2 INTRICACIES OF ALTERNATE MINIMUM TAX (SEC.115JC) & MINIMUM ALTERNATE TAX (SEC. 115JB) By PAWAN SINGLA [email protected].

2

INTRICACIES OF

ALTERNATE MINIMUM TAX (SEC.115JC) & MINIMUM ALTERNATE

TAX (SEC. 115JB) By

PAWAN [email protected]

Section

SectionSection

115 J

115 JA115JAA

A.Y 88-89 to 91-92

A.Y.A.Y.

97-98 to 01-0297-98 to 01-02

Section 115 JBSection 115JAA

A.Y.A.Y.

01-02 to…06-07 to …

Section 115 JC A.Y. 2012-13

HISTORY –MAT and AMT

3

History

of A M TParticulars Assessment year

2012-13Assessment year2013-14 onwards

Limited LiabilityPartnership

Applicable Applicable

Any other firm or any artificial juridical person, not being company

Not applicable Applicable

Individual, HUF, AOP, BOI, artificial juridical person

Not applicable Applicable if adjusted T.I.

> Rs.20 Lakh

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Chapter XII- BA (Special Provision)

Notwithstanding anything contained in this Act.Applies to all assessees other than company, who has claimed any deduction under sec 10AA or any section included in chapter VI-A part “C” other than sec 80P

If regular income tax payable < alternate minimum

Alternate Minimum tax = Adjusted T.I. * 18.5%

tax, then

Adjusted Total income = T.I. + Deduction under Chapter VIA-C, 10AA

Save as otherwise provided in this Chapter, all other provisions ofthe Act shall apply to every assessee referred to in this chapter.

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Section Hit by the Provisions of AMTNewly established Units in Special Economic Zones

Infrastructure development

Development of SEZ.

Certain industrial undertakings and enterprises . Undertakings in

certain special category states. Hotel and convention centers in

specified area.

•

•

•

•

•

•

•

•

•

•

•

Section 10AA

Section 80-IA

Section 80-IAB

Section 80 IB

Section 80-IC

Section 80-ID

Section 80-IE

Section 80JJA

Section 80JJAA

Section 80LA

Section 80 QQB

Certain undertaking in North Eastern States.

Collection and processing of bio degradable waste.

Employment of new workman.

Offshore banking units and international financial service center.

Certain royalty to authors of books.• Section 80RRB Royalty on patents.

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Steps – A M T

by CA.K.K.Chhaparia

1.

Find regular income tax liability of non-corporate assessee ignoring A.M.T.

2. Find Adjusted Total income (ATI)Normal Total incomeAdd : Deduction claimed by assessee u/s 80HH to 80RRB or u/s 10AA and not as allowed by Assessing Officer.3. Find 18.5% of Adjusted Total Income

4. If amt computed under Step 1 is >= amt under Step 3, then AMT will not apply.

However if amt under Step 3 > amt in Step 1, then ATI will be the deemed totalincome & 18.5% (+SC+EC+SHEC) of ATI will be the deemed tax liability

5. The excess amount computed under Step 3 over amount in Step 1 will beavailable as AMT Credit.

6. When AMT becomes applicable, report under Form 29C needs to beobtained from a C.A.

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Case study 1Particulars Amount (Rs.)

Net profit as per profit and loss account 67,60,000Add : Disallowance u/s 37(1) & u/s 43B 10,000

Less : Deduction under section 10AA (65,00,000)Add : LTCG (on transfer of Equity Shares in Stock

Exchange) – Rs.6,00,000Exempt

Gross Total Income 2,70,000

Less : Deduction u/s 80G (3,000)

Less : Deduction u/s 80-IB (48,000)

Net Income 2,19,000

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Solution to Case study 1Particulars Amount (Rs.)

Tax computation under normal provisions

Tax on income of Rs.2,19,000 1,900

Add : EC + SHEC 57

Total Tax Liability (A) 1,957

Computation of Adjusted Total Income (ATI)

Net Income 2,19,000Add : Deductions claimed u/s 8O-IB 48,000

Add : Deductions claimed u/s 10AA 65,00,000

Adjusted Total Income 67,67,000Computation of Alternate Minimum Tax

(AMT)18.5% of Adjusted Total Income 12,51,895Add : EC + SHEC 37,557

Alternate Minimum Tax (AMT) (B) 12,89,452Tax Payable [(a) or (b), whichever is more]

(rounded off)12,89,450Alternate Minimum Tax Credit 12,87,493

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Other important points – A M T

• CA report -Form 29C (Rule 40BA).

