The High Court has failed to appreciate that while charging interest from the assessees, the Department first adjusts the amount paid towards interest so that the principal amount of tax payable remain outstanding and they are entitled to charge interest till the entire outstanding is paid. But when it comes to granting of interest on refund of taxes, the refunds are first adjusted towards the taxes and then the balance towards interest. Hence, as per the stand that the Department takes they are liable to pay interest only up to the date of refund of tax while they take the benefit of assessees funds by delaying the payment of interest on refunds without incurring any further liability to pay interest,. This stand taken by the respondents is discriminatory in natrure and thereby causing great prejudice to the lakhs and lakhs of assessees.
It was the submission by the ld. AR that the show cause notice issued u/s 263 of the IT Act on 23.01.2012 had not mentioned which order was erroneous nor had he mentioned the error in the assessment order. It was the submission that the show cause notice did not show as to how and what was the issue in which order the said issue arose which was erroneous and prejudicial to the interest of the revenue.
As is the settled legal position, in the light of Hon’ble Supreme Court’s decision in the case of ACIT vs. Saurashtra Kutch Exchange Ltd. (305 ITR 227) , a judicial decision acts retrospectively. As Their Lordships observed in this case, judges do not make the law, they only discover or find the correct law and, therefore, a rectification of mistake in an order can also be carried out in the light of Hon’ble Supreme Court’s judgment passed after the subject order is passed. The action of the CIT (Appeals) was thus correct and does not call for any interference.
It is a fact that assessee has not booked the lease rentals as noted by the AO but on the reason that the assessee being NBFC is following the guidelines issued by RBI and guidelines states that once the party has become a defaulter for at least twelve months that party can be declared as NPA and no income on that part can be booked from the source after failure to get any income.
Rebate under section 88E was to be allowed from the tax computed as per provisions of section 115JB to find out whether after set off of rebate under section 88E, any tax liability remained or not. Admittedly the tax liability as per MAT provisions was Rs.7,56,694/- and rebate admissible under section 88E was Rs.26,98,260/-. Therefore, in any view of the matter, no prejudice was caused to the revenue by non-consideration of provisions of section 115JB by Assessing Officer. Therefore, ld. CIT’s order cannot be sustained.
A perusal of the assessment order clearly shows that the Assessing Officer questioned the assessee why there is a difference in the rate of discount. Assessee replied to the questions raised by the Assessing Officer. However, the Assessing Officer has proceeded to compute the discount by hypothetical calculation to arrive at discount rate for the whole year and then asessee applied on monthly sale basis. This obviously is not permissible in so far as the discount granted by the assessee is not a constant every month. The average rate of discount would be a highly impractical method. In the circumstances, the addition in respect of discount as made by the Assessing Officer and confirmed by the learned Commissioner of Income-tax(Appeals) stands deleted.
A perusal of the order of the learned Commissioner of Income-tax (Appeals) clearly shows that the assessee had written off bad debt in the books. Further, it is noticed that the Learned Commissioner of Income-tax (Appeals) had followed the decision of the Hon’ble Bombay High Court in the case of Director of Income-tax (International Taxation) Vs. Oman International Bank (refer to supra) on this issue. The finding of the learned Commissioner of Income-tax (Appeals) that the bad debt written off in the books has not been disputed by the revenue. In the circumstances, the finding of the learned Commissioner of Incometax (Appeals) on this issue is on right footing and does not call for any interference.
it is noticed that the assessment is an ex-parte assessment and also before the ld. CIT(A) there has been no representation. We are of the view that the assessee may be granted one more opportunity to substantiate its case before the ld. AO. It is also noticed that the ld. AR has specifically agreed that there would be no default on the part of assessee in de-novo setting aside assessment. In this situation the issue is restored to the file of AO for denovo assessment after granting the assessee adequate opportunity to substantiate its case.
Hon’ble Kerala High Court in the case of Girnar Industries (supra) and Tata Tea Limited (supra), we hold that the assessee is entitled for exemption under Section 10B of the Act on account of blending of tea. Similarly, in our view, the industrial units engaged in the very same activity i.e. blending, packing and export of tea in the free trade zone shall also be entitled to enjoy tax exemption under Section 10A of the Act.
It is noticed that the Hon’ble Supreme Court in the case of Goetze (India) Ltd (refer to supra) has held that the appellate authority being the tribunal did have the powers to direct the Assessing Officer to accept the claim of assessee, though the same has not been made in the original return nor has been claimed in the revised return. In the circumstances, respectfully following the ratio laid down by the Hon’ble Supreme Court in the case of Goetze (India) Ltd (refer to supra), the Assessing Officer is directed to grant the assessee’s claim of deduction u/s. 80GGB of the donations made by the assessee to political parties in respect of Rs.45 lakhs given to Congress party and Rs. 80 lakhs given to BJP.
