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TMI Blog2020 (1) TMI 457X X X X Extracts X X X X X X X X Extracts X X X X ..... rement, general corporate purposes followed by issue expenses only. This tribunal s recent decision in ACIT vs. West Gujarat Expressway Ltd. [ 2015 (5) TMI 305 - ITAT MUMBAI] allows similar instance of expenses of authorized share capital as amortizable falling under extension of the undertaking only. Thus the assessee s case comes u/s 35D(2)(ii) since in connection with extension of its undertaking only as evident from assessee s foregoing factual details. Section 80IA deduction and its exemption u/s 115JB MAT computation - treat the former assessment year 2010-11 as the lead assessment year - filing of belated revised return - HELD THAT:- The impugned section 80IA deduction claim on merits, is already covered by the tribunal common order (supra) in assessment years 2005-06 to 2009-10 that it is a developer having undertaken business risk in similar infrastructural projects. Revenue s pleadings in the instant appeal nowhere pinpointed any distinction in law and on facts in all these assessment years. It is further noted that the assessee has been deployed its fixed assets and also paid retention money to the payers concerned. All this sufficiently indicates that the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 164 in paper book dated 27.10.09 and other similar records comprising 1-854 pages that it had very well undertaken business risks by raising capital deployment of fixed assets for carrying out the necessary infrastructural development and complied with retention money stipulations as well(supra). The assessee has also been treated as a developer in earlier assessment years. We therefore conclude that the CIT(A) has rightly accepted the assessee s revised claim to allow its section 80IA deduction There is hardly any dispute that the impugned section 115JB MAT provision is in the nature of a non-obstante clause since containing the clinching statutory expression notwithstanding anything contained in any provision of the Act. There is no exception thereto in the relevant deduction provision u/s 80IA. We thus apply the legal latin maxim generalia specialibus non-derogant , i.e the general provision must yield to the special provision and hold in light of the coordinate bench s detailed discussion that the assessee s grievance seeking MAT exemption regarding its section 80IA deduction claim of ₹ 23,90,63,499/- does not carry any merit. The same stands rejected therefore. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment years in both assessment years as allowable deduction in law. MAT exemption of the impugned education cess - HELD THAT:- We find that the section 115JB Explanation 2(iv) and (v) makes it clear that the secondary and higher education cess(es) on income tax have been included in Explanation (1)(a) thereof. We therefore decline the assessee s latter grievance on the instant issue. Section 115JB MAT adjustment exemption regarding its retention money - HELD THAT:- After giving our thoughtful consideration to the rival contentions in favour and against the impugned relief, we notice that this issue is no more res integra since the tribunal s order in DCIT vs. M/s Mcnally Bharat Engineering Ltd. [ 2020 (1) TMI 203 - ITAT KOLKATA] holds that such a retention money cannot be regarded as income even for the purpose of computing section 115JB book profits. Learned coordinate bench holds that retention money does not partake character of income till the time the contractual obligation in issue are fully performed to the satisfaction of the payer/other parties concerned. We adopt the very reasoning mutatis mutandis and direct the Assessing Officer to grant the impugned section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... employment giving rise to communication gap between the management and the staff concerned. This entire episode also resulted in overlooking of appropriated MAT and other computation under the provisions of the Act. 4. Learned counsel submits that these crucial facts have seen light of the day only after change in assessee s management only. Hon ble apex court s decision in COLLECTOR LAND ACQUISITION VS. MST KATIJI ORS. [1987] 167 ITR 471 (SC) propounding of various parameters of condonation of delay; has been referred as under: 3. The legislature has conferred the power to condone delay by enacting Section 5 (Any appeal or any application, other than an application under any of the provisions of Order XXI of the CPC, 1908, may be admitted after the prescribed period if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period) of the Indian Limitation Act of 1963 in order to enable the Courts to do substantial justice to parties by disposing of matters on 'merits'. The expression sufficient cause employed by the legislature is adequately;' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the satisfaction of the tribunal. He submits that the assessee s condonation pleadings nowhere indicate the relevant circumstances beyond its control. Mr. Nayak states that delay in filing of a lis can only be condoned if the party concerned makes it a fit case by way of explaining the corresponding reasons beyond its control. Case law Ramlal, Motilal And Chhotelal vs. Rewa Coalfields Ltd. (1962) AIR 361(SC) that factual averments in support of condonation of delay explaining a sufficient cause only have to be accepted. 