ITAT, MUMBAI BENCH ‘B’
Irrespective of the method followed by an assessee for accounting excise duty, adjustments as specified under section 145A are to be made; when the statute requires a particular methodology of adjustments for tax, duty, cess or fee then it is to be done ditto; neither the Assessing Officer nor the Commissioner (Appeals) are having any powers to make any variation thereon
DCIT v Hitech Plast Containers (I) Ltd.
ITA No. 4726/M/07
March 25, 2009
We have verified the orders and heard:the rival contentions. There is no dispute that there was a qualification in the auditors report whereby the auditors had mentioned Rs.27,47,258/- as the adjustment required u/s. 145A of the Act for the purpose of valuing the closing stock. Copy of the computation statement for the relevant Assessment Year filed by the assessee show that it had made a suo motu addition of such amount to its profits. However deduction of an equivalent sum was also claimed relying on Section 43A of the Act. As for the adjustments required U/S.145A of the Act Hon’ble Delhi High Court in the case of CIT Vs. Mahavir Aluminium Ltd. 297 ITR 77 has held that for valuation of closing stock adjustment on account of excise duty and modvat credit has necessarily to be done as stipulated in Section 145A of the Act, If we go through section 145A of the Act the adjustments required on account of the amount of tax, duty, cess or fee actually paid or incurred by the assessee needs to be made for the valuation of purchase, sale of goods and inventory. Therefore, if assessee irrespective of the method followed by an assessee for accounting excise duty, adjustments as specified U/S.145A of the Act are to be made. We find that the Id. Assessing Officer had simply relied on the comments in the auditors report for the adjustments to be carried out on closing stock on account of unutilized modvat credit balance but had not applied the Section in toto. Ld. Assessing Officer ought have made the adjustment after considering the effect of duty payments on purchases, sale of goods and closing as well as opening inventory. Only thereafter the actual amount which was required to be added u/s.i45A, if any, could have been ascertained. Ld. CIT(A) without having properly appreciating the law as contained in Sectionl45A of the Act, has simply accepted assessee's contention that whatever be the method followed by the assessee it would not affect its profit. It is not the question of what effect would be there on the profits but when the statute requires a particular methodology of adjustments for tax, duty, cess or fee then it is to be done ditto. Neither the Assessing Officer nor the CIT(A) are having any powers to make any variation thereon. As for the contention of the assessee that Section 43B would apply since it had paid the excise duty at the time of purchase itself, we are afraid we cannot accept it. No doubt, assessee can claim expenses for all duty payments it had made during the relevant previous year according to the method it was regularly following. Section 43B debars only such debits of tax duties, cess or fee which were not actually paid by the assessee. Therefore, all taxes and duties paid by the assessee during the currency of the previous year would no doubt be allowable to it even without relying on section43B of the Act. Therefore, in order to correctly ascertain the disallowance if any that needs to be made U/S.145A of the Act we are of the opinion that the Assessing Officer has to examine the issue afresh. Therefore, in the interest of justice we set aside the orders of CIT(A) and Assessing Officer in this regard and remit the matter back to the Assessing Officer for ascertaining the disallowance if any to be made U/S.145A of the Act after taking into account the adjustments that are to be made in all the three elements viz. purchases, sales and inventories in respect of tax, duties and cess paid or incurred by the assessee. In the result, ground No. 1 of the Revenue stands allowed for statistical purposes