DCIT, NEW DELHI vs. M/S INDO RAMA SYNTHETICS (I) LTD., NEW DELHI

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH ‘C’, NEW DELHI

BEFORE SHRI G. D. AGRAWAL, HON’BLE VICE PRESIDENT AND SMT. BEENA A. PILLAI, JUDICIAL MEMBER

I.T.A. No.2673/Del/2011 (Assessment Year …2002-03) DCIT, Circle 11(1), Vs. Indo Rama Synthetics (I) Ltd. New Delhi 903, Mohandev Building, 13, Tolstoy Marg, New Delhi. GIR / PAN :AAACI-1530L (Appellant) (Respondent)

Appellant by :Shri A. K. Saroha, CIT DR Respondent by :Shri Ajay Vohra, Sr. Adv. Shri Rophit Jain, Avd. And Ms. Deepashree Rao, CA

Date of hearing: 29.06.2016 Date of Pronouncement: 27.07.2016 ORDER PER BEENA A. PILLAI, JM: The present appeal has been filed by the revenue against order dated 15/03/2011 passed by ld.CIT (A) 30 for assessment year 2002-03 on the following grounds of appeal:

“1. On the facts and circumstances of the case and in law, the CIT(A) has erred in declaring the reassessment proceeding u/s 147/148 of I.T. Act, 1961 null and void. 2. On the facts and circumstances of the case and in law, the CIT(A) has erred in deleting the addition of

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Rs.23,65,01,411/- on account of set off allowed in excess.” 2. The assessee filed its return of income on 31/10/2002 showing nil income after setting off of brought forward unabsorbed depreciation of Rs.26,32,07,694/-, for the period ended 31.03.2002 under the normal provisions. Original assessment was completed under section 143 (3) of the Act wide order dated 16/03/2005 after making various disallowances/additions under section 115 JB of the Act.

2.1 On 31/03/2008, the ld.AO initiated reassessment proceedings under section 148 of the Act on the ground that excess deduction on account of unabsorbed business loss/depreciation has been allowed to the assessee in computing the profits under section 115 JB of the Act the reasons recorded by the ld. AO are as under:

“In this case the assessment is completed u/s 143(3) of the I T Act, on 16-03-2005 determining the total income at Nil under normal provision of the Act, and Rs.22,51,70,633/- u/s 115JB of the IT Act. Since, the tax payable 011 book profit u/s 115JB was more than the lax payable under normal provision it was adopted for purpose of taxation. On verification of the case record it is found that the assessee has been allowed set-off of unobserved business loss or depreciation to the extent of Rs.60,45,25,000/·. Further on verification it is found that the set-off has been wrongly allowed. The year wise position of can forward business loss or depreciation, whichever less is as below.

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FY Business Loss Depreciation Net profit / Lesser of the (loss) two 1997-98 5,05,70,134 92,28,83,320 (87,23,13,186) Nil, Since here is no business loss. 1998-99 (60,45,24,774) 99,09,96,578 (1,59,5521,352) 60,45,24,774 available for set- off Nil, Since there 1999-00 91,23,55,754 98,88,11,330 (7,64,55,576) is no business loss 2000-01 1,20,18,97,343 1,01,45,31,932 18,73,65,411 There is net profit taxable u/s 115JB

From the table reproduced above It can be seen that the only set-off available to the extent of Rs.60,45,24,774/-. The set off is first to be done in Assessment Year 2001-02 relevant to F.Y. 2000-01 because there is net profit as per profit and loss account. The working of book profit for Assessment Year 2001-02 is as below: Profit as per profit & Loss account Rs.18,73,65,411/- Add: Provisions debited to the P & L account & To be added as per provision of Sec.115JB 1. Provision for diminution in investments Rs.4,45,74,000/- 2. Provision for doubtful debts & Advances Rs.45,62,000/- Rs.4,91,36,000/- Rs.23,65,01,411/- Less: set-off of business loss or depreciation Whichever is less as workout above to the extent of Profit(60,45,24,774–23,65,01,411=36,80,23,363) Rs.23,65,01,411/- Book profit u/s 115JB nil The available set-off of earlier years business los or depreciation whichever is less, is to the extent of Rs.36,80,23,363/-. The assessing officer has allowed set-

