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TMI Blog2017 (12) TMI 786X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the angle of the assessee. As far as assessee is concerned, it had simply discharged the statutory dues comprising of tax, surcharge and cess to the Union of India and hence if paid in excess, would be eligible for either refund or adjustment as contemplated u/s 115JAA of the Act. If the version of the ld CITA is to be accepted, then it would result in an situation wherein if the assessee is entitled for refund, he would not be entitled for refund on the surcharge and cess portion. This cannot be the intention of the legislature and it is already well settled that the tax is to be collected only to the extent as authorized by law in terms of Article 265 of the Constitution and the department cannot be unjustly enriched with the surc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act at ₹ 92,42,889/- and determined the tax payable thereon at ₹ 17,13,632/- including surcharge and cess. 3.2. The assessee computed the MAT credit u/s 115JAA of the Act to be adjusted in future years at ₹ 29,79,157/- ( 46,92,789 17,13,632). 4. This return was processed u/s 143(1) by Centralized Processing Centre, Bangalore (in short CPC ) wherein the total income under normal provisions of the Act was determined at ₹ 1,41,27,460/- and tax @ 30% thereon was determined at ₹ 42,38,238/-. 4.1. In the said intimation u/s 143(1) the book profit u/s 115JB of the Act was determined at ₹ 92,42,889/- and tax @ 18% was determined at ₹ 16,63,720/-. 4.2. Accordingly, the CPC in the intimatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 2(43) of the Act defines tax as tax in relation to the assessment year commencing on the 1st day of April, 1965, and any subsequent year means income tax chargeable under the provisions of this Act and in relation to any other assessment year income tax and super tax chargeable under the provisions of this Act prior to the aforesaid date [ and in relation to the assessment year commencing on the 1st day of April, 2006, and any subsequent assessment year includes the fringe benefit tax payable under section 115WA]. Thus, it is clear that while working out the tax credit u/s 115JAA, only income tax is to be considered and not the surcharge and the education cess. Hence, the tax calculation is held to be rightly done in this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made in the Intimation u/s 143(1) of the I.T. Act, 1961 is beyond the scope of the Act. Thus, the same is bad in law. 3. For that in the facts and circumstances of the adjustment in respect of credit u/s 115JAA of the I.T. Act, 1961 made in the intimation passed u/s 143(1) of the Income Tax Act, 1961 was beyond the scope of the said section hence, the said order be quashed. 4. For that in the facts and circumstances of the assessing officer erred in overcharging surcharge and the assessing officer be directed to recomputed the same as per law. 5. For that in the facts and circumstances of the assessing officer erred in under allowing credit u/s 115JAA of the I.T. Act, 1961 the assessing officer be directed to allow the cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dispute is covered in favour of the assessee by the Co-ordinate Bench of Hyderabad Tribunal relied upon by the Ld. AR (supra). We find that Hyderabad Tribunal after considering the decision of Delhi Tribunal (supra) and after considering the decision of the Apex Court in the case of CIT vs. K. Srinivasan reported in 83 ITR 346 (SC) had held that tax includes surcharge and cess and accordingly the entire component of taxes including surcharge and cess shall have to be reckoned for calculating the MAT credit u/s 115JAA of the Act. We also find that the Hon ble Apex Court had in the case referred to supra, had held that meaning of word surcharge is nothing but an additional tax . In our considered opinion, this understanding of surcharge an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... while calculating the interest on assessed tax u/s 234B of the Act, meaning thereby, the assessed tax shall be determined after reducing the entire MAT credit u/s 115JAA of the Act for the purpose of calculating interest u/s 234B of the Act. We find that this is clinching evidence of the intention of the legislature not to deprive any credit of any payment of surcharge and cess made by the assessee either in the MAT or under the normal provisions of the Act. It is not in dispute that the surcharge and cess portion was not paid by the assessee along with the tax portion. The bifurcation of the total payment of taxes by way of tax, surcharge and cess is only for the administrative convenience of the Union of India in order to know the purpo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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