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Apeejay Shipping Limited Versus Commissioner of Income Tax, Kolkata

2016 (6) TMI 784 - ITAT KOLKATA

Revision u/s 263 - period of limitation - allowing credit for MAT as per section 115JAA, which, according to him, was wrongly allowed by the Assessing Officer in the absence of any actual payment made by the assessee towards MAT - period of limitation - Held that:- Referring to the decision of the Hon'ble Supreme Court in the case of Alegendran Finance Ltd. (2007 (7) TMI 304 - SUPREME Court ) and having regard to the facts of the case, we are of the view that the period of limitation for A.Y. 20 .....

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3) read with section 263 and since the impugned order under section 263 passed by the ld. CIT for A.Y. 2007-08 on 30.03.2015 was beyond the period of two years from the end of the financial year, in which the order dated 08.12.2011 sought to be revised was passed, the same is barred by limitation as provided in section 263(2) of the Act. The said order passed by the ld. CIT under section 263 for A.Y. 2007-08 is accordingly cancelled treating the same as invalid and the appeal of the assessee for .....

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under section 263 and this consequential position is not disputed even by the ld. D.R - Decided in favour of assessee - I.T.A. Nos. 781, 782, 783 & 784/KOL/ 2015 - Dated:- 6-4-2016 - Shri P.M. Jagtap, Accountant Member and Shri S.S. Viswanethra Ravi , Judicial Member For The Assessee : Shri Manish Tiwari , FCA, For The Department : Shri Rajat Subhra Biswas, CIT, D.R., ORDER These four appeals filed by the assessee are directed against a common order of the ld. Commissioner of Income Tax, Kolkat .....

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) vide an order dated 30.11.2009, the total income of the assessee was determined by the Assessing Officer at ₹ 11,11,92,560/- under the normal provisions of the Act. The book profit under section 115JB, however, was not computed by the Assessing Officer in the said assessment order in order to ascertain the minimum alternate tax payable by the assessee. The issue relating to treatment of profit/gain earned by the assessee-company on sale of ships/vessels also was not considered by the Ass .....

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ssing Officer under section 143(3) read with section 263 of the Act vide an order dated 08.12.2011, wherein he computed the book profit of the assessee under section 115JB at ₹ 14,240.98 lakhs and since the MAT credit payable thereon at ₹ 1,424.098 lakhs calculated at 10% of the book profit was more than the tax of ₹ 333.57 lakhs payable under the normal provisions of the Act, the assessee was taxed on the basis of book profit under section 115JB by the Assessing Officer. He al .....

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sessing Officer to include surcharge as well as education cess while computing the amount of MAT credit to be carried forward. Accordingly, an order under section 143(3) read with sections 263 and 251 dated 29.11.2012 was passed by the Assessing Officer giving effect to the order of the ld. CIT determining the MAT credit to be carried forward at ₹ 12,23,56,380/- instead of ₹ 10,90,52,800/-. 4. The assessment records in the case of the assessee thereafter came to be examined by the ld .....

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succeeding three years, i.e. A.Y. 2008-09, 2009-10, 2010-11 vide orders dated 27.02.2013, 27.12.2013 and 28.03.2013, he was of the opinion that the same were also erroneous as well as prejudicial to the interest of the revenue. He accordingly issued show-cause notices under section 263 requiring the assessee to show-cause as to why the assessments for all the four years under consideration should not be revised by treating the same as erroneous as well as prejudicial to the interest of the reven .....

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h it would have been liable to pay, had the MAT Credit of AY 2007-08 was set off against the normal tax payable. Accordingly, even if the amount of MAT tax payable pursuant to the order dated 8.12.2011 was paid for the Assessment year 2007-08, the assessee would have been entitled to a refund for the following assessment years. Thus, the orders passed by the Assessing Officer, envisaging the adjustment of such MAT Credit against the normal tax paid for the AY 08-09, 09-10 and 2010-11 cannot be s .....

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n book profits u/s 115JB of the Act. Thereafter the said order was merged with order u/s 251 dated 29.1.2012, on giving effect of the appeal order of the Commissioner (Appeals). The orders for the subsequent A.Ys 08-09, 09-10 and 10-11 were passed on 8.12.2011, 29.11.2011 and 13.01.2012 respectively allowing the credit of such MAT tax determined for the AY 2007-08. The MAT tax payable was adjusted in the subsequent Assessment Years against the normal tax paid in excess to the extent credit for s .....

