Loknath Pd.Gupta, (Ind), Kolkata vs Department Of Income Tax

IN THE INCOME TAX APPELLATE TRIBUNAL "A" BENCH: KOLKATA [Before Shri P.K.Bansal, A.M. & Shri Mahavir Singh, J.M.]

I.T.A. No.645/Kol/2014 : Assessment Year : 2009-10

D.C.I.T., CC-XXV, Kolkata -Vs- Sri Loknath Pd. Gupta (Ind.) (Appellant) (PAN: ADUPG 5810F) (Respondent)

Date of concluding the hearing : 18.05.2015 Date of pronouncing the Order : 10.06.2015

Appearances :For the Assessee : Shri S.K.Bagaria, Sr. Advocate, Shri A.K.Tulsiyan, FCA, Shri Gopal Das, Advocate & Shri Saurabh Bagaria, Advocate :For the Department : Shri Ajoy Kumar Singh. CIT, DR

ORDER Per Shri P.K.Bansal, A.M.

This appeal has been filed by the Revenue against the order of the C IT(A), Central-III, Kolkata dated 20.01.2014 for the assessment year 2009-10.

2. The only issue involved in this appeal relates to whether the CIT(A) erred in making the order passed under section 154 by the AO annulled by which the AO disa llowed to the assessee excess duty of Rs.29,17,01,515/-, penal interest of Rs.12,93,62,086/- and central excise and interest amounting to Rs.3,42,56,200/-.

3. Brief facts relating to this case are that the return sho wing loss of Rs.29,09,33,405/- was filed by the assessee on 29.03.2009.

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Subsequently, an assessment was completed under section 143(3) allowing the claim of the assessee in respect of payments made for excise duty amounting to Rs.29,17,01,515/- and interest thereon at Rs. 12,93,62,086/- on various dates from the period 1.04.2008 to 31.03.2009, which pertains to the period or previous years 2001-02 to 2005-06. Subsequently, the AO wa s of the opinion that these payments do not form part of the regular sales. Therefore, rectification proceedings under section 154 were initiated. After hearing the assessee, ultimately the AO rectified the assessment order and made the addition in respect of excise duty of Rs.29,17,01,515/-, interest thereo n rs.12,93,62,086/- and also excise duty of Rs.3,42,56,200/- by holding as under:

"10. Though, the assessee contended from his own angle yet expenses claimed for payment of Excise Duty of Rs.29,17,01,515/- and Interest Rs.12,93,62,086/- and also Rs.3,42,56,200/- is factually incorrect and totally different from the normal Excise Duty which becomes payable regularly as on 31st March of every year and not paid by the end of financial year or within the due date for filing of return due to any reason end also taxed accordingly for the re I event year. Here, the assessee would not have come forward voluntarily to pay the aforesaid amount if no raid (search &. seizure) had been carried out by the Central Excise Department in the case of assesse. The demand raised and then paid Excise Duty of Rs.29,17,01,515/- and Interest Rs.12,93,62,O86/- thereof (during this year) is only due to falsification of original books of accounts and then filing of an application before both the settlement Commission i.e. Income Tax Settlement Commission, Kolkata as well as Settlement Commission for Customs and Central Excise, New Delhi was to get rid of all kind of penalties and prosecutions even after indulging the huge suppression of sale and evading income taxes on profit of suppressed sale, the unaccounted money invested to do the suppressed sale. Identically, another sum of Rs.2,42,56,200/- as part of Excise Duty evasion and pertains to the past years covered by the order of Settlement Commission of Excise & Customs as well as the part of additional income before ITSC Kolkata and also an issue (questioned) vide the notice u/s.154 of I.T. Act, 1961 is 3 ITA No.645/Kol/2014 Sri Loknath Pd. Gupta(Ind.) : A. Yr: 2009-10

also being disa1lowed for not being the income as referred u/s.28 of I.T. Act, 1961 hence the same is not supported by the clause (a) to the section 43B of I.T. Act, 1961. It is worth mentioning that it is penal in nature and not allowable u/s.37 of IT Act, 1961 also. In addition to the above, it is also reiterated that the claim of the assesse as expenses for the item which was already offered as additional income to incur the huge loss for current year or near future will vitiate the purpose of filing of application with additional income to settle the willful attempt of evasion of tax without inviting any penalty and prosecution (as happened in the case of assesse). Further, it will be a blank cheque for any assesse if this kind of deduction will be allowed because pay once following the order of Income Tax Settlement Commission here ITSC Kolkata without the burden of penalty even after evading the tax and then enjoy the recurring benefit without paying any tax by presenting the same as current liability (claiming under the head of Operating Expenses of the current year) when no such order or direction has ever been given by Hon'ble ITSC, Kolkata. In case there will be any confusion then the clarification from ITSC may kindly be invited to solve the issue because, the order u/s.245D(4) is totally silent about deduction of alleged Duties and Interest in future."

