9911796707
TMI Blog2024 (5) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... s issue raised in Ground No. 4. Additional depreciation on windmill capitalized in Assessment Year 2012-13 - As decided in M/s. Rittal India Pvt. Ltd [ 2016 (1) TMI 81 - KARNATAKA HIGH COURT] only 10 per cent can be claimed in one year, if plant and machinery is put to use for less than 180 days in the said financial year. This would necessarily mean that the balance 10 per cent additional deduction can be availed in the subsequent assessment year, otherwise the very purpose of insertion of clause (iia) would be defeated because it provides for 20 per cent deduction which shall be allowed. Similar is the view taken in the case of Century Enka Ltd. vs. DCIT [ 2015 (5) TMI 647 - ITAT KOLKATA] . Thus Pr. CIT erred in holding the order of the Assessing Officer as erroneous and prejudicial to the interest of the revenue. Disallowance of short term capital loss claimed in the return for transfer of rights in land and building and in - exclusion of capital profits from computation of books profits u/s 115JB - need for referring the matter on account of short term capital loss to the file of the A.O. to verify the applicability of Sec. 50C - It is now settled law that if, while making the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revisionary proceedings, the assessee filed replies on various dates stating that in some of the issues raised in the show cause notice, this Tribunal in assessee s own case has taken a view favourable view to the assessee and, therefore, the assessment order cannot be held to be erroneous and prejudicial to the interest of the revenue. The following chart depicts the issue raised by the ld. Pr. CIT and the response given on various dates by the assessee and the relevant pages are available in the paper book furnished before us:- Sl. No. Issues raised Queries raised/Remarks Assessee s response Annexure reference 1. Non-addition of provision, for NPA in computing book profits under section 115JB Explanation as to why provision for NPA of Rs. 24.03 crores debited to profit and loss account should not be added in computing book profits under section 115JB Reply dated 12-12-2016 Pages 94-108 of the paper book (refer pages 103-107 of the paper book) Party wise details of provision for NPA Reply dated 23-12-2016 Pages 109-114 of the paper book) refer page 110 of the paper book) 2. Short-term capital loss claimed for sale of land and building Explanation of computation of STCL of Rs. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue of which adjustment was made. 2.1. After considering these details, the ld. Pr. CIT has held that the issue raised in the show-cause notice need proper enquiry and thus directed the Assessing Officer to framed a fresh assessment order in accordance with the directions given in the impugned order. 3. Aggrieved the assessee is now in appeal before this Tribunal raising the following grounds:- 1. That on the facts and in the circumstances of the case, the Learned Principal Commissioner of Income Tax - 4, (here- in- after referred to as Ld. Pr. CIT) was not justified in initiating proceedings u/s 263 of the Act as the Assessing Officer (here-in-after referred to as A.O.) had duly considered all the materials during the course of the assessment proceedings. 2. That on the facts and in the circumstances of the case, the impugned order passed u/s 263 is grossly arbitrary and bad in law in relation to the issues raised and adjudicated therein and needs to be summarily deleted since the order passed by A.O. was neither erroneous nor prejudicial to the interest of the revenue. 3. That on the facts and in the circumstances of the case and without prejudice to Ground No. 1 2 taken here-in-a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r before or at the time of hearing of this appeal. 4. At the outset, the ld. Counsel for the assessee referred to paper books and submissions and also taking us through a brief synopsis stated that the order of the Assessing Officer is not erroneous and prejudicial to the interest of the revenue for the reason that either for some of the issues, this Hon ble Tribunal has already allowed in favour of the assessee for Assessment Year 2008-09 and 2011-12 and in some issues the ld. Assessing Officer in the set aside proceedings has already accepted the plea of the assessee and has not made the addition for the issues raised in the show-cause notice and for some issues, a detailed enquiry has been conducted and a view permissible under law has been taken and also in some cases, the Hon ble High Courts have decided such issues which are squarely applicable on the facts of the case of the assessee. To summarize, he stated that the order of the Assessing Officer is neither erroneous nor prejudicial to the interest of the revenue and thus, the impugned order deserves to be quashed. 4.1. On the other hand, the ld. D/R vehemently argued relying on the revisionary order passed by the ld. Pr. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and used for less than 180 days in AY 2012-13. Further, the basis of claim is also evident from notes appended to Annexure -2 of Tax Audit Report submitted before the AO. Reply dated 06-10-2015 160 and 180 Not prejudicial to the interest of revenue, refer judgment HC of Karnataka in the case of Rittal India, Page 37 of the case law p/b. Refer ITAT, Kolkata judgment in the case of Century Enka Ltd (copy enclosed) 8. Taxability of Income from Venture Capital Funds Explanation regarding nature of share of loss of Alternative Investment Funds ('ATF') (Refer notice u/s 142(1) dated 14-09-2016) Reply dated 02-12-2016 210 Allowed in order passed u/s 263/143(3) of the Act dated 24-12-2019, refer page 68 of Case Laws P/B 9. Exclusion of Capital Profits of from computation of Book Profits u/s 115JB Explanation regarding exclusion of profit on account of sale of investments from computation of income u/s 115TB. (Refer notice u/s 142(1) dated 14-09-2016) Reply dated 07-12-2016 220,230 Duly examined by AO during assessment -AO took a possible view. Refer HC of Calcutta in the case of J L Morrison (India) Ltd vs ACIT [2014] 46 taxmann.com 215 (Calcutta) 6. Now, from perusal of the abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the interest of the revenue based on this issue raised in Ground No. 4. 9. Ground Nos. 6 8 have not been pressed as the Assessing Officer has dealt with the claim and agreed with the contentions of the assessee in his order u/s 263/143(3) of the Act dt. 24/12/2019. 10. Ground No. 7 relates to additional depreciation on windmill capitalized in Assessment Year 2012-13. The ld. Counsel for the assessee submitted that the ld. Assessing Officer has taken one of the views permissible under law and the same is not prejudicial to the interest of the revenue. Reliance in this respect is placed on the decision of the Hon ble Karnataka High Court in the case of CIT vs. M/s. Rittal India Pvt. Ltd. (2016) 380 ITR 423 (Kar.) wherein, on the issue that whether an assessee is eligible to claim balance of the additional depreciation, the Hon ble Court held as follows:- The language used in clause (iia) of the said section clearly provides that 'a further sum equal to 20 per cent of the actual cost of such machinery or plant shall be allowed as deduction under clause (ii)'. The word 'shall' used in the said clause is very significant. The benefit which is to be granted is 20 per c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
