M/s. Gujarat Mitra Pvt.Ltd,, Surat v. The Dy.CIT.,Circle-1,, Surat

ITA 1474/AHD/2009 | 1998-1999
Pronouncement Date: 18-11-2011 | Result: Dismissed

Appeal Details

RSA Number 147420514 RSA 2009
Assessee PAN CEACT1997W
Bench Ahmedabad
Appeal Number ITA 1474/AHD/2009
Duration Of Justice 2 year(s) 6 month(s) 7 day(s)
Appellant M/s. Gujarat Mitra Pvt.Ltd,, Surat
Respondent The Dy.CIT.,Circle-1,, Surat
Appeal Type Income Tax Appeal
Pronouncement Date 18-11-2011
Appeal Filed By Assessee
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 18-11-2011
Date Of Final Hearing 02-11-2011
Next Hearing Date 02-11-2011
Assessment Year 1998-1999
Appeal Filed On 11-05-2009
Judgment Text
- 1 - IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH B AHMEDABAD BEFORE S/SHRI D.K.TYAGI JM AND A. MOHAN ALANKAMON Y AM. M/S GUJARAT MITRA (P) LTD. GUJARAT MITRA BHAVAN SONIFALIA SURAT. VS. DY. CIT CIRCLE-1 SURAT. (APPELLANT) .. (RESPONDENT) APPELLANT BY :- SHRI MEHUL K. PATEL AR RESPONDENT BY:- SHRI SAMIR TEKRIWAL SR.DR DATE OF HEARING : 2/11/2011 DATE OF PRONOUNCEMENT :18.11.11. O R D E R PER D. K. TYAGI JUDICIAL MEMBER . THESE ARE TWO APPEALS FILED BY THE ASSESSEE AGAINS T TWO SEPARATE ORDERS OF LD. CIT(A) DATED 27/02/2009 RAISING FOLLO WING GROUNDS. SINCE THE ISSUES INVOLVED IN THE APPEALS ARE COMMON AND T HE APPEALS PERTAIN TO THE SAME ASSESSEE THESE WERE HEARD TOGETHER AND AR E BEING DISPOSED OF BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS :1998-99 & 1999-00 ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 2 ITA NO.1474/AHD/2009 ASST. YEAR 19998-99 THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL ARE AS UNDER :- (1) THE LD. CIT(A)-I SURAT HAS GRIEVOUSLY ERRED IN LAW IN CONFIRMING THE ORDER PASSED BY THE LD. AO CHARGING INTEREST UNDER SECTION 234B AND 234C OF THE ACT. (2) SIMILARLY THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN DI SALLOWING THE CLAIM OF PROVISION MADE FOR ACCRUED LIABILITY OF GR ATUITY WHICH IS BEING ALLOWED FROM YEAR TO YEAR. (3) BOTH THE ADDITIONS CONFIRMED BY THE LD. CIT(A) ARE OTHER WISE UNWARRANTED OF FACTS BAD IN LAW AND THEREFORE IT B E HELD THAT THE APPEAL OF ASSESSEE IS ENTITLED TO BE ALLOWED IN FUL L AS PRAYED FOR. (4) THE APPELLANT BEGS TO RELY UPON THE STATEMENT OF FA CTS AND GROUNDS OF APPEAL AND ALL OTHER MATERIALS PRODUCED BEFORE THE AO AS WELL AS THE CIT(A). ITA NO.1475/AHD/2009 ASST. YEAR 1999-00 THE FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPE AL :- (1) THE LD. CIT(A)-I SURAT HAS GRIEVOUSLY ERRED IN LAW IN CONFIRMING THE ORDER PASSED BY THE LD. AO CHARGING INTEREST UNDER