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10-07-2019, Gujarat Power Corporation, Section 43B, 14A, 8D, Tribunal Ahmedabad

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1 week 22 hours ago #10036 by amit
Section - 43B, 14A, 8D, 36(1)(va), 115JB, 2, 3
Order Date - 10-07-2019
Favouring - Assessee Partly
Court - Tribunal Ahmedabad
Appellant - JCIT
Respondent - Gujarat Power Corporation Ltd.
Justice - PRAMOD KUMAR VP & MADHUMITA ROY JM
Citation - 719Taxpundit130
Appeal No. - ITA No(s) 1172/Ahd/2016
Asstt. Year - 2011-12

Order

PER : MADHUMITA ROY - JM:

These first two cross appeals being ITA Nos.1172 & 1361/Ahd/2016 filed by the revenue and assessee are directed against separate orders dated 16.02.2016 passed by the Commissioner of Income Tax (Appeals)-7, Ahmedabad arising out of the order dated 31.01.2014 issued by the Jt. Commissioner of Income Tax- Gandhinagar Range, Gandhinagar under section 143(3) of the Income Tax Act, 1961 (hereinafter referred as to ‘the Act’) for Assessment Year 2011-12 and the third appeal being ITA No.1928/Ahd/2016 filed by the assessee is directed against the order dated 15.06.2016 passed by the Learned CIT(A)-Gandhinagar, Ahmedabad arising out of the order dated 31.03.2015 passed by the Income Tax Officer, Ward-2, Gandhinagar u/s 143(3) of the Act for A.Y. 2012-13. Since all the appeals relate to the same assessee, the same are heard analogously and are being disposed of by a common order.

ITA No. 1172/Ahd/2016 A.Y. 2011-12 (Revenue’s appeal) :

2. Ground No.1 : The order passed by the Learned CIT(A) in allowing the revised computation of income has been challenged by the department.

3. The brief facts leading to the case is this that the assessee company filed its return of income declaring total income at Rs.4,72,68,230/- on 29.09.2011. The income u/s 115JB has been stated to be Rs.7,35,54,261/-. During the course of assessment proceeding, the assessee was asked to file the copy of income tax return, statement of computation of income and tax audit report. In response thereto by and under a letter dated 01.08.2013, the assessee replied referring a letter dated 30.12.2011 filed to the Learned JCIT, Gandhinagar Range on 02.02.2012 informing him that the return was filed on 29.09.2011 on the basis of provisional accounts. However, after the finalization of accounts on 01.12.2011 certain changes in the final audited account as compare to provisional unaudited accounts were made. Finally, the total income was revised upwards from Rs.4,72,68,230/- to Rs.5,26,28,888/-. More TDS claim was also made and the refund claim was also increased. Further, the assessee submitted an explanation vide letter dated 31.07.2013 to the authorities. According to the Learned AO since the assessee has not filed the revised return of income, the plea of the assessee was not sustainable. Further that, instead of the AO the Learned JCIT was informed about such revised computation of income. The Learned AO was also of the opinion that merely communicating a revision of income without
actually filing the return of income, there was every chance that the assessee’s income would be assessed at a lower income. Had the case of the assessee being not selected for scrutiny the assessee could have got away with lower returned income. He, therefore, worked out the difference between the gross total income as per revised computation and gross total income as per return amounting to Rs.56,42,795/- and added the same to the total income of the assessee. In appeal, the Learned CIT(A) deleted the same; hence the instant appeal.

5. At the time of hearing of the instant appeal, the Learned Senior Counsel appearing for the assessee submitted before us that the Learned AO passed the order on a wrong notion saying the assessee by and under the reply dated 31.07.2013 gave an impression that revised return was indeed filed but it is a fact that the assessee merely filed a letter offering higher income. Since there was certain changes in the final audit report as compare to provisional unaudited accounts, the assessee requested the Learned JCIT being the Assessing Officer to consider the same at the time of finalization of the assessment proceeding which fact was also not taken into consideration by the Learned AO. The assessee filed complete details of changes in income. Along with letter dated 30.12.2011 the revised computation of income was also filed much before the date of issuance of notice u/s 143(2) dated 10.09.2012 which was received by the assessee on 17.09.2012. It was further pointed out by the Learned Senior Counsel that in one hand the Learned AO has not accepted the revised computation on the other hand he has made disallowance and additions based on such revised income which is contradictory and thus disallowance is liable to be deleted. On the other hand, the Learned DR relied upon the order passed by the Learned AO.

6. Heard the respective parties, perused the relevant materials available on record. It appears from the records that the Learned AO has disallowed Rs.56,42,795/- on the ground that the appellant has revised its income without filing a revised return. On the other hand, it was the case of the assessee that the return was filed based on provisional, un-audited accounts and upon finalization of such accounts on 01.12.2011 a revised computation of income was prepared which was made known to the authorities with a request to consider the same on 30.12.2011. This is just a revised statement that too much prior to the issuance of notice u/s 143(2) dated 10.09.2012. Thus, it is an admitted fact that appellant has revised its income on its own after finalization of accounts. We have also carefully considered the order

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