7. We have given our thoughtful consideration to the foregoing rival contentions regarding condonation of 1016 days delay in filing of assessee s cross-objection no.22/Kol/2019. It has already proved the assessee s clinching averments having faced insolvency proceedings right from the year 2017 i.e. during the prescribed limited period followed by change in management as well as quitting of jobs of its employees; have gone unrebutted from the Revenue side. We therefore go by hon ble apex court s decision (supra) giving precedence to the cause of substantial justice then technical aspects to condone the impugned 1016 days delay in filing. We make it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period prior to commencement of business nor in connection with extension of undertaking or setting up of a new unit . He therefore disallowed the assessee s section 35D amortization claim amounting to ₹ 112,60,00,000/-. 10. The CIT(A) has deleted the impugned disallowance as under: 5. Appeal on ground no 2 is against the disallowance of ₹ 11260000/- u/ s 35D of the I T Act, 1961. The AO in the assessment order has rejected the claim of the assessee made u/ s 35D as under: It transpires clearly that the expenditure in connection with IPO does not qualify for deduction u/ s 35D as neither it was before the commencement of business of the assessee nor in connection with extension of undertaking or setting up of new unit. Accordingly, the claim of deduction u/ s 35D to the tune of ₹ 11260000/ During the appellate proceedings the assessee has filed a written submission on this issue which is as under. During the financial year 2009-10, pertaining to assessment year 2010-11, the assessee company floated a public issue of its securities and complied with the provisions of the Indian Companies Act, 1956 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an extension Of undertaking (Photocopy of head note enclosed). It was similarly held in Ashok Leyland Ltd. v ACIT (6 SOT 200 [Chennai]) In the instant case, your good-self will appreciate that the proceedings of the IPO were utilized for the purposes of addition to fixed assets Of approximately ₹ 57 crores during the assessment year under consideration as well as succeeding assessment year by nearly ₹ 10 Crores. Similarly turnover of the company has effectively increased from ₹ 505 Cores in financial year 2008-09 to ₹ 992 Crores in financial year 2010-1 1. Therefore, both the pre conditions namely substantive investment by the company in the business assets as well as increase in the operations of the company are fulfilled and thus it can be safely stated that the conditions laid down in Section 35D have been duly complied with . I have considered the finding of the AO in the assessment order and the remand report and the written submission filed by the AO during the appellate proceedings. I find that the AO has not accepted the claim of the assessee because in the view of the AO the expenditure incurred has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... involving raising of funds having come into play in relevant previous year only. Mr. Tulsiyan also refers to assessee s investments compiled in items no.1 to 8 suggesting that the corresponding projects are otherwise eligible for section 80IA deduction as well. 13. Next comes the assessee s detailed paper book page 7 in latter assessment year 2011-12 indicating 98.99 per cent increase in turnover in assessment year 2009-10 (supra). Mr. Tulsiyan took us to assessee s objects of share capital as well and submits that the funds raised related to investment in capital equipment only as per page 24 of the paper book. 14. We have given our thoughtful consideration to the rival submissions in support of and against the CIT(A) s action deleting impugned section 35D amortisation disallowance. There can hardly be any dispute that this statutory provision prescribes amortisation of capital expenditure relating to specified items only u/s 35D which have been incurred; before the commencement of business or after the commencement of his business, in connection with the extension of its undertaking or in connection with his setting up a new industrial unit provid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not the Revenue s case that the case file does not contain the relevant details. We accordingly admit the assessee s petition seeking to raise to various additional grounds. 