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Income Tax Appellate Tribunal, BENCH “E”,MUMBAI
Before: SHRI B.R.BASKARAN & SHRI PAWAN SINGH
Order Under Section 254(1) of Income Tax Act PER PAWAN SINGH, JM: 1. This appeal u/s 253 of the Income Tax Act (The Act) by Revenue and Cross Objection (C.O.) therein by assessee are directed against the order of Ld. Commissioner of Income-tax (Appeals) [for short ‘the CIT(A)] –6, Mumbai dated 18.02.2011. The Revenue has raised the following Grounds of Appeal:
2 & C.O. 170/M/11 M/s. Tata Motors Ltd. On the facts and in the circumstances of the case and in law, the learned CIT(A) has erred in allowing relief to the assessee to the extent impugned in the grounds enumerated below:
1. 1. The order of the CIT(A) is opposed to law and facts of the case.
2. On the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the addition on account of unutilized modvat credit, ignoring the amendment to section 145A w.e.f. 01.08.1999.
3. For these and other grounds that may be urged at the time of hearing, the decision of the Ld. CIT(A) may be set aside and that of the Assessing Officer restored. In C.O. the assessee has raised the following Grounds of Appeal: The ld. CIT(A) has erred in law in not deciding the ground raised by the assessee challenging the re-assessment proceedings u/s.147 which is invalid and bad in law.
2. Brief facts of the case are that the assessee filed return of income for relevant AY on 30.10.2001 declaring loss of Rs. 675,82,80,640/-. The assessment was completed u/s 143(3) of the Act on 20.02.2004 determining the loss of Rs. 613,09,98,799/-. Subsequently, the assessment was re-opened u/s 147 of the Act on the basis of information received from DCIT that assessee-company claimed expenses towards Commission on export made to Iraq. On the basis of information, the Assessing Officer (AO) forms an opinion that the income of assessee has escaped assessment for AY 2001-02. The notice u/s 148 issued on 28.02.2007was received by assessee on 03.03.2007. The assessee filed its reply and objected for reasons for re-opening and contended that the original return filed earlier may be treated as return filed pursuant to the notice u/s 148 of the Act. The reasons of re-opening were supplied to the assessee on 21.03.2007, disclosing the reason information was received from DGIT-7(3) that assessee made certain export to Iraq through M/s Tata International, commission on such export was directly paid by assessee and claimed expenses in profit and loss account. The payment of such commission is a Kick backs as per Wolker committee and is no allowable expenses. The AO again issued a notice dated 15.11.2007 asking to file details about the justification of said expenses under section 37(1). The AO also raised issue regarding unutilized Central Excise Value Added Credit of Rs.13.66 crore which was not allegedly back while computing taxable income. The assessee filed its reply dated 22.11.22007 and contended that in the re-opening the only issue regarding the commission payment was raised, however in subsequent notice dated 15.11.2007 the issue regarding unutilized 3 & C.O. 170/M/11 M/s. Tata Motors Ltd. modvat credit is raised. The assessee objected and requested to drop the proceeding. The assessee further submitted that no adjustment can be made in the re-assessment proceedings as all material facts have been fully and truly disclosed while filing return of income vide Annexure- 13 & 24 of Tax Audit report. In alternative it was pleaded that unutilized modvat credit does not affect the profit and loss account. The contention of assessee was not accepted by AO and proceeded to re-assessment and consequent upon added the Central Excise Value added credit of Rs. 13.66 Crore to the closing stock of the assessee. Aggrieved by the order of AO, the assessee filed appeal before the ld. CIT(A) challenging the validity of re-opening as well as addition on account of Central Excise Value added credit. The ld. CIT(A) deleted the inclusion of CEN Vat Credit and deleted the addition. However, no order was passed on the ground of re-opening as assessee was granted relief on merit. Hence, aggrieved by the order of ld. CIT(A), the Revenue has challenged the deletion of unutilized MODVAT Credit. The assessee filed C.O. raising the ground of appeal that the re-opening was bad-in-law.
