2015 (12) TMI 1112 - AT - Income Tax

Tribunal remands case for further review of objections on assessment order

Deputy Commissioner of Income Tax, Central Circle-III, Kolkata Versus Apeejay Shipping Ltd.

The Tribunal allowed the revenue's appeal for statistical purposes and remanded the case to the CIT(A) for further consideration of the Assessee's ... Revision u/s 263 - determination of book profits u/s.115JB - Held that:- We are of the view that in the order u/s. 263 of the Act the issue that was considered was the question of reserve u/s.115VT of the Act. It had nothing to do with the determination of book profits u/s.115JB of the Act. The directions in the order u/s. 263 of the Act had the effect of obliterating the order of the AO dated 26.12.2007 only to the extent of determination of book profits u/s.115JB of the Act and not the entire order dated 26.12.2007. In other words the order dated 26.12.2007 remained intact in respect of all other matters not considered either in the appeal before CIT(A) or in the proceedings u/s.263 of the Act. Those aspects which remained intact were capable of being rectified provided the other conditions for exercise of power u/s.154 of the Act are satisfied. We find that the CIT(A) has not expressed any opinion on the other question whether in the facts and circumstances of the case jurisdiction u/s.154 of the Act could have been exercised. We are of the view that the conclusion of the CIT(A) in the impugned order that the order of assessment dated 26.12.2007 was set aside in entirety in the order u/s.263 of the Act is not correct and accordingly the order of the CIT(A) is set aside. The other issues with regard to the other objections raised by the assessee with regard to exercise of power u/s.154 of the Act in the facts and circumstances of the case, are remanded to the CIT(A) for fresh consideration, as the CIT(A) has not considered those aspects in the impugned order. - Decided in favour of revenue for statistical purposes. Issues Involved:1. Creation of the correct amount of Tonnage Tax Reserve under Section 115VT.2. Calculation of Book Profit for charging of Minimum Alternative Tax (MAT) under Section 115JB read with Section 115VO.3. Validity of the order under Section 154 in light of the order under Section 263.Detailed Analysis:1. Creation of the Correct Amount of Tonnage Tax Reserve under Section 115VT:The CIT, exercising his powers under Section 263 of the Act, found the original assessment order dated 26.12.2007 erroneous and prejudicial to the interest of the revenue. The CIT noted that the Assessing Officer (AO) failed to consider the issue of creating the correct amount of Tonnage Tax Reserve, as mandated by Section 115VT. The CIT set aside the original assessment order with specific directions to compute the tax liability after considering the correct amount of Tonnage Tax Reserve.2. Calculation of Book Profit for Charging of MAT under Section 115JB Read with Section 115VO:The AO issued a show cause notice to the Assessee, questioning the creation of the Tonnage Tax Reserve and the calculation of Book Profit for MAT under Section 115JB read with Section 115VO. The Assessee argued that Chapter XII-G, which deals with the Tonnage Tax System, excluded the applicability of MAT provisions under Chapter XII-B. However, the AO concluded that the Assessee was indeed liable to pay MAT under Section 115JB, as the book profit from shipping activities should be excluded from the net profit per audited accounts to arrive at the Book Profit.3. Validity of the Order under Section 154 in Light of the Order under Section 263:The AO issued a notice under Section 154 to rectify the assessment order, which led to the determination of book profit under Section 115JB. The Assessee contended that the assessment order dated 26.12.2007 was set aside by the CIT's order under Section 263, making any rectification under Section 154 invalid. The CIT(A) agreed with the Assessee, holding that the original assessment order was annulled by the order under Section 263, and thus, could not be rectified under Section 154.Tribunal's Decision:The Tribunal found that the issue considered in the order under Section 263 was limited to the creation of the Tonnage Tax Reserve under Section 115VT and did not affect the determination of book profits under Section 115JB. Therefore, the original assessment order dated 26.12.2007 was only partially set aside concerning the Tonnage Tax Reserve and remained intact for other matters, including the determination of book profits under Section 115JB. The Tribunal set aside the CIT(A)'s conclusion that the entire assessment order was annulled and remanded the case back to the CIT(A) for fresh consideration of the other objections raised by the Assessee regarding the exercise of power under Section 154.Conclusion:The appeal of the revenue was allowed for statistical purposes, and the case was remanded to the CIT(A) for further consideration of the Assessee's objections related to the exercise of power under Section 154. The Tribunal clarified that the original assessment order was only partially set aside by the order under Section 263, and the remaining aspects could be rectified if the conditions for exercising power under Section 154 were satisfied.