9911796707
TMI Blog2012 (7) TMI 407X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the case are that the assessee company is a 50:50% joint venture of NTPC and SAIL. It owns captive thermal power plant located at Bhilai Steel Plant. It has filed its return of income on 29.10.2005 decalring nil income. The case of the assessee was selected for scrutiny assessment and a notice under section 143(2) of the Income-tax Act, 1961 was issued on 5th October, 2006. The notice was served upon the assessee. On scrutiny of the accounts, it revealed to the Assessing Officer that there is an increase in share capital by Rs. 80 crores. He directed the assessee to furnish the details of the share capital. The assessee informed the Assessing Officer vide letter dated 12.10.2007 that an amount of Rs.178,94,500 was paid to the Regis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as ultimately been determined under sec. 115JB and no addition or adjustment has been made by the Assessing Officer in the computation of book profit meant for section 115JB of the Act. He drew our attention towards page 2 of the assessment order where learned Assessing Officer has observed as under: "Computation of Tax Liability as per Section 115JB of the Act. Book Profit 72679806 Total Tax Payable u/s. 115JB of the Act 5699005 Assessee at nil. As the tax payable under normal provisions of the Act is less than the tax payable under special provisions of the Act, the tax payable is determined on the book profit. Penalty proceedings u/s. 271(1)(c) of the Act are separately initiated. Interest u/s. 234B and 234C is charged as per law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome and that loss has been reduced in the assessment order for being carried forward then the differential amount of loss would represent concealed income of the assessee and penalty could be imposable. He pointed out in such case also there cannot be any tax sought to be evaded because ultimate income is a loss but the assessee will claim benefit of carry forward of such loss which will be adjusted against future income. In the present case also, the assessee would ultimately claim MAT credits. 7. We have heard the rival contentions and gone through the record carefully We find that Hon'ble High Court has considered the judgment of Hon'ble Supreme Court also in the case of Gold Coin Health Food Pvt. Ltd. (supra). Hon'ble High Court has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, it will be difficult to sustain the penalty proceedings. Reason is simple. No doubt, there was concealment but that had its repercussions only when the assessment was done under the normal procedure. The assessment as per the normal procedure was, however, not acted upon. On the contrary, it is the deemed income assessed under sec. 115JB of the Act which has become the basis of assessment as it was higher of the two. Tax is thus, paid on the income assessed under sec. 115JB of the Act. Hence, when the computation was made under sec. 115JB of the Act, the aforesaid concealment had no role to play and was totally irrelevant. Therefore, the concealment did not lead to tax evasion at all". 8. In the present case, learned Assessing Office ..... X X X X Extracts X X X X X X X X Extracts X X X X
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