TMI Blog2016 (6) TMI 784X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 A.Y. 2007-08 is allowed. As a result of our decision rendered above cancelling the order passed by the ld. CIT under section 263 for A.Y. 2007-08 and restoring the order of the Assessing Officer for that year whereby he allowed the MAT credit to the assessee, the orders passed by the Assessing Officer for the subsequent three years, i.e. A.Ys. 2008-09, 2009-10 and 2010-11 allowing adjustment for such MAT credit cannot be said to have any error as alleged by the ld. CIT called for revision 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 Ass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vide an order dated 08.12.2011 passed under section 143(3) read with section 263 of the Act. 3. Against the order passed by the Assessing Officer under section 143(3) read with section 263 of the Act, an appeal was preferred by the assessee before the ld. CIT (Appeals) and while disposing of the same, the ld. CIT (Appeals) directed the Assessing 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. CIT. According to him, the MAT credit under section 115JAA was available only when tax was actually paid under section 115JB and since the assessee had not actually paid tax under section 115JB, there was an error in the order of the Assessing Officer in allowing the MAT credit to be carried forward in the case of the assessee for A.Y. 2007-08. Since ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 such MAT tax was allowable against the normal tax payable. (a) Assessment Year 2008-09 The order u/s 154/143(3) dated 8.12.2011 was passed after adjusting the credit of MAT tax for the AY 2007-08. The order was thereafter rectified u/s 154 vide order dated 27.02.2013. (b) A.Y. 09-10 The original assessment order u/s 143(3) dated 29.12.2011 was passed raising refund of ₹ 4,32,34,500/- after adjusting the credit of MAT tax for the AY 2007-08. Thereafter the order was rectified u/s 154 on 27.02.2013 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sessments passed by the Assessing Officer for all the four years, i.e. A.Ys. 2007-08, 2008-09, 2009-10 and 2010-11 were set aside by the ld. CIT (Appeals) with a direction to the Assessing Officer 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 of the impugned order passed by the ld. CIT under section 263 for A.Y. 2007-08 on the ground that the same is barred by limitation. He submitted that the MAT credit was actually allowed by the Assessing Officer in the order passed under section 143(3) read with section 263 on 08.12.2011 and the same was also allowed to be carried forward by him vide the said order as per the provision of section 115JAA. He submitted that the limited issue involved in the appeal filed by the assessee against the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t the MAT Credit as per the provisions of section 115JAA was actually allowed by the Assessing Officer originally in the assessment completed under section 143(3) read with section 263 passed on 08.12.2011 and in the appeal filed by the assessee against the said order, the limited issue involved was whether the MAT credit allowed by the Assessing Officer should include the amount of surcharge and education cess as well. When the ld. CIT (Appeals) decided the said issue in favour of the assessee vide his appellate order dated 19.10.2012, the order dated 29.11.2012 was passed by the Assessing Officer 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 the Assessing Officer under section 143(3) read with section 263 on 08.12.2011 whereby the MAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified 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 judicial pronouncements discussed above including the decision of the Hon'ble Supreme Court in the case of Alegendran Finance Ltd. (supra) and having regard to the facts of the case, we are of the view that the period of limitation for A.Y. 2007-08 has to be reckoned from the date of order passed by the Assessing Officer under section 143(3) read with section 263, i.e. 08.12.2011 and not from the date of order passed by the Assessing Officer under section 143(3) read with sections 263 and 251, i.e. 29.11.2012 as the issue relating to the MAT credit on which the assessment for A.Y. 2007-08 was sought to be revised by the ld. CIT was decided in principle by the Assessing Officer vide ..... X X X X Extracts X X X X X X X X Extracts X X X X
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