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TMI Blog2018 (5) TMI 1268X X X X Extracts X X X X X X X X Extracts X X X X ..... he deeming provisions of Section 115 J of the Act? 4. The assessment for the year 1990-91 was initially completed by the respondent on 10.01.1995 under Section 143 (3) read with Section 147 of the Act at a total taxable income of Rs. 23,16,306/- and in terms of Section 115 J of the Act. The respondent, while completing the assessment, levied interest under Section 234 B of the Act. Challenging the said order, raising several grounds, the assessee preferred an Appeal before the Commissioner of Income Tax (Appeals) [CIT (A)], Coimbatore. So far as the levy of interest under Section 234 B was concerned, the question was answered in favour of the Revenue and against the assessee. Challenging the said finding of the CIT (A), the assessee preferred an Appeal to the Tribunal, contending that, the interest under Section 234 B is inapplicable to tax under Section 115 J. The Tribunal, following the decision of the Division Bench of this Court in CIT (A) Vs. Geetha Ramakrishna Mills Pvt. Ltd., reported in [(2007) 288 ITR 489] held that, interest under Sections 234 A, 234 B and 234 C can be levied even if income is computed under Section 115 J. Challenging the said finding, the present Appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Section 115 J. The Division Bench reviewed the earlier order by allowing the assessee's Appeal and consequently dismissing the revenue's Appeal. 8. The learned Standing Counsel for the Revenue submitted that the decision of the Division Bench of this Court in the case of Geetha Ramakrishna Mills Pvt. Ltd. (supra) squarely applies to the facts of the present case and in the said decision, the Division Bench considered the judgment of the Karnataka High Court in Kwality Biscuits (supra) but followed the decisions of other High Courts, in Guwathi, Madhya Pradesh, Bombay, Punjab and Haryana, and therefore, held that even where the assessment was made under Section 115 J, interest could be levied. 9. We have heard the learned counsel appearing for the parties and perused the materials placed on records. 10. The Hon'ble Supreme Court, in the case of Rolta India Ltd., (supra) considered the correctness of an order passed by the Karnakata High Court in the case of Kwality Biscuits (supra) and the question, which arose for determination is as to whether interest under Section 234 B could be charged on the tax calculated on book profits under Section 115 JA. In the said c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Madhya Pradesh High Court in Itarsi Oil and Flours (P.) Limited v. CIT reported in (2001) 250 ITR 686 as also by the Bombay High Court in the case of CIT v. Kotak Mahindra Finance Ltd. reported in (2003) 130 TAXMAN 730 which decided the issue in favour of the Department and against the assessee. It appears that none of the assessees challenged the decisions of the Gauhati High Court, Madhya Pradesh High Court as well as Bombay High Court in the Supreme Court. However, it may be noted that the judgment of the Karnataka High Court in Kwality Biscuits Ltd. was confined to Section 115J of the Act. The Order of the Supreme Court dismissing the Special Leave Petition in limine filed by the Department against Kwality Biscuits Ltd. is reported in (2006) 284 ITR 434. Thus, the judgment of Karnataka High Court in Kwality Biscuits stood affirmed. However, the Karnataka High Court has thereafter in the case of Jindal Thermal Power Company Ltd. v. Dy. CIT reported in (2006) 154 TAXMAN 547 distinguished its own decision in case of Kwality Biscuits Ltd. (supra) and held that Section 115JB, with which we are concerned, is a self-contained code pertaining to MAT, which imposed liability for payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined that the Appeal filed by the Revenue against the judgement of the Karnataka High Court in the case of Kwality Biscuits Ltd., (supra) was dismissal simpliciter and would not be a declaration of the law. However, as pointed out by us earlier, it were the Civil Appeals, which were dismissed by the Hon'ble Supreme Court and not the Special Leave Petitions. In this regard, useful reference may be made to the decision of the Hon'ble Supreme Court in the case of Kunhaymmed and others Vs. State of Kerala and another reported in (2000) 245 ITR 360 (SC), wherein, it is held as follows :- "i) Where an appeal or revision is provided against an order passed by a Court, Tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision by the subordinate forum merges in the decision by the superior forum and it is the latter, which subsists, remains operative and is capable of enforcement in the eye of law. ii) The jurisdiction conferred by Art. 136 of the Constitution is divisible into two stages. First stage is upto the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffirmation. vii) On an appeal having been preferrred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter, as provided by sub-r (1) of r(1) of O.47 of the CPC." 13. In the light of the above, the decision of the Division Bench of this Court in Geetha Ramakrishna Mills Pvt. Ltd's case (supra) is no longer good law. We note that, in the case of Rolta India Ltd., (supra), the Hon'ble Supreme Court took note of the contrary views taken by the other High Courts, viz., Guwathi, Madhya Pradesh, Bombay, Punjab and Haryana High Courts to the decision of the Karnataka High Court in Kwality Biscuits (supra). However, it appears that the decision rendered by the Division Bench of this Court in Geetha Ramakrishna Mills Pvt. Ltd., case (supra) was not brought to the notice of the Hon'ble Supreme Court and the Hon'ble Supreme Court having held that the law laid down by the Karnataka High Court in the case of Kwality Biscuits Ltd., (supra) having been confirmed by the Hon'ble Supreme Court as correct legal principle, the decision of the Division Ben ..... X X X X Extracts X X X X X X X X Extracts X X X X
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