SECTION 234B AND 234C OF THE ACT. (2) SIMILARLY THE LD. CIT(A) HAS GRIEVOUSLY ERRED IN DI SALLOWING THE CLAIM OF PROVISION MADE FOR ACCRUED LIABILITY OF GR ATUITY WHICH IS BEING ALLOWED FROM YEAR TO YEAR ON SIMILAR FACTS . (3) THAT THE LD. CIT(A) OUGHT TO HAVE ALLOWED THE CREDI T OF MINIMUM ALTERNATIVE TAX (MAT). (4) THE APPEAL OF THE APPELLANT OUGHT TO HAVE BEEN ALLO WED IN FULL INSTEAD OF ALLOWING THE SAME IN PART. (5) THE APPELLANT BEGS TO RELY UPON THE STATEMENT OF FA CTS AND GROUNDS OF APPEAL AND ALL OTHER MATERIALS PRODUCED BEFORE THE AO AS WELL AS THE CIT(A). ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 3 2. THE FIRST GROUND RELATES TO CONFIRMATION OF CHAR GING OF INTEREST UNDER SECTION 234B AND 234C OF THE ACT. IN THE ASSE SSMENT ORDER THE AO HAD STATED THAT THE ASSESSEE HAD FILED ITS RETURN O F INCOME ON 29.12.1999 DECLARING TOTAL LOSS OF RS.76 85 370/-. THE ASSESSM ENT WAS COMPLETED U/S 143(3) R.W.S. 147 ON 22.08.2005. HOWEVER THE CIT-I SURAT HAD SET ASIDE THE ASSESSMENT VIDE HIS ORDER DATED 31.03.2008 PASS ED U/S 263 WITH A DIRECTION TO EXAMINE THE ISSUES DE NOVO. THE ISSUE IN CONTENTION BEFORE THE CIT-I WAS THAT THERE WAS A MISTAKE IN CALCULATI ON OF INTEREST U/S 234B. THE INTEREST WAS SHORT LEVIED BY RS.2 32 671/-. THE ASSESSEE ARGUED THAT THE CALCULATION MADE BY THE AO IN RESPECT OF INTERE ST U/S 234B WAS CORRECT AS THERE WAS A BUSINESS LOSS SO THERE WAS N O TAX LIABILITY BUT THEY HAD TO MAKE TAX ON BOOK PROFIT. THEY HAD PAID TAX O N BOOK PROFIT U/S 115JB WITH INTEREST DUE U/S 234B AND THEREFORE TH ERE IS NO SHORT LEVY. THE AO DID NOT ACCEPT THIS ARGUMENT AND STATED THE ASSESSEE HAD FILED ITS RETURN OF INCOME ON 29/12/1999 AND THE ASSESSMENT U /S 143(3) WAS COMPLETED ON 25/04/2000 AND THEREFORE INTEREST U/ S 234B CALCULATED CORRECTLY UPTO THE DATE OF RE-ASSESSMENT ORDER IN V IEW OF THE PROVISIONS OF SECTION 234B(3). 3. THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A ) AND SUBMITTED THAT THERE IS NO PROVISION IN SECTION 115JB TO CHAR GE INTEREST U/S 234B AND 234C AND HENCE NO INTEREST SHOULD BE LEVIED. THE AS SESSEE RELIED ON THE ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 4 DECISION OF HONBLE SUPREME COURT IN THE CASE OF CI T VS. KWALITY BISCUITS LTD. 284 ITR 434 (SC). THE LD. CIT(A) CONF IRMED THE ORDER OF AO WITH THE FOLLOWING OBSERVATIONS :- 2.3.1 I HAVE CONSIDERED THE SUBMISSION MADE BY THE APPELLANT AND THE OBSERVATION OF THE AO. THE SHORT QUESTION IS WHETHE R INTEREST U/S 234B IS LEVIABLE WHEN INCOME IS TAXED U/S 115JA/115JB. SECT ION 115JA HAS A SUB-SECTION (4) WHICH WAS INSERTED BY THE FINANCE