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Income Tax Appellate Tribunal, INDORE BENCH, INDORE
Before: HONBLE KUL BHARAT & HONBLE MANISH BORAD
dated 02.05.2018 which is arising out of the order u/s 154/143(3)/147 and 271(1)(C) dated 22.08.2017/30.8.2016 & 29.03.2017 framed by ACIT, Ratlam.
Two appeals No.694 & 695/Ind/2018 are raised by the revenue against the order issued u/s 143(3) for Assessment Year 2014-15 & u/s 154 of the Act for Assessment Year 2015-16 assessee has raised Cross Objections No.16 & 17/Ind/2019 against the above appeals.
Appeal No.696/Ind/2018 is raised by the revenue against the order issued u/s 271(1)(c) for Assessment Year 2014-15 and Cross Objection No.18/Ind/2019 has been raised by the assessee against the above appeal.
Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 3. As the issues raised in these appeals are common these were heard together and therefore are being disposed off by this common order for sake of convenience and brevity.
We will first take up & 695/Ind/2018 and Cross Objections No.16 & 17/Ind/2019. In the appeals for Assessment Years 2014-15 & 2015-16 at the instance of revenue the sole issue to adjudicate is that whether the Ld. CIT(A) was justified in allowing the claim of tax credit for Alternate Minimum Tax (in short AMT) u/s 115JD of the Act.
For the purpose of adjudication we will take facts for Assessment Year 2014-15 and the brief facts are that the assessee is an individual engaged in manufacturing of bio-fuel briquettes. For Assessment Year 2013-14 assessee paid AMT of Rs.18,37,194/- and claimed it to be adjusted against the regular tax liability for subsequent years. Assessment u/s 143(3) of the Act for Assessment Year 2014-15 completed on 30.8.2016. However the assessee claim of set off of AMT of Rs.1,72,488/- was not allowed by the Ld. A.O.
Against the action of the Ld. A.O assessee preferred appeal before Ld. Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 CIT(A) and succeeded. Now the revenue is in appeal before the Tribunal.
Ld. Departmental Representative vehemently argued and supported the order of Ld. A.O and Ld. Counsel for the assessee relied on the finding of Ld. CIT(A).
We have heard rival contentions and perused the records placed before us. The common issue raised by the revenue for Assessment Year 2014-15 and Assessment Year 2015-16 is against the finding of Ld. CIT(A) allowing the claim of tax credit for AMT u/s 115JD of the Act against the tax liability for Assessment Year 2014-15 and 2015-
16. There is no dispute to the fact that the assessee paid AMT of Rs.18,37,194/- for Assessment Year 2013-14. Against this credit of Rs.18,37,194/- assessee claimed set off of tax liability of Rs.1,72,488/- and Rs.1,40,928/- for Assessment Year 2014-15 and Assessment Year 2015-16 respectively out of the AMT tax credit brought forward at Rs.18,34,194/-. Ld. CIT(A) while adjudicating the issue for Assessment Year 2014-15 allowed the assessee’s claim of set off of tax liability of Rs.1,72,488/- against the brought forward AMT at Rs.18,94,134/- observing as follows; Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 “4.1 Ground No.l, 2 & 3:- Through these grounds of appeal the appellant has challenged the disallowance of credit of AMT paid in the A.Y.2013-14 amounting to Rs.18,37,194/-.
As per the provision of section 115JC to 11SJF are as under:- i) AMT are applicable for Individual, HUF, AOP, BOI~ etc. from assessment year 2013-14 onwards if adjusted total income exceeds Rs, 20,00,000/-. ii) Adjusted total income is net income or total income of the non-corporate assessee increased by:
Amount claimed as deduction by non-corporate assessee as per section 80H to 80RRB (not being section 80P). iv)Amount claimed as a deduction by non-corporate assessee u/s 10AA.
If the assessee is an individual, AOP, BOI etc and the adjusted total income is Rs. 20 lakhs or less then the provision of AMT are not applicable. If the adjusted total income of Individual, AOP1 BO!) etc. exceeds Rs. 20 lakhs the provision of AMT are applicable. The effective rate 18.5 (+SE+EC+SHEC) win be deemed as tax liability of the non-corporate assessee for such previous year.
