The Commissioner Of Income Tax,Chennai v. M/S.samalpatti Power Co (P) Ltd.,Sreyas Virat

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 31.03.2021 CORAM THE HON'BLE MR.JUSTICE M. DURAISWAMYANDTHE HON'BLE MRS.JUSTICE T.V. THAMILSELVI Tax Case Appeal Nos.266 to 268 of 2013 The Commissioner of Income Tax,Chennai. ... Appellant in all 3 TCAs Vs. M/s.Samalpatti Power Co (P) Ltd.,Sreyas Virat, No.14, III Cross Street,R.A.Puram, Chennai – 600 028. ... Respondent in all 3 TCAs Tax Case Appeals filed under Section 260A of the Income TaxAct, 1961 against the order of the Income Tax AppellateTribunal, Madras "A" Bench, dated 30.07.2012 passed inI.T.A.Nos.141, 142 & 1267/Mds/2011. Against the order of the Commissioner of Income Tax(Appeals)-V Chennai-34 dated 25.11.2010 in I.T.A.Nos.443 and 442of 2008-2009 and 450 of 2009-2010,PAN.No. for theAssessment Year 2003-2004,2006-2007 and 2007-2008 and orderdated 02.05.2011 in ITA No.282/10-11,PAN.No. for theAssessment year 2008-2009 against the order of the AssistantCommissioner of Income Tax, Company Circle VI(1) Chennai-34dated 30.12.2008 in PAN.No. for the Assessment year2006-2007 and the order dated 31.12.2009 in PAN.No.AADCS1893Dfor the Assessment year 2007-2008. These appeals filed by the Revenue under Section 260A ofthe Income Tax Act, 1961 ('the Act' for brevity), is directed https://hcservices.ecourts.gov.in/hcservices/ against the order dated 30.07.2012 passed by the Income TaxAppellate Tribunal, Madras "A" Bench, Chennai ('the Tribunal'for brevity) in I.T.A.Nos.141, 142 & 1267/Mds/ 2011 for theAssessment Year 2006-07, 2007-08 & 2008-09. 2.The above appeals were admitted on the followingSubstantial Questions of Law: “1)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 of book profits aswell as under normal provisions has to be remittedback to the assessing officer? 2)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 for diminution in value of asset andtherefore is to be adjusted in computing book profitunder Section 115JB in view of amendment to thatSection by Finance Act 2009 with retrospective effectfrom 01.04.2001? 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 Tamil NaduElectricity Board for the power generated and suppliedby it, not withstanding that a provision for rebate iscreated later?” 3. We have heard Mr.J.Narayanasamy, learned senior standingcounsel for the appellant/ Revenue and Ms.SriniranjaniSrinivasan, learned Counsel for the respondent/assessee. 4. It may not be necessary for this Court to decide theSubstantial Question of Law framed for consideration on accountof certain subsequent developments. The Government of India enacted 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. 3. We have heard Mr.J.Narayanasamy, learned senior standingcounsel for the appellant/ Revenue and Ms.SriniranjaniSrinivasan, learned Counsel for the respondent/assessee. 4. It may not be necessary for this Court to decide theSubstantial Question of Law framed for consideration on accountof certain subsequent developments. The Government of India enacted 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. 5.We are informed by the learned counsel for the respondent/assessee that the assessee has already filed the requisite Forms– 1 & 2 on 29.01.2021, in all the three Tax Case Appeals, underSection 4 of the Act. 6. 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. 7. 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(CS V) //True Copy// Sub Assistant Registrar va To 1. Income Tax Appellate Tribunal, Madras "A" Bench2. Commissioner of Income Tax. Chennai.3. Commissioner of Income Tax Appeals-V, Chennai4. Assistant Commissioner of Income Tax Company Circle VI(1), Chennai-34 +1cc to M/S.G. Baskar, Advocate, S.R.No.20868 Tax Case Appeal Nos.266 to 268 of 2013 SMI(CO)PM(15/07/2021) 31.03.2021