2008 (9) TMI 29 - HC - Income Tax

Re-computation of income u/s 115JA - Tribunal was right in holding that AO can compute depreciation u/s 32 on the rates provided in appendix-I to I.T. Rules for computing total income, but he cannot disturb the book profit, which has been certified to be drawn as per the companies act - Therefore order passed by AO was not erroneous - Since it was not erroneous, it could not have been termed to be prejudicial to the interest of revenue re computation not required revenue appeal dismissed

Issues:
1. Appeal against order passed by Income Tax Appellate Tribunal.
2. Jurisdiction of Assessing Officer to re-compute income under Section 115JA.
3. Applicability of Supreme Court decision in Apollo Tyres Ltd case.
4. Determination of the correct section under which the case falls - Section 115JA or Section 115JB.
5. Analogy between provisions of Section 115JA and Section 115JB.
6. Application of decision in CIT v. Covai Maruthi Paper and Board (P) Ltd.
7. Authority of Assessing Officer to compute depreciation under Section 32.
8. Disturbance of book profit certified in Profit and Loss Account.
9. Pre-conditions for invoking jurisdiction under Section 263 of the Income Tax Act.
10. Whether the order passed by Assessing Officer was erroneous and prejudicial to the interest of the revenue.

Analysis:

1. The appeal was filed by the revenue against the order of the Income Tax Appellate Tribunal related to the assessment year 1998-99. The main contention was the direction given by the Commissioner Income Tax to re-compute income under Section 115JA due to excess depreciation claimed by the assessee.

2. The Tribunal referred to the Supreme Court decision in Apollo Tyres Ltd case, emphasizing that the Assessing Officer cannot disturb the book profit certified in the Profit and Loss Account, except as provided in the Explanation to Section 115J. The Tribunal held that the Assessing Officer's order was not erroneous, a prerequisite for invoking jurisdiction under Section 263.

3. The Supreme Court in Apollo Tyres Ltd case clarified that the Assessing Officer's power is limited to examining if the books of account are certified to be maintained in accordance with the Companies Act and making adjustments as per the Explanation to Section 115J.

4. The Tribunal incorrectly categorized the case under Section 115JB instead of Section 115JA. However, the decision in the case of CIT v. Covai Maruthi Paper and Board (P) Ltd was deemed applicable. The Tribunal's error in section classification did not impact the final decision.

5. The Tribunal's analysis of the provisions of Section 115JA and Section 115JB being analogous was deemed unnecessary for the appeal's outcome. The decision in Covai Maruthi Paper and Board (P) Ltd was directly relevant to the case, irrespective of the incorrect section reference by the Tribunal.

6. The Assessing Officer's authority to compute depreciation under Section 32 was highlighted, emphasizing that the book profit certified in the Profit and Loss Account should not be disturbed.

7. The Tribunal concluded that since the Assessing Officer's order was not erroneous, it could not be considered prejudicial to the revenue's interest, leading to the setting aside of the Commissioner's order under Section 263.

8. The judgment affirmed the Tribunal's decision, stating that no substantial question of law arose for consideration, ultimately dismissing the appeal.

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