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Income Tax Appellate Tribunal, “C” BENCH, CHENNAI
Before: SHRI B.R. BASKARAN & SHRI CHALLA NAGENDRA PRASAD
आदेश /O R D E R
PER B.R. BASKARAN, ACCOUNTANT MEMBER:
The assessee has filed the Stay Petition seeking stay of outstanding demand of `5.95 Crores raised upon it through
2 S.P. No.74/Mds/15 I.T.A. No. 216/Mds/15 intimation issued under Section 143(1) of the Income-tax Act, 1961 (in short 'the Act') for assessment year 2010-11.
The Ld. counsel appearing for the assessee submitted that the assessee had huge brought forward losses and unabsorbed depreciation and hence it returned NIL income both under normal provisions of the Act as well as Section 115JB of the Act. However, while uploading in the return of income electronically, the details relating to brought forward losses and unabsorbed depreciation were omitted to be uploaded and hence while processing return under Section 143(1) of the Act, a huge demand of ` 5.95 Crores has been raised upon the assessee.
The Ld. counsel submitted that the assessee is a State Government undertaking and the said mistake was committed by the staff who uploaded the return. The assessee filed the appeal seeking relief from Ld. CIT(Appeals). However, the first appellate authority has rejected the appeal on technical ground that there is no mistake in processing the return under Section 143(1) of the Act.
The Ld. counsel submitted that the return of income was not taken up for scrutiny and hence the present intimation has reached finality. Accordingly, the Ld. counsel submitted that the assessee would be put into great loss, if the outstanding demand is not 3 S.P. No.74/Mds/15 I.T.A. No. 216/Mds/15 stayed. Accordingly, the Ld. counsel prayed that the entire outstanding demand be stayed.
On the contrary, the Ld. D.R. vehemently opposed the petition filed by the assessee by stating that there is no mistake in the intimation issued to the assessee under Section 143(1) of the Act.
With the consent of both the parties, the appeal was taken up for final disposal.
We heard the parties and perused the record. As submitted by the Ld. counsel, the impugned demand has arisen due to non- uploading of details of brought forward losses and unabsorbed depreciation in the electronic return filed by the assessee.
Otherwise, there is no dispute with regard to the fact that the assessee is entitled for set off of brought forward losses and unabsorbed depreciation. It is further noticed that details relating to the same are omitted to be uploaded inadvertently. Under these circumstances, we are of the view that the assessee should not be denied the benefit, which otherwise it is eligible for, on technical reasons. At this juncture, we feel that it is pertinent to refer to the 4 S.P. No.74/Mds/15 I.T.A. No. 216/Mds/15 following observation made by the Hon'ble Supreme Court in the case of CIT v. Shelly Products And Another (261 ITR 367) (SC):-
“We cannot lose sight of the fact that the failure or inability of the Revenue to frame a fresh assessment should not place the assessee in a more disadvantageous position than in what he would have been if a fresh assessment was made. In a case where an assessee chooses to deposit by way of abundant caution advance tax or self-assessment tax which is in excess of his liability on the basis of the return furnished or there is any arithmetical error or inaccuracy, it is open to him to claim refund of the excess tax paid in the course of the assessment proceeding. He can certainly make such a claim also before the concerned authority calculating the refund. Similarly, if he has by mistake or inadvertence or on account of ignorance, included in the income any amount which is exempted from payment of income-tax, or is not income within the contemplation of law, he may likewise bring this to the notice of the assessing authority, which if satisfied, may grant him relief and refund the tax paid in excess, if any. Such matters can be brought to the notice of the concerned authority in a case when refund is due and payable, and the authority concerned, on being satisfied, shall grant appropriate relief. In cases governed by section 240 of the Act, an obligation is cast upon the Revenue to refund the amount to the assessee without his having to make any claim in that behalf.
5 S.P. No.74/Mds/15 I.T.A. No. 216/Mds/15
In appropriate cases therefore, it is open to the assessee to bring facts to the notice of the concerned authority on the basis of the return furnished, which may have a bearing on the quantum of the refund, such as those the assessee could have urged under section 237 of the Act. The concerned authority, for the limited purpose of calculating the amount to be refunded under section 240 of the Act, may take all such facts into consideration and calculate the amount to be refunded. So viewed, an assessee will not be placed in a more disadvantageous position that what he would have been, had an assessment been made in accordance with law.”
Even though the above said observations were made by the Hon'ble Supreme Court in the context of Section 240 of the Act, we are of the view that the ratio of the said observations shall apply to the instant case also. Accordingly, we are of the view that the Ld. CIT(Appeals) was not justified in rejecting the claim of the assessee on technical reasons. Accordingly, we set aside the order of the Ld. CIT(Appeals) and restore the matter to the file of the Assessing Officer with a direction to examine the claim of set off of brought forward losses and unabsorbed depreciation and amend the intimation issued under Section 143(1) of the Act accordingly.
In the result, the Stay Petition filed by the assessee is dismissed and the appeal is treated as allowed for statistical purposes.
Order pronounced in the open court after conclusion of hearing on the 6th day of February, 2015 at Chennai.