2018 (6) TMI 1777 - AT - Income Tax

Rectification u/s 154 - whether the amount brought forward as unabsorbed depreciation as claimed by the assessee is correct or not? - HELD THAT - This was the claim of the assessee that the profits of the assessment year 1999-2000 were set off against the carried forward losses of the previous year which were more than 15 crores rupees and even after absorbing the entire profits of the year 1999- 2000 against the carried forward losses losses still remained unabsorbed and the unabsorbed depreciation was not even touched. The claim in the present case is also similar. This was the claim of the revenue before Hon ble Delhi High Court that that in Assessment Year 1999-2000 profit as per P L account of Rs. 58.98 lakhs was adjusted against unabsorbed depreciation and brought forward business loss and therefore the AO took that figure for adjustment against book profit u/s. 115JB in the order passed by him u/s. 154 of IT Act as in the present case. But it was held by Hon ble Delhi High Court in Eli Lilly and Co. India P. Ltd. 2011 (3) TMI 267 - DELHI HIGH COURT that under these facts it cannot be said that there was an apparent mistake which could be rectified by invoking the provisions of section 154 of IT Act. Hence by respectfully following this judgement of Hon ble Delhi High Court we decide the issue in favour of the assessee.

Summary

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Disallowance of set-off of carried forward loss.
3. Validity of rectification under Section 154 of the Income Tax Act.
4. Set-off of accumulated depreciation loss while computing book profits under Section 115JB.
5. Liability to pay interest under Section 234B.
6. Upholding interest charged under Section 234B in a proceeding under Section 154.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The assessee filed an appeal with a delay of two days, attributing the delay to a change in management. The Tribunal deemed it fit to condone the delay, considering it a minor lapse and admitted the appeal.

2. Disallowance of Set-off of Carried Forward Loss:
The assessee contested the disallowance of a carried forward loss of Rs. 1,94,76,157 under a proceeding under Section 154 of the Income Tax Act. The Commissioner of Income Tax (Appeals) [CIT(A)] had disallowed this set-off, which the assessee argued was erroneous both in law and on facts.

3. Validity of Rectification under Section 154 of the Income Tax Act:
The assessee argued that the rectification of the alleged mistake was not valid as it was a debatable issue, not a mistake apparent from the record. The Tribunal referred to the judgment of the Hon’ble Delhi High Court in the case of CIT Vs. Eli Lilly and Co. India P. Ltd., which held that such issues are debatable and cannot be rectified under Section 154. The Tribunal found that the issue in dispute was similar to that in the Eli Lilly case and decided in favor of the assessee, stating that the rectification order by the Assessing Officer (AO) was not valid.

4. Set-off of Accumulated Depreciation Loss while Computing Book Profits under Section 115JB:
The CIT(A) held that the accumulated depreciation loss as of 1.4.2006 had become nil and therefore, no amount could be set off while computing the book profits under Section 115JB. The Tribunal, however, found that the AO had already adjusted the entire depreciation loss in the previous assessment year (2006-07) and thus, there was no apparent mistake in the assessment order for the year 2007-08.

5. Liability to Pay Interest under Section 234B:
The assessee denied its liability to pay interest under Section 234B of the Income Tax Act. The Tribunal did not provide a detailed analysis on this issue separately but implied that the decision on the primary issues would affect the liability under Section 234B.

6. Upholding Interest Charged under Section 234B in a Proceeding under Section 154:
The CIT(A) had upheld the interest charged under Section 234B in a proceeding under Section 154. Given the Tribunal's decision that the rectification under Section 154 was not valid, the interest charged under Section 234B in such a proceeding was also implicitly deemed incorrect.

Conclusion:
The Tribunal allowed the appeal filed by the assessee, finding that the rectification under Section 154 was not valid as the issue was debatable and not an apparent mistake. Consequently, the set-off of carried forward loss and accumulated depreciation loss was permitted, and the interest charged under Section 234B in the rectified order was invalidated.