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TMI Blog2007 (4) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... wing the loss of Rs. 21,42,63,384 had been prepared as per the requirement of Parts I and II of Schedule VI of the Companies Act and no adjustment on account of above referred provisions, could have been made to the same so as to compute the book profit under section 115JA. 4. Because otherwise also the said adjustment, so as to work out the book profit under section 115JA, were beyond the purview of processing the return under section 143(1)( a ) and computation of book profit (as a result of such adjustment) as Rs. 46,88,555 is wholly erroneous and the same deserves to be taken as nil , as have been shown in the revised return. 5. Because in any case the entire tax liability as was attributable to the book profit under section 115J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to Book Profit under section 115JA. The issue has been decided against the assessee by the Hon ble Guwahati High Court in Assam Bengal Carriers Ltd. v. CIT 239 ITR 862 and Hon ble M.P. High Court in the case of Itarsi Oils and Flours (P.) Ltd. v. CIT 250 ITR 686. It may be appropriate to quote a passage from the decision of Lord Asquith in East End Dwellings Co. Ltd. v. Finsbury Borough Council (1951) 2 All ER 587, 599 (HL) to the effect: If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real, the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. The stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... its Ltd. [2006] 284 ITR 434 in which they have affirmed the order of Hon ble Karnataka High Court in Kwality Biscuits Ltd. v. CIT [2000] 243 ITR 519 wherein it was held that in the case of an assessment of a company on the basis of book profit under section 115J, since the entire exercise of computing income under section 115J can only be done at the end of the financial year and the provision of sections 207 to 210 cannot be made applicable until and unless the accounts are audited and the balance sheet prepared, the department could not charge interest under section 234B/234C. Thus, according to learned A. R. the decision is covered in favour of the assessee. He therefore pleaded that the issue be decided in his favour whereas for ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Co. Ltd. v. Dy. CIT [2006] 286 ITR 182 has been relied upon. Hon ble Karnataka High Court has considered the provisions of section 115JB and held that sub-section (5) in that section makes material difference with section 115J and, therefore, decision of Kwality Biscuits Co. s case ( supra ) which was given in the context of section 115J would not be applicable to the charging of interest under section 234B. The provisions of sub-section (5) of section 115JB are pari materia with the provisions of sub-section (4) of section 115JA. Sub-section (4) of section 115JA and sub-section (5) of section 115JB clearly provide that the provisions of the Act would be applicable to the computation of income under these sections unless otherwise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 259 ITR 10 (SC), it was held by Hon ble Supreme Court that a precedence has to be followed provided the facts are the same, no new facts are brought on record, there is no change in the circumstances under which earlier decision was given, there is no decision of higher court, and there is no change in the statutory provisions of law. In the present case, insertion of sub-section (4) in section 115JA and sub-section (5) in section 115JB have made a world of difference with section 115J. Once a statutory provision is made by way of sub-section (4) of section 115JA and sub-section (5) in section 115JB to apply all the provisions of the Act unless otherwise provided in those sections, then one has to see that the assessee pays advance tax in a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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