2016 (2) TMI 990 - HC - Income Tax

SIC company - Grant of a concession or relief in terms of the Scheme presented before the BIFR - relief relating to capital gains tax under Section 45 on sale of assets disallowed on the basis of projected figures and not on the basis of actual figures - whether the difference between the actuals and the projected figures should be absorbed by the Petitioner? Held that - Referring to the order passed by AAIFR it requires the Income Tax Department to accept or reject the plea for grant of a concession or relief in terms of the Scheme presented before the BIFR. The AAIFR observed that the Department should have only considered the proposed concession and taken its own decision. That order does not by any means suggest that when there are actual figures available at the time of the decision to be taken by the Department, reliance can be placed on the projections of the Petitioner which were submitted at the time of submission of the scheme before the BIFR. In any event, it does not support the plea of the Revenue that the difference between the actuals and the projected figures should be absorbed by the Petitioner. Consequently, while setting aside the order dated 29th November 2012 passed by the DIT Recovery, the Court requires the DIT (Recovery) to once again consider the proposed scheme and the question of entitlement of the Petitioner to concession as sought for by the Petitioner. A fresh decision based on the actual figures submitted by the Petitioner will be taken.

Summary

Issues:
1. Disallowance of relief relating to capital gains tax based on projections instead of actual figures.
2. Absorption of difference between projections and actuals by proposer.
3. Interpretation of orders passed by the Appellate Authority for Industrial and Financial Reconstruction.
4. Requirement for the Directorate of Income Tax (Recovery) to reconsider the proposed scheme based on actual figures submitted by the Petitioner.

Analysis:
1. The High Court addressed the issue of disallowance of relief concerning capital gains tax based on projections rather than actual figures. The Court noted the petitioner's contention that the relief should have been based on actuals, not projections. The respondents argued that proposals are typically considered based on projections, and any discrepancies should be absorbed by the proposer. However, the Court found that the respondents failed to substantiate this claim, leading to the decision to set aside the order dated 29th November 2012 passed by the Directorate of Income Tax (DIT) Recovery.

2. The Court further discussed the issue of whether the difference between projections and actuals should be absorbed by the proposer. The respondents referred to an order by the Appellate Authority for Industrial and Financial Reconstruction, which emphasized that the Income Tax Department should consider proposed concessions independently. The Court clarified that reliance on projections submitted by the Petitioner at an earlier stage should not override actual figures when making decisions. Consequently, the Court ruled that the difference between actuals and projections should not be absorbed by the Petitioner.

3. Regarding the interpretation of orders passed by the Appellate Authority for Industrial and Financial Reconstruction, the Court highlighted that the order did not support the Revenue's argument that the Petitioner should absorb the difference between actuals and projections. The Court emphasized the need for the Department to make decisions based on actual figures submitted by the Petitioner, rather than relying solely on initial projections.

4. The High Court directed the Directorate of Income Tax (Recovery) to reconsider the proposed scheme in light of the actual figures provided by the Petitioner. The Court mandated a fresh decision within eight weeks, allowing the Department to gather necessary information promptly. Additionally, the Petitioner was granted a hearing before the final decision was made. The petition and application were disposed of accordingly, with a clarification that the Court's orders should not be construed as expressing an opinion on the merits of the case or the relief sought by the Petitioner.