3. We have heard the ld. Departmental Representative (DR) for the Revenue and ld. Authorized Representative (AR) of assessee and perused the material available on record. The Ld. DR for the Revenue supported the order of AO and prayed that the order passed by ld. CIT(A) may be set-aside by restoring the order of AO. On the Grounds of Appeal raised in C.O. by assessee, the ld. DR for the Revenue submitted that the income of the assessee escaped assessment and the AO has sufficient reason to make his belief for re-opening of the assessment, thus the reopening was valid. On the other hand, the ld. AR of the assessee argued that the Department has accepted the order of ld. CIT(A) deleting the similar addition in AY 1999-2000 and subsequent AY 2002-03 onward there is no such disallowance. It was further argued that u/s 145A of the Act, purchases and sales and inventory have to be adjusted to include the amount of any Tax, Duties, Cess or Fees etc. The adjustment has to be made to opening stock, purchases sale and closing stock and cannot be made only to the closing stock. The assessee in its Tax Audit Report (TAR) vide Annexure-24 annexed herein, in which the adjustment for MODVAT Credit and Sales Tax is made to opening stock, purchase, sale and closing stock is made, the impact on Profit & Loss Account would be Nil. It was argued that ld. CIT(A) after considering 4 & C.O. 170/M/11 M/s. Tata Motors Ltd. the contention of assessee that separate adjustment is not to be made for unutilized MODVAT Credit to the closing stock and granted relief to the assessee. In support of ground raised in the C.O. the ld. AR of the assessee argued that the assessment u/s 143(3) was passed on 20.02.2004. As per proviso to section 147, no re-opening beyond the four years of end of AY is permissible, unless there is failure on the part of assessee to disclose fully and truly all material facts necessary for the AY. There was no failure on the part of assessee to disclose fully and truly fact regarding MODVAT Claim during the course of original assessment proceeding. The Ld. AR of the assessee in support of his submission relied upon the decision of Tata Communication Ltd. vs. ACIT [ITA No. 3417/M/09 and C.O. No. 201/M/2012 Hindustan Lever Ltd. vs. R.B. Wadkar (268 ITR 332 and Hindustan Unilever Ltd. vs. R.B. Wadkar 268 ITR 339 (Bom)]. And the decision of Hon’ble Supreme Court in CIT vs. Calvinator of India Ltd. 322 ITR 561 (SC). The ld AR for assessee also filed the list on the following decision for his relience. i. Hindustan Lever Limited v r. B. Wadkar (268 ITR 332) (Bom). ii. Hindustan Lever Limited v r. B. Wadkar (268 ITR 339) (Bom). iii. Kimpas Trenton Fittings v. ACIT (340 ITR 299) (Bom). iv. Idea Cellular Ltd. v. DCIT (301 ITR 407)(Bom). v. IPCA Laboratories Ltd vs. DCIT (251 ITR 4160(Bom.). vi. Bhor Industries Limited v ACIT (267 ITR 161) (Bom). vii. ICICI Bank Limited v DCIT (268 ITR 203) (Bom.) viii. NYK Line (India) Ltd. v DCIT (346 ITR 355) (Bom). ix. Bhavesh Developers v. AO (188 Taxman 123)(Bom.) x. Tata International Ltd. v DCIT (22 taxmann.com 18) (ITAT Mumbai). xi. Own case – Bombay High Court order dated 16.11.2011 for AY 1992
93. (Appeal No. 6036 of 2010). xii. Own case – ITAT order dated 23.08.2006 for AY 1992
93. (ITA No. 961/M/03). xiii. Own case – ITAT order dated 05.08.2008 for AY 1997
98. (ITA No. 5368/M/05). xiv. Own case – ITAT order dated 07.02.2006 for AY 1990-91 & 1991
92. (ITA Nos. 1676 & 1677/M/03).
It was further argued that AO nowhere stated in the reasons of re-opening that there was no failure on the part of assessee to disclose fully and truly. Thus, the re- opening is bad-in-law. The re-assessment is not on any new information and merely change of opinion without primarily fact necessary for assessment were fully and 5 & C.O. 170/M/11 M/s. Tata Motors Ltd. truly disclosed to the AO, the AO is not entitled to commence the re-assessment on change of opinion.
