TAMIL NADU CEMENTS CORPORATION LIMITED,CHENNAI vs. ACIT, CHENNAI

This appeal filed by the assessee is directed against the order of the ld. Commissioner of Income Tax (Appeals) 11, Chennai dated 08.07.2019 relevant to the assessment year 1997-98.

Brief facts of the case are that the assessment for the assessment year 1997-98 was completed on 13.03.2000 and reassessment was completed on 31.03.2005 and subsequently revised on 31.10.2005. In its original return of income, the assessee has claimed carry forward depreciation of ₹.15,36,91,995/-, and investment allowance of ₹.4,71,806/- and set it off against income from business. The income computed under section 115JA of the Act was ₹.5,16,13,292/-. In the course of the reassessment, the Assessing Officer set off brought forward depreciation of ₹.10,89,92,040/- and business loss of ₹.64,83,291/- for the assessment year 1995-96.

However, the ld. CIT issued notice under section 263 of the Act dated 05.02.2007 on the assessee show-causing as to why the assessment made on 31.3.2005 should not be set aside to compute the correct amount of carried forward business loss, depreciation and investment allowable in accordance with law. After considering the submissions of the assessee and materials available on record as well as in view of the decision of the case of Seshasayee Paper & Boards Ltd. Vs. DCIT 272 ITR 165 (Mad), the ld. CIT remanded the matter to the Assessing Officer to recompute the income of the year after deter mining the correct amount of brought forward los, unabsorbed depreciation and investment allowance in accordance with law. Against the order of the ld. CIT, the assessee preferred an appeal before the Tribunal. The appeal filed by the assessee was disposed of by this Tribunal vide order dated 07.01.2009 for want of clearance from High Powered Committee to pursue its appeal as the assessee being a Public Sector Undertaking. Against order of the Tribunal, the assessee filed an appeal before the Hon’ble jurisdictional High Court and the Hon’ble High Court vide its order in Tax Case (Appeal) No.471 of 2009 dated 10.11.2009, remitted the matter back to the file of the Tribunal for adjudication on merits after taking note of the fact that the High Powered Committee has permitted the assessee to pursue its appeal before the Tribunal. After considering the rival submissions, orders of authorities below, vide order in dated 30.03.2007, the Tribunal upheld the revision order passed under section 263 of the Act and dismissed the appeal filed by the assessee.

The Assessing Officer completed the assessment under section 143(3) r.w.s. 263 of the Act dated 28.12.2007, against which, the assessee filed an appeal before the ld. CIT(A). After considering the submissions of the assessee and facts of the case, the ld. CIT(A) has observed as under: “7. The assessee has objected to the same. However, it is seen that the unabsorbed depreciation of the previous years does get merged into the depreciation of the current year and shall be given precedence while computing the business income of the assessee. The net business income thus computed after allowing depreciation, is available for any set off of unabsorbed investment allowance. To this extent, the order of the Assessing Officer dated 28.12.2017 is sustained. The AR for the assessee has also expressed her inability to produce any order of M/s. BFIR to the contrary and in favour of the assessee. Considering the same, the grounds of appeal

On the other hand, the ld. DR has submitted that the order passed under section 263 of the Act has been upheld by the Jurisdictional Tribunal vide order in dated 30.03.2012 and become final, being final facts finding authority, the present appeal of the assessee is liable to be dismissed.

We have heard both the sides, perused the materials available on record and gone through the orders of authorities below. In this case, against the assessment order, by invoking the provisions of section 263 of the Act, the ld. CIT directed the Assessing Officer to redo the assessment. Accordingly, the Assessing Officer completed the assessment order under section 143(3) r.w.s. 263 of the Act dated 28.12.2007. The appeal filed by the assessee before the Tribunal against the order under section 263 of the Act has been dismissed and the Tribunal has upheld the revision order vide order in dated 30.03.2012. The ld. Counsel for the assessee has not brought on record any order of higher forum having modified or reverted the order of the Tribunal dated 30.03.2012, which was filed against the revision order under section 263 of the Act, the present appeal filed by the assessee is liable to be dismissed. On merits, the ld. Counsel for the assessee has not advanced any argument. Accordingly, the appeal filed by the assessee is dismissed.

In the result, the appeal filed by the assessee is dismissed.