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TMI Blog2017 (6) TMI 445X X X X Extracts X X X X X X X X Extracts X X X X ..... ime barred by 17 days. However, the Ld. Counsel for Assessee [AR] drew our attention to the fact that the order of the Ld. CIT(A) was passed on 27/02/2015 and the same was communicated to the assessee on 09/04/2015 and the assessee has filed the appeal on 15/05/2015 which is within the statutory time period of 60 days and therefore, there was no delay in filing the appeal. The assessee inadvertently mentioned the wrong date of communication or order in Form No. 36 which has since been revised. The Ld. DR fairly conceded the same and could not controvert the said fact. Therefore, finding the appeal being filed within the statutory time limit, we proceed with the same on merits. 3. Facts leading to the dispute are that the assessee, being re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urned income was 'Nil' under normal provisions after set-off of unabsorbed depreciation and brought forward losses of earlier years and therefore, the assessee paid taxes on book profits of Rs. 6.32 crores u/s 115JB. In the quantum assessment, the assessee suffered additions of Rs. 69.63 Lacs in total out of which penalty proceedings were initiated against addition of Rs. 49.00 Lacs on account of expenses debited to Profit & Loss Account towards increase in authorized capital. However, the same were inadvertently claimed and the assessee upon noticing the error, accepted the quantum additions and did not file any further appeal before First Appellate Authority. However, the said addition / adjustment did not affected the assessee's tax liab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident from the record that the returned income and assessed income under normal provisions have been computed as 'Nil' after set-off of unabsorbed depreciation and brought forward business losses. The quantum addition of Rs. 69.63 Lacs has resulted into adjustment in the figures of unabsorbed depreciation & brought forward business losses. The tax payable figures of Rs. 1.07 crores on book profits u/s 115JB has been accepted by the revenue as evident from 'Income Tax Computation Form' issued pursuant to assessment u/s 143(3) as placed on Page No. 54 of the paper book. 9. At this juncture, it would be prudent to extract the relevant portion of CBDT circular No. 25/2015 dated 31/12/2015 which reads as follows:- "Penalty under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to be evaded for situations even where the income determined under the general provisions is less than the income declared for the purpose of MAT u/s 115JB of the Act. The substituted Explanation 4 is applicable prospectively w.e.f. 1-4-2016. 5. Accordingly, in view of the Delhi High Court judgment and substitution of Explanation 4 of section 271 of the Act with prospective effect, it is now a settled position that prior to 1-4-2016, where the income tax payable on the total income as computed under the normal provisions of the Act is less than the tax payable on the book profits u/s 115JB of the Act, then penalty under section 271(1)(c) of the Act, is not attracted with reference to additions/disallowances made under normal provisions. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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