Skip to content


Colour Chem Ltd. Vs. Income-tax Officer - Court Judgment

LegalCrystal Citation
CourtIncome Tax Appellate Tribunal ITAT Mumbai
Decided On
Judge
Reported in(1984)9ITD247(Mum.)
AppellantColour Chem Ltd.
Respondentincome-tax Officer
Excerpt:
.....on 29-12-1975 on a total income of rs. 1,25,33,350. in this assessment, the ito allowed the extra shift allowance of rs. 1,34,910 in respect of the following electrical machinery and installations: name of the item cost rs.(i) power cables and transformer 1,49,740(ii) h.t. cubicles 1,10,901(iii) c.i. clad, switch board panels 1,25,072(iv) diesel generating set and transformers 8,08,499(v) miscellaneous items 62,166 13,49,094 (sic) 3. later on, the audit department pointed out that the assessee was not entitled to the extra shift allowance in respect of the aforesaid electrical machinery and installations under item iii(iv) of part i of appendix i to the income-tax rules, 1962 ('the rules'). the relevant portion of this item reads as follows: the extra shift allowance shall not be.....
Judgment:
1. This appeal, filed by the assessee-company, relates to the assessment year 1973-74.

2. The original assessment of the assessee was completed on 29-12-1975 on a total income of Rs. 1,25,33,350. In this assessment, the ITO allowed the extra shift allowance of Rs. 1,34,910 in respect of the following electrical machinery and installations: Name of the item Cost Rs.(i) Power cables and transformer 1,49,740(ii) H.T. cubicles 1,10,901(iii) C.I. Clad, switch board panels 1,25,072(iv) Diesel generating set and transformers 8,08,499(v) Miscellaneous items 62,166 13,49,094 (sic) 3. Later on, the audit department pointed out that the assessee was not entitled to the extra shift allowance in respect of the aforesaid electrical machinery and installations under item III(iv) of Part I of Appendix I to the Income-tax Rules, 1962 ('the Rules'). The relevant portion of this item reads as follows: The extra shift allowance shall not be allowed in respect of any item of machinery or plant which has been specifically excepted by inscription of the letters ('N.E.S.A.') (meaning 'No Extra Shift Allowance') against it in sub-item (ii) above and also in respect of the following items of machinery and plant to which the general rate of depreciation of 10 per cent applies-- (5) Electrical machinery---Switchgear and instruments, transformers and other stationery plant and wiring and fittings of electric light and fan installations.

4. Thereupon, the ITO reopened the assessment under Section 147(6) of the Income-tax Act, 1961 ('the Act') and withdrew the extra shift allowance of Rs. 1,34,910 allowed to the assessee in the original assessment. While doing so, the ITO rejected the contention of the assessee that the assessee had given all the details and particulars of its claim in the return filed by it, that the ITO had discussed the claim with its representative and as such he could not reopen the assessment under Section 147(6).

5. On appeal, the Commissioner (Appeals) held that the assessment had been validly reopened under Section 147(6) and that the ITO had rightly disallowed the extra shift allowance to the assessee in respect of the electrical machinery and installations referred to above under the aforesaid item of the Rules. Aggrieved by this order of the department, the assessee has filed the present appeal.

6. After going through the record and hearing the learned representatives of the parties, we are inclined to partly accept this appeal.

7. The first contention of the learned representative of the assessee before us is that the ITO could not reopen the assessment under Section 147(6) on the basis of the objection of the audit department in view of the decision of the Supreme Court in the case of Indian & Eastern Newspaper Society v. CIT [1979] 119 ITR 996. We are unable to accept this contention of the assessee. All that the Supreme Court has held in the aforesaid case is that the opinion of the audit party on a point of law could not be regarded as 'information' enabling the ITO to initiate reassessment proceedings under Section 147(6). In that case, the ITO had considered the provisions of Sections 9 and 10 of the Indian Income-tax Act, 1922, while making the original assessment. The Supreme Court held that any different view taken by the ITO afterwards on the application of those provisions on the basis of the opinion of the audit department would amount to change of opinion on material already considered by him and so the assessment could not be reopened under Section 147(6). The facts in the present case are entirely different.

