JCIT (OSD), CC-XX, KOLKATA, KOLKATA vs. M/S G. S. ATWAL & CO.(ENGG) PVT. LTD., KOLKATA

आदेश /O R D E R

PER Waseem Ahmed, Accountant Member:-

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 2 This appeal is preferred by the Revenue against the order of Commissioner of Income Tax (Appeals)-Central-III, Kolkata dated 20.07.2012 for the assessment year 2009-10 and the same is being disposed of along with Cross Objection (CO) filed by the assessee being CO. No.144/Kol/2012. Assessment was framed by JCIT (OSD), CC-XX, Kolkata u/s 143(3) of the Income Tax Act, 1961 (hereinafter referred to as ‘the Act’) vide his order dated 29.12.2011. Shri Niraj Kumar, Ld. Departmental Representative represented on behalf of Revenue and Shri Soumitra Choudhury, Ld. advocate appeared on behalf of assessee. First we take up Revenue’s appeal in ITA No.1516/Kol/2012. 2. Briefly stated facts are that assessee in the present case is a Private Limited Company and engaged in business of engineering and contractors. The assessee for the year under construction filed its return of income declaring total income of ₹7,06,59,912/- which was processed u/s 143(1) of the Act. Subsequently the case was selected under scrutiny and accordingly notices u/s 143(2) / 142(1) were issued upon assessee. The assessment was framed u/s 143(3) of the Act at a total income of ₹ 17,68,15,880/- after making certain additions / disallowances to the total income of the assessee. 3. First issue raised by Revenue in ground No. 1, 2 & 2.1 are inter-related and therefore being taken up together that Ld. CIT(A) erred in deleting the addition made by Assessing Officer for ₹10,58,25,030/- on account of interest received on delayed payments/ compensation. The assessee in the year under consideration has a payment of ₹7.78 crores from M/s Hindustan Steelworks Construction Ltd. (HSCL in short) on account of work executed in Libya in the year 1984. The impugned amount was awarded by the Hon'ble jurisdictional High Court in its order dated 17.04.2008. However, Hon'ble jurisdictional High Court also directed the HSCL to make the payment of interest for₹10.58 crores on account of delayed payment of the aforesaid amount. The impugned interest was pertaining to the period beginning from 28.11.1998 to 31.03.2008. The assessee has offered the principal amount received during the year of ₹7.78 crores to tax. However, the assessee claimed that impugned interest pertains to

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 3 the period beginning from 28.11.1998 to 31.03.2008 and therefore the same is not taxable in the year under consideration. 3.1 The assessee also submitted that the provisions of Sec. 145A(b) of the Act are applicable from the assessment year 2010-11 and therefore the same cannot be taxed in the current year. Thus the impugned interest shall be taxable in the years to which it pertains. The Assessee also relied in support of its Cotentin in the Circular No. 5/2010 [F.142/13/2010-SO (TPL)] dated 03.06.2010. However, the AO observed that the impugned interest income was crystallized in the year under consideration by the order of Hon'ble jurisdictional High Court and therefore there was no possibility of recognizing the interest income in the earlier year to which it pertains. The right to receive the impugned interest was established by the assessee only after the verdict of the Hon'ble jurisdictional High Court. The AO also observed that it is the settled principle that any receipt which is taxable, then the same can never be allowed to escape from the assessment. Accordingly, the AO treated the receipt of ₹10.58 crores pertaining to the assessment year under consideration as income. Accordingly, the impugned interest income was added to the total income of assessee. 4. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that the impugned interest income pertains to the earlier years and therefore the same should be taxed in the respective assessment year to which it pertains. The assessee in support of its claim has relied in the judgments of Hon'ble Supreme Court in the case of Rama Bai v. CIT reported in 181 ITR 400 (SC) and CIT vs. TNK Gobindarajualau Chetty reported in 165 ITR 231 (SC). The Ld. CIT(A) after considering the submissions of assessee has deleted the addition made by AO by observing as under:- “.. … In the instant case the award of Rs.7,78,13,692/- (Libyan Dinar 22,50,000/- + Rs.39,00,000/-) was awarded by the Arbitrators by an Arbitration Award dated 28.11.1998. The High Court vide its order dated 17.04.2008 directed the HSCL to pay interest to the assessee for the period 28.11.1998 to 31.03.2008, i.e., for the period of delay in payment from the date when the original Award was awarded on the amount of Award delivered on 28.11.1998. Since, the interest in question was on account of delay in payment of Award money and the Court had specified that such interest was awarded for the period 28.11.1998 to 31.03.2008, as per law laid down by Supreme Court in Rama Bai v. CIT (supra) and CIT v. TNK Gobindarajulau Chetty

