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TMI Blog2021 (7) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the returned income wrongly and wrong credit of taxes was rectified Vide this order, Assessing Officer granted 244A interest on the TOS from April 2009 to February 2013. (Assessing Officer vide first rectification order allowed 244A interest from February 2013 only). However, Assessing Officer did not grant interest u/s. 244A on the Self Assessment tax paid. Assessee vide letter dated 18.07.2014 requested the Assessing Officer to rectify the above order dated 12.06.2014 and grant interest u/s. 244A on Self Assessment tax also. Assessing Officer after considering the request of the assessee passed rectification order on 25.03.2015 vide which assessee's request for grant of 244A on Self Assessment tax paid was acceded to, but interest on the TDS credit was given from the date of claim of TDS as against the date of deduction of tax. The reason stated for this by the Assessing Officer is that the assessee claimed credit of TDS amounting to Rs. 3,56,58,252/- in the return filed which was later revised to Rs. 8,92,02,230/vide application dated 06.02.2013. As the delay from 01.04.2009 to 21/02/2013 in claiming credit of additional amount of TDS (Rs. 5,35,43,978/-) is attributable t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ributable to the assessee either wholly or in part.?" 2. Any other ground that may be urged at the time of hearing." 6. The ld. DR relied on the order of AO while the ld. AR of the assessee relied on the order of CIT(A). 7. We have considered the rival submissions and perused the material on record. As submitted by the ld. AR of the assessee that the delay is not attributable to the assessee as the department gives credit to the TDS only when reflected in 26AS. The updation of Form 26AS is beyond the control of the assessee and hence the delay in updation should not be attributed to the assessee. Therefore, we find no infirmity in the order of the CIT(A) in directing the AO to allow interest u/s 244A as was allowed in the earlier 154 order for the full period and upholding the order of the CIT(A), the grounds raised by the revenue on this issue are dismissed. 8. In the result, appeal of the revenue is dismissed. ITA Nos. 1040 & 1041/Hyd/2017 for AY 2004-05 & 2005-06 9. Briefly the facts of the case are that assessments u/s 143(3) rw.s. 153A were completed on 30.12.2011 for both the assessment years, determining income under normal provisions as well as u/s. 115JB at Rs. Nil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Therefore, it is held by Assessing Officer that, the brought forward loss and unabsorbed deprecation as on 01.04.2003 shall be determined by adjusting the same with the incomes earned during the intervening years. Based on the details furnished by the assessee, it is observed by the Assessing Officer that for FY 1998-99, 2000-2001 and 2002-03, the assessee had positive income which has been reduced proportionately from brought forward business loss and unabsorbed depreciation and the balance losses have been carried forward to the next year. For example as on 01/04/1998, the unabsorbed depreciation stood at Rs. 24,36,20,291/- and brought forward business loss at Rs. 23,60,09,172/-. For AY 1998-99, assessee had income of Rs. 8,72,62,825/- which was reduced by the assessee in proportion of business loss and depreciation at Rs. 4,43,24,279/- and Rs. 4,29,38,546/- and the balance losses were carried forward to the next year. Similarly in FY 2000-2001 and 2002-03 the brought forward losses were reduced proportionately. AO, after consideration of the facts of the case, held that this method of reducing the losses in proportionate manner is not accepted procedure and is not as per the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve table, the AO observed that the total loss of Rs. 37,07,87,616/- as on 31/03/2013 comprises of unabsorbed depreciation of Rs. 82,09,44,372/- and a positive income of Rs. 45,01,56,768/-. As the brought forward business loss as on 01/04/2003 is nil (in view of positive income) and unabsorbed depreciation is Rs. 82,09,44,372/-; AO held that the lower of both being Nil can only be set off u/s 115JB and hence the assessee is not entitled for reduction of any amount from its book profits for AY 2004-05 as well as for the AY 2005-06. Therefore, in view of provisions of section 115JB(2)(iii), AO held that nil/loss/depreciation can be set off and hence the AO arrived at book profit u/s 115JB at Rs. 2,49,01,778/- and Rs. 35,99,09,089/- for AYs 2004-05 and 2005-06 respectively. 10. Aggrieved by the order of AO, the assessee preferred appeals before the CIT(A) and contended that the set off given originally by the Assessing Officer was in accordance with law and as per the decision of Hon'ble Mumbai Tribunal in Amline case (supra) and hence the same should be upheld. It is thus, submitted that 115JB calculation made by the Assessing Officer in the present orders under appeal should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Hon'ble tribunal It is also seen that the Hon'ble Hyderabad tribunal in Kirby Building Systems case h8S followed the principle laid down by Mumbai Tribunal The assessee during the appellate proceedings claimed that the decision of Kirby is not applicable to the facts of its case. However, it is not explained by the assessee as to why the said decision is not applicable to the assessee. On going through both these decisions it is seen that the loss as per books is to be calculated year by year after excluding the depreciation. The Assessing Officer's calculation at losses is held to be as per the principles laid down by the Mumbai tribunal i.e., calculation of loss after excluding the depreciation. Therefore, I do not find any inconsistency in the calculation of loss arrived at by the Assessing Officer and hence uphold the same Thus, the calculation of the book profits by Assessing Officer u/s. 115JB at Rs. 2,49,0,118/- and Rs. 35,99,08,089/- for A.Y. 2004-05 and 2005-06 respectively is confirmed." 12. Aggrieved by the order of CIT(A), the assessee is in appeal before the ITAT for both the years under consideration by raising the following grounds of appeal: 1. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities. We observe that the assessee has furnished details of the unabsorbed depreciation and business forward losses before the AO on two different dates, first vide letter dated 24/07/2014 and second one on 11/11/2014, which have been extracted by the AO in his order at paras 3.1 and 4.1 respectively. The AO has calculated the unabsorbed depreciation and business forward losses at para 8 of assessment order and the CIT(A) has confirmed the order of the AO. At the time of hearing, the ld. AR of the assessee has also produced before us a statement showing the details of unabsorbed depreciation and accumulated losses, which is as under: Particulars AY During the year Set off During the year Carried forward Accumulated Depreciation Loss/profit Depreciation Loss Depreciation Loss Depreciation Loss 1997-98 94070453 0 - - 94070453 - 94070453 - 1998-99 149549838 236009172 - - 149549838 236009172 243620291 236009172 1999-2000 129252448 (216515273) 129252448 87262825 - -87262825 243620291 148746347 2000-01 136622093 (128234406) 128234406 - 8387687 - 252007978 148746347 2001-02 124529565 (214403378) 124 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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