16. We thus proceed to deal with the instant issue of section 80IA deduction as well as MAT implications thereof and treat the former assessment year 2010-11 as the lead assessment year. 17. We notice from a perusal of the case file in former assessment year 2010-11 that assessee had filed its original return u/s 139(1) of the Act on 13.10.10. The department carried out a search in question in its office and other business premises on 28-29/10/2010. The Assessing Officer issued section 153A notice dated 20.07.2011 for assessment years 2005-06 to 2010-11 asking for return of income within 15 days of service thereof. This notice stood served on the very day itself. 18. The assessee filed its post-search return on 30.09.11 reiterating the earlier income (supra). It had admittedly not claimed the impugned section 80IA deduction in either of these two returns. The assessee rather chose to file revised return/computation dated 15.03.2013 claiming section 80IA deduction fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 as well as a similar memorandum issued in the same direction. The Assessing Officer finally concluded that the assessee s payments subject to section 194C TDS deduction sufficiently indicated that the concerned projects did not involve its business risk being a mere contractor only and therefore, he declined the impugned section 80IA deduction relief of ₹ 239063499/-. 21. The CIT(A) has reversed the assessment findings as under: 6. Appeal Ora ground 3 is against the disallowance Of ₹ 239063499/- 'a/s 80IA of the I T Act, 1961. Facts on issue are that the assessee filed its return of income u/s 139 on 30-03-2007, in which the assessee had claimed deduction u/s 801A(4) for an amount of ₹ 239063499/-. The assessee filed another return on 30-09-201 in response to notice u/ s 153A. In the return filed in response to notice u /s 133A, the claim of deduction u/s 80IA(4) was reduced to Rs.Nil, however on 15-03-2013 a revised computation of income was filed wherein deduction u/ s 801A(4) Was Claimed for ₹ 239063499/-. Reasons given by the assessee for filing a revised computation were as under: a) That the claim of ded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer to allow the same instead Of trying to act on behalf the and reject the same on technical grounds i) Consideration of fresh claim by the assessee during appellate proceedings During the Course Of submission on the Of the following citations. we have legally summarized that an appellate authority can accept fresh claims from the assessee and adjudicate On the same. VI Ascent Hydro Projects Ltd v I TO IT(Mum-ITAT-37 CCH - 14) VII. JCIT v Hero Honda Finlease Limited (115 TTJ 752) (Del) VIII. West Gujarat Expressway Limited v JCIT (ITAT Mum - ITA No. 5904/Mum/2012). IX. Sri Lakhan Singh v ACIT ITA 1025/Bang/201 1 (Photocopy of citation is enclosed) X. Ahmedabad Electricity Limited v CIT 199 199 ITR 51. j) Assessment proceeding if no incriminating documents found during search and seizure During the course of submission on the basis ofthe following citations, we have further argued that if no incriminating documents was found during search seizure the Original Assessment prevails. V. All Cargo Global Logistic Ltd. vs. D.C.I.T. VII. D.C.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim. l) Filing of revised claim: The assessee has argued that it is not a question of revised claim and hence the citation of officer in Assessment Order as well as in the remand report of Goetze India Ltd. vs. C.I.T. is not applicable. A distinction needs to be made between a fresh claim made during the assessment proceeding through a letter and revision of return. In a case where no claim was made in the return , the judgment in Goetze's' case is generally relied upon by the assessing officer, ignoring the Circular No. 14(XL-35) cited above. However, where necessary evidence in respect Of a claim is already on record but the quantum of deduction needs revision due to revision factors, the assessees' claim through a letter ought to be accepted. In such cases there is already a claim by the assessee and being no fresh claim, the judgment in Goetpe's case. with due respect shall not be applicable. The Allahabad HighCourt in CIT v. Dhampur Sugar Ltd. 90 ITR 236 (All.) made a distinction between revised return and a correction or return. It held that: There is distinction between revised return and a correcti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... When the Original return under section 139 was filed on 30th March. 