Avasarala Automation Ltd. vs Deputy Commissioner of Income Tax

R. Gururajan, J.—Petitioner in these three petitions is calling in question the intimations dt. 14th Dec., 1999, 22nd Feb., 2002 and 27th March, 2002, issued u/s 143(1)(a) of the IT Act by the first respondent in terms of Annexs. A, A1 and A2. Petitioner is also questioning a common order passed u/s 264 of the IT Act in No. LRP Nos. 7, 8, 9/2002-03/CIT-I, passed by the second respondent for the asst. yrs. 1997-98 to 2000-01 in terms of Annex. C.

Facts in brief are as under :

Petitioner is a company registered under the Companies Act, 1956, and is engaged in the manufacture of special purpose machinery. Petitioner has filed its return of income for the asst. yr. 1998-99 on 30th Nov., 1998, for the year 1999-2000 on 31st Dec., 1999 and for the year 2000-01 on 30th Nov., 2000. These returns were processed and intimations were given in terms of Annexs. A, A1 and A2.

Petitioner entered into a sale-cum-lease transaction with Andhra Pradesh State Electricity Board ("APSEB" for short) for the purpose of purchase and distribution of power. APSEB was interested in the sale of its plant and machinery in order to raise resources for carrying on its business and to avoid cash crunch. Petitioner negotiated with APSEB for purchase of the said assets. Petitioner purchased the specified items of plant and machinery from APSEB. Thereafter, same was again leased back to APSEB. A lease-cum-agreement was entered into between the parties. Petitioner claimed 100 per cent depreciation in terms of the Act on the assets, namely, pollution control equipment, etc. Arrangement under the lease was that the lease rentals were to be made over year after year. Depreciation was claimed as per the IT Act in relation to the assets which had been purchased from APSEB and later leased out in its favour. Petitioner''s claim of purchase was not accepted by the assessing authorities, first appellate authority and the second appellate authority. Aggrieved by the order, petitioner filed an appeal before this Court in ITA No. 92 of 2002. The assessing authorities considered that there was only an advance of money given to APSEB and that there was no sale of equipment by APSEB to the petitioner. The assessing authorities calculated the assumed interest at 18 per cent on the amount advanced and brought to book the said interest. The matter, as earlier mentioned, was taken to the Tribunal. Petitioner offered lease rentals for the purpose of taxation. First respondent acted upon the returns, and, while for the year 1996-97 lease rentals have not been accepted, for the subsequent years the offer of lease rentals for the purpose of Income Tax were accepted, and the lease rentals were assessed to tax. According to the petitioner''s averments, the case for the year 1996-97 is pending in this Court with regard to sale and leasing back.

Petitioner on receipt of the orders u/s 143(1)(a) of the IT Act ("Act" for short), filed a revision petition before the CIT u/s 264 of the Act in terms of Annexs. B, B1 and B2. CIT rejected the same by way of a common order dt. 26th Sept., 2002, in terms of Annex. C. Petitioner with these facts is before me.

Respondents have entered appearance. Matter is heard for final disposal.

Learned counsel for the petitioner took me through the provisions of the Act to contend that the vested right is taken away by giving retrospective operation to the provisions of the Act. Learned counsel says that the revision may not be available for the year 2001-02 but certainly it is available for the previous years. Respondents'' counsel supports the order.

After hearing, I have carefully perused Annex. C, an order passed by the CIT. The CIT, while considering the Revision Petn. Nos. 7, 8 and 9/2002-03/CIT-I, i.e., for the asst. yrs. 1998-99, 1999-2000 and 2001-02 notices the deletion of the Explanation to Section 143 and after noticing the same, he holds that the intimation u/s 143(1)(a) received by the assessee after 31st May, 1999, will not be amenable to revision u/s 264 of the Act. Section 143 provides for return u/s 139 or in response to a notice under Sub-section (1) of Section 142 of the Act. A detailed procedure is prescribed thereunder. Section 264 of the IT Act provides for a revision, at the hands of the assessee with regard to the proceedings arising under the Act. Explanation to Section 143 before it was omitted by the Finance Act, 1999, w.e.f. 1st June, 1999, reads as under :

"Explanation.--An intimation sent to the assessee under Sub-section (1) or Sub-section (1B) shall be deemed to be an order for the purpose of Sections 246 and 264."

The deletion of the said Explanation has come into force w.e.f. 1st June, 1999. The said revision is available for pre-143(1A) proceedings. There is no material available on record to show that the same is available for the previous assessment years, namely, for 1998-99, 1999-2000. It may not be available for the asst. yr. 2000-01. In this connection, it is necessary to notice two judgments cited at the Bar. The first is the judgment is Hoosein Kasim Dada (India) Ltd. v. State of Madhya Pradesh 4 STC 114. The Supreme Court rules in the said judgment as under :

"...the impression of the restriction by the amendment of the section could not affect the assessee''s right of appeal from a decision in proceedings which commenced prior to such amendment and which right of appeal was free from such restriction under the section as it stood at the time of commencement of the proceedings. Consequently, the assessee''s appeal should not have been rejected on the ground that it was not accompanied by satisfactory proof of the payment of the assessed tax. As the assessee did not admit that any amount was due by it, it was entitled to file its appeal without depositing any sum of money."

Similarly, the Supreme Court in Karimtharuvi Tea Estate Ltd. Vs. State of Kerala, , has ruled as under :

"It is well-settled that the IT Act as it stands amended on the first day of April of any financial year must apply to the assessment of that year. Any amendments in the Act which come into force after the first day of April of a financial year, would not apply to the assessment for that year, even if the assessment is actually made after the amendments come into force."

In the light of the said two judgments of the Supreme Court and in the light of the Explanation to Section 143 having been deleted after the assessment years, i.e., w.e.f. 1st June, 1999, it does not take away the vested right of revision in favour of the petitioner.

In the circumstances, accepting the contention of the petitioner, I deem it proper to set aside the order passed by the CIT insofar as rejection of the revision for the asst. yrs. 1998-99 and 1999-2000. However, I uphold the finding with regard to the asst. yr. 2001-02.

In the result, these petitions are allowed in part. Orders passed by the second respondent in the revisions for the asst. yrs. 1998-99 and 1999-2000 are set aside. Matter is remitted to the respondent 2 for reconsideration on merits in accordance with law. No costs.