▫ To be furnished before due date u/s 139(1). – Section 115JC(3).

• AMT shall not apply if ATI(other than firm & LLP) < Rs. 20 Lacs –

Section 115JEE(2)

• AMT Credit shall be allowed for the next ten consecutive years- S.115JD

▫

▫

▫

AMT Credit shall vary consequent to assessment or appeal

No interest shall be payable on tax credit allowed.

Credit can be set off only in the year in which the Regular Tax payable

exceeds the AMT

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MAT Vs. AMT

by CA.K.K.Chhaparia

Particulars MAT AMT

Start point ofcalculation

Audited accounts Total income as per

assesseeRate of Tax 18.5% of BP 18.5% of Adjusted TIImpact on asst

/disallowancesNo impact on BP (generally)

Every addition shall impact – Sec 115JD(6)Impact of b/fd

lossNo impact(generally)

Impact TI, hence ATI

Exemption No exemption Rs.20 lacs in certaincases

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“ This was necessary due to a rise in the number of Zero-tax companies paying marginal tax which situation arose in view of preferences granted in form of exemptions, deductions and high rate of depreciation ”.

MAT is levied on the principle that everyone participating in the economy must contribute to the exchequer It was noticed that the companies were making huge profits and distributing dividend to their shareholders but were not paying any income tax due to the large number of exemptions/deductions available under the Income-tax Act. Accordingly, MAT was levied on all companies to address inequity in taxation of corporate taxpayers.

Further, MAT paid by the company can be carried forward for set-off against regular tax payable during the subsequent year(s), upto ten assessment years when the regular tax payable under the normal provisions of the Income-tax Act is more than the computation provided under MAT.

MAT was introduced by the Finance Act,1987 by inserting section 115J w.e.f A.Y. 1987-88 and was withdrawn by Finance Act,1990 w.e. f A.Y. 1990-91.

A.Y. 1984-85 out of top 23 12 CO'sdid notpay tax

TAX EVASION

2

Profit before exceptional and 92,48,367 44,34,975 extraordinary items and tax

Exceptional Items (Loss on sale of asset) 66,27,732 -

Profit before extraordinary 26,20,635 44,34,975 items and tax

Extraordinary Items - -

Profit before tax 26,20,635 44,34,975 Tax Expense:

(1) Current tax 13,08,000 8,38,000

(2) Deferred tax 8,22,100 9,06,300

(3) Income tax (Previous Year) 7,084 2,033

(4) Mat Credit Entitlements -6,80,160 -8,38,000

14,57,024 9,08,333

Profit(Loss) from Continuing Operation 11,63,611 35,26,642

Profit(Loss) for the period 11,63,611 35,26,642

Who is liable to pay MAT

1.Company has no taxable income but has a positive book profit.2.Where a Company has a negative net profit as per its P&L account but has positive book profit.3.Applicability to foreign companies P No.14 of 1997(1998) 100 Taxman 1 (AAR). Contrary decision in Timken Co. In re (2010) 193 Taxman 20 (AAR-ND)4.Exemption from MAT to developer of SEZ or unit located in SEZ has been withdrawn from AY 2012-13 by Finance Act, 2011 by inserting a proviso in section 115JB (6)

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6. Applicability of MAT to companies eligible for tax holiday refer Sidcul Industrial Association Vs State of Uttrakhand (2011) 199 Taxman 75. Ganesh Housing Corporation Vs CIT, Gujarat

7. Main Provision of Section 115JB(2) as amended by the Finance Act, 2012 a new explanation 3 brought those company also under MAT who are not required to prepare accounts in accordance with schedule VI of the company’s Act 1956 eg. Banks, Electricity companies.

8. The Finance Act, 2012 has inserted new sub-section 5A to provide that section 115JB shall not apply to any income accruing or arising to a company from life insurance business.