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off of earlier yeas business loss or depreciation o the extent of Rs.60,45,24,774/- instead of Rs.36,80,23,363/- available for set-off. The set-off has been allowed in excess to the extent of Rs.23,65,01,411/- because of the failure on the part of the assessee to disclose its income fully and truly. Hence, I have reason to believe that income chargeable to tax has escaped assessment because of the failure on the part of the assessee to disclose its income fully and truly.” 2.2 Simultaneously notices under section 143 (2) and 142 (1) were issued to the assessee. In response to notices received by the assessee filed the necessary details called for by the ld.AO. After going through the details filed by the assessee the ld.AO held as under:

“2.4 The contention of the assessee is considered but are not acceptable because the available set-off of earlier year business loss or depreciation whichever is less, is to extent of Rs.36,80,23,363/-. The set-off of earlier years business loss or depreciation has been allowed to the extent of Rs.60,45,24,774/- instead of Rs.36,80,23,363/- available for set-off. The set-off has been allowed in excess to the extent of Rs.23,65,01,411/-. Accordingly, the sum of Rs.23,65,01,141/- is disallowed and added to the total income.” 3. Keeping in view the details filed and after discussion with assessee’s representative, total income was computed by Ld. A.O. as under:

Total income as per order u/s 254/ 250/143(3) dt. 16.03.05 Rs.5,85,87,177/- Add: Income as discussed above Rs.23,65,01,411/- Total income Rs.29,50,88,588/-

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4.1 Before the ld. CIT (A), the assessee submitted that the ld. AO has not disposed of the legal objection in respect of Validity of reopening of the assessment on the following grounds:

“a) All relevant information/details/clarifications which were sought by the assessing officer in respect of the aforesaid claim during the original assessment proceedings, were duly furnished by the appellant and the assessment was completed after due application of mind by the assessing officer. Therefore, the reassessment proceedings were initiated under the said section on a mere 'change of opinion'. b) Since the reassessment proceedings were initiated after four years from the end of the relevant assessment year and the original assessment was framed under section 143(3), in terms of proviso to section 147 of the Act, reassessment proceedings could not have been initiated in the absence of failure on the part of the appellant to disclose fully and truly all material facts. Neither do the reasons recorded by the assessing officer nor the impugned order make any reference to the failure of the appellant to disclose fully and truly all material facts.” 4.2 It was submitted by the assessee that the ld.AO had accepted the claim of the assessee after due application of mind. The assessee placed on record various letters, notices and reply to such notices issued by the ld.AO, to substantiate that the ld.AO had reopened a concluded

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assessment on mere change of opinion which was not permissible in law.

4.3 After going through the submissions and contentions raised by the assessee the ld. CIT (A) was of the opinion that there was no failure on part of the assessee in disclosing the relevant material/information, which is a precondition for reopening the assessment after the expiry of 4 years, from end of the relevant assessment year, as the original assessment was completed under section 143 (3) of the Act. The ld. CIT (A) thus held the reassessment proceedings to be barred by limitation and quashed the same.

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applicable. Ratio of Hon’ble SC in case of Raymond Woolen Mills Ltd is also applicable. 3. In case of ACIT Vs. Rajesh Jhaveri Stock Brokers Pvt. Ltd. ,291 ITR 500 (SC), the Hon'ble Supreme Court also held that at the stage of issue of notice under section 148 of the Act, the only question is whether there was relevant material on which a reasonable person could have formed the requisite belief. It was also observed by the Hon'ble Supreme Court that whether material would conclusively prove escapement of income is not the concern at this stage because the format ion of the belief is within the realm of the subjective satisfaction of the Assessing Officer. 4. Hon’ble Delhi HC in recent judgment date 18.05.2016, in case of Indu Lata Ragwala Vs Dy CIT WP(C) 1393/2002 has ruled that fresh material is not required. 5. Regarding change of opinion, we will have to see whether there was any opinion of earlier AO, at all. Simply issuing of notice 154 and not proceeding further does not convey of any opinion. Similarly, raising query during assessment and making any addition does not convey that necessarily, there was opinion. It could be non-application of mind by the AO. 6. On issue of disclosure of all material facts by assessee it is submitted that 1) It is belief of the AO. The only question can be asked if there was material to arrive at said conclusion. Certainly, the claim of assessee that is not that the benefit of the set-off was not claimed in earlier year. It is also not the claim of assessee that in the year of set-off, carried forward loss (for set-off) was less than unabsorbed depreciation. The material before AO at the time of recording of satisfaction was that in the year of set- off, carried forward loss (for set-off) was less than unabsorbed depreciation. Therefore, the AO is right in taking the logical inference that set-off is actually from carried forward losses which makes figure of carried

