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TMI Blog2014 (1) TMI 874X X X X Extracts X X X X X X X X Extracts X X X X ..... confirming the computation of book profit made by the AO for the purpose of section 115J after rejecting the claim of the assessee for set off of unabsorbed depreciation and brought forward business loss – the order of the CIT(A) upheld – Decided against Assessee. Charging of Interest u/s 234B of the Act – Held that:- The decision in CIT vs. Kwality Biscuits Ltd. [2006 (4) TMI 121 - SUPREME Court] Snowcem India Ltd. vs. DCIT [2009 (1) TMI 6 - BOMBAY HIGH COURT] followed – order of the CIT(A) deleting the interest levied by the AO u/s 234B when the income was computed u/s.115J upheld – Decided against Revenue. - I.T.A. No. 6163/Mum/2010, I.T.A. No. 6343/Mum/2010 - - - Dated:- 28-6-2013 - Shri P. M. Jagtap, AM And Shri Vivek Varma, JM, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessee although claimed along with the return unabsorbed depreciation or loss at Rs.46,21,588/- but that will not discharge the burden of the assessee. In our opinion, the assessee has to be prove that this claim has been worked out by the assessee as per the provisions of section 205 of the Companies Act, 1956. We, therefore, in the interest of justice and fair play to both the parties, set-aside the order of the CIT(A) on this issue and restore this issue to the file of the AO with the direction that the assessee will submit the relevant provisions of section 205 of the Companies Act and satisfy the AO that while computing the unabsorbed depreciation or loss the assessee can debit the Investment Allowance to the P L a/c as per the prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to be arrived at only after provision of Investment Allowance. Once this fact has been established that investment allowance is not an appropriation and is expenditure, the prot loss figure that can be taken for the purpose of calculation of profit under section 205 can only be after charge of Investment Allowance. In view of this for the purpose of calculation a figure of profit available for the purpose of section 205 of Companies Act is therefore after charge of investment allowance and hence for the purpose of calculation of book profit as provided in Section 11Sf of the Income Tax Act., it is only the figure after charge of Investment Allowance that con be taken explanation (iv) to Section 1 15J dearly required this to be done. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essee even to comply with the direction of the Tribunal to prove that claim for the set off of unabsorbed depreciation or brought forward business loss was in accordance with the provisions of section 205 of the Companies Act 1956. He noted that the assessee was further directed by the Tribunal to submit the relevant provisions to satisfy the Assessing Officer that while computing the unabsorbed depreciation or loss, Investment Allowance Reserve can be debited to the P L Account as per the relevant provisions of the Companies Act and found that even this direction of the Tribunal was not complied by the assessee. He held that the assessee thus could not explain satisfactorily as to how the brought forward business loss and unabsorbed depr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Tribunal to the file of the AO for afresh consideration with specific direction to the assessee to furnish the relevant particulars and to justify its claim on this issue on the basis of relevant provision of the Companies Act. As clearly pointed out that the AO as well as the ld. CIT(A) in their respective orders, the assessee, however failed to comply with the said directions and could not support and substantiate its claim on this issue by furnishing the relevant particulars and by justifying its claim on the basis of relevant provisions of the Act. Keeping in view this failure of the assessee to discharge the burden that lay on it to support and substantiate its claim by producing the relevant particulars and by referring to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Counsel for the assessee, the said decision was rendered by the Hon'ble Supreme Court in the context of section 115JA and distinction was clearly pointed out by the Hon'ble Supreme Court in the provisions of section 115J and 115JA observing that section 115JA contains specific provision making other provisions of the Act applicable to the MAT company. The ld. DR has also relied on the decision of the Hon'ble Bombay High Court in the case of CIT vs. Kotak Mahindra Finance Ltd. 265 ITR 119(Bom) where it was held that interest u/s. 234A, 234B, and 234C would be chargeable even where the assessment was made u/s 115J. In its decision rendered subsequently in the case of Snowcem India Ltd. relied upon by the ld. CIT(A) in his impugned order, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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