(v) Every person to whom this section applies shall obtain a report, in such form as may be prescribed, from an accountant, certifying that the adjusted total income and the alternate minimum tax (AMT) has been computed in accordance with the provisions of this Chapter and furnish such report on or before the due date of furnishing of return of income under sub-section (1) of section 139. (vi) It can be carried forward and can be set-off against the regular tax liability of the non-corporate assessee of the next year or subsequent year (but not beyond the tenth assessment year). No interest is payable on such credit.
Tax credit shall be allowed to be set-off for an assessment year in which the Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 regular income tax exceeds the AMT to the extent of the excess of regular Income Tax over the AMT.
As, per the provision of section 115JD tax credit alternate minimum tax: i. The credit for tax paid by [a person under section 115JC shall be allowed to him] in accordance with the provisions of this section. ii.The tax credit of an assessment year to be allowed under sub-section (1) shall be the excess of alternate minimum tax paid over the regular income tax payable of that year. iii. No interest shall be payable on tax credit allowed under subsection (1). iv, The amount of tax credit determined under sub-section (2) shall be carried forward and set-off in accordance with the provisions of sub-section (5) and (6) but such carry forward shall not be allowed beyond the tenth assessment year immediately succeeding the assessment year for which tax credit becomes allowable under sub-section (I). v. In any assessment year in which the regular income tax exceeds the alternate minimum tax) the tax credit shall be allowed to be set-off to the extent of the excess of regular income tax over the alternate minimum tax and balance of the tax credit, if any, shall be carried forward. vi. If the amount of regular income tax 'or the alternate minimum ax is reduced or increased as a result of any order passed under this Act, the amount of the credit allowed under this section shall also be varied accordingly.
Therefore, the appellant is entitled for claim of AMT in the assessment year 2014-15 for which appellant has filed the revised computation for the assessment year 2014-15 during the course of assessment proceedings under section 143(2) of the Act for the A.Y. 2014-15. The assessment has Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 been completed u/s, 143(3) of the Act on 30.08.2016 by making an addition of Rs, 14,09,835/-) disallowing deduction of Rs. 12,99,8351- u/s, 8OJJA and Rs. 1,10,000/- out of expenses and creating a demand of Rs. 7,34~860/ .. without giving the credit of AMT paid in the A. appellant is entitled for tax credit for AMT u/s. 115JD.
Looking into the facts and circumstances of the case, the AO is not justified in denying the credit of AMT. Therefore, the appeal on these grounds is Allowed.
In the result appeal filed by the appellant is Allowed.
The above finding of Ld. CIT(A) stands uncontroverted by Ld. Departmental Representative. In our view Ld. CIT(A) was justified in allowing the assessee’s claim by examining the facts of the case in the light of the provisions of Section 115JC of the Act, 115JC of the Act and also that provisions of Section 115JD of the Act which provides for tax credit of the AMT. We therefore find no insistency in the finding of Ld. CIT(A) allowing the assessee’s claim for set off of AMT Tax credit for the tax liability of Rs.1,72,488/- and Rs.12,40,928/- for Assessment Year 2014-15 and 2015-16.
Accordingly the common ground raised by the revenue for Assessment Years 2014-15 and 2015-16 stands dismissed. In the result appeal of the revenue in Appeal No.694 & 695/Ind/2018 stands dismissed. 7 Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19
9. Apropos Cross Objections filed by the assessee bearing No.16 & 17/Ind/2019 it was contended by the Ld. Counsel for the assessee that the grounds raised in these Cross Objections are in support of the findings of Ld. CIT(A). Since we have confirmed the view taken by Ld. CIT(A) and dismissed the revenue’s appeal, the Cross Objections filed by the assessee vide C.O. No. 16 & 17/Ind/2019 becomes infructuous and are liable to be dismissed. In the result the Cross Objections of the assessee are dismissed.