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forward losses for set-off in the present A Y as excessive and this incorrect information attributable to assessee. 7.1 Regarding merit, the whole contention of the assessee revolves about the applicability of judgment of Hon'ble SC in case of Apollo Tyres Ltd Vs CIT [2002] 122 TAXMAN 562 (SC). It is submitted that this judgment in not applicable to the present facts of the present case. This ratio is regarding adopting figure of 'profit' for the current year. In that case, the assessee- company, while determining its net profit, had provided for arrears of depreciation in its profit and loss account which according to the revenue was not in accordance with Parts II and III of Schedule VI to the Companies Act, 1956. Hence, the Assessing Officer, while considering the case of the assessee- company under section 1151, recomputed the said profit and loss account of the company so as to exclude the provisions made for arrears of depreciation. The Hon’ble SC has given its mind by saying that there cannot be two incomes one for the purpose of Companies Act and another for the purpose of Income- tax Act. At the same breath, the Hon’ble SC has said that it is subject to adjustments in the section. 7.2 A glimpse of the rationale behind adding certain items by way of upwards adjustments can be seen in the circular 112009 ( explanatory notes to the provisions of the Finance Act, 2008). The para 22 says that intension is to add back items which mainly appears "below the line" in P& L account. 7.3 Intension behind the downward adjustments is clearly to respect intention of the parliament embedded in the IT Act like promotion of exports through 80HHC. Therefore, ratio of Hon'ble SC in case of Apollo Tyres Ltd(supra) cannot be imported to the provisions of 'downward adjustments'.

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8.4 The assessee has given too much emphasis on the phrase 'as per books' in clause (iii) of explanation 1 after sub-section 2 of section 115JB. Keeping the scheme of the section 115B and over all general scheme of the I T Act, 1961 in mind, a conjoint reading of the section shows that the phrase 'as per books' in clause (iii) of explanation 1 after sub-section 2 of section 115JB simply denotes 'not as per the regular provisions of the I T Act, 1961'. However, it does not preclude the general scheme of the I T Act, 1961 that a part of carried forward loss or unabsorbed depreciation cannot be claimed as set-off twice. 8.5.1 As stated above, the claim of assessee that is not that the benefit of the set-off was not claimed in earlier year. It is also not the claim of assessee that in the year of set-off, carried forward loss (for set-off) was less than unabsorbed depreciation. The material before AO at the time of recording of satisfaction was that in the year of set-off, carried forward loss (for set- off) was less than unabsorbed depreciation. Therefore, the claim of the assessee that the set-off was actually from unabsorbed depreciation is against the plain connotation of provision which states, "(iii) the amount of loss brought forward or unabsorbed depreciation, whichever is less as per books of account." 8.5.2 It may be seen that it connotes that if brought forward loss is less then than the unabsorbed depreciation, it (brought forward loss) would be reduced, otherwise unabsorbed depreciation would be reduced. The interpretation taken by the assessee is against the ration of Hon'ble SC laid down in case of Smt. Tarulata Shyam and Others V s. CIT, West Bengal [1977] 108 ITR 345 (SC) which stated as under, " ... There is no scope for importing into the statute words which are not there. Such importation would be, not to construe, but to amend the statute. Even if