2007, the assessee was eligible to claim deduction up to a sum of ₹ 6,74,70 537 but the claim amount was limited to the extent of total income i.e. ₹ 6,12,05,468 on account Of lack of adequate total income. The said claim Of the assessee was accepted by the Learned Assessing Officer in his order dated 31/12/2007. However, when the return under Section 153A was filed, the amount of claim was inadvertently limited to ₹ 4,67,51,981 on account of amendments to the provisions of section 801A of the Income-tax Act 1961 or otherwise. However, subsequently, it was categorically held by various Courts / Tribunals all over the country in similar cases that relief under section 801A (4) was to be extended to the assessees on account of impelling circumstances and hence the revised return and a revised computation was filed simultaneously before the Learned Assessing Officer prior to the completion of assessment under section 153A of the Income Tax Act, 1961 whereby the claim was revised to ₹ 6,74,70 537 In this regard, we enclose herewith the following documents:- 8. Audited statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Assessing officer has to deal with circumstantial evidence when he has to consider the same in totality Of the circumstances. J. It is the duty of an Assessing Officer to draw the attention of the assessee to the deductions, reliefs and refunds to which the latter is prima facie entitled to but has not claimed the same. Thus even if the assessee has not been able to claim a benefit or deduction available to him under the Income Tax Act, 1961 on account of ignorance of law or otherwise, it is the duty of the Learned Assessing Officer to compute the total income correctly which mandates that the claims available to the assessee have to be given to him after it is brought to his notice or he has attained knowledge about the same. In the instant case, your good-self will appreciate, that the assessee has not brought forward any fresh claim or facts. In its original return, which was available before the Learned Assessing Officer and which was filed on 30th March. 2007, the assessee had claimed the entire amount of ₹ 6,74,70,537 as eligible deduction under section 801A(4) of the Income Tax Act, 1961. All the facts pertaining to the said deduction were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 27th July. 2011 and hence out of the fifteen days allotted to the assessee, eight days had already elapsed on account of inadvertence of the Learned Assessing Officer and cannot be considered as having been given to the assessee company. Further, the Act does not provide for non acceptance of revised return perhaps simply on account of the fact that there exists the possibility of mischievous Calculation of the time allowed to the assessee for filing of the return under section 153A, it is humbly submitted. Therefore, the contention of the Learned Assessing Officer in trying to draw a comparison ejusdem generis of the provisions Of section 153A with the provisions of section 139 is far fetched and against the law of natural justice, it is humbly submitted. we therefore request your good-self to accept the revised return filed by the assessee before the Learned Assessing Officer as valid, it is humbly submitted 8. We would like to draw your kind attention to the judgment passed by the ITA T, Chennai Bench 'A', Assistant Commissioner of Income Tax, Central Circle-I (3) Chennai v. V. N. Devadoss (citation enclosed, Annexure-H) whereby it has been stated has not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erminus with that of the Assessing Officer the same ought to have been taken into Consideration but the CIT (A) relied upon the decision of the Supreme Court to come to the Continuously for the last many years in scrutiny assessments passed u/s 13(3) of the I T Act, 1961tjerfpte without bringing any change in material facts such deduction should be disallowed keeping in view the Principle of con consistency. Moreover, the AR has also filed a number of case Laws which are part of this order placed above. Keeping in view facts discussed above assessee's appeal on ground no 2 is allowed. 22. Learned CIT-DR reiterated the Assessing Officer s foregoing detailed reasoning. He invited our attention to assessee s revised return as well as computation as well which had not been accepted as valid as per the Assessing Officer s quoting section 139(1), (2), (4) and (5) of the Act (supra). Mr. Nayak quoted the relevant dates of assessee s original return, search, issuance of 153A notice and the return in response thereto (supra). It is further submitted that the assessee s revised return as well as revised computation came on 15.03.13 which could not have been accepted going b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... escribed in Chapter XIV(B) of the Act in sections 158B to n 158B(I) upto 31.05.2003 followed by search assessments by way of inserting section 153A to section 153D vide Finance