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Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JUDICIAL MEMBER: 1. These aforesaid two appeals by assessee under section 253 of the Income Tax Act (the Act) are directed against separate order of Ld. Commissioner (Appeals)-II, Thane dated 4th October 2013 for Assessment Year 2011-12. arises from the assessment order under section 143(1), wherein the assessing officer disallowed set off of brought forward unabsorbed depriciation and MAT credit of earlier years. ITA No.7499/M/2013 arises against the dismissal of application under section 154 of the Act.
Brief facts of the case are that assessee is a public limited company and in the business of transportation and distribution of bulk cement. The assessee filed its return of income for assessment year 2011-12 on 30th ITA No. 7498 & 7499/M/2013- Bulk Cement Corporation (India) Ltd. September 2011 showing total income at Rs. Nil computed under the provisions of the Act other than section 115JB and profit under the provisions of section 115JB was computed at Rs. 23,55,204/-. The assessee computed the tax thereon at Rs. 6,22,055/-. In the return of income the assessee claimed set-off of brought forward unabsorbed appreciation of Rs.1,57,59,037/- for assessment year 2001-02 and Rs. 1,38,12,563/-for assessment year 2002-03, thus totalling of Rs. 2,95,71,600/-. The assessee also claimed set-off of MAT credit brought forward for earlier years. The assessment was processed under section 143(1) on 16th February 2012. The Assessing Officer while processing the return, not allowed brought forward unabsorbed depreciation of Rs. 2,95,71,600 and raise demand of Rs. 87,93,350/-. The Assessing Officer denied the unabsorbed depreciation for assessment year 2001-02 and 2002-03 and also disallowed set-off of MAT credit brought forward. Being aggrieved the assessee filed appeal before Commissioner (Appeals). The Commissioner (Appeals) granted partial relief to the assessee directing the assessing officer to allowed brought forward unabsorbed depreciation for Assessment Year 2002-03 only. For claim of brought forward MAT credit brought forward, the learned CIT(A) hold that no such claim was made by the assessee in the return of income, therefore, the same was beyond the scope of provision of section 143(1). Therefore, further aggrieved by the order of Commissioner (Appeals) the 2 ITA No. 7498 & 7499/M/2013- Bulk Cement Corporation (India) Ltd. assessee has filed the present appeal before us vide ITA No.7498/M/2012.
The filed an application for rectification of the order vide application dated 30.04.2012, which was dismissed vide order dated 29.05.2012. The assessee again filed application under section 154 on 29.05.2012, which was again dismissed by assessing officer vide order dated 16.08.2012. On appeal before ld CIT(A) the action of the assessing officer was upheld, thus, the assessee filed second appeal vide ITA No. 7499/M/2013
In ITA 7498/M/2013, the assessee has raised the following grounds of appeal:
(1) That on the facts and in the circumstances of the case, learned Commissioner (Appeals) grossly erred in not deleting the adjustment made by Assistant Commissioner of Income tax Act /AO in intimation under section 143(1) without appreciating the fact that such adjustments are not permissible under section 143(1). (2) That on the facts and in the circumstances of the case, without prejudice to the ground number one the learned Commissioner (Appeals) was grossly unjustified and erred in confirming the action of assessing officer in not allowing the claim of assessee for set off of brought forward unabsorbed depreciation of Rs. 1,57,59,037/- for AY 2001-02. (3) That on the facts and in the circumstances of the case, without prejudice to Ground No.1 & 2, the Ld. CIT(A) grossly erred in not allowing set off of brought forward MAT Credit of earlier years against the tax liability computed by the AO in instant year under the provisions of the Act other than sec. 115JB. (4) That on the facts and in the circumstances of the case, without prejudice to Ground No.1 & 2, the Ld. CIT(A) erred in directing the AO to allow consequential relief in respect of interest u/s 234C without appreciating the fact that interest u/s 234C is not leviable in the instant case.
We have heard the ld. authorised representative (AR) for the assessee and the ld. departmental representative (DR) for the revenue and gone through the orders of the authorities below. The ld AR for the assessee & 7499/M/2013- Bulk Cement Corporation (India) Ltd. submits that the assessing officer /ACIT Central Processing Centre (CPC) Bangalore passed assessment order and denied setting off brought forward unabsorbed depreciation of Rs. 2,95,71,600 and set-off of MAT credit brought forward by the assessee. The ld AR for the assessee submits that the assessee was entitled for forward unabsorbed depreciation of Rs. 2,95,71,600 and also for set-off of MAT credit brought forward available to the assessee. The ld AR for the assessee has shown to us the availability of brought forward unabsorbed depreciation of Rs. 2,95,71,600 and MAT credit claimed in the assessment record of assessment year 2010-11. The ld. AR for the assessee prayed for setting aside of the assessment order.
On the other hand the ld. DR for the revenue supported the order of the authorities below. The ld. DR submits that unabsorbed depriciation cannot be allowed to the brought forward for more than eight years.
We have considered the rival submissions of the parties and have perused the orders of the lower authorities and the case record placed before us. The assessing officer/ ACIT CPC Bangalore processed the return and issued intimation under section 143(1) of the Act. The ld CIT(A) confirmed the action of assessing officer in disallowance of unabsorbed depriciation holding that it is of more than eight years, without considering the amended provision of section 32(2). At our instance the ld AR for the assessee filed copy of return of income for AY 2006-07 to 4 ITA No. 7498 & 7499/M/2013- Bulk Cement Corporation (India) Ltd. 2010-11alongwith the computation of income for AY 2010-11 and the statement of unabsorbed depriciation, which is in our view found to be in order and in accordance with the claim of the assessee. The ld. AR also filed statement of MAT credit, which is also found to be in order and in accordance with the claim of the assessee. However, to verify the facts both the claims raised in ground No.2 and 3 are restore to the assessing officer to verify the facts and allow relief to the assessee in accordance with law.
As we have allowed the ground No. 2 and 3 in favour of the assessee hence, the discussion on ground No. 1 has become academic. Ground No. 4 is consequential which needs no specific adjudication.
In the result the appeal of the assessee is allowed.
ITA No. 7499/M/2013 10. The assessee has claimed similar relief which we have allowed to the assessee in therefore, the discussion on the grounds of appeal raised by the assessee has become academic.
11. In the result both the appeal filed by the assessee are allowed.