TMI Blog2023 (8) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... he basis of record, that would make the assessment as liable to be questioned in its respect. True, the ld. Pr. CIT stating that no credit would be available if the AO had allowed the tax credit for AYs. 2013-2014 and 2014-2015 is arithmetically correct, as the combined credit liable to be utilized for these years is Rs. 40.74 crore, as against the available credit of Rs. 26.15 cr. The inclusion of tax credit for AYs. 2008-09 and 2009-10, available since 26.6.2020, would decrease, but not eliminate, this shortfall. That would not though make the assessment for the current year as erroneous. Rather, as apparent and admitted, it is the assessment for those years that could be said to be so. And as we shall see, erroneous to the prejudice of the assessee, and not the Revenue. As giving appeal effect for these two years would result in the assessee s tax liability for these years, as for the earlier years, being determined on the basis of tax under the MAT regime, rather than under the normal provisions of the Act, only in which, latter, case does the occasion to allow tax credit arise. That apart, the entire book-profit would be eligible to be allowed as credit for the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dictional High Court [ Cochin International Airport v. Dy. CIT [2018] 89 taxmann.com 142 (Ker)] upholding the assessee s claim. This judgement, validating and reinstating the returns filed by the assessee for these years, was rendered on 07.8.2017 (PB pgs. 15-25). As, however, the decision by the Hon'ble Court was not in existence at the time the assessments for AYs. 2013- 2014 and 2014-2015 were made, i.e., on 18.03.2016 and 21.12.2016, for the said two years respectively, no deduction u/s. 80-IA was allowed by the AO, necessitating, in consequence, payment of tax under the regular provisions of the Act, as was indeed the case for earlier years, i.e., prior to giving appeal-effect . No credit against tax paid on book-profit for the earlier years, i.e., AYs. 2004-05 to AY 2012-13, noted as available by the ld. Pr. CIT at Rs. 75.27 cr., was, therefore, allowed by the AO while completing the assessment for these two years. It is this non-allowance that stands assailed by the ld. Pr. CIT, stating that if the tax credit for these years had been allowed by the AO, determined by him at Rs. 19.17 and Rs. 21.57 for AYs 2013-2014 and 2014-2015 respectively, no tax credit would be avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0 3,17,28,407 Order u/s 254 dt. 26.06.2020 7 2010-11 2,80,04,075 14,92,55,076 12,12,51,001 0 12,12,51,001 Order u/s 250 dt. 11.04.2017 8 2011-12 3,41,19,096 23,16,27,457 19,75,08,361 0 19,75,08,361 Order u/s 143(3) rws 147 dt. 26.12.2017 9 2012-13 4,30,95,113 27,09,79,707 22,78,84,594 0 22,78,84,594 Order u/s 250 dt. 29.05.2017 Total 75,26,80,857 10 20013-14 52,24,69,057 33,07,85,690 19,16,83,377 Not given credit 56,09,97,480 (752680857 191683377) Order u/s 143(3) dt. 18.03.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arose only subsequent to the assessment for the current year, i.e., on 26.6.2020. As such, the tax credit available at the time of assessment for the current year (AY 2017-2018) was at Rs. 2614.84 lakh. Of the same, Rs. 18.17 cr. stands allowed to the assessee in its assessment, leaving a balance unutilized credit at Rs. 7.98 crore. How, we wonder, is the AO s order erroneous, much less also prejudicial, to the interest of the Revenue ? All the facts and figures, duly tabulated from the record by the Pr. CIT in his order, are undisputed. The AO has only allowed the tax credit as available on record. The AO cannot presume utilization of tax credit for these two earlier years, i.e., where the same has not been actually allowed, and proceed on that basis. That is, he could not take cognizance of sums that had not crystallized upon passing of the requisite orders. That would be, plainly, presumptuous . Tax liability, unless admitted, it may be appreciated, is only as determined by following the due process of law. On the contrary, it is the non-allowance of the tax credit, exigible on the basis of record, that would make the assessment as liable to be questioned in its respect. True ..... X X X X Extracts X X X X X X X X Extracts X X X X
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