Act 2003 w.e.f. 01.06.2003. His case is that the legislature had specifically provided time limit of filing return between 15 to 45 days in specified circumstances in a case involving block assessments u/s 158BC(1) and (ii) and as well as 2nd proviso thereto that an assessee furnishing return under the said clauses was not entitled to revise his return. Learned counsel accordingly submits that there is no such embargo in the new scheme of search assessments u/s 153A to 153C of the Act, wherein, the time limit of filing of return or revision thereof has not been prescribed. It is reiterated that we are dealing with an abated assessment u/s 153A(1) 2nd proviso and therefore, the impugned assessment is supposed to be that of total income u/s 153A(1)(b) of the Act. This tribunal s common order in assessee s cases itself in assessment years 2005-06, 2007-08 and 2009-10 at page 50 of the paper book declining the Revenue s very substantive grievance has also been quoted as under: 13. In the retur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his issue in the proceedings under section 153A read with section 143(3) and the disallowance made by the Assessing Officer to the extent of ₹ 4,49,85,993/- on account of assessee s claim for deduction under section 80IA, which was allowed in the original assessment and that assessment had become final, was not sustainable, especially when there was no incriminating material found during the course of search, which could form the basis of the said disallowance. Even the ld. D.R. has not disputed this position, which is clearly evident from the record including the assessment order passed by the Assessing Officer under section 153A read with section 143(3). We, therefore, find no infirmity in the impugned order of the dl. CIT(Appeals) deleting the disallowance made by the Assessing Officer on this issue and upholding the same, we dismiss Grounds No. 1 2 of the revenue s appeal. 25. Mr. Tulsiyan next submits that the assessee could not raise its impugned deduction claim in view of the corresponding statutory amendments followed by the CBDT s Memorandums (supra). Learned counsel states that the assessee s deduction claim of ₹ 23,90,63,499/- has been deriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rojects. 28. Coming to technical aspect involved in the instant lis regarding the filing of belated revised return, we find that hon ble apex court s judgment in NTPC (supra) settled the law long back that if the assessee is a legally entitled for a deduction claim which is not taxable and the corresponding claim can also be allowed to be raised for the first time even in section 254 proceedings. It has also come on record that the assessee had very well explained the reasons of having not raised the impugned scheme due to the corresponding legislative amendments in section 80IA followed by CBDT s explanatory memorandums. This tribunal in (2012) 22 taxmann.com 2(Hyderabad) ITO vs. S. Venkataiah also holds that an assessee s legally allowable claim which could not be raised owing to circumstances beyond its control and pressed later on by way of belated return, could not be declined on account of mere technicality. 29. Coming to the statutory aspect viewed from various legislative developments right from block to search assessments applicable up to 31.05.03 and w.e.f. 01.06.03 onwards; respectively, we find that the same sufficiently answer the Revenu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usal of assessee s corresponding development agreements running to pages 1 to 164 in paper book dated 27.10.09 and other similar records comprising 1-854 pages that it had very well undertaken business risks by raising capital deployment of fixed assets for carrying out the necessary infrastructural development and complied with retention money stipulations as well(supra). The assessee has also been treated as a developer in earlier assessment years. This tribunal s coordinate bench s order in ITO vs. M/s Simplex Projects Ltd. ITA No.194 251/Kol/2011 dated 17.01.2014 and its group companies case in ITA No.1684/Kol/2011 and 1685/Kol/2011 dated 18.06.2013 in Simplex Som- Dutt Builders J.V. and Simplex Subhash J.V.; respectively, considered all the statutory amendments in the Act up to insertion of explanation after section 80IA(13) to hold that such development agreements are eligible for section 80IA deduction. We therefore conclude that the CIT(A) has rightly accepted the assessee s revised claim to allow its section 80IA deduction of ₹ 23,90,63,499/- in issue. The Revenue fails in its second substantive grounds in former assessment year 2010-11 involving ITA No.77/Kol/2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed A.R. further submitted that provisions of Section 115JB were introduced to bring certain companies within the tax net, since they