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 4 (supra), such interest on delayed payment of awarded amount cannot be assessed to income-tax in one lump sum in the year in which the same was received, rather it is to be assessed in the respective years in which the same had accrued. Accordingly, the entire interest of Rs.10,58,25,030/- awarded by the Court cannot be assessed as assessee’s income of the year under appeal since, the interest was awarded by the Court for the period 28.11.1998 to 31.03.2008, no part of such interest accrued during the assessment year under appeal, therefore, no part of such income is assessable as income of the assessment year 2009-10. As regards amended section 145A it is observed that the same has been amended by the Finance Act, 2009 with effect from 01.04.2010 wherein in sub- clause (b) this has been inserted as under: ‘Interest received by an assessee on compensation or on enhanced compensation, as the case may be, shall be deemed to be the income of the year in which it is received.’ CBDT has issued Circular No.05/2010 dated 3rd June, 2010, wherein Para 46 it has in Para 46.4 clarified: ‘This amendment has been made applicable with effect from 1st April, 2010, and will accordingly apply in relation to assessment year 2010-11 and subsequent assessment years’

Following the above referred to judgements as well as the amendment of Sec. 145A and the CBDT’s Circular, it is amply clear that the interest on delayed payment of Arbitration Award amount cannot be assessed to income-tax in one lump-sum in the year under appeal in which the same was received, rather it is to be assessed in the respective years in which the same had accrued. Hence, the AO is directed to delete the addition of Rs.10,58,25,030/- made by him.”

Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before on the following grounds:- “1. That on the facts and circumstances of the case, Ld. CIT(A) erred in deleting the addition of Rs.10,58,25,030/- made on account of interest received on delay in awarding payments towards work contract ignoring the fact that no income can escape taxation and also that the amount was determined and accrued in the relevant year itself by an order of the High Court.

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 5 interest thereon should not arise at all, as the same has also not accrued till then. 2.1 That on the facts and circumstances of the case, Ld. CIT(A) erred in deleting the addition of Rs.10,58,25,030/- on accrual basis, without considering the judgment of the Delhi High Court in Paragon Constructions (I) (P) Ltd. – vs- CIT & Anr., 274 ITR 413, wherein it was held that in a matter pertaining to arbitration where the amount of arbitration award received by the assessee was not held to be taxable till the proceedings attained a finality.”

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 6 arguments that were made before the Ld. CIT(A) and he relied on the order of Ld. CIT(A). 7. We have heard the rival contentions of both the parties and perused carefully considered the materials on record; including the judicial pronouncements cited and placed reliance upon. The issue in the instant case relates to the chargeability of tax to the interest income which pertains to the period beginning from 28.11.1998 to 31.03.2008 which was awarded along with the compensation. The impugned interest was awarded by Hon'ble jurisdictional High Court which was delivered on 17.04.2008. The AO contended that the interest was crystallized in the current year as it was ascertained after the verdict of Hon'ble jurisdictional High Court. Therefore, the same should be taxable in the current year. However, Ld. CIT(A) disagreed with the action of AO on the ground that the Amendment in Section 145A(b) of the Act for charging the interest income on the compensation was made effective from AY 2010- 11. Prior to this provision of the Act the interest income on the compensation amount was taxable in the year to which it pertains. Now the issue before us arises so as to whether the impugned interest is taxable in the year under consideration or in the year to which it pertains. The provision for taxing the interest income received on the compensation are dealt under Sec. 145A(b) of the Act which reads as under:- “[Method of accounting in certain cases. 145A. Notwithstanding anything to the contrary contained in section 145,- (a)… … (b) interest received by an assessee on compensation or on enhanced compensation, as the case may be, shall be deemed to be the income of the year in which it is received.]