3.1 The assessee went in appeal before the CIT(A). The CIT(A) noted that the assessee had made an application to the Settlement Commission for Customs & Central Excise and consequently also to the Settlement Commission of Income-Tax for the financial year 2001-02 to 2005-06 for the Central excise matters. Central Excise Settlement Commission passed the final order of settlement dated 29.02.2008 thereby excise liabilities for the assessment years 2001-02 to 2005-06 were determined which consisted excise duty, interest thereon and some penalties. Consequently, Income Tax Settlement Commission passed final order of settlement dated 28.03.2008, which matter by and large follows from the Central Excise Settlement Commission's settlement order. The assessee, in the return for the assessment year 2009-10, filed on 23.09.2009, has shown towards the excise duty and excise deduction. The AO allowed the claim in the assessment order passed 4 ITA No.645/Kol/2014 Sri Loknath Pd. Gupta(Ind.) : A. Yr: 2009-10

under section 143(3). The CIT(A) also noted from the assessment record that there was revenue audit observation raised on the issue for the earlier assessment year 2008-09 that part of the excise duty paid in the previous year relevant to assessment year 2008-09 relied to prior period and therefore, under the mercantile system of accounting, they were not allowable. The AO, therefore, took the recourse to rectify the same in the impugned assessment year. The CIT(A) took the view that the AO indeed and in fact made the re- assessment in the guise of rectification and therefore he annulled the impugned rectification order. On merit, he held that the excise duty is a deductible expense, in view of the provisions of section 43B in the year when the same is paid irrespective of the previous year, in which the liability to pay was incurred. He also allowed interest as it, being a compensatory, becomes a part and parcel of the same and even is allowable as business expenditure under section 28 or section 37 of the Income-Tax Act. Similarly, in respect of sum of Rs.3,42,56,200/- which includes central excise of Rs.2,84,26,761/- and interest thereon at Rs.58,29,439/-, he decided in favour of the assessee.

4. We heard the rival submissions and carefully considered the same along with the orders of tax authorities below as well as case laws cited before us. Now the question before us is whether the rectification order passed by the AO is valid or not. Brief facts as we gather, are that the assessee filed settlement application before the Customs & Central Excise Settlement Commission for the period 10.05.2001 to 31.03.2006. In terms of the final order of the Settlement Commission dated 29.02.2008 read with corrigendum dated 28.03.2008, the case was settled for an amount of Rs.57,43,83,420/- towards excise duty and penalty of Rs.40 crores and the payment of interest. The assessee filed a writ petition before the Hon'ble Delhi High Court and the prayer for the payment of the aforesaid dues was extended from time to time. In view of the order, the Hon'ble Delhi High Court as well as the Central Excise 5 ITA No.645/Kol/2014 Sri Loknath Pd. Gupta(Ind.) : A. Yr: 2009-10

Settlement Commission, the assessee made the following payments during the impugned assessment year.

(a) Duty of Rs.14,58,50,758/- paid vide Challan No.TR-06/001 dated 28.4.2008.

(b) Duty of Rs.14,58,50,757/- paid vide Challan No.TR-06/002 dated 31.05.2008.

(c) Interest of Rs.12,93,62,086/- paid on 16.02.2009 and 17.03.2009 vide Challan Nos. TR-06/010, 004, 011 and 005.

(d) Penalty of Rs.40 Crores paid on 01.10.2008, 07.11.2008, 12.12.2008, 05.01.2009 and 06.01.2009 vide Challan Nos. TR-06/006, 001, 008, 009 and 003.

4.1 The assessee also filed the application before the Income-Tax Settlement Commission for the assessment years 2001-02 to 2007-08. In terms of the order of the Settlement Commission dated 28.03.2008, the case was settled for total additional income of Rs.105 crores for the aforesaid assessment years. During the impugned assessment year, the assessee claimed deduction of aforesaid central excise duties of Rs.29,17,01,515/- and interest of Rs.12,93,62,086/- as paid. During the impugned assessment year, the assessee did not claim any deduction for the penalty of Rs.40 crores paid by it. In the assessment order passed under section 143(3), the said payments were allowed as per the provisions of section 43B(a) of the Income Tax Act. Subsequently, after issuing the notice under section 154, the AO, vide order dated 24.05.2013, disallowed the payment in respect of excise duty of rs.29.17 crores and interest payment of Rs.12.93 crores and similar payment of excise duty and interest of Rs.3.42 crores. The CIT(A) allowed the appeal of the assessee. These payments were made by the assessee in terms of the order passed by the Customs & Excise Settlement Commission and the Hon'ble High Court. The provisions of section 43B(a) mandates that the deduction in respect of any tax, duty, cess or fee, by whatever name called, under any law shall be allowed (irrespective of previous 6 ITA No.645/Kol/2014 Sri Loknath Pd. Gupta(Ind.) : A. Yr: 2009-10