A CT 1997 W.E.F. 01.04.1998 AND SIMILARLY SECTION 115JB HAS SUB-SECT ION (5). BOTH OF THESE ARE SIMILAR. ACCORDING TO THESE SUBSECTIONS THE OT HER PROVISIONS OF THIS ACT SHALL APPLY TO EVERY ASSESSEE BEING A COMPANY M ENTIONED IN THIS SECTION. THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF KWALITY BISCUITS LTD. (SUPRA) IS NOT APPLICABLE TO THE PROVISIONS OF SECTION 115JA AND 115JB. THE DECISION OF THE HONBLE SUPREM E COURT HAS BEEN GIVEN ON THE BASIS OF THE DECISION OF THE HONBLE K ARNATAKA HIGH COURT IN THE SAME CASE FOR SECTION 115J. SECTION 115J DID NO T HAVE ANY PROVISION SIMILAR TO SECTION 115JA(4) OR 115JB(5). THE CBDT H AS ALSO CLARIFIED VIDE ITS CIRCULAR NO.13 OF 2001 THAT THE PROVISION S OF SECTION 115JB ARE ENTIRELY DIFFERENT BECAUSE SUB-SECTION (5) OF SECTI ON 115JB PROVIDES FOR APPLICABILITY OF ALL OTHER PROVISIONS AND HENCE THE PROVISIONS OF SECTION 234B ARE ALSO APPLICABLE. 2.3.2 FURTHER THE DECISION OF THE HONBLE SUPR EME COURT IN THE CASE OF KWALITY BISCUITS (SUPRA) EMANATED FROM THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE SAME CASE REPORTED IN 2 43 ITR 519. THE KARNATAKA HIGH COURT HAS IN THE CASE OF JINDAL THER MAL POWER CO. LTD. VS. DCIT 286 ITR 182 HAS EXPLAINED THAT THE PROVISI ONS OF SECTION 115JB ARE DIFFERENT AND INTEREST U/S 234B & 234C WOULD BE LEVIABLE BUT PROSPECTIVELY. 2.3.3 IN VIEW OF THE ABOVE IT IS CLEAR THAT TH E DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF KWALITY BISCUITS LTD. (SUPRA) IS NOT APPLICABLE TO THE PROVISIONS OF SECTION 115JA AND 1 15JB. THE AO HAS RIGHTLY CHARGED INTEREST U/S 234B BY VIRTUE OF PROV ISIONS OF SUB-SECTION (4) OF SECTION 115JA. THEREFORE THIS GROUND OF APP EAL IS DISMISSED. AGAINST THIS ORDER OF LD. CIT(A) THE ASSESSEE HAS COME IN APPEAL BEFORE THE TRIBUNAL. ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 5 5. BEFORE US THE LD. COUNSEL OF THE ASSESSEE FAIRLY CONCEDED THAT THE ISSUE IS NOW COVERED AGAINST THE ASSESSEE BY THE DE CISION OF HONBLE SUPREME COURT IN THE CASE OF JT.CIT VS. ROLTA INDIA LTD. (2011) 330 ITR 470 (SC). THE LD. DR ON THE OTHER HAND SUPPORTED TH E ORDERS OF LOWER AUTHORITIES. 6. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERU SING THE MATERIAL ON RECORD WE ARE OF THE CONSIDERED OPINION THAT TH E ISSUE IS NOW COVERED AGAINST THE ASSESSEE BY THE DECISION OF HONBLE SUP REME COURT IN THE CASE OF JT.CIT VS. ROLTA INDIA LTD. (2011) 330 ITR 470 ( SC) WHEREIN THE HONBLE SUPREME COURT HAS BEEN HELD AS UNDER :- IT IS CLEAR FROM THE READING SECTION 115JA AND 115 JB OF THE INCOME-TAX ACT 1961 THAT THE QUESTION WHETHER