TMI Blog2023 (4) TMI 383X X X X Extracts X X X X X X X X Extracts X X X X ..... eceding years neither the order of ld. AO is erroneous nor prejudicial to the interests of the Revenue. CSR expenses claimed - From perusal of the computation of income under normal provisions we find that the assessee has suo-moto added back the alleged CSR expenses in the computation of income filed with the revised return of income and offered it to tax. We do not find any justification in the finding of ld. Pr. CIT invoking the revisionary proceedings and restoring it for examination of ld. AO. Excess depreciation - assessee company has claimed excess depreciation on the Block of Plant and machinery (80%) which is required to be disallowed - As in the assessment order passed u/s 143(3) of the Act, the learned AO has also allowed depreciation as claimed by the assessee in the revised return depreciation and not as claimed in the original return. CIT failed to appreciate the submissions filed by the assessee and held that the assessee failed to completely disclose its true and correct income by non-furnishing of details as required under the provisions of Income Tax Act and held that the assessment order is erroneous and prejudicial on this ground - assessee has revised ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m for exclusion of provision for NPA of Rs. 64,74,97,633/- written back without appreciating the fact that provision for NPA made in earlier years was duly added back. 5. That on the facts and in the circumstances of the case and without prejudice to Ground No. 1, 2 and 3 above, the Ld. Pr. CIT was not justified and grossly erred in directing the AO to disallow CSR expenses to the tune of Rs. 1,27,00,000/- without appreciating the fact that appellant had itself added back CSR expenses while computing total income in the Return of Income. 6. That on the facts and in the circumstances of the case and without prejudice to Ground No. 1, 2 and 3 above, the Ld. Pr. CIT was not justified and grossly erred in in directing the AO to disallow additional depreciation to the tune of Rs. 87,08,860/- without appreciating the fact that appellant had itself withdrawn the claim in the Revised Return of Income and hence it was never allowed by the Assessing officer in the order u/s 143(3). 7. That the appellant craves to leave, add, amend, modify, rescind, supplement or alter any of the Grounds stated here-in-above, either before or at the time of hearing of this appeal. 3. Brief ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Purchase more than 180 days Purchase less than 180 days Deduction Total depreciation allowable Depreciation Allowed Difference P M (80%) 65,26,297 3,03,54,407 31,45,10,006 15,53,08,565 16,40,17,425 87,08,860 Therefore, the assessment completed appears to be erroneous in so far as it is prejudicial to the interest of revenue. 2. Having regard to the facts and circumstances of the case and in law and in accordance with the provisions of Sec. 263(1) of I T Act, 1961 you are hereby given an opportunity of being heard to show cause as to why the impugned assessment order passed u/s 143(3) r.w.s. 144C(1) by DCIT, Circle-11 (1), Kolkata on 27.02.2019 for A.Y. 2015-16 should not be held as erroneous in so far as it is prejudicial to the interests of the revenue. You may accordingly furnish your written submissions u/s 263(1) of LT. Act, 1961 by 10.02.2021, in this regard elaborating and/or evidencing your contentions/submissions. Consid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee is now in appeal before this Tribunal. Ld. Counsel for the assessee vehemently argued referring to the written submissions placed on record and further, summarising the facts that as regards the issue of provisions of NPA at Rs. 64,74,97,633/- that provision of NPA written back during the year in computation of income for normal provisions was not on protective basis and no appeal has been filed by the assessee and therefore suo-moto disallowed by the assessee in the computation of income at the earlier years. As regards disallowance of CSR expenses of Rs. 1.27 Cr it was stated that the assessee has suo-moto added the CSR expense in the computation of total income filed with the revised return of income and therefore, there is no prejudice caused to the Revenue. As regards the excess depreciation of Rs. 87,08,860/- ld. AO has allowed the depreciation of only Rs. 15,53,08,565/- in the revised return as against Rs. 16,40,70,425/- claimed in the original return. It was thus, contended that neither the order of ld. AO is erroneous nor prejudicial to the interests of the Revenue. 6. On the other hand, ld. D/R vehemently argued supporting the order of ld. CIT(A). 7. We ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. (3) Notwithstanding anything contained in sub-section (2), an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court. Explanation- In computing the period of limitation for the purposes of sub-section (2), the time taken in giving an opportunity to the assessee to be reheard under the proviso to section 129 and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded. 7.1. On a bare perusal of the sub section-1 would reveal that powers of revision granted by section 263 to the learned Commissioner have four compartments. In the first place, the learned Commissioner may call for and examine the records of any proceedings under this Act. For calling of the record and examination, the learned Commissioner was not required to show any reason. It is a part of his administrative control to call for the records and examine them. The second feature would come when he will judge a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are possible and the ITO 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 ITO is unsustainable in law. It has been held by this Court that where a sum not earned by a person is assessed as income in his hands on his so offering, the order passed by the Assessing Officer accepting the same as such will be erroneous and prejudicial to the interests of the revenue - Rampyari Devi Saraogi v. CIT [1968] 67 ITR 84 (SC) and in Smt. Tara Devi Aggarwal v. CIT [1973] 88 ITR 323 (SC). [Emphasis Supplied] 8. Now, three issues have been referred to in the impugned order; i) provision for NPA of Rs. 64,74,97,633/- written back, ii) CSR expenses claimed of Rs. 1.27 Cr and iii) excess depreciation of Rs. 8,70,860/-. 