Now we take up and Cross Objection No. 18/Ind/2019. In this appeal by the revenue the sole grievance is against the finding of Ld. CIT(A) deleting the penalty of Rs.4,10,000/- levied u/s 271(1)(c) of the Act. Brief facts relating to this issue are that the assessee who is engaged in the manufacturing of bio-fuel briquettes commenced its production from 15.2.2009. It was liable for deduction u/s 80JJA of the Act but in the return of income claimed assessee made deduction u/s 80IB of the Act at Rs.12,99,535/-. The assessment proceedings u/s 143(3) of the Act were undergoing for Assessment Year 2014-15 and the order was passed on 30.8.2016. On 29.8.2016 revised computation of income Kapil Jain ITA Nos.694,695, 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 was filed by the assessee withdrawing wrong claim u/s 80IB of the Act. It was also submitted that in the preceding years the assessee was eligible for claim of deduction u/s 80JJA of the Act which was allowable only up to Assessment Year 2013-14 but the assessee was making wrong claim u/s 80IB of the Act and the same was inadvertently made for Assessment Year 2014-15 also. However Ld. A.O denied the claim u/s 80IB and also initiated penalty proceedings u/s 271(1)(c) of the Act for furnishing inaccurate particulars of income. Subsequently penalty proceedings u/s 271(1)(c) of the Act were initiated and vide order dated 27.3.2017 penalty of Rs.4,10,000/- was levied u/s 271(1)(c) of the Act for deliberately furnishing the inaccurate particulars of income by making wrong claim u/s 80IB of the Act at Rs.12,99,835/-. Against the levy of penalty assessee preferred appeal before Ld. CIT(A) and succeeded.
Now the revenue is in appeal before the Tribunal.
Ld. Departmental Representative vehemently argued and supported the finding of Ld. A.O and Ld. Counsel for the assessee relied on the finding of Ld. CIT(A).
Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 12. We have heard rival contentions and perused the records placed before us. Revenue has challenged the finding of Ld. CIT(A) deleting the penalty levied u/s 271(1)(c) of the Act at Rs.4,10,000/-. We find that the assessee made wrong claim u/s 80IB of the Act in the return of income. During the course of assessment proceedings the revised computation of income was filed on 29.8.2016 which was a day before the completion of the assessment proceedings u/s 143(3) of the Act and it was submitted that the assessee was actually eligible for deduction u/s 80JJA of the Act up to the Assessment Year 2013- 14, but inadvertently the claim was made u/s 80IB of the Act for which the assessee was not entitled to.
We find that this is purely a case of incorrect claim by the assessee. However all the details necessary for computing the deduction were filed. No particulars filed by the assessee were found to be incorrect by the Ld. A.O relating to the computation of claim of deduction. It is also on record that during the course of assessment proceedings itself assessee made it clear that it has wrongly claimed the deduction u/s 80IB of the Act. Now whether the Ld. A.O was justified in levying the penalty on the assessee u/s 271(1)(c) of the Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 Act for making incorrect claim in the return of income. We find that Hon’ble Apex Court in the case of Reliance Petro Products Ltd (2010)
322 ITR 152 (SC) has held that “ A mere making of the claim, which is not sustainable in law, by itself, will not amount to furnishing inaccurate particulars regarding the income of the assessee. If the contention of the Revenue is accepted then in case of every Return where the claim made is not accepted by the AO for any reason, the assessee will invite penalty u/s 271(1)(c). That is clearly not the intendment of the Legislature”.
The above judgment of the Hon’ble Apex court has been followed by Ld. CIT(A) for deleting the penalty u/s 271(1)(c) of the Act. We therefore in the given facts and circumstances of the case and respectfully following the judgment of Hon’ble Apex Court in the case of Reliance Petro Products Ltd are of the considered view that Ld.CIT(A) has rightly deleted the penalty at Rs.4,10,000/- levied u/s 271(1)(c) of the Act as the assessee has disclosed all the facts relating to the particulars of computing the profits eligible for deduction in the return of income duly supported by Audit Report. We therefore confirm the view of Ld. CIT(A) and dismiss the revenue’s sole ground Kapil Jain 696/Ind/2018 & C.O.Nos.16 to 18/Ind/19 of appeal. In the result appeal of the revenue No. 696/Ind/2018 stands dismissed.
Apropos Cross Objections filed by the assessee bearing No.18/Ind/2019 it was contended by the Ld. Counsel for the assessee that the grounds raised in these Cross Objections are in support of the findings of Ld. CIT(A). Since we have confirmed the view taken by Ld. CIT(A) and dismiss the revenue’s appeal, the Cross Objections filed by the assessee vide C.O.No. 18/Ind/2019 becomes infructuous and are liable to be dismissed. In the result the Cross Objections of the assessee are dismissed.
In the result all the appeals of the revenue as well as the Cross Objections of the assessee stands dismissed.
The order pronounced in the open Court on 27.06.2019.