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

IN THE HIGH COURT OF JUDICATURE AT MADRAS CORAM THE HON'BLE MR. JUSTICE M. DURAISWAMYANDTHE 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 TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras “C” Bench, dated 24.05.2011 passed inI.T.A.No.894/Mds/2009, preferred against the order of theCommissioner of Income Tax (Appeals)-V, Chennai, dated30/03/2009 made in ITA No.293/2007-08 for the Assessment Year2005-2006 against the order passed by the AdditionalCommissioner of Income Tax, Company Range-VI, Chennai-34 dated31/12/2007 PAN No. . For Respondent : Ms.Sri Niranjani SrinivasanJ U D G M E N T 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.894/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 case, the Income Tax Appellate Tribunal wascorrect in entertaining the claim for deduction ofprovision for rebate, though the assessee did notraise that issue before the assessing officer and theCommissioner of Income Tax (Appeals) and the claim nothaving been made through a valid return of income? 2.Whether under the facts and circumstances ofthe case, the Income Tax Appellate Tribunal wascorrect in holding that the issue of allowability ofthe provision for rebate debited by the assessee toits profits and loss in computation profits undernormal provisions has to be remitted back to theassessing officer? 3.Whether under facts and circumstances of thecase, the Income Tax Appellate Tribunal was right innot holding that the provision for rebate debited bythe assessee to its profit and loss account is only aprovision and not written off and therefore is notallowable as deduction in computing income undernormal provisions of the Income Tax Act? 4.Whether under facts and circumstances of thecase, the Income Tax Appellate Tribunal was right innot holding that the income has accrued to theassessee on raising of invoice on the TamilnaduElectricity Board for the power generated and suppliedby it, not withstanding that a provision for rebate iscreated later? 5.Whether under the facts and circumstances ofthe case, the Tribunal was right in deleting interestsunder section 234 B and 234 C are not to be levied onthe additional tax payable on account of retrospectiveamendment to section 115 JB, in the absence of anyprovision for exclusion of levy of interest in suchcircumstances?” 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 mkn To 1.The Income Tax Appellate Tribunal, Madras “C” Bench. Madras “C” Bench. 2.The Commissioner of Income Tax (Appeals)-V, Chennai. Chennai. 3.The Additional Commissioner of Income Tax, Company Range VI, Chennai-34. 4.The Commissioner of Income Tax, Chennai. Chennai. +1cc to M/s.G.Baskar, Advocate Sr.16218 Tax Case Appeal No.619 of 2013 pm[co]srg 31/03/2021