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Income Tax Appellate Tribunal, ‘B’ BENCH, KOLKATA
Before: Shri M.Balaganesh & Shri S.S. Viswanethra Ravi
This appeal of the assessee is arising out of the order of the CIT, Kolkata- IV, Kolkata passed u/s. 263 in Memo No. CIT, Kol-IV/263/2012-13/394-396 dated 28-03-2013/9-05-2013 for the assessment year 2008-09 against the order of assessment framed u/s. 143(3) of the Income-tax Act, 1961 (hereinafter referred to as the ‘Act’).
In this appeal, the assessee has raised the following grounds of appeal:-
1. For that the order u/s. 263 passed by Ld. Commissioner of Income tax-IV, Kolkata (hereinafter referred to as Ld. CIT) is barred by limitation. -B-JM
1. M/s.Haldia Petrochemicals Ltd.
2. For that the Ld. CIT failed to substantiate his findings either in the notice u/s. 263 or in the corresponding order.
3. For that the Ld. CIT erred in not dealing with all the submissions and queries of the Appellant during the proceedings u/s. 263.
4. For that the Ld. CIT erred in law and facts in disallowing foreign currency gain of Rs.1,76,44,053/- u/s. 80IA of the Income Tax Act, 1961 on grounds different from that proposed in the notice u/s. 263 of the Act.
5. For that the Ld. CIT erred in law and facts in initiating proceedings u/s. 263 of the Income Tax Act, 1961 without appreciating the fact that the order passed by the Assessing Officer ( herein after referred to as Ld. AO) u/s. 143(3) was neither erroneous nor prejudicial to the interest of the revenue.”
The brief facts of the case are that the assessee is a manufacturing company generates power and energy and filed its income declaring at Nil after claming deduction u/s. 80IA(4) of the Act. Having selected for scrutiny, notices u/s. 143(2)/142(1) of the Act were issued to assessee.
During such scrutiny proceedings, the AO found interest income earned on surplus amounts which were invested as deposits for small duration with assessee’s main banker and treated the same as income from other sources. Secondly, the AO disallowed an amount of Rs.38,92,132/- for non deduction of TDS as against the claim of expenditure by the assessee paid to M/s. Nuovo Pignone on account of reimbursement. Thirdly, the assessee claimed deduction on sale of power of Rs.1,21,72,371/- u/s. 80IA(4)(iv)(a) of the Act. The AO denied the same and he was of the view, the said deduction is available to those industries involved in generation of power and sells thereon to consumer and having found the assessee not involved in generation of power and added -B-JM 2 M/s.Haldia Petrochemicals Ltd.
Rs.1,21,72,371/- treating it as profit earned on trading of power and also computed the income of the assessee u/s. 115JB of the Act by an order dtd. 30- 12-2010.
As matter stood thus, CIT having exercised power of revision u/s. 263 of the Act called for records pertaining to the year under consideration and found that the assessee is not eligible for deduction to an amount of Rs.1,76,44,053/- in respect of gain of foreign currency loan, which was included and claimed as deduction u/s. 80IA before the AO by observing as it is not a profit and gain from industrial undertaking or enterprises engaged in infrastructure development u/s. 80IA of the Act, accordingly, directed the AO to verify the issue afresh. It is pertinent to mention that the CIT said to have passed such order u/s. 263 on 28- 03-2013, but, it was dispatched to the assessee on 01-05-2013. To be clear, the relevant portion is reproduced hereunder:-
The assessment records of the assessee were called for and perused and the following were noticed: a) The assessee claimed deduction of Rs. 81,34,56,971/- under section 80IA which includes foreign currency gain of Rs, 3,33,05,084/- due to repayment of foreign currency loan obtained earlier for acquisition of fixed assets. Out of the above gain Rs. 1,56,61,031/- was deducted for adjustment made in value of Plant and Machinery in computation of profit and gain from business ( generation and sale of power ). Thus gain of foreign currency loan of Rs. 1,76,44,053/- ( Rs. 3,33,05,084 - Rs. 1,56,61,031 ) was not profit and gains derived from business but included in the amount of deduction. Resulting in under assessment of income to the tune of Rs. 1,76,44,053/- with excess carry forward of MAT credit amounting to Rs. 59,97,214/-. This action appeared to be erroneous and prejudicial to the interest of revenue. A review action under section 263 of the Income Tax Act, 1961 was proposed to be taken and notice under section 263 of the Income Tax Act, 1961 was issued.
