Home Case Index All Cases Income Tax Income Tax + AT Income Tax - 2006 (1) TMI AT This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2006 (1) TMI 213 - AT - Income TaxDepreciation - Carry forward and set off of depreciation and business loss - Return was treated as non est - levy of interest u/s 234C - Date of payment of advance tax consider "date of deposit of cheque or date of realisation of cheque" - AO by taking the actual date of realization of cheques levied interest - HELD THAT:- Since, admittedly, the return was treated as non est and unabsorbed depreciation and business loss were not determined during the assessment year 1987-88, in our opinion, it cannot be carried forward and set off against the income for the assessment year 1995-96 in view of the judgment of the Madras High Court in the case of Sri Rajarathinam Transports (P.) Ltd. [1991 (1) TMI 11 - MADRAS HIGH COURT]. Moreover, it is not known whether the depreciation remains to be unabsorbed during the period 1987-88 to 1994-95. The assessee or the Department could not clarify whether the depreciation remains to be unabsorbed. Thus, we do not find any merit in the appeals of the assessee. Accordingly, we confirm the order of the lower authorities on this issue. Levy of interest - Admittedly, the cheques were presented and deposited before the authorized banker within the due date for payment of advance tax. The cheques were admittedly encashed and the amounts were realised subsequently. It is not the case of the Revenue that the cheques were returned unpaid at any point of time. In those circumstances, as held by the Authority for Advance Rulings, the date of payment should be taken as date of presentation of the cheques. The Apex Court as well as Madras High Court have also taken similar view after interpreting sections 10 and 82 of the Negotiable Instruments Act, 1881. Therefore, in our opinion, the date of presentation should be taken as date of payment since admittedly, the cheques were honoured. By respectfully following the judgment of the Apex Court in the case of K. Saraswathy [1989 (5) TMI 318 - SUPREME COURT] and the judgment of the Madras High Court in the case of Kumudam Publications (P.) Ltd [1980 (9) TMI 77 - MADRAS HIGH COURT] and the decision rendered by the Authority for Advance Rulings, we set aside the order of the lower authorities and direct the Assessing Officer to take the date of presentation of the cheques before the authorized banker for payment of advance tax as date of payment. In the result, I.T.A. No. 1035 is partly allowed and I.T.A. No. 1034 is dismissed.
|