Commissioner Of Income v. M/S Samalpatti Power

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 15.03.2021

CORAM

THE HON'BLE MR. JUSTICE M. DURAISWAMY AND THE HON'BLE MRS. JUSTICE T.V. THAMILSELVI Tax Case Appeal No.619 of 2013 Commissioner of Income Tax, Chennai.

...

Appellant Vs.

M/s.Samalpatti Power Co (P) Ltd., First Floor, No.14, III Cross Street, Raja Annamalaipuram, Chennai - 600 028.

... Respondent Tax Case Appeal filed under Section 260A of the Income Tax Act, 1961 against the order of the Income Tax Appellate Tribunal, Madras "C" Bench, dated 24.05.2011 passed in I.T.A.No.894/Mds/2009, preferred against the order of the Commissioner of Income Tax (Appeals)-V, Chennai, dated 30/03/2009 made in ITA No.293/2007-08 for the Assessment Year 2005-2006 against the order passed by the Additional Commissioner of Income Tax, Company Range-VI, Chennai-34 dated 31/12/2007 PAN No.AADCS1893D.

For Appellant : Mr.J.Narayanaswamy Senior Standing Counsel For Respondent : Ms.Sri Niranjani Srinivasan

J U D G M E N T

(Delivered by M. DURAISWAMY, J) The above appeal filed by the Department under Section 260A of the Income Tax Act, 1961 ('the Act' for brevity), is directed against the order dated 24.05.2011 passed by the Income Tax Appellate Tribunal, Madras "C" Bench, Chennai ('the Tribunal' for brevity) in I.T.A.No.894/Mds/2009 for the Assessment Year 2005-06. The Revenue has raised the following substantial questions of law in the above appeal :

"1.Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in entertaining the claim for deduction of provision for rebate, though the assessee did not raise that issue before the assessing officer and the Commissioner of Income Tax (Appeals) and the claim not having been made through a valid return of income? 2.Whether under the facts and circumstances of the case, the Income Tax Appellate Tribunal was correct in holding that the issue of allowability of the provision for rebate debited by the assessee to its profits and loss in computation profits under normal provisions has to be remitted back to the assessing officer?

3.Whether under facts and circumstances of the case, the Income Tax Appellate Tribunal was right in not holding that the provision for rebate debited by the assessee to its profit and loss account is only a provision and not written off and therefore is not allowable as deduction in computing income under normal provisions of the Income Tax Act?

4.Whether under facts and circumstances of the case, the Income Tax Appellate Tribunal was right in not holding that the income has accrued to the assessee on raising of invoice on the Tamilnadu Electricity Board for the power generated and supplied by it, not withstanding that a provision for rebate is created later?

5.Whether under the facts and circumstances of the case, the Tribunal was right in deleting interests under section 234 B and 234 C are not to be levied on the additional tax payable on account of retrospective amendment to section 115 JB, in the absence of any provision for exclusion of levy of interest in such circumstances?"

2. We have heard Mr.J.Narayanaswamy, learned Senior Standing Counsel for the appellant/ Revenue and Ms.Sri Niranjani Srinivasan, learned Counsel for the respondent/assessee.

3. It may not be necessary for this Court to decide the Substantial Questions of Law framed for consideration on account of certain subsequent developments. The Government of India enacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of 2020) to provide for resolution of disputed tax and for matters connected therewith or incidental thereto. The Act of the Parliament received the assent of the President on 17th March 2020 and published in the Gazette of India on 17th March 2020.

4. We are informed by the learned counsel for the respondent/assessee that the assessee has already filed the requisite Forms 1 & 2 on 29.01.2021 under Section 4 of the Act.

5. In the light of the fact that the assessee has already availed the benefit under the Act, no useful purpose would be served in keeping this appeal pending. At the same time, safeguarding the interest of the assessee in the event the order to be passed by the Department under the Act is not in favour of the assessee. Accordingly, the Tax Case Appeal stands disposed of on the ground that the assessee has already filed the requisite Forms 1 & 2 and the Department shall process the application at the earliest in accordance with the said Act and communicate the decision to the assessee at the earliest. As observed, the assessee is given liberty to restore this appeal in the event the ultimate decision to be taken on the declaration filed by the assessee under Section 4 of the said Act is not in favour of the assessee.

If such a prayer is made, the Registry shall entertain the prayer without insisting upon any application to be filed for condonation of delay in restoration of the appeal and on such request made by the assessee by filing a Miscellaneous Petition for Restoration, the Registry shall place such petition before the Division Bench for orders.

6. With this observation, the Tax Case Appeal stands disposed of with the aforementioned liberty and consequently, the substantial questions of law are left open. No costs. Sd/- Assistant Registrar(CO) //True Copy// Sub Assistant Registrar

mkn To 1.The Income Tax Appellate Tribunal, Madras "C" Bench.

2.The Commissioner of Income Tax (Appeals)-V, Chennai.

3.The Additional Commissioner of Income Tax, Company Range VI, Chennai-34.

4.The Commissioner of Income Tax, Chennai.

+1cc to M/s.G.Baskar, Advocate Sr.16218 Tax Case Appeal No.619 of 2013 pm[co] srg 31/03/2021