-B-JM 3 M/s.Haldia Petrochemicals Ltd. b) The assessee vide his submission dated 12.03.2013 submitted that the Rs. 1,76,44,053/- included in the income and has been offered for tax. But the fact is that, the assessee included that amount of Rs, 1,76,44,053/ - in his Gross Total Income and then claimed deduction under section 80lA on that amount also. So, factually that amount was not offered to tax as claimed by the assessee. The question is whether this amount being the foreign currency gain is the eligible business profit to claim deduction under section 80IA. No submission has been made by the assessee to establish the fact that the said foreign currency gain is the part of the eligible business to claim deduction under section 80lA on that amount. As the said foreign currency gain is not the profit and gains from industrial undertaking or enterprises engaged in infrastructure development, the amount of Rs.1,76,44,053/- is not eligible for deduction under section 80IA. c) Accordingly deduction under section 80IA allowed on foreign currency gain amounting to Rs.1,76,44,053/- ought to have disallowed and the AO should look into this issue afresh and pass necessary order as per law.”
(S.C.BABERIA) COMMISSIONER OF INCOME TAX KOLKATA-IV, KOLKATA Memo No. CIT, Kol-IV/Kol./263/2012-13/394-396 Dated 28-03-2013 01-05-2013 6. As aggrieved, the assessee is in appeal before us. The Ld. AR contended that the impugned order passed u/s. 263 by the CIT is barred by limitation. He argued that the said order though it appears to have been passed on 28-03-2013 and it could not become operative and effective till 01-05-2013 as it was dispatched and served on the assessee thereafter and it was under the control and custody of the CIT. He pointed that the date of dispatch ought to be reckoned for the purpose of saving limitation. He further relied on a decision of the Hon’ble Kerala High Court in the case of Government Wood Works Vs. State of Kerala reported in 1988 69 STC 62 (Ker) wherein it was held that order was made, -B-JM 4 M/s.Haldia Petrochemicals Ltd. signed and kept in the files, was not effective and complete until it was issued to the party.
In reply, the Ld. DR argued that in section 263 of the Act the requirement is only making of the order within the specified time by giving a finding that the order is erroneous as well as prejudicial to the interest of the Revenue and it comes into effect forthwith and it is immaterial on what date it was dispatched to or served on the assessee for the purpose of limitation. To save limitation it shall be reckoned from date of “making of order” and not from the date on which date it was dispatched and the order of CIT passed U/sec 263 is within time. He further distinguished that the said Judgment of the Hon’ble Kerala High Court in the case of Government Wood Works supra was not pronounced on the issue involving in Income-tax matter and the Ld. DR relied on the impugned order of the CIT and prayed to dismiss the appeal of the assessee.
Heard the rival submissions and perused the material available on record. The first issue involved in this appeal is as to whether the order passed by CIT u/s. 263 is barred by limitation. The sub section (2) of section 263 reveals that no order shall be made u/s. (1) of section 263 after the expiry of 2 years from the end of the financial year in which the order was passed. In the present case the AO passed the assessment order on 30-12-2012 u/s. 143(3) of the Act. The CIT having jurisdiction under revisionary powers u/s. 263 of the Act said to have passed an order on 28-03-2013 with a finding that the order of AO is erroneous and prejudicial to the interest of revenue. A perusal of the order as it clearly shows that it contains two dates i.e 28-03-2013/ 01-05-2013. The Ld.AR contends that the said order was dispatched and served on it after 01-05-2013 and it is barred by limitation. The Ld. DR contends that it is within time as the -B-JM 5 M/s.Haldia Petrochemicals Ltd.
CIT made such order on 28-03-2013. Sub section (2) of section 263 of the Act provides limitation for revision of order(s) u/s.
It is very much clear that the order u/s. 263 shall be made under sub section (1) of section 263 within the expiry of 2 years from the end of the financial year in which the order sought to be revised was passed. The period of limitation in the instant case for passing the order u/s. 263 comes to end on 31-03-2013. The order of the CIT contains the date 28-03-2013 it claimed that this is the date on which the order was passed. The same was however dispatched on 01-05-2013 only. In this regard, we may refer to the Judgement as relied by the assessee of the Hon’ble High Court of Kerala in the case of Government Wood Works Vs. State of Kerala reported in 1988 69 STC 62 (Ker), wherein the Hon’ble Court observed that in order to make an order complete effective it has to be some way pronounced or published or communicated to the effected party and it should have been done or completed within the prescribed period. Relevant portion of finding is reproduced here under for the sake clarity:-
A Division Bench of this Court, consisting of Subramonian Potti, Ag. C. J. and Chandrasekhara Menon, J., had occasion to deal with a similar question in Malayil Mills v. State of Kerala (T.R.C. Nos.15 and 16 of 1981), the judgment in which was delivered on 7th June, 1982. The assessee in that case had purchased copra during the years 1961-62 and 1962-63. The law, as it then stood, did not serve the purpose of bringing to tax the purchases of copra. The Kerala State Legislature, therefore enacted the Kerala Sales Tax (Levy and Validation) Act, 1965 to validate the levy of tax on copra during the said two years, among others and to enable assessments to be made where non-existed. Section 3 of the Act, which was to operate retrospectively from 1st April, 1958, imposed a liability on every dealer to pay tax on his turnover relating to purchase of copra. Section 4(1)(iv) which operated from 27th September, 1965, enabled assessments to be made within three years (extended by subsequent amendment to five years) of the date of publication of the Validation Act in cases where the tax payable on the purchase of copra -B-JM 6 M/s.Haldia Petrochemicals Ltd.