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INCOMETAX

RESERVE

PROVISIONSDIMINUTION INVALUE OF ASSET PROV LOSS OF SUB

REVALUATION

RESERVE DIVIDEND

DEPRECIATION

DEFERRED TAX &PROVISION

EXP FOR EXEMPTINCOME

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B/FD LOSSUNABSORBED Depreciation

Revaluation Depn,Revaluation res

SICK CO.

u/s 10, 11,12

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SOME ISSUES U/S MATA. Prior period items and extraordinary items

The format of P &L account given in part II if new Schedule VI envisages distinct disclosure of extraordinary items as separate line item and is silent about prior period items However, note 5 (L) of part II of Revised Schedule VI requires disclosure in notes to accounts of aggregate expenditure and income in respect of prior period .

Reference Sree Bhagawathy Textiles Ltd. Vs. ACIT (2011) 199 Taxman 14 (Ker.)

Gulf Oil Corporation Ltd. Vs. ACIT(2008) 111 ITD 124 (HYD)

Shivshahi Punarvasan Prakalp Ltd. V.ITO (2011)15 taxmann.com 352 (Mum)

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B. Gain due to restatement at the balance sheet date of foreign currency term loan can not be reduced from the net profit for the purposes of working out “book profit”. If a profit and loss account has been made in terms of companies Act (i.e. Accounting Standards and Schedule VI), then no adjustment or tinkering is available except as provided in Explanation 1 to section 115JB(2)-City Gold Media Ltd. v. ITO [2012] 17 taxmann.com 232 (Ahd)C. Profit on sale of assets credited to profit and loss account cannot be excluded in computing book profit under section 115JB even though capital gain arising from sale of that asset is not subject to tax under normal provisions of Act by virtue of provisions of section 54EC-Technicarts (P.) Ltd. v. ITO [2011] 12 taxmann.com 1 (Mum),Growth Avenue Securities (P.) Ltd. v. DCIT[2010] 126 ITD179 (Delhi),N.J. Jose & Co. (P.) Ltd. [2008] 174 Taxman 141 (Ker.).

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D. No part of the liability that has ceased on account of settlement of loan liability of bank and credited to P & L account can be excluded even though part of the liability may represent waiver of principal amount of loan. Profit on sale of capital assets as well as profit on sale of stock in trade form part of same profit and loss and taken into account while determining the book profit. – Duke Offshore Ltd. v. DCIT [2011] 45 SOT 399 (Mum.)E. Long term capital gain exempt under section 47(iv) can not be reduced from net profit. Rain Commodities Ltd. [2010] 40 SOT 265 (Hyd.)(SB)F. Interest on borrowed capital not debited to P&L account and capitalized as part of cost of new project can not be reduced from net profit.- CIT v. Avery Cycle Industries[2004] 89 ITD 497 (Chd.)

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G. Where Government of India had waived loan and interest thereon due from assessee and assessee did not incorporate effect of waiver in its books of account, though it disclosed details of waiver in its annual report placed before shareholders, AO was justified in adding amount of interest waiver to arrived at book profit. Hindustan Shipyard Ltd. v. DCIT [2010] 130 TTJ 213 (Vishakhapattanam)H. Arrears of depreciation for past years debited due to change in method of depreciation from Straight Line Method (SLM) to Written Down Value (WDV) method and debited to profit and loss account should not be added back to net profit working out book profit. Kinetic Motor Co. Ltd. v. DCIT [2003] 133 Taxman 956 (Bom).However, dissented judgement has been given by MP High Court in case of Gilt Pack Ltd. V. UOI [2007] 163 taxman 331

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I. Amount or amounts set aside as provision for diminution in value of any asset was inserted by Finance Act, 2009 with retrospective effect from AY 2000-2001. The above amendment was carried out to overcome the Supreme Court decision in CIT v. HCL Comnet Systems & Services Ltd. [2008] 174 Taxman 118 example- provision for doubtful debts, provision for impairment, provision for fall in value for investment.

J. Amount of Defferred Tax and provision therefore was inserted by same Finance Act, 2008 with retrospective effect AY 2001-02. The above amendment was carried out to overcome the ITAT’s decision in ACIT v. Balarampur Chini Mills Ltd. [2007] 14 SOT 372 (Kol.)

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K. Addition of expenditures related to tax free income to net profits as per clause (f) of explanation 1 below section 115JB. The disallowance made u/s 14A is to be added back to book profit as held by EIH ASSOCIATED HOTELS LTD v/s DCIT, 2013-TIOL-796-ITAT-MAD & Income-tax Officer, Ward -4(2)(3), Mumbai v/s RBK Share Broking (P.) Ltd. [2013] 37 taxmann.com 128 (Mumbai - Trib.) Delhi High court in case of  CIT v/s GOETZE (INDIA) LTD (,2014) 97 DTR(DEL) 169  has reversed the order of ITAT and has held that disallowance u/s 14A has to be added to Book profit u/ s115JB.

L. The Finance Act, 2006 introduced clauses (g), (iia) and (iib) in explanation 1 below section 115JB. The implication of above three clauses are that the company does not stand to benefit from a MAT prospective by upward revaluation of assets and debiting higher depreciation (on revalued amounts) to P & L account and reducing net profit.

M. Addition to net profit of income-tax amountAmount of Income-taxAccording to Explanation 2 below section 115JB(2), for the purposes of clause (a) of Explanation 1, the amount of income-tax shall include-

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(i) Any tax on distributed profits under section 115-O (dividend distribution – i.e. DDT) or tax on distributed inocme under section 115R;

(ii) Any interest charged under this Act;(iii) Surcharge, if any, as levied by the Central Acts;(iv) Education cess on income-tax, (v) Secondary and Higher Education Cess on income-tax,(vi) In ACIT Vs Chettinad Cement Corporation Ltd. (2011)

15 taxmann.com 262 (Chennai), ITAT has ruled that provision for wealth tax would come within the ambit of clause (a) of Explanation to section 115JA.

(vii) Provision of taxation made by the foreign branches of the banks are to be added back to net profits for arriving at book profit – Bank of India, In re (2007) 165 Taxman 627 (AAR- New Delhi)

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(N) Share of profit from AOP is includible in book profits to determine MAT as held in

ACIT, Circle -1(3) v/s B. Seenaiah & Co. Projects Ltd. [2013] 37 taxmann.com 241 (Hyderabad – Trib)

(O) Benefit arising on premature payments of 'deferred sales tax loans' at net present value cannot be excluded in computing book profit under section 115JB as held in ACIT,Circle-10 , Pune v/s Spicer India Ltd, [2013] 38 taxmann.com 317 (Pune - Trib.)

(P) Claim of reduction from book profits computed under section 115JB of amount of deduction eligible under section 80-IB/IC is an incorrect claim as held in

Sankhla Polymers (P.) Ltd. v/s ITO, Ward 12(2), Bangalore , [2013] 31 taxmann.com 166 (Karnataka) ACIT , Haridwar v/s SBL Industries (P.) Ltd. [2013] 35 taxmann.com 233 (Delhi - Trib.)

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(Rs. in Lakhs)

Accounting year

Profit or loss before depreciation (as per books of account)

Depreciation as per books of account

Profit or loss after depreciation

[2-3]

Loss (before depreciation) or depreciation, whichever

is lower [i.e., 2 or 3, whichever is lower

Profit available for

distribution of dividend

1 2 3 4 5 6

1991-92

1992-93

1993-94

1994-95

1995-96

1996-97

1997-98

1998-99

1

8

-18

-6

-3

1

30

70

3

12

2

15

4

11

6

11

-25

-4

-20

-21

-7

-0

24

59

-

-

-2

-6

-3

Nil

Nil

Nil

Nil

Nil

Nil

Nil

Nil

Nil

Nil

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Deductibility of Brought forward loss or depreciation8.4 The amount of loss brought forward or unabsorbed depreciation whichever is less (as per books of account) is deductible from book profit. ‘Loss’ for this purpose does not include depreciation and therefore, in a case where an assessee has shown profit in a year, but after adjustment of depreciation, it results in loss, no adjustment in book profit is allowed. 8.4-1 Provision illustrated- The above provision is illustrated in the illustration given below-

ImplicationDepreciation

or Loss

Assessment Depreciation Loss as per Total (Rs.) AsYear as per Books books computed

excluding by A.O.

depreciation

1999-2000 42,25,696 94,88,756 1,37,14,452 42,25,6962000-2001 44,42,777 1,30,33,168 1,74,75,945 44,42,7772001-2002 44,53,565 (7,30,402) 37,23,163 Nil2002-2003 19,93,456 22,84,195 42,77,651 19,93,456 1,51,15,494 2,40,75,717 3,91,91,211

1,06,61,929Consolidated figure of loss and depreciation for earlier year in totality to be considered- In Amiline textiles (P) Ltd. V. ITO (2009) 27 SOT 152 (Mum)

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•

•

•

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Assessee not eligible for credit of Surcharge & Cess paid on Mat CreditRicha Global Exports Pvt. Ltd. v/s. ACIT, NEW DELHI

Sl. No.

Reporting Heads As computed

 u/s 143(1).

Extra Amount

charged

21 Tax payable for the year. 12939708

22 Credit u/s 115JAA 5605585

23 Adjusted tax liability 12939708

24 Surcharge 1293971 560559

26 EC+ Secondary & Higher Edu. Cess. 427010 184984

32 234B 207972 91002

34 234C 259199 37650

874195/-

Carry Forward of MAT credit in case of Amalgamation

• Income Tax Act silent on the issue

• Genuine doubt about interpretation of law benefitAssessee.

to be given to the

▫ CIT v. Vegetable Products Ltd., [1973] 88 ITR 192 (SC)

• In SKOL Breweries Ltd. v. ACIT, 28 ITAT India 998 (Mum.) ITA No.313/Mum./07 A.Y. 2003-04 decision dated 15-5-2008 the Tribunal allowed set off of MAT credit of amalgamating company in the hands of the appellant assessee being the amalgamated company

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Whether Sec 115JB applies on ForeignCompanyCastleton Investment Ltd. (AAR New Delhi) 211 Taxman 282

Assessee was a foreign Company incorporated under the law of Mauritius.Assessee earned LTCG on sale of sharesHeld Co. u/s 2(17) of the IT Act includes a non-resident company S.115JB does not make any distinction between resident/ NR co.

View again confirmed in the case of ZD, In re* (AAR New Delhi) 29taxmann.com 147

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What if the Foreign Co. has no presence orpermanent establishment in India

Timken Co., IN re (AAR New Delhi) 233 ITR 334• Facts

Assessee was a foreign co. having no permanent place of business or presence in IndiaClaimed LTCG on sale of shares is exempt u/s 10(38)Claimed not required to pay MAT on book profit u/s 115JB

• Held A Non Resident Co. having no permanent place or presence in India not

required to prepare b/a as per Sec 594 read with Sec 591 of the Co’s Act Hence Sec 115JB is not designed to be applicable in such a case

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Tax On Rs. 2049570 @ 30% 614871

614871 Add: Education Cess @ 2% 12297 627168 Add: Secondary And Higher Education Cess @ 1% 6149 Tax As Per Normal Provisions 633317

Calculation Of Book Profit U/s 115JB

Net Profit As Shown In The Profit And Loss Account 1163610 Add: Deferred Tax 822100 Income Tax 634924 Doubtful Debts 4250000

6870634 Tax @ 18.5% On Book Profit Of Rs. 6870634 U/s 115JB 1271067 Add: Education Cess @ 2% 25421 1296488 Add: Secondary And Higher Education Cess @ 1% 12711 1309199 Higher Of (633317 Or 1309199) 1309199 Less Tax Deducted At Source Commission Or Brokerage 55612 Contractors And Sub-contractors 241731 Other Interest 740 Rent 1789872 2087955 -778756 Refundable (778756) Tax Rounded Off U/s 288B (778760)

COMPUTATION OF TAX ON TOTAL INCOME

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MAT CREDIT ISSUEAs per provisions of Section 115JAA(IA)(2) “the tax credit to be allowed under sub-section (1) shall be the difference of the tax paid for any assessment year under sub-section (1) of section 115JA and the amount of tax payable by the assessee on his total income computed in accordance with the other provisions of the Act”.Scrutiny of records revealed that though assessee company assessed income was enhanced by Rs. 1284047 while passing order u/s 144 rws 254 of the Act. However, corresponding MAT credit was not reduced as order dtd. 15-12-2005 u/s 154 has taken assessed income as Rs.20164743. The correct working of MAT credit available for set off is as under:Tax u/s 115JA 19800964Tax on regular income of 9222980 (Rs. 21448790 (40 %+ 7.5 %)MAT credit available 10577984MAT credit allowed 11130125Excess allowed 552141

CHENNAI, JULY 22, 2014: THE issue before the Bench is - Whenever the MAT liability of the assessee is found out only because of the alertness of the AO, the levy of penalty u/s 271(1)(c) is legitimately warranted. And the HC's answer is YES. (See 2014-TIOL-1177-HC-MAD-IT)Facts of the caseThe assessee company runs a hotel business. It filed its return disclosing "nil" income. It had admitted income from business at Rs.1,51,92,970/- and the same was set off with carried forward loss of the earlier years. In the course of the scrutiny proceedings, it was seen that the assessee was liable to tax u/s 115JB. The AO was of the view that the assessee was liable to pay MAT u/s 115JB. The adjusted book profit for working out the MAT payable u/s 115JB was calculated by the AO. Thereafter proceedings for levy of penalty u/s 271(1)(c) was initiated for the failure of the assessee to compute the book profit and the MAT payable u/s 115JB. The AO was of the view that the assessee furnished inaccurate particulars of income. In view of the above, we find that the issue decided by the Tribunal on the basis of the admitted case of the assessee by filing 'nil' return when they are liable to pay Minimum Alternate Tax is correct. Hence, the provisions of Section 271(1)(c) gets attracted. Accordingly, no question of law much less any substantial question of law arises for consideration in this Tax Case (Appeal). The Tax Case (Appeal) stands dismissed. No costs.

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CERTAIN ISSUES WHICH NEEDS SERIOUS CONSIDERATION OF THE DEPARTMENT

As per provision of sec. 254(2) of the Income Tax Act, 1961 “The Appellate Tribunal may, at any time within four years from the date of the order, with a view to rectifying any mistake apparent from the record, amend any order passed by it under sub-section (1), and shall make such amendment if the mistake is brought to its notice by the assessee or the [Assessing] Officer:

Provided that an amendment which has the effect of enhancing an assessment or reducing a refund or otherwise increasing the liability of the assessee, shall not be made under this sub-section unless the Appellate Tribunal has given notice to the assessee of its intention to do so and has allowed the assessee a reasonable opportunity of being heard :

[Provided further that any application filed by the assessee in this sub-section on or after the 1st day of October, 1998, shall be accompanied by a fee of fifty rupees.]”

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(1) In case of ACIT vs. Saurashtra Kutch Stock Exchange of India 305 ITR 227 (SC) conclude the issue? It was observed there:

The core issue, therefore, is whether non-consideration of a decision of Jurisdictional Court (in this case a decision of the High Court of Gujarat) or of the Supreme Court can be said to be a "mistake apparent from the record"? In our opinion, both - the Tribunal and the High Court - were right in holding that such a mistake can be said to be a "mistake apparent from the record" which could be rectified under Section 254(2). The SC has held that a judgment of the jurisdictional High Court and that of the SC, even if rendered subsequently, will constitute a mistake apparent from the record. The full text is available here:http://www.caclubindia.com/judiciary/acit-vs-saurashtra-kutch-stock-e... (2) A similar question came up for consideration before the High Court of Gujarat in Suhrid Geigy Limited v. Commissioner of Surtax, Gujarat, (1999) 237 ITR 834 (Guj).

It was held by the Division Bench of the High Court that if the point is covered by a decision of the Jurisdictional Court rendered prior or even subsequent to the order of rectification, it could be said to be "mistake apparent from the record" under Section 254 (2) of the Act and could be corrected by the Tribunal.

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(3) The MUMBAI TRIBUNAL in case of KAILASHNATH MALHOTRA v/s JT.CIT(TM) 34 SOT 541 has held that

A judgment of the jurisdictional High Court and that of the SC, even if rendered subsequently, will constitute a mistake apparent from the record under Section 254 (2) of the Act and could be corrected by the Tribunal. (4)S. 254(2) : Appellate Tribunal – Rectification of Mistakes – Subsequent decision of Jurisdictional High Court or Supreme Court V. R. Chittanandam vs. ACIT (2010) 5 ITR 258 (Chennai)(Trib.)

Decision of the Supreme Court or the Jurisdictional High Court is binding on the Tribunal, and therefore, constitute an apparent error in the order, which is contrary to the principle laid down in the subsequent decision. Accordingly, the subsequent law laid down by the Supreme Court or the jurisdictional High Court has to be considered for rectifying the mistake under section 254(2) of the Income Tax Act 1961.

