TaxTMI 
TaxTMI 
TaxTMI 
2010 (5) TMI 857
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.... the written down value of various block of assets, as finally determined in the earlier year consequent to the appellate order for the earlier years. It was pointed out that grant of depreciation consequent to earlier year's order is a routine procedure and there are various other alternative provisions of granting the depreciation on the basis of the WDV of the earlier years. In view of this, the Learned Counsel has not pressed the ground and accordingly treated as withdrawn. 4. Ground no.2 is as under:- "2. On the facts and in the circumstances of the case and in law, the Commissioner of Income-tax (Appeals) erred in upholding the action of the Deputy Commissioner of Income-tax in not excluding from the total income an amount of ₹ 2,91,51,000/- in respect of interest written back, which had not been allowed as a deduction in the earlier years." 5. The facts in this ground are that the assessee had written back an amount of ₹ 18,38,10,750/- u/s 41(1) of the Income-tax Act consequent to the amalgamation of various group companies and settlement of their loans taken from M/s Fairgrowth Financial Services Ltd (FFSL), which was notified party under the Special Court (....
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....given effect to. Likewise, the orders of the ITAT in ITA 169/Ahd/2001 dated 8.9.2006 was also not given effect to. If the Assessing Officer takes considerable time in deciding the issue, the assessee cannot put to inconvenience because of the inaction of the Assessing Officer. We are of the opinion that since the amount was disallowed in those two cases by the Assessing Officer and those cases consequential orders have not been given effect to, we are of the opinion that there is no need to bring this amount to tax in this assessment year. If we restore the matter back to the Assessing Officer without deciding the issue, as requested by the Departmental Representative, the fate of this order will also be same ie. keeping it in cold storage without deciding the issue at all. We do not want that risk / fate to this order, therefore, we direct the Assessing Officer to exclude the amount of ₹ 2,91,51,000/- in this assessment year. In case, the assessee succeeds in claiming the amounts in the respective assessment years in the consequential orders pending before the Assessing Officer in those cases, then only the Assessing Officer is directed to bring the amount to tax in this ass....
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....ed by the Assessing Officer afresh. Even though the assessee has added the same amount in the computation of total income, there was claim by the assessee vide note no.3 to the computation of total income and also by a separate letter filed before the Assessing officer in the course of assessment proceedings. There is no discussion at all in the assessment order about the allowance / rejection of the claim by the Assessing Officer. Before the CIT, assessee reiterated the same submissions and vide Para 12.1 and 12.2, the CIT (A) extracted the facts and submissions. However, he has not considered the issue in its correct perspective, as can be seen from the order of the CIT (A) extracted above. The CIT (A) was of the opinion that "In this case the disallowance made by the Assessing Officer is in respect of advances made in the capital field and not in respect of bad debts." This finding of the CIT (A) is not correct in the sense that, Assessing Officer had not made any disallowance at all in the order nor there was discussion with reference to the amount written off, whether in the capital field or revenue field or even whether it can be allowed u/s 36(1)(vii) or u/s 37(1). Therefo....
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....Court in the case of CIT vs Bakelite Hylam Ltd 237 ITR 392 and the decision of Gujarat High Court in the case of Gujarat Gas Co Ltd vs JCIT 245 ITR 84. The Learned CIT (A) has rejected the assessee's claim stating as under:- "I have gone through the submissions made by the AR but do not find merit in them. The facts of the case laws quoted by the appellant are distinguishable. Infact the matter is covered by the decision of the Jurisdictional High Court in the case of LML Ltd vs M K Venkataraman, ACIT (1994) 205 ITR 585 (Bom). In this case, the Hon'ble Bombay High Court had the occasion to examine the scope of sec 143(3) of the Act in the light of circular issued on the subject by the CBDT (Circular No.549 quoted in 182 ITR(St.) 1) and held that no refund could be granted to the assessee while computing the assessment under sec. 143(3). In view of the decision of the Jurisdictional High Court, the action of the A.O in this regard is confirmed." 10. The Learned Counsel submitted the facts and it was his contention that the revenue's action in earlier years only has resulted in increase in brought forward losses, which have been set off to the gross total income thereby total inco....
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....to the notice of the concerned authority in a case where a refund is due and payable, and the authority concerned, on being satisfied, shall grant appropriate relief. In cases governed by section 240 of the Act, an obligation is cast upon the Revenue to refund the amount to the assessee without having to make any claim in that behalf. In appropriate cases, therefore, it is open to the assessee to bring the facts to the notice of the concerned authority on the basis of the return furnished, which may have a bearing on the quantum of refund. And the concerned authority, for the limited purpose of calculating the amount of refund under section 240, may take all such facts into consideration and calculate the amount to be refunded. As can be seen, in fact the decision supports the claim of assessee. Where the total income was re-determined according to the provisions of the Act, consequent to the orders passed in earlier years the assessee can certainly claim benefit. The issue before Hon'ble Bombay High Court relied upon by the CIT (A) in the case of LML Ltd vs Venkataraman 205 ITR 585 (Bom) was with reference to not giving credit to the assessee in either of the assessment years. On....
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....ct would lose its significance. (ii) That on a reading of clause (b) of sub-section (4) of section 143 of the Act, it is clear that on an assessment made under section 143(1)(a) of the Act, and such assessment results in a refund, if such refund exceeds the amount refundable on regular assessment made under section 143(3) of the Act, the whole or the excess amount so refunded shall be deemed to be the tax payable by the assessee. In other words, in the regular assessment, the tax liability is determined on the basis of giving credit to all the deductions the assessee is entitled to notwithstanding the fact that the assessment is made under section 143(1)(a) of the Act. Under clause (b) of section (4) of section 143, it cannot be said that the Legislature did not visualise a situation permitting the assessing authority to grant refund also under regular assessment in favour of an assessee. (iii) That, therefore, the assessing authority is entitled to determine the quantum of refund also in a regular assessment made under section 143(3) of the Act with effect from April 1, 1989. No question of law arose for reference." 13. Further, Hon'ble Gujarat High court in the case of Gujarat....