2018 (8) TMI 55 - AT - Income Tax

Claim of deduction u/s 80IB(5)(ii) - assessee has not filed a separate P&L A/c and the balance sheet of the Midnapore Unit certified by the CA for making the claim in Form No.10CCB of the Act - report is not signed by the CA but is signed by the authorized signatory - Held that - As decided in assessee s own case deduction u/s 80IB is a special deduction allowable to the undertakings which are set up in a backward area as certified by the Central Govt. Therefore, there is a requirement that while making the claim u/s 80IB(5) the claim should be made inform No.10CCB signed by the CA of the assessee and should be accompanied along with the report for each of the undertaking along with the P&L and the balance sheet of the undertaking as if it is a distinct entity. In the case of the assessee, though the assessee has got its books of account audited and Form 10CCB is signed by the C.A. of the assessee company, the report is not signed by the CA but is signed by the authorized signatory. However, as rightly pointed out by the learned Counsel for the assessee, there is no variation in the claim of deduction u/s 80IB(5) in Form No.10CCB and P&L A/c and balance sheet of the assessee filed during the re-assessment proceedings. Therefore, the objection raised by the AO, in our opinion, is a technical objection and unless the AO brings out as to how the P&L A/c and the balance sheet are not reliable and vary with the results declared by the assessee in Form No.10CCB, the AO cannot deny the deduction on this ground alone. Reopening of assessment - Held that - With regard to reopening of assessment, we notice that the assessment order u/s 143(3) was passed on 26/12/2008. The reopening proceedings for AY 2005-06 were initiated in November, 2008. The assessee sought reasons for reopening and filed its objections vide letter dated 25/11/2009. AO disposed off the objections and completed the assessment u/s 143(3) r.w.s. 147 on 29/12/2009. No doubt, the reassessment proceedings were initiated in November, 2008 but completed the assessment in December, 2009. But the order passed u/s 143(3) for the current AY on 26/12/2008 is within one month of initiating reassessment proceedings for previous AY relevant to AY 2005-06. Therefore, in our view, AO may not have considered the various issues which were raised in reassessment of AY 2005-06. Further, we also noticed that the assessment order passed u/s 143(3) is not a speaking order. Therefore, we do not see any merit in rejecting the proceedings initiated u/s 147 for the AY 2006-07. Hence, the ground raised by the assessee on this issue is dismissed. Disallowance the depreciation claimed by the assessee on the ground that assessee failed to substantiate the proof for making addition - Held that - Even the books of account are subject to tax audit, it means that the proof of purchases was presented before audit. Therefore, AO can demand for proof of making addition in this block of asset. It is the duty of the assessee to substantiate the claim before the AO. Even before us, no evidence was submitted in order to adjudicate on merit. Hence, these grounds raised by the assessee are dismissed as not substantiated the proof of making addition in the block of assets in Pollution Control Equipment.

Summary

Issues Involved:
1. Initiation of reassessment proceedings under Section 147.
2. Disallowance of depreciation on pollution control equipment.
3. Disallowance of the claim of deduction under Section 80IB.

Issue-wise Detailed Analysis:

1. Initiation of Reassessment Proceedings:
The assessee challenged the validity of the notice issued under Section 148, arguing that the Assessing Officer (AO) did not provide cogent reasons for believing that income had escaped assessment. The assessee contended that the AO had already considered all relevant information during the original assessment under Section 143(3). The Tribunal noted that the original assessment order was passed on 26/12/2008, while reassessment proceedings for the previous AY 2005-06 were initiated in November 2008 and completed in December 2009. Given the close timing, the Tribunal found it plausible that the AO might not have considered all issues raised in the reassessment of AY 2005-06 when passing the order for AY 2006-07. Additionally, the original assessment order was not a speaking order. Therefore, the Tribunal upheld the initiation of reassessment proceedings, dismissing the assessee's ground on this issue.

2. Disallowance of Depreciation on Pollution Control Equipment:
The AO disallowed the depreciation claimed on pollution control equipment, asserting that the assessee failed to substantiate the addition of ?14,54,327/- to the asset block. The assessee argued that all relevant information had been submitted during the regular assessment and that the books of account were subject to tax audit, implying that proof of purchases had been presented. The Tribunal held that it was the duty of the assessee to substantiate the claim before the AO. Since no evidence was submitted even before the Tribunal, the disallowance of depreciation was upheld, and the assessee's grounds on this issue were dismissed.

3. Disallowance of Claim of Deduction under Section 80IB:
The AO disallowed the claim of deduction under Section 80IB, arguing that brought forward losses of the Midnapore unit should be set off against the profits before computing eligible profits. The CIT(A) allowed the assessee's claim, relying on judicial precedents that held that losses absorbed against other business profits in preceding years could not be notionally brought forward and set off against eligible business profits. The Tribunal upheld the CIT(A)'s decision, noting that the issue was covered by the decision in the assessee's own case for AY 2005-06 and by the Hon'ble Supreme Court's rulings. The Tribunal dismissed the revenue's appeal, affirming that the assessee was eligible to claim the deduction without setting off unabsorbed losses and depreciation of earlier years.

Conclusion:
Both the appeals of the revenue and the assessee were dismissed. The Tribunal upheld the initiation of reassessment proceedings and the disallowance of depreciation on pollution control equipment. However, it affirmed the CIT(A)'s decision allowing the assessee's claim of deduction under Section 80IB.