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2011 (4) TMI 1016 - AT - Income TaxMAT- Computation of book profit u/s 115JB - Electricity tax - tax audit report of the assessee clearly mentioned the amount to be contingent in nature - for this reason that the A.O. held it as not allowable while computing the total income under the normal provisions of the Act - held that - Assessing Officer never made any effort to make a book profit computation as mandated under Section 115JB of the Act - Non consideration of law and not making a computation prescribed under law would definitely render the order of the A.O. erroneous and prejudicial to the interest of the Revenue - direction of the CIT to disallow the above items under Section 115JB of the Act, no doubt, such a direction to do an assessment in a particular manner would be beyond the powers of a CIT under Section 263 - assessment order was erroneous in so far as it was prejudicial to the interest of the Revenue is correct - order of the CIT would thus stand modified to the effect that the Assessing Officer shall examine each of the above issue. Disallowance of depreciation - disallowance of depreciation Rs.6,40,000/- on let out property made by the A.O - A.O. had not examined the claim of depreciation of the assessee vis- -vis each of the let out property owned by it - nothing in the assessment order which gives a break-up of the disallowance made by the A.O - omission by the A.O. in making a scrutiny of each of the claim of depreciation of the assessee - no error in the order of the CIT in considering such non-application of mind to be erroneous and prejudicial to the interest of the Revenue - order of CIT that the A.O. shall disallow the claim of the assessee cannot be accepted. Hence, vis- -vis the depreciation claim, order of CIT modified and direct the A.O. to verify the claim of the assessee and deal with it in accordance with law. Deduction of bad debts power of Tribunal under section 254 - double deduction - as mentioned by the learned CIT, nothing was produced by the assessee to prove that it consistently followed an accounting practice whereby provision made in one year was reversed it to the extent debts were considered bad, in a subsequent year and a write-off effected for such bad debts - arguments taken by the learned A.R. that this Tribunal did not have any power under Section 254 of the Act to modify an order of CIT under Section 263 of the Act - where the order of the A.O. was palpably erroneous and prejudicial to the interest of the Revenue, just because the CIT slightly overstepped his powers, would not be a sufficient reason to quash his order in toto, but it is the duty of the Tribunal to properly modify it so as to effectuate the purpose of Section 263 - no merit in this appeal of the assessee against the order of the CIT under Section 263 of the Act - order of CIT shall stand modified to the extent that the A.O. can consider each of the issue raised by the CIT in his order, in accordance with law after giving the assessee an opportunity to represent its case.
Issues Involved:
1. Assumption of jurisdiction by CIT under Section 263 of the Income-tax Act, 1961. 2. Computation of book profits under Section 115JB of the Act. 3. Examination of certain items not considered by the Assessing Officer (A.O.) while computing the income under normal provisions. 4. Claim of depreciation on a let-out property. 5. Claim of bad debts. Detailed Analysis: 1. Assumption of Jurisdiction by CIT under Section 263: The assessee challenged the jurisdiction assumed by the CIT under Section 263, arguing that the assessment order dated 19.12.2006 was neither erroneous nor prejudicial to the interest of the Revenue. The CIT had issued a show cause notice under Section 263, indicating that the A.O. did not consider certain items while computing book profits under Section 115JB. The Tribunal noted that the CIT's jurisdiction was correctly invoked as the A.O. failed to apply his mind to the computation of book profits under Section 115JB, rendering the order erroneous and prejudicial to the interest of the Revenue. 2. Computation of Book Profits under Section 115JB: The CIT identified four items that were not considered by the A.O. for computing book profits under Section 115JB: - Provision for bad and doubtful debts and advance of Rs. 16,03,61,290/- to M/s Sical Ships (India) Ltd. - Provision for bad and doubtful debts of Rs. 86,48,265.68 relating to various other parties. - Deposit of Rs. 2,00,00,000/- against Electricity tax demand of Rs. 10.51 Crores. - Electricity tax demand of Rs. 98,67,181/- under the Tamil Nadu Tax on Consumption or Sale of Electricity Act. The assessee argued that these provisions were against ascertained liabilities and should not be added back while computing book profits. However, the CIT disagreed, considering them as unascertained or contingent liabilities. The Tribunal upheld the CIT's view, emphasizing that the A.O. had not applied his mind to these items under Section 115JB, making the assessment order erroneous and prejudicial to the Revenue's interest. 3. Examination of Certain Items Not Considered by the A.O.: The CIT noted that the A.O. did not examine the computation of book profits under Section 115JB, focusing only on the total income under normal provisions. The Tribunal agreed, stating that the A.O.'s failure to consider the computation of book profits under Section 115JB was a significant omission, justifying the CIT's intervention under Section 263. 4. Claim of Depreciation on a Let-Out Property: The CIT found that the A.O. erroneously allowed depreciation of Rs. 2,78,000/- on a let-out property at Tuticorin, which should have been computed under the head "Income from House Property." The assessee contended that a disallowance of Rs. 6,40,000/- was already made by the A.O. and was under appeal. The Tribunal noted that the A.O. did not scrutinize the depreciation claim for each let-out property, supporting the CIT's view that the order was erroneous and prejudicial. However, the Tribunal modified the CIT's order, directing the A.O. to verify the depreciation claim and deal with it according to the law. 5. Claim of Bad Debts: The CIT observed that the A.O. allowed a deduction for bad debts of Rs. 84.09 lakhs, which was part of miscellaneous expenses, potentially resulting in a double deduction. The assessee argued that there was no double claim, following an accounting practice of reversing provisions when debts became bad. The Tribunal found no evidence of this practice in the assessment order, supporting the CIT's direction to the A.O. to examine the bad debts claim and ensure compliance with the law. Conclusion: The Tribunal upheld the CIT's order under Section 263, with modifications. The A.O. was directed to re-examine the computation of book profits under Section 115JB and the claims of depreciation and bad debts, ensuring compliance with legal provisions. The appeal filed by the assessee was dismissed, and the CIT's order was modified to allow the A.O. to reassess the issues after giving the assessee an opportunity to present its case.
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