Commissioner Of Income Tax,Chennai v. M/S.samalpatti Power Co (P) Ltd.,First Floor

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAMTHE HON'BLE MR. JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS. JUSTICE T.V. THAMILSELVI Tax Case Appeal No.620 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 TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras “C” Bench, dated 24.05.2011 passed inI.T.A.No.1657/Mds/2009, preferred against the order passed bythe Commissioner of Income Tax (Appeals)-V, Chennai-600 034,dated 30/03/2009 made in ITA No.293/2007-08 against the orderpassed by the Additional Commissioner of Income Tax, CompanyRange VI, Chennai-34 dated 31/12/2007 for the Assessment Year2005-06 made in PAN No. . For Appellant : Mr.J.Narayanaswamy Senior Standing Counsel For Respondent : Ms.Sri Niranjani Srinivasan The above appeal filed by the Department under Section 260Aof the Income Tax Act, 1961 ('the Act' for brevity), is directedagainst the order dated 24.05.2011 passed by the Income TaxAppellate Tribunal, Madras “C” Bench, Chennai ('the Tribunal'for brevity) in I.T.A.No.1657/Mds/2009 for the Assessment Year2005-06. The Revenue has raised the following substantialquestions of law in the above appeal : https://hcservices.ecourts.gov.in/hcservices/ “1.Whether under the facts and circumstances ofthe whether the Tribunal was right in holding that theincome of Rs.8,30,68,183/- did not accrue to theassessee on invoices raised by it on TNEB towardsstart up fuel costs, though the assessee was followingmercantile system of accounting? 2.Whether under the facts and circumstances ofthe case, the Income Tax Appellate Tribunal wascorrect in upholding the order of the Commissioner ofIncome Tax (Appeals) deleting the addition ofRs.1,47,67,200/- made by the assessing officer holdingthat the assessee had not inflated the O&M Expenditureto the extent of amount received as deposit towardsmajor Maintenance Expenditure? 3.Whether based on material available before it,the Income Tax Appellate Tribunal could have arrivedat a conclusion that the assessee had not inflated theOperations and Maintenance Expenditure to the extentof amount received as deposit towards MajorMaintenance Expenditure? 4.Whether under the facts and circumstances ofthe case, the Income Tax Appellate Tribunal was rightin holding that the loss on sale of agricultural landwould constitute long term capital loss and would beeligible for carry forward and set off in the futureyears? 5.Whether under the facts and circumstances ofthe case, the Income Tax Appellate Tribunal was rightin holding that the land sold by the assessee is acapital asset, even though the land was classified asagricultural land in the revenue records and would notfall within the definition of ‘capital asset’ underthe Income Tax Act? 6.Whether the Tribunal based on the materialbefore it, could have come to the conclusion that theland sold by the assessee is not an agriculturalland?” 2. We have heard Mr.J.Narayanaswamy, learned Senior StandingCounsel for the appellant/ Revenue and Ms.Sri NiranjaniSrinivasan, learned Counsel for the respondent/assessee. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 4. We are informed by the learned counsel for therespondent/assessee that the assessee has already filed therequisite Forms 1 & 2 on 29.01.2021 under Section 4 of the Act. 3. It may not be necessary for this Court to decide theSubstantial Questions of Law framed for consideration on accountof certain subsequent developments. The Government of Indiaenacted the Direct Tax Vivad Se Vishwas Act, 2020 (Act 3 of2020) to provide for resolution of disputed tax and for mattersconnected therewith or incidental thereto. The Act of theParliament received the assent of the President on 17[th] March2020 and published in the Gazette of India on 17[th] March 2020. 4. We are informed by the learned counsel for therespondent/assessee that the assessee has already filed therequisite Forms 1 & 2 on 29.01.2021 under Section 4 of the Act. 5. In the light of the fact that the assessee has alreadyavailed the benefit under the Act, no useful purpose would beserved in keeping this appeal pending. At the same time,safeguarding the interest of the assessee in the event the orderto be passed by the Department under the Act is not in favour ofthe assessee. Accordingly, the Tax Case Appeal stands disposedof on the ground that the assessee has already filed therequisite Forms 1 & 2 and the Department shall process theapplication at the earliest in accordance with the said Act andcommunicate the decision to the assessee at the earliest. Asobserved, the assessee is given liberty to restore this appealin the event the ultimate decision to be taken on thedeclaration filed by the assessee under Section 4 of the saidAct is not in favour of the assessee. If such a prayer is made,the Registry shall entertain the prayer without insisting uponany application to be filed for condonation of delay inrestoration of the appeal and on such request made by theassessee by filing a Miscellaneous Petition for Restoration, theRegistry shall place such petition before the Division Bench fororders. 6. With this observation, the Tax Case Appeal standsdisposed 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 md To 1.The Income Tax Appellate Tribunal, Madras “C” Bench Madras “C” Bench 2.The Commissioner of Income Tax, Chennai. Chennai. 3.The Commissioner of Income Tax (Appeals)-V, Chennai-600 034.4.The Additional Commissioner of Income Tax, Company Range VI, Chennai-34.Tax Case Appeal No.620 of 2013pm[co]srg 31/03/2021