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there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation. To us, there appears no justification to depart from the normal rule of construction according to which the intention of the legislature is primarily to be gathered from the words used in the statute. It will be well to recall the words of Rowlatt J. in Cape Brandy Syndicate v. Inland Revenue Commissioners [1921] 1 KB 64 (KB) at page 71, that : " in a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used." Once it is shown that the case of the assessee comes within the letter of the law, he must be taxed, however great the hardship may appear to the judicial mind to be.” 7. On the contrary the ld.AR submitted that the notice under section 148 of the act, issued on 31/03/2008 is barred by limitation as it has been issued after the expiry of 4 years from the end of the relevant assessment year. The ld.AR placed is reliance upon the decisions of Hon’ble Supreme Court and jurisdictional High Court including various other high courts which are as under:

a. GKN driveshaft India Ltd vs. ITO (2002) 259 ITR 19 (SC) b. CIT vs. Kelvinator India Ltd 123 Taxmann 433 (Delhi) (FB) (2002) c. Mithles Kumar Tripathi vs. CIT (2006) (All.) 280 ITR 16

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d. ICICI bank Ltd vs. DCIT 136 taxman 699 (Bom.) (2004) 7.1 The ld. AR submitted that nothing has been mentioned in the notice under section 148 and/or 142 (1) of the Act, which could indicate that any income chargeable to tax has escaped assessment, by reason of failure on part of the assessee, which has subsequently come to the notice of the assessing officer. He submitted that the issuance of notice under section 148 is merely a change of opinion, which would not confer jurisdiction upon the Ld.AO to initiate proceedings under section 147 of the Act.

7.2 The ld. AR placed his reliance on chart at page 5 of the paper book which is herein reproduced for the sake of convenience as under:

F. Profit/(l Dep. Net Unabso Cumm. Unabsorb Comm.Un Y. oss) For the profit/(L rbed Unabsor ed pbd absorbed before year oss) for depreci bed dep. PBD dep. the year ation 97 505701 92288 (872313 (872313 (872313 - - - 34 3320 186) 186) 186) 98 98 (604524 99099 (159552 (990996 (186330 (6045247 60452477 - 774) 6578 1352) 578) 9764) 74) 4 99 99 912355 98881 (764555 (764555 (193976 - (60452477 - 754 1330 76) 76) 5340) 4) 00 00 120189 10145 1873654 187365 (175239 - (60452477 - 7343 31932 11 411 9929) 4) 01 (175239 (6045247 9929) 74)

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7.3 The ld. AR referred to the provisions of 115 JB which mandates to compute the book profit in accordance with Parts II and III of the Schedule VI to the Companies Act, to be increased in accordance with clauses (a) to (i) and to reduce in accordance with (i) to (vii) of sub section 2 to115 JB of the Act, which inter alia include the amount of loss brought forward or the unobserved depreciation, whichever is less as per the books of account.

7.4 The ld. AR submitted that the assessing officer had issued a notice dated 28/06/2004 under section 154 of the Act (placed at page 80 of the paper book), proposing to rectify the intimation issued under section 143 (1) for the alleged mistake in allowing higher deduction on account of brought forward losses of Rs.23,97,26,005/-under section 115 JB of the Act. He submitted that in response to the said notice under section 154 the assessee had submitted a reply dated 14/07/2004 (placed at page 82 to 84 of the paper book). The ld.AR submitted that nothing was heard thereafter and the proceedings under section 154 were dropped by the assessing officer. He referred to the questionnaire under section 142 (1) dated 16/12/2004 and issued by the Ld.AO (placed at page 85 to 86 of paper book) during the original assessments, wherein a specific wary regarding the computation of income under section 115 JB of the act has been raised and clarification regarding the brought forward losses of Rs.60.45 crores has been called for. The assessee had

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filed a detailed reply dated 15/02/2005 (placed at page 87 to 89 of the paper book), to the questionnaire and had also replied to claim regarding brought forward loss of Rs. 60.45 crores as against alleged Rs. 36.47 crores.

7.5 He submitted that the entire working relating to computation of book profit under section 115 JB of the act and the claim of brought forward unabsorbed loss of rupees 60.45 crores were submitted before the ld.AO at the time of original assessment proceedings.

7.6 The ld.AR relied upon the findings of the ld.CIT (A).

8.1 There is no doubt that the notice under section 147 of the act has been issued on expiry of the 4 years from the end of the relevant assessment year and has the initiation is barred by limitation as prescribed in the proviso to subsection 1 of section 147 of the Act.

