High Court Of Bombay
CIT vs. Natural Gems Ltd.
Section 115JA, 234B, 234C
F.I. Rebello & R.S. Mohite, JJ.
IT Appeal No. 778 of 2007
24th March, 2009
Counsel Appeared :
Suresh Kumar, for the Appellant : J.D. Mistri, for the Respondent
JUDGMENT
By the court :
We had requested Mr. Mistri to appear as amicus curiae for the respondent as none had appeared on behalf of the respondent-assessee.
2. By this appeal, the Revenue has approached this Court on the following questions :
“(a) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal’s order dt. 25th Aug., 2006, is correct in law, in directing the AO to delete the amount of Rs. 7,54,960 charged as interest under ss. 234B and 234C on the minimum alternate tax of Rs. 24,74,024 levied under s. 115JB on the book profit of Rs. 2,91,025, holding that the matter is covered in favour of the assessee by the decision of the Hon’ble Supreme Court in the case of CIT vs. Kwality Biscuits Ltd. (2006) 205 CTR (SC) 122 : (2006) 284 ITR 434 (SC), which confirms the order of the Karnataka High Court in the same case as reported in Kwality Biscuits Ltd. vs. CIT (2000) 159 CTR (Kar) 316 : (2000) 243 ITR 519 (Kar) ?
Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law, in disregarding sub-s. (5) of s. 115JB of the IT Act which specifically provides for applicability of all other provisions of the Act, including s. 210 with respect to payment of advance tax and ss. 234B and 234C which provides for charging of interest in case of non-compliance with s. 210 ?”
The learned counsel for the Revenue draws our attention to the judgment of this Court in CIT vs. Kotak Mahindra Finance Ltd. (2003) 183 CTR (Bom) 491 : (2004) 265 ITR 119 (Bom). It is also brought to our attention that unlike ss. 115, s. 115JA(4) and s. 115JB(5) have made provisions for applicability of other provisions of the Act in the matter of computation of payment of advance tax. In Kwality Biscuits Ltd. vs. CIT (2000) 159 CTR (Kar) 316 : (2000) 243 ITR 519 (Kar), a learned Bench of this Court was considering whether the provisions pertaining to interest under ss. 234B and 234C would be applicable to the company covered by s. 115J of the IT Act. The learned Bench answered the issue in favour of the assessee as in that case there was shortfall in the payment of the advance tax paid and after regular computation as worked out in terms of s. 115J.
The issue had come up for consideration before this Court in IT Appeal No. 238 of 2006 in Snowcem India Ltd. vs. Dy. CIT (2009) 221 CTR (Bom) 594 : (2009) 18 DTR (Bom) 58 : (2009) 313 ITR 170 (Bom) decided by unreported order dt. 5th Jan., 2009. While hearing the appeal our attention was invited to the judgment of this Court in CIT vs. Kotak Mahindra Finance Ltd. (supra). Our attention however, had also been invited to the judgment of the Karnataka High Court in Kwality Biscuits Ltd. vs. CIT (supra) where the Karnataka High Court had taken a different view from the view taken by this Court. The judgment of the Karnataka High Court was taken in appeal before the Supreme Court by way of special leave petition. From the order produced before us we find that the appeals were heard meaning thereby the leave has been granted and appeals were dismissed. Placing reliance on the judgment of the Supreme Court in Kunhayammed vs. State of Kerala (2000) 162 CTR (SC) 97 : (2000) 245 ITR 360 (SC) : (2000) 119 STC 505 we had held that the dismissal of the appeal by the Supreme Court in the case of Kwality Biscuits (supra) would amount to confirmation of the law as held by the Karnataka High Court and in view of that we had allowed the appeal preferred by the assessee.
The learned counsel, however, sought to bring to our attention the judgment of the Supreme Court in CIT vs. Xpro India Ltd. (2008) 215 CTR (SC) 400 : (2008) 4 DTR (SC) 217 : (2008) 300 ITR 337 (SC). The question before the Supreme Court was as under (p. 338) :
“Whether on the facts and in the circumstances of the case, the Hon’ble High Court was right in allowing credit for MAT, under s. 115JAA of the IT Act, 1961, before charging interest under ss. 234B and 234C of the IT Act.”
The matter has been remanded back for consideration. It appears that the attention of the Supreme Court was not invited to the dismissal of the appeals in Kwality Biscuits (supra). Considering the judgment in Snowcem, in our opinion, there is no merit in the questions as framed and accordingly the appeal dismissed.
We place on record the valuable assistance rendered by the learned amicus curiae.
[Citation : 327 ITR 269]