year, in which liability to pay such sum, was incurred by the assessee according to the method of accounting regularly employed by him) only in the previous year, in which such sum is actually paid by the assessee. In view of the clear mandate of section 43B(a), we are of the view that law is very clear that the excise duty is deductible in the year, in which, the assessee has actually paid the excise duty. The ld. DR before us, even though vehemently relied on the order of the AO passed under section 154, but could not bring to our notice that there can be two conceivable opinion in respect of deduction of excise duty that it will not be allowed in the year in which payment has been made by the assessee. The provision of section 154 empowers the AO to rectify only the mistake, which is apparent on record. Therefore, the AO can take an action under section 154. In case, there is a mistake and such mistake must be apparent where there can be conceivably two opinions, it cannot be said that mistake is apparent on record. Mistake must be obvious and patent not something which can be established by long drawn process of reasoning and points on which there can be two opinions. The decision on a debatable point of law is not a mistake apparent from the record. The mistakes are of two types, mistake of fact or mistake of law. So far the fact is concerned, there is no mistake. The facts submitted before us are undisputed. In respect of mistake of law, the ld. DR, even though vehemently contended but could not bring to our knowledge how there is a mistake in respect of allowing the deduction was for excise duty. We, therefore, confirm the order of the CIT(A) annulling the rectification order, so far it relates to deduction of excise duty amounting to Rs.29.17 crores as well as 2.54 crores.

4.2 Now coming to the issue whether the interest paid by the assessee during the year in respect of excise duty accrued during the impugned assessment year so that it can be said whether there is a mistake apparent on record and whether it is debatable in which year the interest on excise duty has to be allowed. It is 7 ITA No.645/Kol/2014 Sri Loknath Pd. Gupta(Ind.) : A. Yr: 2009-10

not disputed that the assessee was following the mercantile system of accounting. In the mercantile system of accounting, a liability is deductible when it accrues. In the case of the assessee, we noted that the Central Excise Settlement Commission passed the order on 29.02.2008 with corrigendum dated 28.03.2008. Therefore, so far the interest is concerned, the liability accrues when the order was passed by Central Excise Settlement Commission. But the assessee filed a writ petition before the Hon'ble Delhi High Court and the Delhi High Court allowed time to the assessee for making the payment of dues including the central excise as well as interest thereon. The interest no doubt paid during the year but there is no provision under the Income Tax Act para 2 section 43B, which allows the deduction of the interest on payment basis, in case the assessee follows the mercantile system of accounting. The interest, in our opinion, was allowable as deduction only in the assessment year 2008-09 and in case the assessee disapproves the assessee could have argued that the accrual of the liability got postponed and it will accrue only when the High Court passed the order. In our opinion, there cannot be two views possible. So far the deduction of the interest in respect of excise duty is concerned, to that extent, we are of the view that there was a mistake apparent in the order of the AO passed under section 143(3) and therefore, the AO has rightly taken the action under section 154, as non-deductibility of the interest during the impugned assessment year was not debatable and there cannot be two conceivable views in this regard. To that extent, we set aside the order of the CIT(A) and restore the order of the AO, so far it relates to the deductibility of interest in respect of central excise is concerned. We may, however, observe that the assessee be allowed deduction of the interest in the assessment year 2008-09 or in the year when the liability finally is determined by the order of the Hon'ble Delhi High Court, if the assessee proves that the liability accrues during that assessment year.

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4.3 Hence, the appeal filed by the Revenue is partly allowed.

5. In the result, the appeal filed by the Revenue stands partly allowed.

Order pronounced in the Open Court on 10.06.2015.

Sd/- Sd/- (Mahavir Singh) (P.K.Bansal) Judicial Member Accountant Member Dated : 10.06.2015

Talukdar(Sr.P.S.)

Copy of the order forwarded to:

1. R.K. Dev Path, Titagarh, 24 Parganas (North), Kolkata- 700 119, Kolkata - 700 068 2 ACIT, Circle-52, Kolkata

3. The CIT(A),

4. CIT,

5. DR, True Copy, By order,

Asstt. Registrar, ITAT, Kolkata