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2.2013 determining the amount refundable at ₹ 99,95,710/-. (c) A.Y. 10-11 Order u/s 154/143(1) was passed on 13.01.2012 raising a refund of ₹ 2,10,81,550/- after adjusting the credit u/s 5JAA. The assessment u/s.143(3) was subsequently completed on 28.03.2013. Further, where there exist two possible views to a given situation, and where the Assessing Officer has resorted to a particular view then proceeding u/s 263 of the Act cannot be invoked. A similar view has been held by the Del .....

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e had already paid the normal tax for the AY's 08-09, 09-10, 10-11. In the given situation there exists two possible views/approaches. Firstly, the assessee could either pay the MAT tax u/s 115JB for the AY 2007-08 and thereafter receive a refund for the subsequent A Y's to the extent the normal tax paid for the subsequent years exceeds the amount as payable after the adjustment of credit of MAT tax paid for AY 2007-08. The other view as is adopted by the assessing officer is to adjust t .....

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g admittedly not paid MAT credit under section 115JB for the assessment year 2007-08, it was not entitled to any credit for the same and there was an error in the order of the Assessing Officer passed for A.Y. 2007-08 vide its order dated 29.11.2012 passed under section 143(3) read with sections 263 and 251 of the Act to allow the same and also to carry forward the same for the subsequent years. He also held that this error had cascading effect for A.Ys. 2008-09, 2009-10 and 2010-11, wherein the .....

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to complete the assessments afresh by re-computing the MAT credit for A.Y. 2007-08 and also to consider the effect of such re-computation in the subsequent years, i.e. A.Y. 2008-09, 2009-10 and 2010-11. Aggrieved by the order passed by the ld. CIT under section 263 for all the four years under consideration, the assessee has preferred these appeals before the Tribunal. 6. The ld. counsel for the assessee at the time of hearing before us raised a preliminary legal issue challenging the validity o .....

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aid order of the Assessing Officer was whether credit for MAT is available for surcharge and education cess also and the same was decided by the ld. CIT (Appeals) vide order dated 19.10.2012 in favour of the assessee. He submitted that the Assessing Officer accordingly passed an order under section 143(3) read with sections 263 and 251 on 29.11.2012 giving effect to the order of the ld. CIT (Appeals) thereby increasing the MAT credit by the amount of surcharge and education cess. He contended th .....

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ad with section 263 on 08.12.2011. He contended that the impugned order under section 263 for A.Y. 2007-08 thus has been passed by the ld. CIT after the expiry of two years from the end of the financial year, in which the order sought to be revised was passed and the same is clearly barred by limitation as provided in sub-section (2) of section 263. 7. The ld. D.R., on the other hand, strongly supported the impugned order of the ld. CIT passed under section 263 for A.Y. 2007-08. He submitted tha .....

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. CIT by his impugned order passed under section 263 of the Act for A.Y. 2007-08 has revised the assessment made in the case of the assessee for A.Y. 2007-08 on the issue of allowing credit for MAT as per section 115JAA, which, according to him, was wrongly allowed by the Assessing Officer in the absence of any actual payment made by the assessee towards MAT. It is pertinent to note here that the MAT Credit as per the provisions of section 115JAA was actually allowed by the Assessing Officer ori .....

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under section 143(3) read with sections 263 and 251 giving effect to the appellate order of the ld. CIT dated 19.10.2012 and accordingly the MAT credit originally allowed by him vide order dated 08.12.2011 passed under section 143(3) read with section 263 on 08.12.2011 was only increased by him by the amount of surcharge and education cess. The error, if any, in allowing the MAT Credit as alleged by the ld. CIT in his impugned order passed under section 263 thus was there in the order passed by .....

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Limited [211 CTR (SC) 69], a similar fact situation was involved, inasmuch as the claim made by the assessee under the head "Lease Equalisation Fund" was accepted by the Assessing Officer in the assessment originally completed under section 143(3) and the said assessment was subsequently reopened only in respect of three items, viz. (1) the expenses claimed for share issue; (2) bad and doubtful debts; and (3) excess depreciation on gas cylinder and good containers. Although the issue r .....

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g elaborately the legal position on the issue of scope of re-assessment proceedings and the doctrine of merger, held that the learned CIT having exercised his revisional jurisdiction to reopen the order of assessment only in relation to Lease Equalization Fund, which was not the subject matter of re-assessment proceedings, the period of limitation provided for in Sub-section (2) of S.263 of the Act would begin to run from the date of order of original assessment and not from the date of order of .....

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ied ground, and subsequent to the passing of the order of re-assessment, jurisdiction under S.263 is sought to be exercised with reference to the issue which did not form the subject of re-opening of the assessment or order of re-assessment, the period of limitation provided in sub-section (2) of S.263 would commence from the date of the order of assessment and not from the date on which the order reopening the assessment has been passed. 10. Keeping in view the legal position emanating from the .....

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