2005 (4) TMI 617 - AT - Income Tax

Summary

Issues Involved:
1. Levy of additional tax under section 143(1A) when there is a reduction in returned loss due to adjustments.
2. Validity of adjustments made by the Assessing Officer under section 143(1)(a) for the assessment years 1989-90 and 1990-91.
3. Applicability of Rule 27 of the Income-tax (Appellate Tribunal) Rules, 1963, allowing the respondent to support the order on grounds decided against them.

Detailed Analysis:

1. Levy of Additional Tax Under Section 143(1A):
The primary issue was whether additional tax under section 143(1A) is leviable if there is a variation between the returned income/loss and the income/loss finally determined on processing the return under section 143(1)(a). The CIT(A) initially held that no additional tax is leviable in cases where returned loss is reduced to a smaller loss by adjustments, relying on the decisions of the Punjab and Haryana High Court in CIT v. Prithipal Singh & Co. and the Delhi High Court in Mody Cement Ltd.

However, the department argued that due to a retrospective amendment to section 143(1A), additional tax is leviable even when there is a reduction in the returned loss. The Tribunal acknowledged this retrospective amendment, which clarified that additional tax is applicable even in cases of reduced loss.

2. Validity of Adjustments Made by the Assessing Officer:
For the assessment year 1989-90, the Assessing Officer made several adjustments, including the disallowance of investment allowance due to non-creation of reserve, disallowance under Rule 6D, payment to Diners Club, and disallowance under section 43B for ESIS payments and entertainment expenses. The CIT(A) held that the disallowances related to ESIS payments and entertainment expenses were not prima facie adjustments, and thus, these adjustments were to be amended. However, the disallowance of investment allowance was upheld by the CIT(A) on the ground that the required reserve was not created.

For the assessment year 1990-91, the adjustments included disallowances under section 43B for unpaid sales tax and unpaid interest on loans from financial institutions. The CIT(A) deleted the disallowance related to unpaid sales tax but upheld the disallowance for unpaid interest due to lack of evidence regarding conversion into term loans.

3. Applicability of Rule 27:
The Tribunal considered whether the respondent (assessee) could invoke Rule 27 of the Income-tax (Appellate Tribunal) Rules, 1963, to support the order of the CIT(A) on grounds decided against them. The Tribunal noted that Rule 27 allows the respondent to support the order appealed against on any ground decided against them, even if they did not file a cross-appeal or cross-objection. The Tribunal emphasized that the ultimate result of the CIT(A)'s order was in favor of the assessee, and the department would not be worse off by filing an appeal before the Tribunal.

Separate Judgments:
The Judicial Member disagreed with the Accountant Member regarding the applicability of Rule 27 for the adjustment of investment allowance. The Judicial Member held that the assessee had not raised the issue of jurisdiction of the Assessing Officer before the CIT(A) and thus, could not raise it for the first time before the Tribunal. The Judicial Member also emphasized that the appellant (department) should not be made worse off by the appeal.

Third Member Decision:
The President, acting as the Third Member, agreed with the Accountant Member's view that the assessee could invoke Rule 27 to support the CIT(A)'s order on grounds decided against them. The Third Member held that the adjustment of investment allowance was not permissible under section 143(1)(a) and thus, the levy of additional tax under section 143(1A) was not justified. The Third Member emphasized that the claim for investment allowance should be quantified and carried forward even in the year of loss, as supported by various High Court decisions and CBDT circulars.

Conclusion:
The Tribunal ultimately held that the adjustments made by the Assessing Officer under section 143(1)(a) were not justified, and thus, the levy of additional tax under section 143(1A) was not applicable. The Tribunal allowed the appeals of the department partly for statistical purposes, emphasizing the importance of following the principles laid down in Rule 27 and the retrospective amendment to section 143(1A).