. Ms. Eversmile Construction Co. Pvt. Ltd. (ITA No. 4238/M/2010)(Mum-Trib).

4. Mr. Faisal Abbas v. DCT (ITA Nos. 3485&3487/M/2010)(Mum-Trib).

5. Mr. A. Srinivas Rama Raju vs. DCIT (ITA No.975/Hyd/2015)(Hyd-Trib).

6. M/s. KNR Constructions Ltd. v. DCIT (ITA 946/Hyd/2015)(Hyd-Trib).

7. ACIT vs. Shri V. N. Devadoss (ITA Nos.1219/Mds/2012)(Chennai-Trib).

8. Alok Textile Industries Ltd. vs. DCIT (ITA No.118 of 2003)(Bom.HC)

5. Per Contra learned departmental representative opposed this view and placed reliance upon following case laws:

1. DCIT vs. Eversmile Construction Co. (P) Ltd. 33 taxmann.com 657 (ITATMum).

2. Jai Steel India Ltd. vs. ACIT 36 taxmann.com 523 (Raj); and

3. Charchit Agarwal vs. Asst.CIT 34 SOT 348 (ITAT-Del)

6. On careful consideration, we find that this issue has been elaborately dealt with by this tribunal in the case of Dorf Ketal Chemicals (I) P. Ltd. (supra). In the said case, the tribunal had held as under:

6. We have carefully considered the submission and perused the records. We find that ITAT Nagpur Bench in the case of Narendra Vegetables Products has elaborately con iderd the issue as to whether of fresh claim can be made u/s 153 A or not. The Tribunal had relied upon several Tribunal decisions and had also considered honourable Apex Court decision in the case of Sun Engineering and has also placed reliance upon honourable Supreme Court decision in the case of Shelly Products. We may gainfully referred to the finding of the Tribunal as under: "In the light of the above factual and legal discussion, we have heard both the sides at length. On careful examination of the grounds as raised before us( we have noted that basically two substantive issues have been raised before us. The first one is that the Assessing Officer has rejected the claim of the assesses in respect of sales-tax subsidy on the pretext that the proceeding was - started under section 153A of J.T. Act, which was a "revenue beneficial" assessment, hence new claim of exemption could not be entertained and the assessee is not eligible to raise a fresh claim of exemption. The second one is that if a view is taken that even if an assessment is framed under section 153A/143(3) the assessee is to claim a statutory exemption, then under such circumstances whether the assessee is entitled for the said claim in respect of the sales-tax incentive received and duly credited in profit & loss account. Therefore, the first step is to examine whether the impugned claim can be entertained and if it goes in favor of the assessee then the next step is to examine the eligibility of the claim.

5.1 As far as the basic facts are concerned, there is no dispute that an action under section 132(1) was taken in the group of cases and in consequence thereupon a statutory notice under section 153A(l)(a) was issued. In compliance of the said notice the assessee has intimated the Assessing Officer to consider its original return filed as if furnished in compliance of the notice under section 153A of L T. Act. It may not be out of place to mention that the assessee has filed the original, return of income under section 139 of I.T. Act declaring total income of Rs.22,30,259/-, The same was assessed as per the impugned assessment order now before us. For the year under consideration, the assessment was originally made under section 143(1) dated 7th February, 2004 (A.Y. 2003-04). At this juncture it is also worth to mention that in the case of the assessee for assessment year 2004- 05 originally the assessment was made under section 143(3) dated 22.12.2006. The return for the said year was filed declaring an income of Rs. 44,48,790/- and the same was assessed by the Assessing Officer. In the past the assessee was claiming a deduction under section 801B(3)(ii) of the Act. In the paper book the assessee has also computed year wise sales-tax incentive availed by the assessee. For assessment year 2003-04 the assessee has received an incentive In respect of oil refinery of Rs.74,15,531/-. For assessment year 2004-05 the sales tax incentive in respect of oil refinery was at Rs.33 96,658/- and in respect of wind power it was Rs.23,00,000/- total Rs.56,96f658/- Likewise, in rest of the years, details in respect of the sales tax incentive was furnished. This is also not in dispute that in the respective years the assessee : has credited the impugned amount of sales-tax incentive In the profit and loss account

6. In the light of the above facts, the basic question which was raised from the side of the Revenu Department was that in a situation when the assessee has suo moto declared the amount in the profit and loss account and the same was accepted by the Revenue Department as a part of the revenue receipt of the assessee for all involved, then how the assessee can now change its stand, specially when the reassessment was to be framed consequence upon the search operation.

6.1 On identical situation the IT AT, Mumbai Bench in the case of COT v/s. Ever smile Construction Co, P. Ltd. bearing ITA No. 4238/Muml2010 order dated 30-08-2011 has made an observation quota "A close look at the above provision manifests that the Assessing Officer is required to make assessment afresh and compute the 'total income1 in respect of each of the relevant six assessment years.

As there is no specific inhibition on the jurisdiction of the Assessing Officer in not including any new income to such fresh total income pursuant to search which was not added during the original assessment, in the like manner, there is no restriction on the assessee to claim any deduction which was not allowed in the original assessment. The requirement of section 153A is to compute the total income of each of such assessment years. Such determination of the total income has to be done afresh without any reference to what was done in the original assessment. Of course, the AO is entitled to make any addition in the fresh assessment, which he made in the original assessment, provided he is satisfied with the merits of the

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