A COMPANY WHICH IS LIABLE TO PAY TAX UNDER EITHER PROVISION DOES NOT ASSUME IMPORTANCE B ECAUSE SPECIFIC PROVISION IS MADE IN THE SECTION SAYING THAT ALL OT HER PROVISIONS OF THE ACT SHALL APPLY TO A MAT COMPANY [SECTION 115JA AND SEC TION 115JB(5)]. SIMILARLY AMENDMENTS HAVE BEEN MADE IN THE RELEVANT FINANCE ACTS PROVIDING FOR PAYMENT OF ADVANCE TAX UNDER SECTION 115JA AND 115JB. SECTION 234B IS CLEAR THAT IT APPLIES TO ALL COMPAN IES. THE PRE-REQUISITE CONDITION FOR APPLICABILITY OF SECTION 234B IS THAT THE ASSESSEE IS LIABLE TO PAY TAX UNDER SECTION 208 AND THE EXPRESSION ASSES SED TAX IS DEFINED TO MEAN THE TAX ON THE TOTAL INCOME DETERMINED UNDER S ECTION 143(1) OR UNDER SECTION 143(3) AS REDUCED BY THE AMOUNT OF TA X DEDUCTED OR COLLECTED AT SOURCE. THUS THERE IS NO EXCLUSION OF SECTION 115J/115JA IN THE LEVY OF INTEREST UNDER SECTION 234B. THE EXPRES SION ASSESSED TAX IS DEFINED TO MEAN THE TAX ASSESSED ON REGULAR ASSESSM ENT WHICH MEANS THE TAX DETERMINED ON THE APPLICATION OF SECTION 115J/1 15JA IN THE REGULAR ASSESSMENT. INTEREST UNDER SECTION 234B IS PAYABLE ON FAILURE T O PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SECTION 115JA. ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 6 CIRCULAR NO.13 OF 2001 DATED NOVEMBER 9 2001 HAS N O APPLICATION. THE ORDER OF LD. CIT(A) BEING IN CONFORMITY WITH TH E DECISION OF HONBLE SUPREME COURT IN THE ABOVE REFERRED CASE NO INTERF ERENCE IS CALLED FOR. WE CONFIRM THE SAME. THIS GROUND OF ASSESSEE IS DIS MISSED. 7. THE SECOND GROUND OF APPEAL IS REGARDING DISALLO WANCE OF CLAIM OF PROVISION MADE FOR ACCRUED LIABILITY OF GRATUITY. O N PAGE -2 OF PARA 1.3 OF THE ASSESSMENT ORDER THE AO HAS STATED THAT THE AS SESSEE HAD CLAIMED GRATUITY OF RS.2 LACS AS PER THE PROVISIONS OF SEC. 40A(7)(B) PAYMENT OF GRATUITY FUND IS ALLOWABLE ONLY IF IT HAD BECOME PA YABLE DURING THE PREVIOUS YEAR. HOWEVER IN THE CASE OF THE ASSESSEE AS PER ACTUAL VALUATION LIABILITY OF GRATUITY IS NIL. THIS AMOUNT HAD NOT B EEN PAID BY THE ASSESSEE. THIS AMOUNT WAS NOT AN ALLOWABLE EXPENSE DURING THE YEAR. THE ASSESSEE STATED BEFORE THE AO THAT THIS AMOUNT WOUL D BE PAID AT THE TIME OF RETIREMENT OF THE STAFF. BUT THE ASSESSEE MADE T HE CLAIM SAYING THAT THEY HAD TO PAY THE GRATUITY AT THE TIME OF RETIREM ENT AND THEREFORE THE PROVISIONS OF GRATUITY MADE FOR THE YEAR. THE AO DI D NOT ACCEPT THE EXPLANATION AND STATED THAT AS PER THE CLEAR PROVIS IONS OF SECTION 40A(7)(B) THE SAME WAS NOT ALLOWABLE AS THE LIABILI TY HAD NOT BEEN DISCHARGED DURING THE YEAR. THE ASSESSEE HAD NEITHE R MADE THIS PAYMENT NOR THIS AMOUNT WAS PAYABLE. ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 7 8. THE ASSESSEE WENT IN APPEAL BEFORE LD. CIT(A) AN D DURING THE APPELLATE PROCEEDINGS THE ASSESSEE REPEATED THE SU BMISSION MADE BEFORE THE AO. THE LD. CIT(A) CONSIDERING THE FACTS OF THE CASE AND SUBMISSIONS OF THE ASSESSEE CONFIRMED THE ORDER OF AO. FURTHER AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 9. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL PLACED ON RECORD. WE FIND THAT THE ASSESSEE HAD NEI THER MADE THIS PAYMENT NOR THIS AMOUNT WAS PAYABLE DURING THE YEAR UNDER CONSIDERATION. THEREFORE IT WAS RIGHTLY DISALLOWED BY THE AO AND CONFIRMED BY THE LD. CIT(A). THERE IS NO INFIRMITY IN THE ORDER OF LD. CIT(A). WE CONFIRM THE SAME. 10. GROUND NO.3 OF THE APPEAL IS REGARDING DISALLOW ANCE OF CREDIT OF MAT. IN THE ASSESSMENT ORDER THE AO HAS ASKED THE ASSESSEE TO SHOW CAUSE WHY THE MAT CREDIT OF RS.12 45 926/- TREATED AS ADVANCE TAX BY THE ASSESSEE BE NOT DISALLOWED AS THE AMENDMENT HAD BROUGHT INTO ACT IS W.E.F. ASST. YEAR 2006-07 PROSPECTIVE AND NOT RETRO SPECTIVE. THE ASSESSEE REPLIED THAT IN THE ORIGINAL ASSESSMENT THE TREATME NT OF THE TAX CREDIT AS ADVANCE TAX PAYMENT IS CORRECT. AS PER THE PROVISIO NS OF SECTION 115JA WHERE TAX IS PAID IN ANY ASSESSMENT YEAR IN RELATIO N TO THE DEEMED INCOME U/S 115JA(1) OF THE ACT THE TAX CREDIT WOULD BE AL LOWED IN THE ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 8 SUBSEQUENT ASST. YEAR. THE TAX CREDIT TO BE ALLOWED SHALL BE AMOUNT OF DIFFERENCE BETWEEN THE TAX PAID FOR ANY ASSESSMENT YEAR U/S 115JA(1) AND THE TAX PAYABLE ON TOTAL INCOME COMPUTED IN ACCORDA NCE WITH THE PROVISIONS OF THE IT ACT IS CORRECT. IN VIEW OF THI S REASON THE ASSESSEE STATED THAT THE TAX CREDIT UNDER MAT WAS TREATED AS ADVANCE TAX. THE AO DID NOT ACCEPT THIS EXPLANATION AND STATED THAT THE INCOME-TAX ACT DOES NOT PROVIDE MAT CREDIT AS ADVANCE-TAX. ACCORDING TO THE AO THE MAT CREDIT IS TREATED AS ADVANCE-TAX ONLY FROM ASST. YE AR 2006-07 IN VIEW OF THE AMENDMENT MADE U/S 234B AND HENCE HE DISALLOWED THE CREDIT AS ADVANCE TAX. 11. DURING APPELLATE PROCEEDINGS BEFORE LD. CIT(A) THE ASSESSEE ARGUED THAT THE AO HAD RIGHTLY TREATED THE MAT CRED IT AS ADVANCE-TAX WHILE FINALIZING THE ASSESSMENT ON 22.08.2005 WHICH WAS SET ASIDE BY LD. CIT U/S 263 OF THE ACT. THE ASSESSEE HAD ALSO RELIE D ON THE DECISION OF HONBLE KARNATAKA HIGH COURT IN THE CASE OF JINDAL THERMAL POWER CO. LTD. 286 ITR 182. THE LD. CIT(A) CONSIDERED THE SUB MISSIONS OF ASSESSEE AND DISMISSED THE GROUND BY OBSERVING AS UNDER :- 5.3 I HAVE CONSIDERED THE SUBMISSIONS