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Income Tax Appellate Tribunal, DELHI BENCH “I-2” NEW DELHI
Before: SHRI AMIT SHUKLA & SHRI Dr. MITHA LAL MEENA
PER AMIT SHUKLA, J.M.: The aforesaid appeal has been filed by the assessee against the impugned order dated 23.03.2018, passed u/s.154 r.w.s. 143(3)/144C. In the grounds of appeal, the assessee is mainly aggrieved by withdrawal of MAT credit amounting to Rs.2,25,63,707/- while computing tax liability of the assessee for the A.Y. 2012-13. The relevant grounds read as under:- That, the order passed under section 154 read with section 143(3) 1. of the Act by the Ld. AO is illegal, bad in law, without jurisdiction and contrary to the facts of case.
2. That, in view of the facts and circumstances of the case and in law, the Ld. AO has erred in not granting minimum alternate tax (‘MAT’) credit amounting Rs.2,25,63,707 while computing tax liability of the Appellant. That, in view of the facts and circumstances of the case and in 2.1. law, the Ld. AO has erred in not granting MAT credit for AY 2009-10 ignoring that the Hon’ble ITAT vide its order dated 02 December 2015 had remanded back the matter to the Ld. Transfer Pricing Officer/ Ld. AO for fresh adjudication. 2.2. That, in view of the facts and circumstances of the case and in law, the Ld. AO has erred in not granting MAT credit for AY 2010-11 without appreciating that the matter is still under dispute and appeal for AY 2010-11 has already been heard by the Hon’ble ITAT and order is awaited as on date. That the Ld. AO has erred in charging interest under section 234B 3. and 234C of the Act. The same has been unjustly and illegally charged. That, without prejudice, the interest under section 234B and 234C 4. is also wrongly worked out.”
Before us, the ld. counsel for the assessee, Shri Salil Kapoor submitted that Assessing Officer has initially allowed MAT credit pertaining to Assessment Years 2009-10 & 2010- 11 in his assessment order for the A.Y.2012-13 which was completed on 31.10.2016. Later on, in rectification proceedings u/s.154, he has withdrawn the MAT credit after observing and holding as under: “The assessee filed return reply on 21-03-2018 stating that the assessee had claimed credit of Rs. 2,66,71,252/- u/s 115JAA of the Act for taxes paid u/s 115JB of the Act prior to AY 2012-13. Year-wise detail of credit utilized during AY 2012-13 is tabulated below for reference:-
Amount (in Rs.) Assessment Year AY 2008-09 41,07,725 2009-10 1,01,76,949 AY 2010-11 1,23,86,578 Total MAT Credit of earlier years utilized in 2,66,71,252
Income returned by the Assessee in tax return for AY 2008-09 stands accepted by the department and accordingly, MAT credit for AY 2008-09 is correctly utilized in AY 2012-13. In respect of assessment year 2010-11 the proceedings are pending before Hon'ble ITAT and AY 2009-10 the Hon’ble ITAT had restored the matter to the file of Ld. TPO. Reply of the Assessee of has been considered carefully and is not fully acceptable. MAT Credit for AY 2009-10 is correctly allowed in AY 2012-12. in AY 2009-10 & 2010-11 MAT credit for these years is not allowed since it is not entitled to the same as tax paid by the assessee was in normal provision for AY 2009-10 & 2010- 11 which implied that there was no MAT credit was available. As the mistake is apparent from record, the same is hereby rectified in this order. The revised tax calculation sheet is enclosed herewith and on the basis of this order the net demand payable is 3,16,24,450/-.
2.1 Thus, he submitted that Assessing Officer has withdrawn the MAT credit on the ground that, firstly, additions were made in Assessment Years 2009-10 & 2010-11 and now all these matters have been restored back to the file of the Assessing Officer/TPO by the Tribunal; and secondly, the tax was paid under normal provision which implied that there was no MAT credit available to the assessee. He pointed out that in Assessment Year 2009-10, the addition made by the Assessing Officer was set aside by the Tribunal to the file of the Assessing Officer/TPO except for addition on account of interest of FDRs which has been confirmed by the Tribunal. In the Assessment Year 2010-11 the entire transfer pricing adjustments have been deleted and only on some corporate issue matter was restored back to the file of the Assessing Officer/TPO. Now in so far as Assessment Year 2009-10 is concerned, no assessment order has been passed by the Assessing Officer after the matter was set-aside and almost three years have been passed and such an assessment has become time barred as per the law. In view of this fact, the tax levied on normal provision will stand deleted and assessee has to be allowed MAT credit. He also drew our attention to the working given at page 32 of the paper book.
2.2 As regards Assessment Year 2010-11, he submitted that matter has been decided by the Tribunal vide order dated 03.08.2018 and no appeal effect has been given, therefore, he prayed that the Assessing Officer should examine this fact and only after giving appeal effect of the Tribunal order for the Assessment Year 2010-11, consequential relief of allowing of MAT credit should be given.
Learned Senior Department Representative admitted that the matter can be restored back to the file of the Assessing Officer to calculate the computation of the tax liability under the MAT and after giving effect of the appellate orders.
After considering the aforesaid submissions and on perusal of the material referred to before us, we find that Assessing Officer in the impugned rectification proceedings u/s.154 has withdrawn the MAT credit for the Assessment Years 2009-10 and 2010-11 while computing the tax liability for the Assessment Year 2012-13. The Assessing Officer has not allowed the MAT credit on the ground that addition were made in the Assessment Years 2009-10 and 2010-11 and taxes have been paid by the assessee under the normal provision. As pointed out by the learned counsel, it is seen that the appellate order of the Tribunal for the Assessment Year 2009-10 have been passed way back on 2nd December, 2015, wherein barring the issue of disallowance of interest on FDRs, all the other additions were restored back to the file of the AO/TPO; and till date no assessment has been passed giving effect to such order. Thus, Assessing Officer is directed to verify this fact, whether the order has been passed in pursuance of remand by the Tribunal or not; and in case assessment has become time barred as per law, then Assessing Officer should examine the working given by the assessee and allow consequential relief in the MAT credit.
Similarly, for the Assessment Year 2010-11, the TPO/A.O is directed to first give effect to the ITAT order and then he should calculate the MAT credit and grant consequential relief to the assessee.
Appeal of the assessee is thus treated as partly allowed for statistical purposes.
Since assessee has filed stay application, seeking stay of demand arising out of withdrawal of MAT credit in aforesaid manner, therefore, the Assessing Officer is directed that until he carries out our aforesaid direction, no demand shall be enforced and till the granting of consequential relief the entire demand as disputed in the stay application shall remain stayed.
Order pronounced in the open Court on 1st November, 2018.