8.2 The issue that needs to be addressed is, whether there has been a failure on the part of the assessee in disclosing the relevant material, facts on account of which income has escaped assessment which is a precondition for reopening the assessment after expiry of 4 years from the end of the relevant assessment year, if the original assessment has been completed under section 143 (3) of the act.

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8.3 The relevant provision of section 147 of the act reads as under:

“147. Income escaping assessment. If the Assessing Officer has reason to believe that any income chargeable to lax has escaped assessment for any assessment year, he may subject to the provisions of sections 148 to 153 assess or reassess such income and also any other income chargeable to tax which has escaped assessment and which comes to his notice subsequently in the course of the proceedings under this section, or recompute the less or the depreciation allowance or any other allowance as the case may be, for the assessment year concerned (hereafter in this section and in sections 148 to 153 referred to as the relevant assessment year): Provided that where an assessment under sub-section (3) of section 143 or this section has been made for the relevant assessment year, no action shall be taken under this section after the expiry of four years from the end of the relevant assessment year, unless any income chargeable to tax has escaped assessment for such assessment year by reason of the failure on the part of the assessee to make a return under section 139 or in response to a notice issued under sub-section (1) of section 142 or section 148 or to disclose fully and truly all material facts necessary [or his assessment, for that assessment year." 8.4 The expression ‘escaped assessment’, as used in 1st proviso section 147 of the act, clearly connotes a very basic postulate that the income for a particular assessment year went unnoticed by the assessing officer and because of it is not being noticed by him for any reason, it has escaped assessment. In respect of the

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expression ‘fully and truly disclose all material facts’ as used in 1st proviso to section 147 of the act connotes that the assessee is to disclose the primary facts as supported by the books of accounts. The duty is cast upon the assessee to disclose all the primary evidence/facts, including particular entries in the books of accounts documents and other evidences. Once all the primary facts are before the assessing authority, the Ld. A.O. requires no further assistance by way of disclosure. It is for him to decide what influence of fact can be reasonably drawn and what legal inference are ultimately to be drawn.

8.5 On a careful consideration of the facts, it is noticed that in the computation of income filed by the assessee along with the return of income, a detailed working of computation of book profit under section 115 JB of the Act was given (placed at pages 1 to 5 of the paper book). On perusal of the said computation, it is noticed that the assessee had claimed deduction of brought forward loss of Rs. 60.45 crores while computing book profits. The chart placed at page 5 of the paper book shows the working of the depreciation and the unabsorbed losses from financial year 1997-98 to 2001-02.

8.6 At the time of original assessment proceedings the assessing officer has raised a specific query wide questionnaire dated 16/12/2004 regarding the computation of book profit under section 115 JB with

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specific reference to the brought forward of unabsorbed losses claimed by the assessee. It is also seen from the paper book that the assessee has submitted the detailed reply in respect of the same. It is amply clear that the assessing officer was conscious of the claim of the assessee in respect of the brought forward unabsorbed losses while computing the book profit under section 115 JB of the Act. In fact from the chart placed at page 5 of the paper book relating to brought forward unabsorbed depreciation and unabsorbed loss has been allowed by the assessing officer from assessment year 1998-99 on words, and is very much a part of the assessment records for these previous years.

8.7 It is observed that even after raising a specific query relating to the brought forward unabsorbed losses in the original assessment proceedings, the assessing officer did not make any addition. However he had made various other submissions at the time of original assessment to the book profits declared by the assessee. Now on the very same facts the ld. AO has initiated reassessment proceedings under section 147 of the Act, which in our opinion is clearly not permissible in the light of the legal prepositions laid down by Hon’ble Apex Court and various High Courts.

8.8 The power to reopen an assessment has been conferred by the legislature not with the intention to enable the assessing officer to reopen the final decision

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made against the revenue in respect of questions that directly arose from the preceding years. It is essential that before any action is taken by the assessing officer, he shall substantiate his satisfaction. Hon’ble Bombay High Court in the case of Hindustan Lever Ltd reported in 268 ITR 382 has categorically observed that the reasons recorded by the assessing officer should specify the failure on the part of the assessee to disclose the necessary facts. Their Lordships have observed that, it is for the assessing officer to reach to the conclusion as to whether there was a failure on part of the assessee to disclose fully and truly all material facts necessary for the assessment, and he has to put his opinion / conclusion on record in black and white. Further Hon’ble Supreme Court in the case of GKN driveshaft India Ltd vs. ITO reported in 259 ITR 90 as required the assessing officer to pass a speaking order dealing with the objections raised by the assessee relating to the validity of initiation of reassessment proceedings.