A plain look at the above statutory provision makes it clear that the interest received on compensation shall be taxed in the year in which it is received. However, the said provision is applicable from the AY 2010-11 as clarified by the CBDT’s Circular No. 05/2010 issued dated 03.06.2010 which reads as under:- “46. Rationalizing the provisions for taxation of interest received on delayed compensation or on enhanced compensation 46.1 The existing provisions of Income-tax Act provide that income chargeable under the head “Profits and gains of business or profession” or “Income from other sources”, shall be computed in accordance with either cash or mercantile system of accounting regularly employed by the assessee. further,

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 7 the Hon'ble Supreme Court in the case of Rama Bai v. CIT (181 ITR 400) has held that arrears of interest computed on delayed or enhanced compensation shall be taxable on accrual basis. This has caused undue hardship to the taxpayers. 46.2 With a view to mitigate the hardship, section 145A is amended to provide that the interest received by an assessee on compensation or enhanced compensation shall be deemed to be his income for the year in which it was received, irrespective of the method of accounting followed by the assessee. 46.3 Further, clause (viii) is inserted in the sub-section (2) of the section 56 so as to provide that income by way of interest received on compensation or n enhanced compensation referred to in clause (b) of section 145A shall be assessed as “ income from other sources” in the ear in which it is received.

Thus, from the above Circular which is binding on the Income Tax Authority, it is clear that the impugned interest cannot be taxed on received basis for the years prior to the AYs 2010-11. Therefore the issue of charging the income on the impugned interest will be governed by the judgment of Hon'ble Supreme Court in the case of Rama Bai (supra) and the relevant extract of the judgment of Hon'ble Apex Court is reproduced below:- “The effect of the decision, we may clarify, is that the interest cannot be taken to have accrued on the date of the order of the Court granting enhanced compensation but has to be taken as having accrued year after year from the date of delivery of possession of the lands till the date of such order.”

From the above judgment, the Hon'ble Supreme Court has laid down the principle for taxing the interest income and accordingly it will be taxable in the year to which it pertains. We find that the case law cited by Ld. DR are distinguishable from the instant facts of the case as it was not related to the interest income received on the compensation. Therefore, the principle laid down by Hon'ble Supreme Court in the case before us, cannot be imported to the facts of the case on hand. In view of the above, we find that the provision of Sec. 145A(b) of the Act is not applicable by the CBDT in its Circular for the year under consideration. It is because it has been clarified to be applicable with effect from AY 2010-11. Thus, the issue of impugned interest is duly covered by the judgment of Hon'ble Supreme Court in the case of Rama Bai (supra). Accordingly, respectfully, following the precedent as above we hold that there is no infirmity in the order of the Ld. CIT(A). It is also important to note that the Revenue is at liberty to tax the impugned interest income in the

