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TMI Blog2010 (9) TMI 1272X X X X Extracts X X X X X X X X Extracts X X X X ..... d in law in confirming the order of the AO passed u/s. 115JB. GR.NO. 2 That on the facts and in the circumstances, the learned CIT(A) erred in holding that the appellant's net taxable income amounted to ₹ 46,28,986/- instead of NIL. GR.NO. 3 That the learned CIT(A) erred in law in rejecting Auditor's Report relating to Sec 115JB. GR.NO. 4 That the learned CIT(A) erred in law in interpreting the proviso to Sec. 115JB. GR.NO. 5 That the learned CIT(A) erred in law in not setting aside the order u/s.115JB of the Act. 3. The assessee filed its return of income for the assessment year 2005-06 disclosing NIL total income. The AO asked the assessee to show cause as to why the book profit as per section 115JB of the Act should n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled appeal before the ld. CIT(A). 5. Before the ld.CIT(A) it was submitted by the assessee that unless there is a positive gross total income as per normal provisions of the Act and the corresponding amount of tax payable by the assessee is more than zero, the provisions of section 115JB of the Act would not be attracted. The submission of the appellant as quoted by the ld.CIT(A) is reproduced hereunder:- "On a plain reading of the Sec. 115 iS it s clear that in order to apply the special provision for payment of Tax by certain companies the Minimum Alternate Tax it is sin quanon that there must be Gross total income derived the assessee and accordingly tax is payable by it. In the present case neither there was any Gross total income ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 58,53,743/- u/s. 1O(1), as prescribed within the Clause (II) of explanation of Sub Sec (2) of Sec I 15JB." 6. The ld.CIT(A) held that the decision of the Hon'ble ITAT Kolkata Bench, Kolkata in the case of Vishnu Sugar Mills Ltd (supra) as relied on by the assessee was not applicable in the facts of the assessee's case. He further held that in view of the Hon'ble ITAT Mumbai Bench, Mumbai's order in the case of DCW Ltd Vs. DCIT in ITA No.4175/Mum/2005 even if there is no positive income as per the normal computation of income, the provision of section 115JB of the Act will be attracted. The ld.CIT(A) also relied on the followings:- a. ITAT Mumbai's Special Bench in the case of Syncome Formulations 106 ITD 193(Mum/SB) b. Bombay High ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the ld.CIT(A) upheld the computation of book profit made by the AO. 7. Aggrieved the assessee filed appeal before the Tribunal. 8. Before us the ld.AR for the assessee has made the same submissions as made before the authorities below. 9. The ld.DR, on the other hand, relied on the orders of the AO and the ld.CIT(A). It was emphasized by him that in view of the decision of the Hon'ble Apex Court in the case of Apollo Tyres Ltd (supra), the order of the ld.CIT(A) is required to be upheld and appeal of the assessee dismissed. 10. We have heard both the parties and perused the record. We have also gone through the case laws relied on by either of the parties including the followings:- a. CWT vs. Ellis Bridge Jimkhana etc 229 ITR 1(SC) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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