were showing book profit, but not paying any tax by availing various exemptions and deductions. He submitted that the assessee herein does not fall in the category of certain companies , referred to in the objective of introducing sec. 115JB of the Act and hence the provisions of Section 115JB should not be applied to the assessee. He further submitted the exemption given to the company under Section 80IB(10) of the Act shall represent the income which is not taxable and hence the same should be deducted while computing book profit. In this regard the learned A.R. took support of the decision rendered by the Hon'ble Supreme Court in the case of CIT vs. D.P. Sandhu Brothers 273 ITR 1 wherein it was held that receipts which are not taxable cannot be brought to tax net under any other Section. Accordingly the learned A.R. submitted that the assessee should be allowed deduction under Section 80IB(10) of the Act while computing book profit. He submitted that the Mumbai Bench of the Tribunal has considered identical issue in the case of Neha Home Build ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts of the present case. since the issue contested by the assessee relates to the claim for deduction under Section 80IB(10) of the Act while computing book profit. The learned D.R. submitted that the provisions of Section 115JB does not provide for deduction under Section 80IB(10) of the Act and hence the same could not be allowed. The learned D.R. further submitted that an identical issue was considered extensively by Hon'ble Karnataka High Court in the case of Sankhla Polymers P. Ltd. (supra) and he Hon'ble High Court has held that provisions of Section 115JB would apply to the assessee who is claiming deduction under Section 80IB of the Act and deduction under Section 80IB(10) of the Act cannot be allowed while computing book profit under Section 115JB of the Act. The learned D.R. further submitted that an identical view has been expressed by the Ahmedabad Bench of the Tribunal in the case of Ganesh Housing Corporation Ltd. (supra). The learned D.R. further submitted that the decision in the case of D.P. Sandhu Brothers (supra) was rendered by the Hon'ble Supreme Court in the context of computation of capital gains and hence the observations made therein cann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bring certain companies popularly called Zero Tax Companies into tax net by devising an alternative mechanism of collection of tax. These companies were not paying tax by availing various exemptions and deductions. Under these provisions, book Profit of the company is computed as per the methodology provided in sec.115JB of the Act. The income tax payable as per sec. 115JB is more than the tax payable under normal provisions of the Act, then the book profit computed u/s 115JB of the Act is taken as total income and tax shall be levied thereon as per the provisions of sec.115JB of the Act. It is pertinent to note that the methodology to compute Book Profit is prescribed in sec. 115JB of the Act. In our view, the provisions of sec.115JB(5) protects the methodology of computing Book Profit prescribed in sec. 115JB of the Act and hence the it begins with the expression save as otherwise provided in this section , i.e., except for the provisions specifically provided in sec. 115JB of the Act, all other provisions of the Act shall apply. In our view, this is the proper interpretation of sec. 115JB(5) of the Act. We notice that sec.115JB(5) of the Act was interpreted by the Ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been expressed by the Ahmedabad Bench of the Tribunal in the case of Ganesh Housing Corporation Ltd. (supra). 16. For the sake of convenience, we extract below the relevant observations made by Hon ble Karnataka High Court in the case of Sankhla Polymers P Ltd (supra):- 26. Section 115JB is in the nature of a special provision, a charging provision, and creating liability in respect of an assessee which is a company and whose taxes as determined on the returns filed in the normal manner falls short of the stipulated amount and a charge is created for making the difference i.e. the object of the legislation is to ensure a minimum tax of 7 % on the book profit as ascertained under Section 115JB is levied and collected from the companies whose payment of tax always without the application of this provision falls short of this amount of tax. 27. Though Sri Shankar, learned counsel for the appellant has called in aid not only the budget speech but also the circular issued by the board and the principles of promissory estoppel and legitimate expectation etc., we are afraid none of these principles are attracted for the simple reason t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch companies which are roped in within the scope of this section. It is because of this position, we are of the view that there is no occasion for the interpretation or examination of the principles of promissory estoppel or doctrine of legitimate expectation. The benefit under Section 80-IB is not denied, it works as it is. It is only because the assessee happens to be a company to which the provisions of Section 115JB is also attracted, levy as indicated therein becomes operative. Therefore, we do not find the applicability of the decisions relied upon by the learned counsel for the appellant-assessee on this aspect of the matter, in the present situation. 