C.I.T. vs. MERCURY METAL PVT. LTD.
What did the High Court hold?
The High Court held that the assessee was justified in including the amount of export incentive and licence premium in AY 1993-94, as the assessee maintained its books of accounts on a mercantile system. Under this system, even if incentives were not realized by year-end, they should be evaluated and accounted for in the Profit and Loss Account, with adjustments for actual receipt later. The AO was justified in accepting the revised return based on this mercantile system. Regarding the deduction under Section 80HHC, the Court found that the deduction claimed and accepted by the AO was in accordance with the interpretation of Section 80HHC. Therefore, the CIT was not justified in setting aside the AO's order under Section 263. The Court relied on the Supreme Court's decision in CIT v. Max India Ltd. (2007) 295 ITR 282 (SC), which clarified that not every loss of revenue is prejudicial to the revenue, and an order cannot be treated as erroneous and prejudicial unless the AO's view is unsustainable in law. The High Court answered the question of law in favour of the assessee and against the revenue.
What were the facts?
The assessee, Mercury Metal Pvt. Ltd., filed its return for Assessment Year (AY) 1993-94 on March 3, 1994, declaring nil income and claiming a deduction of Rs. 2,56,80,968 under Section 80HHC. A revised return was filed on June 15, 1994, declaring nil income but revising the Section 80HHC deduction claim to Rs. 2,73,91,138. This increase was due to export incentives related to exports made in Financial Year (FY) 1992-93 (AY 1993-94) on a mercantile basis, although the actual receipt of Rs. 17,45,430 occurred in FY 1993-94 (AY 1994-95). The Assessing Officer (AO) completed the assessment for AY 1993-94 on March 29, 1996, determining total income at Rs. 1,23,950. The AO considered the Rs. 17,45,430 as income for AY 1993-94 and allowed it as a deduction under Section 80HHC. The assessee claimed this amount again as a deduction for AY 1994-95. The Commissioner of Income Tax (CIT) initiated proceedings under Section 263, questioning the treatment of the Rs. 17,45,430.
What were the issues?
1. Whether the Appellate Tribunal was right in law and on facts in cancelling the order passed by the CIT under Section 263 of the Income Tax Act, 1961? Assessee's Contentions: The assessee maintained its books of accounts on a mercantile system. Export incentives are linked to exports. Under the mercantile system, even if export incentives were not realized by the end of the year, they should be evaluated and taken into the Profit and Loss Account, subject to adjustment upon actual receipt. Therefore, the inclusion of export incentive and licence premium in AY 1993-94 was justified. The AO was justified in accepting the revised return. The deduction claimed under Section 80HHC was in accordance with the interpretation of the section. Revenue's Contentions: The CIT found that the profit on the sale of a licence can only be considered when the licence is actually sold and profits are received, as per Section 28(ii)(a), and not on a mercantile basis. The CIT also noted that the tax audit report stated accounting of refunds and credits on a receipt basis. The CIT believed the assessee pressed for inclusion of income and simultaneous deduction to avoid tax, making the AO's order erroneous and prejudicial to the revenue.
Which sections of the Income-tax Act were involved?
