2016 (7) TMI 523 - AT - Income Tax

Interest levied u/s. 234 B and 234C - Held that - Interest u/s. 234B and 234C cannot be levied when tax was to be computed u/s. 115JB of the Act. See Kwality Biscuits Ltd. (2006 (4) TMI 121 - SUPREME Court ) and Rolta India Ltd 2011 (1) TMI 5 - SUPREME COURT OF INDIA Disallwoance u/s 36(1)(viii) - assessee had written off an amount as provision for bad debts - Held that - We find that the AO and the FAA had lost sight of the basic fact that it was the case of writing back the provisions of bad debts. The assessee had not written off any bad debts during the year under appeal. The mistake committed by them in understanding the basic principle of accountancy lead to the impugned addition. Reversing the order of FAA, we decide first Ground of appeal in favour of the assessee. Addition of short recovery of export proceeds - Held that - We find that the issue needs further verification as the paper referred to by the AR have to be considered for arriving at the final conclusion. Therefore, in the interest of justice we are restoring the matter back to the file of AO for fresh adjudication who will decide the issue after considering the submissions of the assessee Addition towards software expenses treated as short term capital loss - Held that - We find that AO did not have the benefit of the claim made before the FAA as well as details of P L account groupings. To meet the ends of justice, we are restoring the issue to the file of the AO who would decide the issue after affording a reasonable opportunity of hearing to the assessee. Addition under the head unexplained credits - Held that - We are of the opinion that the issue needs further verification at the level of AO. As per the settled principles of taxation jurisprudence opening balances of a particular year cannot be added u/s. 68 of the Act. The pages referred by the AR clearly show that the AO had ignored the vital facts that assessee had shown opening balances of the creditors while filing the explanation before him. Therefore, in the interest of justice we are restoring back the issue to the file of the AO for fresh adjudication as stated earlier. He is directed to afford a reasonable opportunity to the assessee. He is also directed to verify the claim made by the assessee Set off of brought forward losses/unabsorbed depreciation - denial of claim on the ground that the business for which the loss was originally computed had been discontinued - Held that - We have heard the rival submissions and perused the material before us in our opinion provisions of section 72 would be applicable in the present case and not the provisions of section 71, as held by the AO and the FAA. We further find that the pre-condition of continuation of business has been dispensed with by the Fin bill 1999. Therefore, we are of the opinion that the claim made by the assessee should have been allowed. Reversing the order of the FAA, we decide the issue in favour of the assessee.

Summary

Issues:
1. Deletion of interest levied under sections 234B and 234C of the Income Tax Act.
2. Disallowance of provision for bad debts.
3. Addition of short recovery of export proceeds.
4. Treatment of software expenses as short term capital loss.
5. Addition of unexplained credits.
6. Denial of set off of brought forward losses/unabsorbed depreciation.

Issue 1: Deletion of Interest Levied under Sections 234B and 234C:
The ITAT Mumbai dealt with cross appeals challenging the order of the CIT(A)-VIIII. The AO had levied interest under sections 234B and 234C of the Income Tax Act, which was deleted during the appellate proceedings. The ITAT referred to relevant case laws and held that interest under these sections cannot be levied when tax is computed under section 115JB of the Act. The ITAT dismissed the AO's appeal based on the precedents cited by the assessee.

Issue 2: Disallowance of Provision for Bad Debts:
The AO disallowed a provision for bad debts written off by the assessee. The FAA upheld the AO's decision, stating that the assessee failed to provide evidence that the debts had become bad. However, the ITAT found that the provision was for writing back of bad debts, not writing off, and reversed the FAA's decision in favor of the assessee.

Issue 3: Addition of Short Recovery of Export Proceeds:
The AO disallowed a claim for short recovery of export proceeds, treating it as bad debts. The FAA upheld the AO's decision due to lack of evidence from the assessee. The ITAT found the issue required further verification and remanded it back to the AO for fresh adjudication, considering the submissions made by the assessee.

Issue 4: Treatment of Software Expenses as Short Term Capital Loss:
The AO added software expenses as short term capital loss to the assessee's income. The FAA endorsed this decision, stating lack of evidence from the assessee. The ITAT, noting that the AO did not have the benefit of certain claims made before the FAA, remanded the issue back to the AO for further consideration.

Issue 5: Addition of Unexplained Credits:
The AO added an amount under unexplained credits, which the assessee claimed as sundry creditors. The FAA upheld the addition, stating lack of evidence from the assessee. The ITAT found the issue needed further verification and directed the AO to consider the opening balances of creditors before making a decision.

Issue 6: Denial of Set Off of Brought Forward Losses/Unabsorbed Depreciation:
The AO denied the set off of brought forward losses/unabsorbed depreciation due to the discontinuation of the business. The FAA agreed with the AO, but the ITAT held that the provisions of section 72 should apply, not section 71, and allowed the claim made by the assessee.

In conclusion, the ITAT partially allowed the assessee's appeal and dismissed the AO's appeal, providing detailed analysis and legal reasoning for each issue addressed.