MADE BY THE APPELLANT AND THE OBSERVATION OF THE AO. THE DECISION OF THE HONBLE KARNATAKA HIGH COURT IN THE CASE OF JINDAL THERMAL POWER CO. LTD. (SUPRA) IS NOT APPLICABLE IN THE INSTANT CASE. THE MAT CREDIT CANN OT BE TREATED AS ADVANCE-TAX AS THERE ARE NO PROVISION IN THE ACT IN THIS REGARD. IN FACT THE AMENDMENT FROM ASST. YEAR 2006-07 TO THIS EFFECT SH OWS THAT THE MAT CREDIT CANNOT BE TREATED AS ADVANCE TAX FOR ASST. Y EAR 2005-06 AND EARLIER YEARS. THE AO HAS RIGHTLY NOT ALLOWED THE A SSESSEE TO TREAT THE ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 9 MAT CREDIT FOR ADVANCE TAX AS THE AMENDMENT BROUGHT INTO ACT IS PROSPECTIVE AND NOT RETROSPECTIVE AND THIS GROUND O F APPEAL IS DISMISSED. AGGRIEVED THE ASSESSEE IS IN APPEAL BEFORE THE TRI BUNAL. 12. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL PLACED ON RECORD. BEFORE US BOTH THE PARTIES AGREED THAT THE ISSUE IS NOW COVERED IN FAVOUR OF ASSESSEE BY THE DECISIONS OF H ONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ROOTS MULTICLEAR LTD. (2010) 327 ITR 65 (MAD) AND HONBLE BOMBAY HIGH COURT IN THE CASE OF CIT VS. APAR INDUSTRIES LTD. (2010) 323 ITR 411 (BOM) WHEREIN TH E AMENDMENT OF SECTION 234B WAS HELD TO BE RETROSPECTIVE. WE FIND THAT HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. ROOTS MULTICLEAR LTD. (SUPRA) HAS HELD AS UNDER :- THE ASSESSEE FOR THE ASST. YEAR 2002-03 WAS ASSESS ED ON A TOTAL INCOME OF RS.35 88 383/- DETERMINING THE TAX AND SURCHARGE AT RS.12 81 053. AFTER DETERMINING THE TAX THE AO DEDUCTED TAX AT SO URCE AND ADVANCE TAX CALCULATED INTEREST UNDER SECTIONS 234B & 234C OF T HE INCOME-TAX ACT 1961 AND THEREAFTER ALLOWED BROUGHT FORWARD TAX CRE DIT UNDER SECTION 115JAA. ACCORDING TO THE ASSESSEE THE TAX CREDIT S HOULD HAVE BEEN TREATED ON PAR WITH THE TAX DEDUCTED AT SOURCE AND TAX CREDIT SHOULD HAVE BEEN GIVEN RIGHT AT THE BEGINNING. THE APPEAL FILED BY THE ASSESSEE WAS ALLOWED BY THE CIT(A). THIS WAS UPHELD BY THE TRIBU NAL. ON APPEAL: HELD DISMISSING THE APPEAL THAT THE CREDIT UNDER SECTION 115JAA SHOULD BE GIVEN EFFECT BEFORE CHARGING OF INTEREST UNDER S ECTION 234B AND 234C. ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 10 WE ALSO FIND THAT THE HONBLE BOMBAY HIGH COURT DEC IDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN THE CASE OF CIT VS. APAR INDUSTRIES LTD. (SUPRA) WHEREIN THE HEAD NOTES ARE AS UNDER :- ADVANCE-TAX INTEREST FOR DEFAULT IN PAYMENT OF AD VANCE TAX-COMPUTATION OF INTEREST UNDER SECTION 234B MINIMUM ALTERNATE TAX CREDIT F OR TO BE TAKEN INTO ACCOUNT AMENDMENT OF SECTION 234B W.E.F. 1.4.2007 CALCULATI ON AND APPLIES FOR CERTAIN YEARS INCOME-TAX ACT 1961 SS. 115JAA 234B. INTERPRETATION OF TAXING STATUTES AMENDMENT TO REM OVE AMBIGUITY AMENDMENT HAS RETROSPECTIVE OPERATION-INCOME-TAX FORM CANNOT OVER RULE STATUTORY PROVISION. