2017 (5) TMI 921 - AT - Income Tax

Setting off of indirect income against the operational income / trading loss - claiming deduction u.s 80IB - Held that - CIT (A) has discussed this issue in his order wherein he has held that if other income of ₹ 3,55,40,053/- is not considered as derived from industrial undertaking, the industrial undertaking would incur a loss of ₹ 3,04,71,195/- and such loss has to be adjusted against the other income which was in the nature of interest income, insurance claim etc. We find that this finding of Ld. CIT(A) is correct and is in accordance with the law as section 71 of the Income Tax Act allows set off of loss from one head against income from another head. In view of the above provisions of section 71 we do not find any infirmity in the order of Ld. CIT(A), therefore, ground no. 1 of revenue appeal is dismissed. Receipt of subsidy on account of excise duty refund is a capital receipt. See Balaji Alloys Ltd. case 2011 (11) TMI 712 - SUPREME COURT OF INDIA Penalty u/s 271(1)(c) - Held that - CIT(A) has correctly deleted the penalty relying on the decision of Delhi High Court in the case of Nalwa Sons Investment Ltd. 2010 (8) TMI 40 - DELHI HIGH COURT and furthermore on CBDT circular no. 25/2015 of 2014 wherein the Department has issued directions to the authorities directing them not to file appeal where the income tax payable on the total income as computed under the normal provision of the Act is less than the tax payable on the book profits u/s 115JB of the Act. - Decided against revenue

Issues Involved:

1. Taxation of certain incomes under Section 80IB of the Income Tax Act, 1961.
2. Taxation of excise duty refund.
3. Deletion of penalty imposed for furnishing inaccurate particulars of income under Section 271(1)(c) of the Income Tax Act, 1961.
4. Condonation of delay in filing cross objections.

Issue-wise Detailed Analysis:

1. Taxation of Certain Incomes Under Section 80IB:

The Revenue challenged the CIT(A)'s decision to allow certain incomes like interest on FDR/Margin money, insurance claims, and other incomes totaling ?3,55,40,053/- as profits eligible for exemption under Section 80IB. The CIT(A) held that if these incomes were not considered as derived from the industrial undertaking, the undertaking would incur a loss of ?3,04,71,195/-, which should be adjusted against the indirect income. This adjustment is permissible under Section 71 of the Income Tax Act, which allows set-off of loss from one head against income from another head. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Revenue's appeal on this ground.

2. Taxation of Excise Duty Refund:

The Revenue argued that the excise duty refund of ?1,67,23,019/- should be taxed on an accrual basis, even though the assessee had neither received it nor had any right to receive it before the close of the previous year. The CIT(A) did not allow the claim of the assessee under Section 80IB, as apparent from his findings. The Tribunal noted that the Supreme Court in the case of Balaji Alloys Ltd. had held that the receipt of subsidy on account of excise duty refund is a capital receipt. Therefore, the Tribunal allowed the assessee's additional ground of appeal, treating the excise duty refund as a capital receipt.

3. Deletion of Penalty Under Section 271(1)(c):

The CIT(A) deleted the penalty imposed under Section 271(1)(c) for furnishing inaccurate particulars of income, relying on the Delhi High Court's decision in Nalwa Sons Investment Ltd. and CBDT Circular No. 25/2015. The Circular clarified that for cases prior to 01/04/2016, where the tax payable under normal provisions is less than the tax payable under Section 115JB (MAT), penalty under Section 271(1)(c) is not attracted. The Tribunal found no infirmity in the CIT(A)'s order and dismissed the Revenue's appeal on this ground.

4. Condonation of Delay in Filing Cross Objections:

The assessee filed an application for condonation of delay in filing cross objections due to floods in Srinagar. The Revenue had no objection, and the Tribunal condoned the delay. The cross objections supported the CIT(A)'s order and included an additional ground regarding the excise duty refund, which was allowed based on the Supreme Court's decision in Balaji Alloys Ltd.

Conclusion:

The Tribunal dismissed the Revenue's appeals in ITA No. 515 and ITA No. 286. The cross objections in C.O. No. 04 were partly allowed, while those in C.O. No. 13 were dismissed. The Tribunal upheld the CIT(A)'s decisions on the set-off of indirect income, treatment of excise duty refund as a capital receipt, and deletion of penalty under Section 271(1)(c).

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