Section 80HHC,Section 263,Section 28(ii)(a)
AI-generated summary — verify with the full judgment below
Cause title — parties, addresses and appearances
ORAL JUDGMENT (PER : HONOURABLE MR.JUSTICE K.J.THAKER)
Briefly stated, the facts are that the CIT, after examining the records of the assessee, found that the return of income for the A.Y. 199394 was filed on 03.03.1994 declaring total income at Rs.Nil. Along with the return, the assessee had claimed deduction of Rs.2,56,80,968/ u/s.80HHC of the Income Tax Act. Thereafter, the assessee filed a revised return on 15.06.1994 declaring total income at Rs.Nil but, in the computation attached with the revised return, the claim of deduction u/s. 80HHC was revised to Rs.2,73,91,138/. The increase in the claim of deduction was on account of the export incentive relating to export made in the Financial Year 199293 relevant to the A.Y. 199394 on mercantile basis although, actually, the export incentive amounting to Rs.17,45,430/ was received during the F.Y. 199394 relevant to the A.Y. 199495. The CIT further found that the A.O has completed the assessment u/s.143(3) on 29.03.1996 determining the total income of the assessee at Rs.1,23,950/. In the above assessment order passed by the A.O., export incentive of Rs.17,45,430/ was considered as income of A.Y. 199394 and the entire amount was allowed as deduction u/s.80HHC. In the return filed for A.Y. 199495, the assessee claimed deduction of Rs.17,45,430/ being income already considered in A.Y. 199394. The CIT required the assessee to clarify the position regarding the claim of amount of Rs.17,45,430/ as export benefits in A.Y. 1993 94 when the same were actually received in the A.Y. 199495. From O/ITR/25/2000 JUDGMENT the details furnished by the assessee it was noticed that the amount of Rs.17,45,430/ comprised of two components; A. Export Incentive Rs.7,43,894/ B. Licence Premium Rs.10,01,536/
According to the CIT, the profit on sale of licence can be considered only when the licence is actually sold and profits are received in terms of S.28(ii)(a) and the same cannot be considered on mercantile basis. The CIT also noticed that in column 9(a) of the Tax Audit Report furnished by the assessee for A.Y. 199394, the accounting of refunds and credits of duties of Customs, Excise, etc. is stated to have been made on receipt basis. According to the CIT, the assessee pressed for the inclusion of income of Rs.17,45,430/ in the A.Y. 199394 and simultaneously pressed for equal amount of deduction u/s.80HHC so as to avoid the payment of tax. Accordingly, the CIT issued a show cause Notice to the assessee on 23.03.1997 calling upon the assessee to show cause as to why the assessment framed by the A.O on 29.03.1996 should not be revised as per the provisions of Section 263 of the Act.
In response to the said Notice, the assessee furnished his reply vide reply dated 23.09.1997. After considering the submissions advanced on behalf of both the sides, the CIT set aside the order of the A.O and remanded the matter for deciding the same afresh in light of the observations made in its order dated 05.12.1997. On appeal by the assessee, the Appellate Tribunal set aside the order of the CIT. O/ITR/25/2000 JUDGMENT
The following question of law was referred by the Appellate Tribunal for our opinion; “Whether the Appellate Tribunal is right in law and on facts in cancelling the order passed by the CIT u/s.263 of the Act?”
We have heard learned counsel for the respective parties. It is an undisputed fact that the assessee maintains its books of accounts on the basis of mercantile system of accounting and that export incentives are linked to and springs from the exports made by the assessee. In the case of an assessee who follows mercantile system of accounting, it is necessary that even if by the end of the year export incentives were not realized, the assessee should evaluate the benefits and take the same in its Profit and Loss Account, which can later on be adjusted on the basis of actual receipt.
Therefore, in our view, the assessee was justified in including the amount of export incentive and licence premium in the A.Y. 199394 and the A.O was justified in accepting the revised return filed by the assessee wherein, the sum of Rs.17,45,430/ was included as income of the A.Y. 199394 on the basis of assessee having followed the mercantile system of accounting.
As regards the issue relating to calculation of deduction u/s.80HHC is concerned, we are of the view that since the deduction claimed by the assessee and accepted by the A.O is in accordance with the interpretation of Section 80HHC, the CIT was not justified in setting aside the order of the A.O. O/ITR/25/2000 JUDGMENT
In the case of Commissioner of Income Tax v. Max India Ltd., (2007) 295 ITR 282 (SC), the Apex Court held that the phrase “prejudicial to the interests of the Revenue” in section 263 of the Act has to be read in conjunction with the expression “erroneous” order passed by the A.O. every loss of revenue as a consequence of an order of the A.O cannot be treated as prejudicial to the interests of the Revenue. For example, when the A.O adopts one of two courses permissible in law and it has resulted in loss of revenue, or where two views are possible and the A.O has taken one view with which the Commissioner does not agree, it cannot be treated as an erroneous order prejudicial to the Revenue, unless the view taken by the A.O is unsustainable in law.
Considering the facts of the case and the principle rendered in the above decision, we are of the opinion that the CIT committed serious error in law in cancelling the order of the A.O u/s.263 of the Act. Accordingly, the question of law referred to us is answered in favour of the assessee and against the Revenue
The Reference stands disposed of accordingly. (K.S.JHAVERI, J.) (K.J.THAKER, J) Pravin/*
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