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS WE ARE O F THE VIEW THAT THE LOWER AUTHORITIES WERE NOT CORRECT IN NOT TREATING THE MAT CREDIT AS ADVANCE TAX AND THEREFORE THE ORDERS OF LOWER AUTH ORITIES ARE SET ASIDE ON THIS ISSUE AND AO IS DIRECTED TO TAKE INTO CONSIDER ATION THE CREDIT OF MAT BEFORE CALCULATING INTEREST U/S 234B FOR DEFAULT IN PAYMENT OF ADVANCES TAX AS AMENDMENT OF SECTION 234B W.E.F. 1.4.2007 IS RETROSPECTIVE IN NATURE AND WOULD BE APPLICABLE FOR THE YEAR UNDER A PPEAL ALSO. THIS GROUND OF ASSESSEE IS ALLOWED. 13. GROUND NOS.4 & 5 ARE GENERAL IN NATURE AND HENC E REQUIRE NO ADJUDICATION. 14. GROUND NOS.1 & 2 OF ITA NO.1474/AHD/2009 ASST. YEAR 1998-99 ARE IDENTICAL TO THE GROUND NOS. 1& 2 OF ITA NO.147 5/AHD/2009 ASST. YEAR 1999-00. THE FACTS AND CIRCUMSTANCES OF THESE GROUNDS ARE SIMILAR TO THOSE OF GROUND NOS. 1 & 2 OF ITA NO.1475/AHD/20 09 ASST. YEAR 1999-00. WE HAVE DECIDED THOSE GROUNDS AGAINST THE ASSESSEE AND ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 11 THEREFORE FOLLOWING THE ABOVE ORDER OF THE TRIBUNA L WE DECIDE THESE GROUNDS AGAINST THE ASSESSEE. 15. GROUND NOS. 3 & 4 OF ITA NO.1474/AHD/2009 ASST. YEAR 1998-99 ARE GENERAL AND HENCE NEED NO ADJUDICATION. 16. IN THE RESULT ASSESSEES APPEAL FOR ASST. YEAR 1998-99 IS DISMISSED AND APPEAL FOR ASST. YEAR 1999-00 IS PARTLY ALLOWED . ORDER WAS PRONOUNCED IN OPEN COURT ON 18.11.11. SD/- SD/- (A. MOHAN ALANKAMONY) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICI AL MEMBER AHMEDABAD MAHATA/- COPY OF THE ORDER FORWARDED TO :- 1. THE ASSESSEE. 2. THE REVENUE. 3. THE CIT(APPEALS)- 4. THE CIT CONCERNS. 5. THE DR ITAT AHMEDABAD 6. GUARD FILE. BY ORDER DEPUTY / ASSTT.REGISTRAR ITAT AHMEDABAD ITA NOS.1474 & 1475/AHD/2009 ASST. YEARS 1998-99 & 1999-00 12 1.DATE OF DICTATION 2/11/2010. 2.DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE TH E DICTATING MEMBER.OTHER MEMBER 3/11/2011 3.DATE ON WHICH THE APPROVED DRAFT COMES TO THE SR. P.S./P.S. 4.DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER FOR PRONOUNCEMENT.. 5.DATE ON WHICH THE FAIR ORDER COMES BACK TO THE SR .P.S./P.S 6.DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 7.DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 8.THE DATE ON WHICH THE FILE GOES TO THE ASSTT. REG ISTRAR FOR SIGNATURE ON THE ORDER 9.DATE OF DESPATCH OF THE ORDER..