9911796707
TMI Blog2015 (12) TMI 971X X X X Extracts X X X X X X X X Extracts X X X X ..... 01, claiming following substantial questions of law:- I. Whether on the facts and circumstances of the case, the ITAT was right in law in allowing the set off of tax credit under section 115J (correct provision is Section 115JAA) for the purpose of calculation of interest under section 234B of the IT Act ignoring the fact that there is no provision in law warranting such set off? II. Whether on the facts and circumstances of the case, the ITAT was right in law in directing that depreciation should be worked out with reference to the WDV computed as a result of order passed under section 250(6) of the IT Act for the assessment year 1998-99? 2. A few facts relevant for the decision of the controversy involved as narrated in the appeal may be noticed. The assessee company filed its returns on 30.11.2000 declaring income at ₹ 12,33,12,265/- under section 115J of the Act which was processed under Section 143(1)(a) of the Act on 30.3.2001. Later on, the assessee company revised its return of income on 30.10.2001 declaring income at ₹ 12,22,50,282/- under section 115J of the Act which was processed under section 143(1)(a) of the Act on 30.4.2002. The case of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act and determine the interest payable under Section 234B of the Act thereafter. Noticing the scheme of Section 115JAA of the Act, it was recorded as under:- 6. The relevant provisions under Section 115JAA of the Act, introduced by Finance Act, 1997 w.e.f. 1.4.1997, i.e., applicable for assessment years 1997-98 and onwards, governing the carry forward and set off of credit available in respect of tax paid under Section 115JA, show that when tax is paid by the assessee under Section 115JA, then the assessee becomes entitled to claim credit of such tax in the manner prescribed. Such a right gets crystallized no sooner the tax is paid by the assessee under Section 115JA, as per the return of income filed by that assessee for a previous year (say, year one). [See Section 115JAA(1)]. The said credit gets limited to the tax difference between tax payable on book profits and tax payable on income computed under the normal provisions of the Act [see Section 115JAA(2)] in year one. Such credit is, however, allowable for a period of five succeeding assessment years, immediately succeeding the assessment year in which the credit becomes available (say years 2 to 6) [See Section 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect to final determination only on adjudication of assessment either under Section 143(1) or under Section 143(3). The fact that the amount of tax credit to be allowed or to be set off is not frozen and is ambulatory, does not take away/ destroy the right of the assessee to the amount of tax credit. 9. Further, it was concluded by the Apex Court as under:- 9. We have discussed herein above the scheme of Section 115JA(1) and Section 115JAA. The entire scheme of Sections 115JA(1) and 115JAA shows that if an assessee is entitled to a tax credit as a consequence of the assessee making payment of tax under Section 115JA(1) in the year one, then, the set off of such tax credit follows as a matter of course once the conditions mentioned in Section 115JAA are fulfilled and the grant of such credit is not dependent upon determination by the A.O. save and except that the ultimate amount of tax credit to be allowed will be dependent upon the final determination of the total income for the first assessment year. There is no provision under Section 115JAA which postpones the right of the assessee to claim set off to the determination of the total income by the A.O. in the first assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epting the contention of the assessee directed the Assessing officer to compute the interest under section 234B of the Act after reducing the tax credit available under section 115JAA of the Act and giving the credit of the taxes paid. The said finding was affirmed by the Tribunal. The finding recorded by the CIT(A) on this question reads thus:- For the sake of setting the matter to rest with finally, the computation of interest under section 234B as computed by the AO and as per appellant's claim is : As per AO (Rs.) As per appellant (Rs.) Tax as per order under section 143 (3) dated 12.3.2003 59,554,190 59,554,190 Less : Set off of tax credit under section 115JAA 12,622,912 As per AO (Rs.) As per appellant (Rs.) Net Tax payable 59,554,190 46,931,279 Less: Taxes paid (TDS and advance Tax) 46,032,203 46,544,770 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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