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 8 respective assessment years as per the provisions of law. Accordingly, we uphold the same. 8. Next issue raised by Revenue in this appeal is that Ld. CIT(A) erred in allowing credit for ₹5,84,508/- though the corresponding income was included in earlier year. 9. During the course of assessment proceedings, AO observed that assessee has claimed the amount of TDS for ₹9,06,400/- but the corresponding income to the extent of TDS amounting to ₹5,84,508/- was not offered to tax in the year under consideration. Therefore, the AO did not allow the TDS credit of ₹5,84,508/- while determining the tax liability of assessee. 10. Aggrieved, assessee preferred an appeal before Ld. CIT(A). The assessee before Ld. CIT(A) submitted that it has received mobilization advance of ₹4 crores from TISCO after the deduction of TDS for ₹9,06,400/-. Thereafter the aforesaid advance was adjusted against the bills raised by assessee to TISCO on the settlement of the said bills without TDS deduction by TISCO. Therefore there is no question of claiming TDS amount twice. The assessee in support of its claim has reconciled the TDS amount with the gross receipt vis-à-vis Form No. 26AS. The assessee also enclosed Auditor’s certificate in support of its contention. The Ld. CIT(A) after considering the submission of assessee granted relief to assessee by observing as under:- “The A/R has in his submissions explained that in all the earlier years, on similar facts, TDS on Mobilization Advance had always been allowed, therefore, the AO is directed to consider the claim of the assessee in light of the past history of the case and allow credit of TDS on Mobilization Advance as per law as per the method been consistently followed from year to year. Therefore, this ground is treated to have been allowed.”

Being aggrieved by this order of Ld. CIT(A) Revenue is in appeal before us on following ground:- “That on the facts and circumstances of the case, Ld. CIT(A) erred in directing to allow credit of TDs of Rs.5,84,508/- in this year, although the corresponding income(s) were included in total income for earlier years.”

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 9 11. Before us both parties relied on the order of Authorities Below as favourable to them. 12. We have heard the rival contentions of both the parties and perused the materials available on record. In the instant case, issue relates to the disallowance of the TDS claimed by assessee. The AO disallowed the same by observing that the corresponding income was offered to tax in the earlier year and therefore the amount of TDS to the extent of ₹5,84,608/- which pertaining to the income which has been offered to tax in earlier year was not allowed. However, the Ld. CIT(A) observed that assessee has been claiming the deduction of TDS amount deducted on the advance payment consistently and no disallowance was made in the earlier years. Form the above facts of the case we find that the assessee has been following system to claim the benefit of TDS amount deducted by the party consistently and no disallowance has been made by the Revenue. Moreover the ld. DR has not brought anything on record anything contrary to the findings of ld. CIT(A). Thus in our considered view there is no defect in the order of ld. CIT(A). Besides the above we also find that the assessee has already shown income corresponding to the TDS of Rs. 51,615.00 in the earlier years which shows that the assessee has already suffered the burden of income tax in the earlier years without claiming the benefit of TDS. Indeed in this case the assessee has borne the burden of the tax out of his own fund. Moreover if the party has not deducted the TDS in the relevant year, there is no fault of the assessee. There is also no loss to the Revenue. Therefore we find no infirmity in the order of the Ld. CIT(A). Accordingly, we uphold the same. 13. In the result, Revenue’s appeal is dismissed. Coming to assessee’s CO No.144/Kol/2012. 14. At the time of hearing Ld. AR for the assessee stated that he has not pressed the Ground No.1, hence, same is dismissed as not pressed. 15. Only remaining issue raised by assessee is that Ld. CIT(A) erred in confirming the order of Assessing Officer by sustaining the disallowance for the amount of additional depreciation for ₹3,25,63,383/- u/s. 32(1)(iia) of the Act.

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 10 16. During the course of assessment proceedings, AO observed that assessee claimed additional depreciation on certain machineries vide letter dated 19.12.2011 without filing the revised return of income. However the AO disregarded the plea of assessee by observing that assessee is not engaged in any manufacturing activities therefore, assessee is not entitled for additional depreciation. 17. Aggrieved, assessee preferred an appeal before Ld. CIT(A) who confirmed the order of AO by observing as under:- “During the appellate proceedings the assessee only claimed that it was involved in production of an article or a thing. The assessee is, prima facie, a contractor, and it has not brought anything on record to even suggest, leave aside prove, that it was involved in production of an article or a thing.

For the reasons stated above, I find that assessee’s claim of additional depreciation has rightly been disallowed by the AO. Hence, the disallowance of Rs.3,25,63,383/- is confirmed. This ground is, therefore, dismissed.”

