Commissioner(A) does not have any knowledge of the A.Y for IT purpose, says Tribunal
CENVAT credit availed by the appellant on capital goods during the period 2007-08 and 2008-09 was denied on the ground that the appellant has also claimed depreciation of the CENVAT credit quantum as per Income Tax return for the year 2008-09.
Before the CESTAT the appellant submitted that the appellant had filed revised Income Tax return for the assessment year 2008-09 and 2009-10 which pertains to 2007-08 and 2008-09 respectively which is permissible under section 139(5) of the Income Tax Act, 1961, by not claiming depreciation and the same has been accepted by the Income Tax department. The Bombay HC decision in CCE vs. Maharashtra Electrosmelt Ltd. - is also relied upon.
The Bench held -
“7. The Commissioner (Appeals) has discussed in the impugned order that the appellant has filed returns for the year 2008-09 and 2009-10 but they have not filed the return for the year 2007-08. In fact, the Commissioner (Appeals) does not have any knowledge of the assessment year for the income tax purpose which clearly says that for the period 01.04.2007 to 31.03.2008, the assessment year is 2008-09. As the appellant has filed revised return and did not claim depreciation on those capital goods by producing the IT Return, therefore, they are entitled for CENVAT credit for the capital goods as per the judgement of the Hon'ble High Court of Bombay in the case of Maharashtra Electrosmelt Ltd. (supra). Accordingly, I set aside the impugned order and allow the appeal with consequential relief. Stay application is also disposed of in the above terms.”
It is hard to believe that a Commissioner, who must have been filing IT return every year, does not know this simple fact!
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