had not been assessed under the General Sales Tax Act. By virtue of this provision, as amended, the assessing authority could assess the tax due on the purchases of copra within five years from 27th September, 1965, i.e., before 27th September, 1970. The assessments in question for the two years 1961-62 and 1962-63 were made on 23rd September, 1968; but the orders were served on the assessee only on 4th February, 1972. The assessee challenged the said orders before this Court, inter alia, on the ground that the orders were barred by limitation as they had been made only long after the prescribed period of five years. The matter wasdealt with in detail by this Court. Relying on the decisions in Raja Harish Chandra Raj Singh v. Deputy Land Acquisition Officer [1962] 1 SCR 676, Bachhittar Singh v. State of Punjab AIR 1963 SC 395, State of Punjab v. Khemi Ram AIR 1970 SC 214, B.J. Shelat v. State of Gujarat AIR 1978 SC 1109 and the earlier decision of this Court in T. R. C. No. 6 of 1981, to which the Acting Chief Justice was a party, it was stated: Any authority on which power is conferred, the exercise of which power would affect the rights of parties, is to communicate its order to the party against whom the order would operate. The mere preparation of an order or even keeping the order signed in the files of the office would not render it an effective order. an order which is operative. The exceptions are cases where there is requirement of pronouncing the orders and they are pronounced On notified dates. Then irrespective of the actual presence or otherwise of the parties, notice to the parties is assumed. In other cases, if the authority making the' order fails to communicate the order, the order could not be said 10 have been made, for communication of such order is an essential part of making such order. This is naturally so, for any authority who writes out an order and signs it is free to change it at any time before it is communicated. It is not final at all, for the authority may become wiser on information supplied to it or otherwise and may choose to change the order at any time before it is dispatched to the party against whom it operates.” “14. The order of any authority cannot be said to be passed unless it is in some way pronounced or published or the party affected has the means of knowing it. It is not enough if the order is made, signed, and kept in the file, because such order may be liable to change at the hands of the authority who may modify it or even destroy it, before it is made known, based on subsequent information, thinking or change of opinion. To make the order complete and effective, it should be issued, so as to be beyond -B-JM 7 M/s.Haldia Petrochemicals Ltd. the control of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period, though the actual service of the order may be beyond that period. This aspect of the matter had not come up for consideration in the cases of Viswanaihan Chettiar [1954] 25 ITR 79 (Mad.) and Laxmidas & Co. [1969] 72 ITR 88 (Bom) where the only question dealt with was whether service of the order after the prescribed period rendered it invalid. Unless, therefore, the order of the Deputy Commissioner in this case had been so issued is office within the period prescribed, it has to be held that the proceedings are by limitation. This question has not been considered by the Tribunal. The Tribunal, which passed the order, apparently did not have the benefit of the decision in Malayil Mills case (T. R. C. Nos. 15 and 16 of 1981 decided on 7th June, 1982-Kerala High Court) which, so far as we could see, remains, unreported. The matter has therefore to go back to the Tribunal for an examination of the records to ascertain whether the order of the Deputy Commissioner had been issued from his office within the period of four years prescribed in Section 35(2) of the Act. The Tribunal will adjudicate the matter in the light of the observations contained herein and in the judgment in the case of Malayil Mills (T. R. C. Nos. 15 and 16 of 1981 decided on 7th June, 1982-Kerala High Court) extracted earlier.”
In the present case the order passed u/s. 263 of the Act by the CIT was admittedly issued only on 01-05-13 diapatched by post only on 08-05-13 and served on assessee later and it was in his custody till 01-05-2013 and was issued only on 01-05-13. In other words it was the order was issued only after 01-05- 2013 after the expiry of the period of limitation. As held by the Hon’ble High Court in the case of Government Wood Works supra to make the order complete and effective it should be issued so as to be beyond the control of the authority concerned. Therefore, the ratio of the Hon’ble Kerala High Court in the case of Government Wood Works supra is applicable to the facts of the present case. Respectfully following the same, we hold that the impugned order passed u/s. 263 of the Act by the CIT is barred by limitation. Accordingly, the ground no-1 raised by the assessee are allowed. In view of the our decision on -B-JM 8 M/s.Haldia Petrochemicals Ltd.
the first issue and requires no adjudication on other grounds, therefore, all are dismissed.
In the result, the appeal of the assessee is allowed. Order is pronounced in the open court on 10 -06-2016