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TAXAP/686/2010 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
TAX
APPEAL No. 686 of 2010
=========================================================
COMMISSIONER
OF INCOME TAX - Appellant(s)
Versus
GUJARAT
INDUSTRIAL INVESTMENT CORPORATION LTD - Opponent(s)
=========================================================
Appearance
:
MRS
MAUNA M BHATT for
Appellant(s) : 1,
None for Opponent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
and
HONOURABLE
MS JUSTICE SONIA GOKANI
Date
: 18/10/2011
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE AKIL KURESHI)
Revenue
is in appeal against the judgment of the Tribunal dated 18.11.2009
raising following question of law for our consideration:
“Whether
the Appellate Tribunal is right in law and on facts in allowing the
withdrawal of excess interest tax of Rs.1,82,59,268/-?”
Facts
are as follows:
Assessee
filed its return of income for the assessment year 1997-98 under the
Income Tax Act, 1961. Such return was assessed under Section 143(3)
of the Act. Assessing Officer passed his order on 3.3.2000 granting
deduction of Rs.393 lacs towards Interest Act liability of the
assessee for the year under consideration. On 26.4.2001, the
Assessing Officer passed an order giving effect to the order of the
CIT (A) in the Income tax proceedings.
In
the proceedings under the Interest Act, an order was passed on
13.11.2003 reducing interest tax liability of the assessee to Rs.205
lacs. The Assessing Officer therefore desired to reduce the
deduction of the differential amount of Rs.189 lacs. He, therefore,
after issuing notice to the assessee passed order under Section 154
of the Income Tax Act on 12.2.2007 and reduced deduction of interest
tax liability to Rs.182 lacs.
The
assessee carried the issue in appeal. CIT (A) allowed the appeal of
the assessee. Revenue carried the issue further in appeal in the
Tribunal. Tribunal dismissed revenue’s appeal by impugned order
dated 18.11.2009. Tribunal was of the opinion that the order of the
Assessing Officer was barred by limitation prescribed under
Sub-section (7) of Section 154 of the Act. The Tribunal observed as
under:
“8. The
facts of the present year under consideration are similar to that of
the assessment year 1996-97 and, therefore, respectfully following
the order of the Tribunal (supra), we hold that the order passed
u/s.154 dated 12.2.2007, which has rectified the order dated
3.3.2000/26.4.2001 was barred by limitation in view of the provisions
of Sec.154(7) of the Act. Therefore, we do not find any merit in the
appeal and the same is dismissed”.
By
separate order passed in case of this very assessee in Tax Appeal
No.126 of 2010, we have deliberated upon such an issue and dismissed
the revenue’s appeal making following observations:
From
the above order, it can be seen that the Tribunal was of the opinion
that the Assessing Officer’s order of rectification was barred by
limitation provided under Sub-section (7) of Section 154 of the
Income Tax Act. The Tribunal was of the opinion that the original
assessment was framed on 11.3.1999 falling within the financial year
31.3.1999. Therefore, Assessing Officer ought to have passed the
order on rectification latest by 31.3.2003. Tribunal in this regard,
relied upon Sub-section (7) of Section 154 of the Act which reads as
under:
154. Rectification
of mistake.
(7) Save
as otherwise provided in section 155 or sub-section (4) of section
186 no amendment under this section shall be made after the expiry of
four years [from the end of financial year in which the order sought
to be amended was passed].
We
are of the opinion that Tribunal committed no error. Counsel for the
revenue was unable to point out that the rectification made by the
Assessing Officer was not with respect to the original assessment
framed on 11.3.1999. It may be that the Assessing Officer was
rectifying the mistake after the CIT (A) partially allowed the
assessee’s appeal and while giving effect to such an order, the
assessee had passed some further consequential orders. That by
itself would not mean that the Assessing Officer was rectifying the
subsequent orders giving effect to the appellate order since
essentially the Assessing Officer sought to revoke his order on
assessment dated 11.3.1999.
In
view of the provision of Sub-section (7) of Section 154, such
rejection order to be passed latest by 31.3.2003.
In
the result, without recording separate reasons, this appeal is also
dismissed.
(AKIL
KURESHI, J.)
(Ms.
SONIA GOKANI, J.)
(ashish)
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