In the instant case, the ITO did not apply his mind at all to the provisions of item III(zV) and allowed the claim of the assessee in the original assessment without specifically examining the same under the aforesaid item. There is no material on the record to hold that the ITO discussed this aspect of the case with the representative of the assessee as contended by him. When the audit department drew the attention of the ITO to this omission, he reopened the assessment under Section 147(6). It is evident that the audit department did not give any opinion on any point of law and the ITO did not change his opinion on the basis of the opinion of the audit department. That being so, we are of the view that the aforesaid authority of the Supreme Court is not applicable to the facts of the present case. The ITO was justified in reopening the assessment under Section 147(6) on receiving 'information' that the provisions of the relevant item in question had escaped his notice while making the original assessment. We, therefore, reject the first objection of the assessee.

8. The second contention of the learned representative of the assessee is that the extra shift allowance is not disallowable in respect of all the items of machinery referred to above. This contention is partly acceptable.

(a) The assessee is not entitled to extra shift allowance in respect of (i) Transformers, (ii) Switch Board Panels, and (iii) C.I. Clad and Steel Clad (which are stationery plants) under item III(iv).

(b) As regards (i) Diesel generating set, and (ii) H.T. cubicles, the Tribunal has already held in the case of the assessee for the assessment year in IT Appeal No. 1287 (Bom.) of 1980 for the assessment year 1975-76 that the assessee is entitled to extra shift allowance in respect of the same. We endorse this decision and allow the claim of the assessee in this behalf.

(c) The assessee is also entitled to extra shift allowance in respect of 'power cables' because this item is not specifically mentioned in the relevant item which disallows extra shift allowance only in respect of wiring and fittings of electrical light and fan installations'. Our view derives support from the decision of the Madras High Court in the case of Addl. CIT v. Wheel & Rim Co. of India Ltd. [1979] 118 ITR 16.

The ITO will work out the exact amount allowable to the assessee in the light of our findings.

9. The assessee has raised an additional ground of appeal to the effect that the reassessment made by the ITO under ssction 147(6) is time barred. This being a legal issue, we permit the assessee to raise the same at this stage. The assessment under Section 143(3) of the Act was completed on 29-12-1975. The notice under Section 148 of the Act was served on the assessee on 26-8-1977. Thus, the normal period of limitation under Section 153 of the Act would have expired on 25-8-1978. The ITO forwarded the draft order to the IAC under Section 144B of the Act on 21-8-1978 and passed the final order on 20-2-1979.

The plea of the learned representative of the assessee before us is that the provisions of Section 144B are not applicable to a case under Section 147 and as such, the reassessment order passed by the ITO on 20-2-1979 is time barred. In support of his contention, he has relied upon the decision of the Orissa High Court in the case of CIT v.Ganeshram Nayak [1981] 129 ITR 43. We are unable to accept the contention of the assessee for the simple reason that we do not subscribe to the view that the provisions of Section 144B are not applicable to a case under Section 147. It has been held by the Special Bench of the Tribunal in the case of Bela Singh Pabla v. ITO [1982] 1 ITD 370 (Delhi) that Section 144B applies to all the assessments made under Section 143(3) whether by way of original assessment or as a result of reopening of the assessment under Section 147. The authority of the Orissa High Court in Ganeshram Nayak's case (supra) cited by the learned representative of the assessee does not, strictly speaking, cover the present case. This authority merely lays down that the expression 'regular assessment' appearing in Section 273(6) of the Act is confined to Sections 143 and 144 of the Act and does not cover assessments under Section 147 and, therefore, penalty cannot be imposed under Section 273(6) for failure to estimate and pay advance tax in the assessment proceedings initiated under Section 147. It is evident that the point at issue before us, i.e., whether or not the provisions of Section 144B are applicable to a case under Section 147 was not directly before the Orissa High Court for adjudication. As against this, the Special Bench of the Tribunal has specifically dealt with this issue in the case of Bela Singh Pabla (supra). That being so, this decision of the Special Bench of the Tribunal squarely covers the present case. We would, therefore, follow the order of the Special Bench and hold that the provisions of Section 144B are applicable to the assessments made under Section 147. It is not in dispute that if the provisions of Section 144B are held to be applicable to this case, then the reassessment order passed by the ITO under Section 143(3) read with Section 147(6) is within time. We, therefore, reject the last objection of the assessee.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //