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TMI Blog2024 (6) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee in ITA No.2573/Del/2023 for A.Y. 2010-11 for adjudication purposes for the sake of convenience. 3. At the beginning, the ld. counsel pointed out that the efficacy of order passed under Section 147 of the Act is inter alia in question. On behalf of the assessee, the ld. counsel submitted that in the instant case, the assessee filed ROI on 23-09-2010 declaring total income at NI L. The return filed by the assessee was subjected to regular assessment dated 28- 03-2013 under s. 143(3) of the Act. The income was assessed at Rs. 8,71,08,200/- and book profit under s. 115JB at Rs. 31,04,38,156/-. Thereafter, notice under Section 148 was issued by the AO to the assessee on 31.03.2017, that is, after a period of four years from the end of the assessment year where the original assessment was earlier completed under Section 143(3) of the Act. The assessee filed return of income in response to such notice issued under Section 148 of the Act and declared total income under the normal provisions at Rs. Nil. The re- assessment was however completed making certain disallowances and adjustments under the normal provisions of the Act as well as book profit computed under Section 115B of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he assessee did not add back the same provision for repair while determining the book profits under MAT, cannot per se be called as failure towards disclosure of material facts on the part of the assessee. Hence, in view of embargo placed under the 1s t proviso, the issuance of notice beyond four years is clearly barred by limitation qua alleged book profit escapement. Consequently, re- assessment proceedings must fail on this account. 3.2.2 Coupled with this, the ld. counsel submitted that the other allegations in the reasons recorded relates to assessment under the normal provisions whereby escapement of Rs. 4.96 cr. approx. alleged has no bearing for determination of issue towards validity of re- assessment notice. The ld. counsel submitted that in view of the fact that tax on income determined under Special Provision of Section 115JB exceeds the taxes payable on computation of income as per normal provisions, the reasons recorded in relation to adjustments under normal provision has no bearing for the purposes of determination of jurisdiction and unless the tax as per normal provision exceeds the tax payable under 115JB of the Act, the alleged escapement of income under normal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rs. 11,65,00/- which is not eligible under s.37(1) of the Act or other provisions of the Act. Likewise, the assessee has wrongfully gained by extra claim of deductins under S. 80IC under normal provisions and consequently understated the chargeable income. In this scenario, the case of the assessee clearly falls within the sweep of Explanation 2 below Section 147 of the Act which envisages escapement of income in the circumstances specified therein. The learned DR for the Revenue thus contended that the express provisions of statute require to be accorded primacy and no other interpretative process in deviation thereof is called for. 5. We have carefully considered the rival submissions. The jurisdictional controversy has been raised on behalf of the assessee whereby the Tribunal has been called upon to adjudicate as to whether re-opening under s. 147/148 of the Act is maintainable where MAT liability as per book profits computed under s. 115JB of the Act would not get disturbed on correct application of law and tax on such book profits also exceeds the total income determined as per normal provisions. 5.1 To adjudicate the appeal, few material facts requires to be taken into ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner would be still governed by the provisions of S. 115JB of the Act and would be assessed on same book profit. In such circumstances, reopening of assessment was not found sustainable. The Hon'ble Gujarat High court in the case of Motto Tiles P. Ltd. vs. ACIT (2016) 386 ITR 280(Guj) has reiterated the ratio yet again. The relevant operative para in later decision of Hon'ble Gujarat in Motto Tiles (P.) Ltd. (supra) is reproduced hereunder: "11. Insofar as the second contention raised on behalf of the petitioner is concerned, the controversy stands squarely concluded by the decision of this court in the case of India Gelatine and Chemicals Ltd. (supra) wherein, the court in a case where the assessee had declared a loss of Rs. 1.44 crores under the normal computation and the assessment was framed on book profit of Rs.2.89, had held that even if the expenditure of Rs.116.86 lakhs is disallowed, there would be no resultant change in the petitioner's tax liability s ince the petitioner had already paid much higher tax and had allowed the petition. It appears that the revenue has accepted the said decision and has not challenged the same before the higher forum. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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