TMI Blog2020 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... in which tax becomes payable on the total income computed in accordance with the provisions other than Section 115JB. Thus, it is clear that it can be set-off in that year when tax computed under normal provision is more than a minimum alternate tax payable by the assessee. There is an outer time limit provided, that it cannot be carried forward beyond 10 years. There is no other condition to claim the benefit of the set off credit has been prescribed. Furthermore, there is no provision that the assessing officers should determine the tax credit, which shall be carried forward and set off. It is an inbuilt mechanism of the law of the credit and set off - on application of a particular formula, if the tax payable Under the normal computation is higher than the minimum alternate tax payable by the assessee, and if the assessee has MAT credit available, same shall be granted as a credit to the assessee against the tax liability - No option available either to the assessing officer or to the assessee. AR also could not show us that this issue is debatable. According to us, language of law is simple and clear - we reject the argument of the learned authorised representative that MAT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en a lenient view to not to allow the assessing officer to charge interest u/s 234B of the act. However, before us that is not the case. Here it is a clear-cut case of computational error. Anybody, either the AO or the assessee, would have computed the tax liability of the assessee at that particular time would have correctly claimed MAT credit available to the assessee and charged interest u/s 234B of the income tax act. Therefore, we do not find any infirmity in the order of the learned assessing officer in computing interest liability u/s 234B of the income tax act. - ITA No. 6583/Del/2019 - - - Dated:- 3-7-2020 - Shri Sudhanshu Srivastava, Judicial Member And Shri Prashant Maharishi, Accountant Member For the Assessee : Shri Sachit Jolly, Adv, Shri Vasudevan, Adv For the Revenue : Ms. Ashima Neb, Sr. DR ORDER PER PRASHANT MAHARISHI, A. M. 1. Assessee has filed ITA number 6583/Del/2019 for A.Y. 2013-14 against the order of The Commissioner Of Income Tax (Appeals) 34, New Delhi [The LD CIT (A)] dated 22/4/2019 passed in appeal by assessee against the order dated 18/8/2017 passed u/s 154 read with 143 (3) of The Income Tax Act by the Asst Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 77; 989,491. Against which the assessee filed objection before the learned Dispute Resolution Panel. Consequent to the direction of the learned Dispute Resolution Panel, transfer-pricing adjustment of ₹ 202,999,837 was sustained and the credit card expenditure addition was deleted. For A. Y. 2011 12, because of transfer pricing adjustment of ₹ 202,999,837 made by the learned assessing officer, MAT credit allowed by the AO of ₹ 56,828,807/ was not allowable to the assessee in A.Y. 2013 14. Therefore, MAT credit availed by the assessee and allowed by the AO was not correct. Therefore, the learned AO held that this is the mistake apparent from record, which resulted into the incorrect set-off of MAT credit amounting to ₹ 56,828,807. Therefore the learned assessing officer passed an order u/s 154 read with Section 143 (3) of the act wherein income of the assessee remained unchanged at ₹ 592,257,890/- but MAT credit of ₹ 56,828,807/- was withdrawn. Such order was passed on 18 August 2017. 5. Assessee, being aggrieved with that order, preferred an appeal before the learned Commissioner of Income Tax (Appeals) 34, New Delhi. Assessee contes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 154 order passed by the assessing officer. Therefore, based on this legal advice, assessee filed an appeal, which happened to be late by 30 days. The assessee submitted that the delay in the filing of the appeal is bona fide and therefore it may be condoned. 7. The learned departmental representative vehemently objected to the condonation request of the assessee. 8. On careful perusal of the reasons given by the assessee it is apparent that on 22nd of April 2019 the learned CIT A passed two orders in case of the assessee for same assessment year 2013 14 in two subject matters i.e. one was against the order passed u/s 143 (3) of the act and second was against the order passed u/s 154 of the act withdrawing MAT credit. On the legal advice, the assessee preferred an appeal, which was delayed by 30 days. According to us, delay was for the sufficient cause and assessee did not derive any benefit by filing delayed appeal. Further, before ITAT, cause of justice must be served and pedantic approach should be abdicated. Therefore relying on the decision of the honourable Supreme Court in case of collector, land acquisition versus MST Katiji 167 ITR 471 we condone the delay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l be allowed to him in accordance with the provisions of this section. 