8.9 In the facts of the present case before us the assessing officer has issued the notice on expiry of 4 years and has neither recorded any satisfaction regarding failure on part of the assessee to disclose fully and truly all material facts, nor has disposed off the objections raised by the assessee relating to the Valley duty of initiation of reassessment proceedings.

8.10 On examination of the records placed before us, reveals that the assessing officer had raised relevant

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queries and had sought information from the assessee. The assessee has disclosed primary facts before the assessing officer at the time of original assessment proceedings and that the original assessments under section 143 (3) of the act was completed after due application of mind by the assessing officer on the claims made by the assessee in the returns during the assessment proceedings.

8.11 It is not the case of the revenue that the income has allegedly escaped assessment, either due to non- furnishing of any material facts by the assessee and/or ignorance/non-consideration of any of the aforesaid claims of the assessee by the assessing officer. On perusal of the reasons recorded, it is observed that the assessing officer has alleged regarding the excess set off of losses being allowed due to failure on part of the assessee. However the nature of alleged failure has not been spelt out by the ld.AO. The assessing officer has proceeded to assess the income of the assessee on the basis of the same material/return of income filed by the assessee at the time of original assessment proceedings. The addition made in the reassessment proceeding is not raised upon any new material/facts that had come into the notice of the assessing officer. The ld.CIT (A) has rightly observed as under;

“Apart from the aforesaid, I also find substantial merit in the alternative contention of the appellant that

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since reassessment proceedings were initiated after four years, in view of the proviso given in section 147 of the LT. Act, reassessment could have been made only if there was any failure on the part of the assessee to disclose any relevant material/information. There is nothing in the assessment order and/or reasons recorded to specify the failure on the part of the assessee, though the assessing officer has observed that, "The available set-off of earlier years business loss or depreciation whichever is less is to the extent of Rs.36,80,23,363/. The assessing officer has allowed set-off of earlier business loss or depreciation to the extent of Rs.60,45,24,774/- instead of Rs.36,80,23,363/- available for set-off. The set-off has been allowed in excess to the extent of Rs.23,65,01,411/- because of the failure on the part of the assessee to disclose its income fully and truly". It is, however, noticed that the above observations are more in the nature of conclusion rather than basis to arrive at such conclusion. The assessing officer ought to have first spelt out the basis leading to the conclusion about the failure on part of the assessee instead of merely stating the conclusion,” 8.12 Respectfully following the judicial precedents laid down by Hon’ble Supreme Court and various high courts, we are of the considered opinion that the reassessment proceedings initiated by the assessing officer beyond 4 years is without jurisdiction as it does not satisfy the necessary precondition laid down under the 1st proviso to section 147 of the act accordingly the reassessment is ordered passed by the ld.AO is hereby quashed.

8.13 Accordingly ground No. 1 of the revenue’s appeal stands.

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Order pronounced in the open court on 27th July, 2016.

Sd./- Sd./-

(G. D. AGRAWAL) (BEENA A. PILLAI) VICE PRESIDENT JUDICIAL MEMBER Date:27.07.2016 Sp. Copy forwarded to:- 1. The appellant 2. The respondent 3. The CIT 4. The CIT (A)-, New Delhi. 5. The DR, ITAT, Loknayak Bhawan, Khan Market, New Delhi. True copy. By Order

(ITAT, New Delhi)

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S.No. Details Date Initials Designation 1 Draft dictated on Sr. PS/PS 2 Draft placed before author Sr. PS/PS Draft proposed & placed before 3 JM/AM the Second Member Draft discussed/approved by 4 AM/AM Second Member Approved Draft comes to the 27/7/16 5 Sr. PS/PS Sr. PS/PS 6 Kept for pronouncement 27/7 Sr. PS/PS 7 File sent to Bench Clerk 29/7 Sr. PS/PS Date on which the file goes to 8 Head Clerk 9 Date on which file goes to A.R. 10 Date of Dispatch of order