32. In so far as the reliance placed on the judgment of this court in the case of M/s United Breweries Ltd [supra] is concerned, while that was with reference to the provisions of Section 115JA and we are now examining the liability under Section 115JB of the Act. The scheme of charging under Section 115JB being totally different and not with reference to general rate, but with reference to a specified rate as indicated in Section 115JB itself i.e. 7 % of deemed income for the purpose of Section 115JB, we are a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in fact, in no way either denies the benefit given under Section 80-IB or reduces the same. While the appellant assessee can claim the benefit under Section 80-IB of the Act and it is not denied per se to the appellant-assessee, in the given case, the provisions of Section 115JB may be attracted or may not be attracted depending upon the nature or legal composition of the assessee. 36. In fact, the minimum alternate tax is sought to be levied earlier under Section 115JA and now under Section 115JB of the Act, only in respect of such companies which, by availing various concessions given in Chapter VI-A of the Act, are able to show either a nil taxable income or much reduced taxable income. Concession given under Section 80-IB is also one such and therefore no exception can be taken. Only in respect of the availability of a concession under Section 80-IB and to make it immune from the applicability of the provisions of Section 115JB of the Act. Both provisions operate in their own respective spheres and have to be given effect. 37. Secondly and more importantly, no provision of a statute can be so interpreted as to render it unconstitutional. If the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Annual General Meeting in accordance with the provisions of section 210 of the Companies Act, 1956. Explanation 1 defines book profit for the purpose of section 115JB to mean the net profit as shown in the profit and loss account for the relevant previous year as prepared under sub-section (2) and increased with the items as has been stipulated under clauses (a) to (h ) of Explanation 1 and has to be reduced by the items as stipulated under clauses (i) to (viii). Thus, the book profit will be the net profit as shown in the profit and loss account as has been laid before the company at its Annual General Meeting in accordance with the provisions of section 210 of the Companies Act, 1956 and as has been arrived at by following the accounting policies, accounting standards and the methods and rates adopted for calculating the depreciation as has been adopted for preparing the profit and loss account as laid before the Annual General Meeting. Thus, the net profit as shown in the profit and loss account laid before the Annual General Meeting will be the book profit but this book profit is subject to the adjustment as laid down under Explanation 1, clauses (a) to ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the book profit, and not the total income or the gross total income. 9. Charge of income-tax as per section 4 of the Income-tax Act is on the total income of the previous year of every person. The scope of the total income is defined under section 5 of the Income-tax Act which is different in the case of Residents and Non-Residents. The Resident in India or non-resident has to be determined in accordance with the provisions of section 6 of the Income-tax Act. Sections 10 to 13A deal with the income, which do not form part of the total income. Section 14 deals with the provisions how the total income is to be computed under different heads of income, viz., Salaries , Income from house property , Profits and gains of business or profession, Capital gains and Income from other sources . After computing the income under the different heads as per the provisions of sections 14 to 59, there are certain income of other persons which are to be included in assessee s total income. They are being dealt with under sections 60 to 65 of the Act. Section 66 lays down that in computing the total income of the assessee there shall be included all the income on which no i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ook profit under section 115JB. 18. The above said decisions clearly bring out that the term Total Income and Book Profit are clearly distinguished under the Act. The Book profit is required to be computed in accordance with the provisions of sec. 115JB of the Act, while the total income is required to be computed in accordance with the provisions of the Act. While computing the total income, the deduction u/s 80IB(10) is allowed. However, the book profit is required to be computed strictly in accordance with sec.115JB of the Act, which does not specify amount computed u/s 80IB(10) as a permissible deduction . 