73 [(1A) Where any amount of tax is paid under sub-section (1) of section 115JB by an assessee, being a company for the assessment year commencing on the 1st day of April, 2006 and any subsequent assessment year, then, credit in respect of tax so paid shall be allowed to him in accordance with the provisions of this section.] 74 [(2) The tax credit to be allowed under sub-section (1) shall be the difference of the tax paid for any assessment year under sub-section (1) of section 115JA and the amount of tax payable by the assessee on his total income computed in accordance with the other provisions of this Act: Provided that no interest shall be payable on the tax credit allowed under sub-section (1). (2A) The tax credit to be allowed under sub-section (1A) shall be the difference of the tax paid for any assessment year under sub-section (1) of section 115JB and the amount of tax payable by the assessee on his total income computed in accordance with the other provisions of this Act: Provided that no interest shall be payable on the tax credit allowed under sub-section (1A). (3) The amount of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted in accordance with the provisions other than Section 115JB. Thus, it is clear that it can be set-off in that year when tax computed under normal provision is more than a minimum alternate tax payable by the assessee. There is an outer time limit provided, that it cannot be carried forward beyond 10 years. There is no other condition to claim the benefit of the set off credit has been prescribed. Furthermore, there is no provision that the assessing officers should determine the tax credit, which shall be carried forward and set off. It is an inbuilt mechanism of the law of the credit and set off. Therefore , on application of a particular formula, if the tax payable Under the normal computation is higher than the minimum alternate tax payable by the assessee, and if the assessee has MAT credit available, same shall be granted as a credit to the assessee against the tax liability. Therefore, we do not find that there is any option available either to the assessing officer or to the assessee. The ld AR also could not show us that this issue is debatable. According to us, language of law is simple and clear. In view of this, we reject the argument of the learned authorised repr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the charging of interest u/s 234B is a mandatory and it is consequential in nature. 15. The learned authorised representative submitted that if the above MAT credit has been withdrawn, then subsequent to that, there would be a failure to pay advance tax; it would result in shortfall of advance tax. Subsequently the assessing officer has charged interest u/s 234B of the act. He submitted that if MAT credit is withdrawn, then revenue authorities have found that the interest u/s 234B of the act is also chargeable. He submitted that the honourable Delhi High Court in case of Commissioner Of Income Tax Versus Anand Prakash (2009) 316 ITR 141 (Delhi) in para number 15 held that when the income was not even known to the assessee till much later, assessee is not expected to have paid advance tax on such income which had not been received by the assessee and which would not have been in his contemplation. The honourable High Court held that the assessee could not have included the interest received on enhanced compensation in the assessment year while estimating income for the purpose of calculation of advance tax for the relevant years. He further stated that in view of the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the advance tax. The interest is payable if an assessee who is liable to pay advance tax has failed to pay such tax, then interest is payable on the assessed tax. The assessee is to pay simple interest at the rate of one percent for every month or part of the month from first April of the assessment year to the date of determination of income u/s 143 (1) and where a regular assessment is made to the date of such regular assessment. In this particular case the regular assessment has been framed u/s 143 (3) of the income tax act on 29/12/2016. Therefore, naturally if any interest is payable by the assessee u/s 234B of the income tax act it is required to be payable up to that date. Now in the case of the assessee the excess MAT credit was allowed, however, income was already determined by the learned assessing officer. However, while calculating the tax payable by the assessee, MAT credit was allowed to the assessee, which was not to be allowed. Therefore, the liability u/s 234B arises. It is also clear that interest u/s 234B can be levied only on net tax payable by the assessee when MAT credit is available. The provisions of Section 234B in a clear term impose mandate to collect ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
