Case Law Details
HIGH COURT OF GUJARAT AT AHMEDABAD
TAX APPEAL No. 855 of 2013
COMMISSIONER OF INCOME TAX II
Versus
SAR INFRACON PVT LTD.
Date of Order/ Pronouncement – 3rd October 2013
ORAL ORDER (PER : HONOURABLE Mr. JUSTICE M.R. SHAH)Present Tax Appeal has been preferred by the Revenue challenging the impugned judgment and order dated 15th February 2013 passed by the Income Tax Appellate Tribunal, Ahmedabad Bench “B” [“Tribunal” for short] in ITA No. 1079/Ahd/2010 for A.Y 200506, by which, the Tribunal has dismissed the said appeal preferred by the Revenue, confirming the order passed by the learned CIT [A] dated 23rd November 2009.
2. By preferring the present Appeal, the Revenue has proposed the following substantial question of law :
“Whether in law and on facts, the ITAT was right in not treating the interest of Rs. 2 1,22,253/= accrued on Fixed Deposits as income of the assessee ?”
3. Facts leading to the present Appeal, in nutshell, are as under :
3.1 The assessee company filed its original return of income for the assessment year 200506 declaring total income at Rs. Nil on 31st March 2006. The said return of income was processed under section 143 (1) of the Income Tax Act, 1961 {“Act” for short}. Thereafter, it was noticed by the then Assessing Officer that the assessee had escaped income of Rs. 2 1,22,153/=. After recording reasons on this issue, a notice under section 148 of the Act was issued on 20th July 2007 which was duly served upon the assessee company. According to the Assessing Officer, the interest earned by the assessee on a sum of Rs. 16.70 Crores, which was received by it by way of grant from the Central Government and which sum was invested in the fixed deposit and the interest earned on the said fixed deposit can be said to be income as the assessee itself claimed refund of TDS deducted on the interest earned on the aforesaid fixed deposit. That thereafter, the Assessing Officer passed the assessment order making addition of Rs. 21,22,153/=; being the interest received from Bank of India on the fixed deposit of Rs. 16.70 Crores, which the assessee received from the Central Government by way of grant.
3.2 Being aggrieved and dissatisfied with the order passed by the Assessing Officer making addition of Rs. 2 1,22,153/= in the total income of the assessee, the assessee preferred an appeal before the CIT [A] and by an order dated 23rd November 2012, the learned CIT [A] dismissed the said appeal.
3.3 Feeling aggrieved and dissatisfied with the order of the CIT [A] in confirming the addition made by the Assessing Officer of Rs. 2 1,22,153/= and treating the aforesaid amount as the income of the assessee, the assessee preferred appeal before the Tribunal. The Tribunal, on considering the letter of the Central Government while sanctioning the grant in favor of the assessee, more particularly the condition that, “the interest earned on the central grant already released would form part of the central grant limit of Rs. 50 Crores” and considering the decisions of this Court in case of Gujarat Municipal Finance Board v. Deputy Commissioner of Income Tax [Assessment], reported in (1996) 318 ITR 317 as well as in case of Gujarat Power Corporation Limited v. Income Tax Officer, reported in [(2013) 354 ITR 201 (Guj)], the Tribunal has allowed the appeal by deleting the addition of Rs. 2 1,22,153/= made by the Assessing Officer.
3.4 Feeling aggrieved and dissatisfied with the order dated 15th February 2013 passed by the Tribunal in ITA No. 1079/Ahd/2010 for A.Y 200506, the Revenue has preferred the present Tax Appeal with the aforesaid proposed substantial question of law.
4. Heard learned advocate Shri Manav Mehta for the Revenue and perused the impugned judgment and order passed by the Tribunal.
5. It appears that the assessee received grant from the Central Government to the tune of Rs. 16.70 Crores. The assessee did not utilize the said grant, however, deposited the sum in the Bank of India as fixed deposit and earned interest of Rs. 2 1,22,253/=. It appears that the Bank of India deducted TDS of Rs. 4,32,939/= on the said interest amount. The assessee claimed refund of Rs. 4,32,939/=, being the TDS deducted on the aforesaid amount of Rs. 2 1,22,253/= treating it as income, which prompted the Assessing Officer to initiate proceedings and issuance of notice under section 148 of the Act. The Assessing Officer treated the aforesaid amount of RS. 2 1,22,253/= received by the assessee by way of interest on the fixed deposit of Rs. 16.70 crores as income of the assessee and made addition of Rs. 21,22,253/= in the income of the assessee. The said order came to be confirmed by the CIT [A]. On appeal, the Tribunal by impugned order has directed to delete the addition of Rs. 21,22,253/= by holding that considering the letter issued by the Central Government releasing the grant and more particularly considering the condition that, the interest earned on the central grant already released would form part of the central grant limit of Rs. 50 Crores and considering the decisions of this Court in the case of Gujarat Municipal Finance Board v. Deputy Commissioner of IncomeTax [Assessment] [Supra] and in case of Gujarat Power Corporation Limited v. Income Tax Officer [Supra], the Tribunal has held that the aforesaid amount of Rs. 21,22,253/= earned by the assessee as interest on the fixed deposit of Rs. 16.70 Crores cannot be said to be its income. Considering the condition imposed by the Central Government, while releasing the grant in favour of the assessee, when the interest earned on the Central grant already released was required to be forming part of the Central grant, the learned Tribunal has rightly held that the interest earned on Rs. 16.70 Crores cannot be said to be the income of the assessee. As such, the issue involved in the present Tax Appeal is directly covered by the decisions of this Court in case of Gujarat Municipal Finance Board v. Deputy Commissioner of IncomeTax [Assessment] {Supra} and in case of Gujarat Power Corporation Limited v. Income Tax Officer [Supra].
6. Shri Manav Mehta, learned advocate appearing for the appellant Revenue as such tried to distinguish the facts by submitting that in the present case, the assessee itself claimed refund of the TDS deducted by treating the amount of interest as income, and therefore, the Tribunal has committed an error in not treating the amount of interest earned on the grant as income of the assessee. The aforesaid contention has no substance. What is important is whether the interest earned on the Central Government grant is to be treated as the income earned or not, and not what the assessee claimed. As stated herein above, in the letter of the Central Government releasing the grant, which provides a condition that the interest earned on the central grant already released would form part of the central grant limit of Rs. 50 Crores, the amount of Rs. 21,22,253/= being interest earned on the fixed deposit of Rs. 16.70 crores which was the grant received by the assessee from the Central Government cannot be said to be its income and the aforesaid sum, as per the condition of release of grant, the interest earned on the Central Government grant ie., Rs. 21,22,253/= in the present case is to be included as a part of the grant received from the Central Government.
7. Under the circumstances, as such, no error has been committed by the Tribunal in deleting the addition of Rs. 21,22,253/= made by the Assessing Officer, treating it as the income of the assessee.
8. There being no substantial question of law arising in the present Tax Appeal, the same deserves to be dismissed, and accordingly, the present Tax Appeal is dismissed. No costs.
What about the refund claimed by the assesee??
Is it still allowed to be claimed without offering the Interest as income??