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2015 (5) TMI 1032 - ITAT COCHIN

2015 (5) TMI 1032 - ITAT COCHIN - TMI - MAT computation - revision u/s 263 - According to Ld CIT, the deduction prescribed in the above said provision shall be available only for the assessment years falling between the years mentioned in clause (vii), i.e., the assessment year in which the company has become a Sick Industrial Company and the year in which the net worth of such company becomes equal to or exceeds the accumulated losses - according to Ld A.R, the provisions of sec. 115JB of the C .....

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In the case of Malabar Industrial Co. (2000 (2) TMI 10 - SUPREME Court ), the Hon’ble Supreme Court has held that when an Income-tax Officer adopted one of the courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the Income-tax Officer has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the interests of the Revenue unless the view taken by the Income-tax Officer is unsustainabl .....

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ilip Joseph, CA For the Respondent : Shri M. Anil Kumar, CIT(DR) O R D E R Per B.R.BASKARAN, Accountant Member: The assessee has filed this appeal challenging the revision order dated 31.12.2012 passed by Ld CIT, Kozhikode u/s 263 of the Act and it relates to the assessment year 2004-05. The assessee is challenging the validity of revision order passed by the Ld CIT. 2 We heard the parties and perused the record. The assessing officer passed the impugned assessment order u/s 143(3) r.w.s. 147 of .....

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mpany has become a Sick Industrial Company and ending with the asst year during which the entire net worth of such company becomes equal to or exceeds the accumulated losses. In assessment year 2003-04, the net worth of the company had exceeded the accumulated loss. In that year, the profit of the company was ₹ 7,23,64,801/-. The assessee adjusted a sum of ₹ 2,79,00,851/- under clause (vii) of the Explanation 1 to sec. 115JB in assessment year 2003-04. After such adjustment the Profi .....

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sec. 115JB of the Act. According to Ld CIT, the net worth of the company has exceeded the accumulated loss during the previous year relevant to the AY 2003-04 and further the BIFR has also removed the name of assessee company from the list of the Sick Companies and hence the assessee was not entitled for deduction under Clause (vii) to Explanation 1 to sec. 115JB of the Act in the year under consideration as the same falls beyond the period prescribed in clause (vii), referred above. Accordingly .....

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was application of mind by the AO and he has adopted one of the plausible views and hence the impugned revision order lacks jurisdiction. On the other hand, the Ld D.R placed strong reliance on the order of Ld CIT. 5. With regard to the principles governing the revision proceeding u/s 263 of the Act, a gainful reference may be made to the decision of Hon ble Supreme Court in the case of Malabar Industrial Co. Vs. CIT (243 ITR 83). We feel it pertinent to refer to the decision rendered by the Hon .....

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the interests of the Revenue, to pass an order upon hearing the assessee and after an enquiry as is necessary, enhancing or modifying the assessment or canceling the assessment and directing a fresh assessment. The key words that are used by section 263 are that the order must be considered by the Commissioner to be erroneous in so far as it is prejudicial to the interests of the Revenue . This provision has been interpreted by the Supreme Court in several judgments to which it is now necessary .....

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ral justice or without application of mind, would be an order falling in that category. The expression prejudicial to the interests of the Revenue , the Supreme Court held, it is of wide import and is not confined to a loss of tax. What is prejudicial to the interest of the Revenue is explained in the judgment of the Supreme Court (head note) : The phrase prejudicial to the interests of the Revenue has to be read in conjunction with an erroneous order passed by the Assessing Officer. Every loss .....

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me-tax Officer is unsustainable in law. The principle which has been laid down in Malabar Industrial Co. Ltd. [2000] 243 ITR 83 (SC) has been followed and explained in a subsequent judgment of the Supreme Court in CIT v. Max India Ltd. [2007] 295 ITR 282. There may not be any dispute that the revision proceeding shall not lie on the issues on which the Assessing Officer has taken a plausible view after examining and applying his mind on it. 6. Now we shall analyse the facts prevailing in the ins .....

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worth of such company becomes equal to or exceeds the accumulated losses. According to Ld CIT, the deduction prescribed in the above said provision shall be available only for the assessment years falling between the years mentioned in clause (vii), i.e., the assessment year in which the company has become a Sick Industrial Company and the year in which the net worth of such company becomes equal to or exceeds the accumulated losses. 7. However, according to Ld A.R, the provisions of sec. 115JB .....

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arned by such kind of reviving sick companies, so that the same would further advance the process of revival. 8. According to the Ld A.R, one should read the provisions of clause (vii), referred above, in the back ground discussed above. According to the Ld A.R, clause (vii) provides for deduction of amount of Profits of Sick Industrial Company . According to the Ld A.R, the subsequent lines in clause (vii) only quantify the amount that is required to be deducted, i.e., the Profits for the asses .....

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. According to the Ld A.R, the profits earned during the period mentioned in clause (vii), referred above, was ₹ 7.23 crores and the entire amount is eligible for deduction under clause (vii) over a period of time, since the said provision does not provide any cap for deduction. According to Ld A.R the deduction prescribed in clause (vii) and the deduction prescribed in clause (iii) was not with reference to the items debited/credited in the Profit and Loss account of the Company. Accordin .....

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clause (vii), referred above. Accordingly, the Ld CIT held that the assessment year under consideration, being a year falling after the expiry of the period mentioned in clause (vii), the assessee is not eligible for any deduction under clause (vii) of Explanation 1 to sec. 115JB of the Act. The Ld CIT has also relied upon the decision rendered by ITAT Hyderabad bench in the case of Singareni Collaries Co. Ltd (no reference given). 10. On a careful perusal of the contentions of the assessee as w .....

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