9911796707
TMI Blog2010 (6) TMI 586X X X X Extracts X X X X X X X X Extracts X X X X ..... se of the assessee falls under section 115JB of the Act and not under section 115JA. - Decided in favor of revenue. - 3158 of 2005 - - - Dated:- 30-6-2010 - PATIL N. K., NAGARATHNA B. V. MRS. JJ. JUDGMENT N. K. Patil J.- 1. This appeal by the Revenue is directed against the impugned order dated June 7, 2005, passed in I. T. A. No. 383/Bang/2005 by the Income-tax Appellate Tribunal, Bangalore Bench "A", reversing the orders passed by the appellate authority and the Assistant Commissioner of Income-tax, Circle-12(2), Bangalore, for consideration of the following substantial questions of law : "(1) Whether the law declared by this hon'ble court in Kwality Biscuits [2000] 243 ITR 519 (Karn) holding that no levy of interest can be made under sections 234B and 234C of the Act when computation of total income is made under section 115J of the Act can also be extended to computation of total income made under section 115JA of the Act which commences with a non obstante clause to compute the total income in accordance with the book profits, as contemplated in the said section and saves all other provisions of the Act under sub-section (4) of the said section which would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeal in I. T. A. No. 383/Bang/2005 for the assessment year 2001-02. The said matter came up for consideration before the Income-tax Appellate Tribunal, Bangalore Bench "A" ("the Tribunal" for short) on June 7, 2005, and the Tribunal, after hearing the parties through their counsel and after going through the relevant material available on the file, has proceeded to allow the appeal filed by the assessee holding that the interest under sections 234B and 234C of the Act is not chargeable where assessment is madeunder section 115JA of the Act. Being aggrieved by the said order passed by the Tribunal the Revenue felt necessitated to present this appeal for considering the aforesaid substantial questions of law. 3. Learned senior standing counsel appearing for the Revenue at the outset submitted that the Tribunal has committed a grave error in allowing the appeal filed by the assessee by holding that even when the assessment is made under section 115JA of the Act the decision of this court in the case of Kwality Biscuits Ltd. v. CIT [2000] 243 ITR 519 (Karn) would apply. He submitted that the said reasoning cannot be sustained and is vitiated in view of sub-section (4) of section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 115JA, the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 1997, but before the 1st day of April, 2001, is less than 30 per cent. of its book profit, the total income of such assessee chargeable to tax for the relevant previous year shall be deemed to be an amount equal to thirty per cent. of such book profit, whereas as per section 115JB of the Act the income-tax payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after April 1, 2001, is less than seven and one-half per cent. of its book profit, such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income-tax at the rate of (seven and one-half per cent.) He further submitted that section 115JB of the Act is applicable to the case of the assessee, but this aspect of the matter has not been looked into nor considered by the Assessing Officer or by the first appellate authority and, hence, the matter may be reconsidered by the Assessing Officer. 5. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case of Kwality Biscuits [2000] 243 ITR 519 (Karn) was not with reference to section 115JA which specifically provides that all other provisions of the Income-tax Act shall apply to every assessee in sub-section (4). Further, reference was made to the Central Board of Direct Taxes Circular No. 13 of 2001 issued in the context of section 115JB as per which the companies covered by the provisions of section 115JB which were liable to pay advance tax and, consequently, the Appellate Commissioner held that the provisions of sections 234B and 234C were applicable as the provisions of section 115JB were similar to section 115JA. Therefore, he held that the Board's circular was relevant to section 115JA also. Therefore, the assessee's contention that there was no mistake apparent from the records warranting rectification under section 154 of the Act was not accepted and accordingly, the appeal was dismissed. The assessee further filed an appeal before the Tribunal, who allowed the appeal of the assessee by stating that though a provision similar to sub-section (4) of section 115JA was not found in section 115J the ratio of the decision of this court in Kwality Biscuits' case [2000] 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ming fiction so as to include other provisions of the Act which is not specifically made applicable. 12. However, what is being considered in this case is that the assessee's case falls under section 115JB. Under section 115JB of the Act, sub-section (5) clearly states that other provisions of the Act shall apply to every assessee being a company, save as otherwise provided in the said section. In this context, Circular No. 13 of 2001 has also been issued by the Central Board of Direct Taxes as per which companies covered by the provisions of section 115JB are liable to pay advance tax and, consequently, sections 234B and 234C of the Act are applicable. The Commissioner (Appeals) made a reference to the circular, but erroneously noted that the case of the assessee was under section 115JA of the Act and by placing reliance on the said circular, dismissed the appeal of the assessee. Learned counsel for the respondent-assessee has categorically stated that the case of the assessee falls under section 115JB then sub-section (5) of the said section isapplicable and, therefore, the provisions regarding interest are applicable to the assessee. In the case of Kwality Biscuits [2000] 24 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
