TMI Blog2018 (3) TMI 1339X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount of ₹ 106.18 crore has been taxed twice i.e. in Assessment year under consideration 2010-11 and assessment year 2011-12. We are of the view that this is not permissible. An income cannot be taxed twice that too on substantive basis. The AO being an adjudicating officer has a duty to assess correct income. In these circumstances we have two options, either to confirm the addition in this year and direct the AO to delete the addition in the subsequent A.Y. 2011-12. However, considering the fact that the reversal of interest has happened consequent to the C&AG observation on 7th October, 2010 which falls in the F.Y. 2010-11 i.e. A.Y. 2011-12, we are of the view that this amount should not be taxed in this assessment year and be included in the income of the assessment year 2011-12. Accordingly, we direct the AO to delete the addition in this assessment year i.e. A.Y. 2010-11. - Decided in favor of assessee. - ITA No. 4821/DEL/2014 - - - Dated:- 23-2-2018 - Shri B. P. Jain, Accountant Member And Shri Kuldip Singh, Judicial Member Assessee by : Shri Ved Jain, Adv Shri Ashish Goel, CA Ms. Devina Sharma, Adv Revenue by : Shri Ravi Kant Gupta, Sr. DR ORDE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A) on this issue are perverse and against the facts on record. 3(i) On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in confirming addition of ₹ 106.18 Crore made by the AO. (ii) That the above said addition has been confirmed ignoring the explanation and the evidences brought on record by the appellant company in support of its contention. (iii) In the alternative and without prejudice to the above, the learned CIT(A) has erred both on facts and in law in not giving direction to the AO to reduce the income of the appellant company for the assessment year 2011-12 by a sum of ₹ 106.18 Crore being the amount included by the assessee as income. (iv) On the facts and circumstances of the case, the learned CIT(A) has erred in ignoring the contention of the appellant that the amount of ₹ 106.82 Crore cannot be taxed twice i.e. in assessment year 2010-11 and 2011-12. 4. On the facts and circumstances of the case, the learned CIT(A) has erred both on facts and in law in not allowing credit of the TDS of ₹ 503.21 Crore as against ₹ 459.20 Crore allowed by the AO. 5. On the facts and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and can be decided on merit. 10. We have perused the assessment order as well as order passed by the CIT(A) and the paper book filed by the assessee. Ongoing through the same, we note that during the year the assessee has received a sum of ₹ 146.34 crore as refund from the Department of earlier years. Out of this, a sum of ₹ 130,70,02,857/- has been included in its income as is evident from the computation of income placed at PB. Pg. 2. The balance amount ₹ 15,64,06,238/- was not included as this was not the income but refund of interest levied by the department under Section 234 A, 234B and 234D of the Act. In this regard, as per the PB. Pg. 16-17 which is a computation sheet i.e. ITNS 150 dated 20th March, 2007 for the A.Y. 1997-98, an interest of ₹ 92,76,895/- has been levied. This amount has been added back by the assessee in its computation of income for A.Y. 2007-08 as is evident from the PB. Pg. 19. Thus, this is an interest levied by the Department which has been paid back. Thus, the same cannot be considered as income, more so, when deduction of the same was not claimed, as is evident from computation of income for A.Y. 2007-08. Similarly, an i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich was not paid. The C AG objected to this amount being shown as liability and the same was accordingly reversed by showing this amount below the line as it was not pertaining to the financial year 2009-10. The C AG still did not agree with the explanation of the assessee with regard to the disclosure of interest below the line and made observations in the audit report. Since, these observations of C AG were received after finalization of the account and the audit on 7th October, 2010, this amount was included in the income in the relevant financial year 2010-11. 15. As regards the taxability of the same, it was submitted in this letter dated 14th March, 2013 to the AO that income tax department has disallowed the amount of interest debited in the profit and loss account in the assessment proceedings, the same on being written back is not chargeable to tax. In support thereof, the assessee company submitted orders passed by the CIT(A) for A.Y. 1997-98, 1998-99 and 2000-01 wherein the CIT(A) has confirmed the action of the AO in disallowing the provision for interest on commencing capital loans of erstwhile National Airport Authority. The assessee also submitted computation of A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the fact that the reversal of interest has happened consequent to the C AG observation on 7th October, 2010 which falls in the F.Y. 2010-11 i.e. A.Y. 2011-12, we are of the view that this amount should not be taxed in this assessment year and be included in the income of the assessment year 2011-12. Accordingly, we direct the AO to delete the addition in this assessment year i.e. A.Y. 2010-11. 18. It may be relevant to point out that assessee is a public sector undertaking and it has shown positive income (A.Y. 2010-11 ₹ 1628,64,64,616/- and A.Y. 2011-12 ₹ 1692,04,65,647/-) and liable for the same tax rate. Thus, the whole exercise is by and large revenue neutral. On this issue we may quote the observations made by Delhi High Court in the case of Commissioner of Income Tax Vs. Dinesh Kumar Goel 331 ITR 10(Del), where an issue has arisen about the year in which income has accrued. The Hon ble High Court has considered the issue of tax rate being the same in both the assessment years and still the Revenue agitating the taxability of particular income in year different than the year in which the tax payer has accounted for such income. Relevant observations of the H ..... X X X X Extracts X X X X X X X X Extracts X X X X
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