19. The Ld A.R placed heavy reliance on the decision rendered by the Coordinate bench in the case of Neha Home Builders (P) Ltd vs. CIT (2018)(92 taxmann.com 102), wherein it was held that the assessee is entitled for deduction u/s 80IB(10) of the Act while computing book profit u/s 115JB of the Act. On a careful perusal of the order passed in the case of Neha Home Builders (P) Ltd (supra), we notice that the same is related to the appeal preferred against the revision order passed by Ld CIT u/s 263 of the Act. In the above said case, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion 115JB MAT computation. This assessee s paper books indicate this claim was neither declined in assessment order dated 22.03.2013 nor in the CIT(A) s order. Rather no such ground was raised as per Form 35. The fact also remains that the assessee has placed on record its identical details of having carried out infrastructural development. We therefore keep in mind the clinching facts of the assessee s corresponding details in the paper book and deem it appropriate to restore the instant issue forming subject matter of second and third substantive grounds back to the Assessing Officer for adjudication as per law in light of our detailed discussion in preceding paragraphs in assessment year 2010- 11. We make it clear that the assessee would not be entitled for section 115JB MAT exemption going by our findings in lead assessment year. The assessee s second and third substantive grounds in ITA No.46/Kol/2016 in Assessment Year 2011-12 are allowed for statistical purposes and rejected; respectively. 35. We stay back in Revenue s two appeals. Its third and second substantive grievance in both assessment years challenges correctness of the CIT(A) s action holding that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and in the remand report. I have also considered documents filed by the AR during the appellate proceedings in respect of assessee's income from different joint ventures. From documents filed it is clear that the assessee has earned income from AOP which are not chargeable to tax in the hands of the assessee as per section 86 of the I T Act, 1961. However, the assessee has claimed that the share of its income in AOP as it is incorporated in its books of accounts, is on estimated basis and the difference if any, with actual has been adjusted in subsequent years. The Assessing Officer is directed to verify the claim of the assessee in the light of documents filed and treat the income credited on account of AOP as free from tax u/s.86 and the difference amount, if corrected in subsequent years, also to be treated as tax neutral. Thus, assessee s appeal on ground no.4 is allowed. 36. The factual position is no different in latter assessment year 2011-12 as well. The Assessing Officer declined the impugned exemption on the sole ground that the assessee had not placed on record the corresponding details of its joint ventures. We find from the former assessment year s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... both assessment years as allowable deduction in law. 39. Coming to MAT exemption of the impugned education cess, we find that the section 115JB Explanation 2(iv) and (v) makes it clear that the secondary and higher education cess(es) on income tax have been included in Explanation (1)(a) thereof. We therefore decline the assessee s latter grievance on the instant issue. 40. The assessee s third substantive ground in its CO No.22/Kol/2019 and fourth grievance in appeal ITA No.46/Kol/2016 seek yet another section 115JB MAT adjustment exemption regarding its retention money of ₹ 44937636/- and ₹ 112688259/-; assessment year wise; respectively. 41. After giving our thoughtful consideration to the rival contentions in favour and against the impugned relief, we notice that this issue is no more res integra since the tribunal s order in DCIT vs. M/s Mcnally Bharat Engineering Ltd. I.T.A Nos. 147 109/Kol/2018 holds that such a retention money cannot be regarded as income even for the purpose of computing section 115JB book profits. Learned coordinate bench holds that retention money does not partake character of income till the time th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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