EAST COAST CONSTRUCTIONS & INDUSTRIES LTD.,CHENNAI vs. DC/ACIT CENTRAL CIRCLE- 1(3), CHENNAI

First we will deal with ITA No.236/CHNY/2023.

At the outset, the ld.counsel for the assessee stated that the assessee filed original return of income on 31.10.2018 declaring a loss of Rs.78,62,15,002/- and claimed refund of Rs.68,76,200/-. The Department issued defect notice u/s.139(9) of the Act on 10.04.2019 on account of failure to annex audit report. The assessee filed revised return u/s.139(5) of the Act on 19.10.2019 along with audit report in Form No.3CD and revised computation of income declaring loss at Rs.4,25,00,920/- and claimed refund of Rs.71,32,470/-. The Revenue processed the return u/s.143(1) of the Act vide dated 04.12.2019 and pointed out mismatch between the return of income and audit report and consequently, intimation u/s.143(1) of the Act was issued by the CPC, Bangalore on 20.02.2020 converting loss into income at Rs.20,09,57,255/- as against loss claimed of Rs.78,62,15,002/-. Subsequently, the AO

Subsequently, the assessee filed rectification application dated 13.09.2021 claiming that the intimation issued by the CPC after processing of return u/s.143(1) of the Act dated 20.02.2020 by making addition of Rs.91,38,44,613/- to the returned loss of Rs.78,62,15,002/-, in the said intimation, the CPC, Bengaluru omitted to allow brought forward loss to the extent of Rs.2,80,71,54,398/- comprising of various assessment years. Therefore, in the intimation u/s.143(1) of the Act, the total income arrived at Rs.20,09,57,255/-. In this rectification application, the assessee only claimed that brought forward loss is to be adjusted against income and remaining loss is to be carried forward. This

Now, the ld.counsel for the assessee took us through the assessment order passed by the AO dated 19.08.2021 u/s.143(3) of the Act, wherein the AO has computed the total income / loss as under:- “Total income / loss declared : (-) Rs.4,25,00,920/- Total income / Loss as per order : Rs.20,09,57,255/- 143(1) Total income / Loss assessed : Rs.20,09,57,255/-

Before CIT(A), the assessee challenged the following items:- i. Amount disallowed under Sec.43B Rs.91,38,44,618 ii. Amount disallowed u/s.40(a)(ia) Rs. 7,06,20,284 iii. Disallowance under Sec.36(i)(va) Rs. 27,07,405 iv. Net effective of disallowance of depreciation Under Companies Act, and allowed Depreciation under I.T.Act (5,31,04,480 – 5,02,98,664) Rs. 28,05,816

We have heard rival contentions and gone through facts and circumstances of the case. We have gone through the grounds raised by assessee and noted that the assessee has filed revised computation and claimed that the disallowance of Rs.91,38,44,618/- made by AO u/s.43B of the Act has already been considered in its revised computation and revised return of income and hence, only revised return and revised computation of income should be considered for purpose of computation of income u/s.143(3) of the Act. Another ground raised is as regards to delayed remittance of provident fund of Rs.27,07,405/- and disallowance of expenses claimed by assessee of Rs.7,06,20,234/- for non-deduction of tax u/s.40(a)(ia) of the Act. The assessee has already disallowed these two expenses in its revised return and revised computation of income filed on 19.10.2019 and the same may be considered for the purpose of computation of income u/s.143(3) of the Act.

The ld.counsel for the assessee before us stated that in case, revised return of income filed during the course of scrutiny assessment or even prior to that on 19.10.2019 if considered, then the double disallowance made by AO on account of section 43B and delayed remittance of provident fund contribution and also disallowance of expenses for non-deduction of TDS need not be disallowed again and further, the brought forward losses are to be considered for the purpose of computation which are comprising of various assessment years while arriving at taxable income.

When these facts were confronted to ld.CIT-DR, he only stated that the AO cannot consider revised return for the reason that the revised return filed is a belated one and simpliciter, the assessee cannot claim the alleged deductions or disallowances or brought forward losses by way of computation in view of the decision of Hon’ble Supreme Court in the case of Goetze (India) Ltd., vs. CIT, reported in [2006] 284 ITR 323. The ld.CIT-DR in view of this stated that the decision of Hon’ble Supreme Court clearly applicable to the AO and he has rightly not considered the revised return of income and revised computation of income filed on 19.10.2019.

We noted that the admitted facts are that the assessee filed original return of income within the due date i.e., on 31.10.2018 for the relevant assessment year 2018-19 and claimed loss at Rs.78,62,15,002/-. The AO also issued defect notice u/s.139(9) of the Act on 10.04.2019 / 05.10.2019. The assessee after going through the defect notice filed revised return of income along with revised computation and audit report in Form No.3CD dated 19.10.2019. In the revised return of income, the assessee declared loss of Rs.4,25,00,920/- and claimed refund of Rs.71,32,470/-. We also noted one peculiar fact in this case that the scrutiny assessment was framed on the original return of income by issuing notice u/s.143(2)of the Act dated 23.09.2019. Admittedly, the assessee’s revised return is a belated return but the assessee along with this return of income has filed revised and correct computation of income along with audit report in Form No.3CD. This is done during scrutiny assessment proceedings after issuance of notice u/s.143(2) of the Act. The complete information in regard to the assessee making disallowance u/s.43B of the Act amounting to Rs.91,38,44,618/-, disallowance of delayed remittance of provident fund contribution of Rs.27,07,045/- and disallowance of expenses relatable to non- deduction of TDS amounting to Rs.7,06,20,234/- u/s.40(a)(ia) of the Act was already done by assessee in its computation of income.

Coming to ITA No.235/CHNY/2023, since we have adjudicated the above appeal in ITA No.236/CHNY/2023 against the assessment u/s.143(3) of the Act, the present appeal against 143(1) of the Act becomes academic. Hence, need not to be adjudicated. Therefore, this appeal of the assessee is dismissed.

In the result, the appeals filed by the assessee in ITA No.235/CHNY/2023 is dismissed and ITA No.236/CHNY/2023 is allowed for statistical purposes.