9. Now, we will examine the above three issues one by one keeping into consideration the original and revised return filed by the assessee along with the computation of income and the enquiries conducted by ld. AO. 10. As regards the provision for NPA at Rs. 64,74,97,633/- ld. Counsel for the assessee has appraised us about the facts of the issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reproduced below: 10. Provision for NPA written back As per the calculation of MAT, the assessee has excluded Rs.46,75,71,539/- on account of provision for NPA written back during the year on the basis that it was added back in earlier year. Since the assessee has not accepted the addition made on account of NPA in MAT calculation it cannot claim write back to be excluded during the year under consideration. Therefore, Rs. 46,75,71,359/- is added back to the income for MAT calculation. Penalty proceedings u/s 271(l)(c) of the Income Tax Act, 1961 is initiated separately. [Add: Rs. 46,75,71,359/-] Hence, the learned PCIT failed to appreciate the facts of the case and erred in his understanding that the said provision for NPA relates to computation of income under normal provisions and that the assessee is not allowed to write back Provision for NPA on protective basis as per the Income Tax Act, 1961. Here, it is humbly submitted that Provision for NPA written back during the year of Rs.64,74,97,633/-in computation of income for normal provisions was not on protective basis and no appeal has been filed by the assessee w.r.t the provision for NPA added back by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned AO in his assessment order allowed the deduction of Rs.64,74,97,633/- in computing total income under normal provisions but disallowed the claim of Rs.46,75,71,359/- in computation of income under MAT provisions. Here, it is further submitted that the sum of Rs.64,74,97,633/- was already added back by the assessee in computation of income under normal provisions for AYs 2009-10, 2011-12, 2012-13, 2013-14 and 2014-15, thus adding the same again in the current year would tantamount to double addition of the same income. Thus, it is humbly submitted that this issue was duly examined by the learned AO during assessment and after due verification he has taken a plausible view to add back the sum of Rs.46,75,71,359/- in computation of income under MAT provisions and not to disallow the claim of Rs.64,74,97,633/- made by the assessee in computation of income under normal provisions since the same will amount to double addition of the same amount. Hence, on the backdrop of the above facts, the assessment order cannot be said to be erroneous or prejudicial to the interest of the revenue to trigger the provisions of section 263 of the Act. However, the learned PCIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not permitted to substitute his own view because he disagrees with the view of the AO to warrant initiation of proceedings u/s 263 of the Act. 11. From perusal of the above submissions which remained uncontroverted by ld. D/R, we are satisfied that firstly, ld. AO conducted necessary enquiry on this issue of provisioning for non-performing assets and we also find that in the computation of total income under normal provisions, provision for NPA debited during the year is added back i.e. not claimed as deduction. The assessee submitted that the details for the AY 2009-10 to AY 2014-15 out of the total amount disallowed by ld. AO/suo-moto disallowed by the assessee of Rs. 71,73,06,600/- it claimed write back of provision for NPA at Rs. 64,74,97,633/- under normal provisions and of Rs. 46,75,71,359/- under MAT provision. These details were filed before ld. AO who has passed the assessment order after conducting the necessary enquiries. Further, we find that since the alleged sum of Rs. 64,74,97,633/- was already added back by the assessee in the computation of income under normal provisions for AY 2009-10 to AY 2014-15 adding the same in the current year would tantamount to doubl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in Revised Return Difference P M (80%) 16,40,17,425 15,53,08,565 87,08,860 Other Depreciable Assets 2,90,96,49,905 2,89,02,49,451 1,94,00,454 Total 3,07,36,67,330 3,04,55,58,016 2,81,09,314 15. On perusal of the above, it is evident that depreciation of only Rs. 15,53,08,565/- was claimed in the Revised Return on the 80% block. Computation of income under Normal provisions for the relevant assessment year filed with the revised return of income showing the reduced claim of depreciation was also submitted. It was also submitted that in the assessment order passed u/s 143(3) of the Act, the learned AO has also allowed depreciation of Rs. 15,53,08,565/- as claimed by the assessee in the revised return depreciation and not Rs. 16,40,17,425/- as claimed in the original return. However, we find that ld. Pr. CIT failed to appreciate the submissions filed by the assessee and held that the assessee failed to completely disclose i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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