Being aggrieved by this order of Ld. CIT(A) assessee has come up in Cross Objection before us. 18. Before us Ld. AR submitted that assessee engaged in mining activities and additional depreciation has been allowed on mining activities by the order of this Co- ordinate Bench of this Tribunal in the case of M/s Integrated Coal Mining Ltd. vs. DCIT in ITA No.1146/Kol/2012 for A.Y 2008-09 dated 30.11.2015. On the other hand, Ld. DR submitted that the issue of additional depreciation has not been examined by the Authorities Below and therefore matter be restored to the file of AO for fresh verification. He vehemently relied on the order of Authorities Below. In rejoinder Ld.AR submitted that the original depreciation has been allowed on the same machineries and no disallowance whatsoever was made by the Authorities Below. 19. We have heard the rival contentions and perused the materials available on record. The issue in the instant case relates to the disallowance of additional depreciation claimed by assessee. AO disallowed the claim of additional depreciation on the ground that the assessee is not engaged in any manufacturing activities. The action of AO was also subsequently confirmed by Ld. CIT(A). From the order of AO we find that he has given the finding that the issue of additional depreciation was

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 11 discussed elaborately but no satisfactorily reply was filed. However we find that all the details of new plant & machineries were duly filed before the lower authorities which are placed on pages 54 to 60 of the PB along with the report in form 3AA for additional depreciation. Thus the AO has disallowed on the ground that the assessee is not engaged in the manufacture activities. In this regard at the outset, we find that instant issue is already covered by the decision of jurisdictional High Court in the sister concern of assessee in the case of CIT vs. G.S. Atwal & Co. reported 254 ITR 592 (Cal). The relevant operative portion of the judgment is reproduced below:- “13. Following an old and long standing decision given by Chakravarti C.J. in 1959, which was later approve by the Supreme Court, the Division Bench opined that the winning of coal is not doubt production. At paragraph 12 of the judgment it said that after winning coal something that was not thee comes up, and it is, therefore, a production of coal. The Division Bench allowed its own decision in the later case of Khalsa Bros vs. CIT [1996] 217 ITR 185. MR. Bajoria also relied on the interesting case of CIT v. Shann finance (P) Ltd [1998] ITA No. 1146, 1138/Kol/2012-C-AM Integrated Coal Mining Ltd 23 231 ITR 308 where the Supreme Court opined that a financier owning machinery might still be entitled to investment allowance even if the machinery is actually used by its lessee for the purpose of production.”

It is also important to note that similar issue is also covered by the order of ITAT in the case of Integrated Coal Mining Limited Vs DCIT in ITA 1146/Kol/2012 & 1138/Kol/2012 vide order dated 30-11-2015. Respectfully following the decision of Hon'ble jurisdictional High Court in the case of G.S.Atwala & CO. (supra) we reverse the order of Ld. CIT(A) in this regard and direct the AO to delete the addition. This ground of assessee’s CO is allowed. 20. In the result, assessee’s CO is partly allowed. 21. In the result, appeal of Revenue stands dismissed and that of assessee’s CO is partly allowed. Order pronounced in open court on 26/04/2017

Sd/- Sd/- (S.S.Viswanethra Ravi) (Waseem Ahmed) Judicial Member Accountant Member *Dkp, Sr.P.S �दनांकः- 26 /04/2017 कोलकाता / Kolkata

ITA No.1516/Kol/2012 & CO No.144/Kol/2012 A.Y. 2009-10 JCIT(OSD0, CC-Kol Vs. M/s G.S.Atwal & Co. (Engg) Pvt. Ltd. Page 12 आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. आवेदक/Assessee-M/s G.S.Atwal &CO.(Engg)Pvt. Ltd., 4B, Little Russell St.Kol-71 2. राज�व/Revenue-JCIT(OSD),Central Circle-XX, Aayakar Bhawan, 5th Floor,110 Shantipally, Kolkata-107 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण कोलकाता / DR, ITAT, Kolkata 6. गाड� फाइल / Guard file.

By order/आदेश से, /True Copy/ उप/सहायक पंजीकार आयकर अपील�य अ�धकरण, कोलकाता