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The MUMBAI TRIBUNAL in case of KAILASHNATH MALHOTRA v/s JT.CIT(TM) 34 SOT 541 has held that Section 254 of the Income Tax Act

“It will be an error apparent from records , if the order is not in conformity with the retrospective amendment carried out to the statutory provision covering the period and point in dispute , subject to the fulfillment of other conditions prescribed in the Act such as limitation period etc”115JB. (1) Notwithstanding anything contained in any other provision of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, [2007]], is less than [ten per cent]] of its book profit, [such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income-tax at the rate of [ten per cent]]].

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(2) Finance Act, 2008 w.r.e.f 01/04/2001 has inserted explanation-2 to widen the scope of the term Income Tax.Explanation 2.— For the purposes of clause (a) of Explanation 1, the amount of income-tax shall include—(i) any tax on distributed profits under section 115-O or on distributed income under section 115R;(ii) any interest charged under this Act;(iii) surcharge, if any, as levied by the Central Acts from time to time;(iv) Education Cess on income-tax, if any, as levied by the Central Acts from time to time; andSecondary and Higher Education Cess on income-tax, if any, as levied by the Central Acts from time to time.]Suggestion;

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Finance Act, 2008, w.r.e.f 01/04/2001 has inserted clause (h) below explanation-1 that book profit shall be increased by :(h) “the amount of deferred tax and the provision therefore”If debited to Profit & Loss Account.

The above said amendment was brought to nullify the judgments which have held that deferred tax if debited to P & L A/c cannot be added back to Book Profit as per sec. 115JB. Maharaja Shree Umaid Mills Ltd v/s ACIT.(2007) 17 SOT 72 (JAIPUR)ACIT .C.C XIX Kolkata v/s Balrampur Chini Mills Ltd(2007) 14 SOT 372(KOL)

Section 115JB of the Income-tax Act, 1961 - Minimum alternate tax - Assessment year 2007-08 - Assessing Officer made an addition of amount of deferred tax under Explanation (c) to section 115JB(2) for purposes of computing book profit - Whether since deferred tax charge is not covered by any of clauses of Explanation to section 115JB(2), such deferred tax charge is not required to be added back in computation of book profit for purpose of section 115JB and, therefore, addition made by Assessing Officer was to be deleted - Held, yes

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(3) Finance Act, 2009 w.r.e.f. 01/04/2001 has inserted clause (g) below explanation-1 that book profit shall be increased by :

(i) the amount or amounts set aside as provision for diminution in the value of any asset,Thus now (a)provision for bad & doubtful debts(b) provision for diminution in value of investment(c) provision for obsolete inventory(d) provision for impairment of assets

has to be added back to book profit u/s 115JB in view of this amendment which has been given retrospective effect.

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((i) The Assessing Officer may be directed to file MA u/s 254(2) in ITAT if ITAT has deleted the addition or 154 to CIT (A) if he has deleted the addition. Department will be able to recover thousands of crores of tax amount which is pending in litigation at various levels. (ii) The Assessing Officer may be directed to review all cases in which assessee has not added back deferred tax/interest on income tax/provision for diminution in the value of assets for the purpose of sec. 115JB from A.Y. 2007-08 onwards and to take necessary remedial action under section 147/263 of the act as applicable(4) There was dispute between different High courts regarding levy of interest u/s 234B, 234C, when income is calculated u/s 115JA& 115JB.However recently Apex Court decided in favour of revenue:

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Joint Commissioner of Income-tax v/s ROLTA INDIA LTD [2011] 196 TAXMAN 594 (SC)

Section 234B of the Income-tax Act, 1961 - Interest, chargeable as - Whether interest under sections 234B and 234C shall be payable on failure to pay advance tax in respect of tax payable under section 115JA/115JB - Held, yesCircular and Notifications : CBDT Circular No. 13/2001, dated 9-11-2001 (i) The Assessing Officer may be directed to file MA u/s 254(2) in ITAT if ITAT has deleted the addition or 154 to CIT (A) if he has deleted the addition. Department will be able to recover thousands of crores of tax amount which is pending in litigation at various levels.  

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