We have considered the rival contention of the parties and gone through the orders of the authorities below. The assessment u/s 143(3) was completed on 20.02.2004. The AO issued notice u/s 148 on 28.02.2007. Admittedly, the notice was issued beyond the four years of end of relevant AY. The assessee filed reply to the notice u/s 148 vide its reply dated 08.03.2007 and again on 22 Nov2007, the assessee objected that notice does not specify any details and nature of income which has escaped assessment. The assessee in its reply further contended that the assessee- company is engaged in design development, manufacturing and sale of Automobile companies known worldwide and export the vehicle in almost all of the country of the world. The assessee further contended that the allegation regarding commission paid/are paid as kickbacks is not fully and conclusively established by Volcker committee for each exporter. The assessee further explained that the contract of export was approved by the Committee constituted by United Nation for monitoring the programme. In the year 2000, the Iraq Government started keeping the order approved by United Nations Authority for amounts higher than the bids of the contract; the assessee has no reason to believe that there was any illegal and elicit payment. The assessee also highlighted the difference of modus operendi adopted for supply of contract and services. The assessee further contended that all claims were made in accordance with the provisions of law and not part of income has escaped assessment. The assessee was supplied the reasons of re- opening vide 21.03.2007. The following reasons were supplied to the assessee:
"In this case, assessment u/s.143(3) was completed on 20.02.2004 determining the loss at Rs.613,09,98, 799/-. In the case of this assessee, information was received from DCIT-7(3), Mumbai that in respect of certain exports made by the assessee company Tata Motors Ltd. to Iraq, through M/s. Tata International, that commission on such exports were directly paid by M/s. Tata Motors Ltd. and claimed as expense in their Profit & Loss Account. From the details furnished by the assessee company, it is seen that M/s. Tata Motors has claimed expense towards commission on export made to Iraq on following transaction: Contract Ref. Invoice No. Amount Paid Dr. in P&L A/c nomenclature Commission on Exports. M/MOU/223/2000 00/00205 Rs.39,61,407/- 6 & C.O. 170/M/11 M/s. Tata Motors Ltd. In view of Volcker Committee Report, the issue regarding commission paid on Iraq exports represents kick backs. Kick backs are not allowable expense as per I. T. Act and hence the expense claimed by assessee is not allowable.
We have noticed that no additions were made on account of the alleged kick back payments to Iraq Government. The assessee again while reply dated 22.11.2007 with regard to unutilized MODVAT Credit submitted that while re-opening the specific reason was given wherein the only issue was regarding Commission Payment. However, again vide notice dated 25.11.2007 the issue of unutilized MODVAT Credit is raised. The assessee further contended that no adjustment can be made by way of re-assessment proceeding u/s 147 of the Act in respect of issue as per proviso to section 147 as all material fact were fully and truly disclosed in the return of income including MODVAT Credit as per Annexure-24 of TAR filed along with return of income. The assessee further contended that MODVAT Credit does not affect the Profit & Loss A/c. The assessee further referred the decision of CIT vs. Indo-Nippon Chemical Co. Ltd. 261 ITR 275 and stated after coming this decision, the department had stopped making any investment in respect of MODVAT Credit. We have seen that the ld CIT(A) after considering the contention of the assessee made the following order:
“5.3 I have considered the facts of the issue and the submission made by the AR and find merit in them. The calculation u/s 145A dully certified by tax Auditors (Annexure-24 to Form 3CD) filed by AR clearly shows that there is no effect on the profit and loss account in respect of deviation from the method of valuation prescribed under section 145A. Thus, the AO could not have enhanced the valuation of closing stock without considering the corresponding impact of the same on opening stock and purchases. Thus, it is held that the addition made by AO is not warranted on the facts of this case and the same is deleted accordingly. This ground is allowed.
We have noticed that the ld CIT(A) after considering the report of Tax Auditor accepted the contention of the assessee that there was no effect on the profit and loss account in deviating the method of valuation prescribed under section 145A and granted relief to the assessee. Similar view was taken by the coordinate bench of this Tribunal in ACIT Vs R. R. Kabel Ltd. in dated 0.4.07.2016. In our view the order of the ld CIT(A) does not require any interference by the Tribunal, thus the appeal of the revenue is dismissed.
7 & C.O. 170/M/11 M/s. Tata Motors Ltd. 7. Cross objection No.170/M/2011. As we have dismissed the appeal of the revenue, hence, the discussion on the merit on the ground of appeal raised by the assessee has become academic. In the result the ground of appeal raised in Cross objections is dismissed being infructuous.
In the result the appeal filed by Revenue is dismissed and Cross Objection of the assessee is also dismissed as infructuous.
Order pronounced in the open court on this 3rd day of March, 2017.