MS GIE JEWELLS vs. PR COMMISSIONER OF INCOME TAX

Judgment 03/04/2018 In both appeals common questions of law and facts are involved, hence, they are decided by this common judgment. By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the assessee.

(2 of 6) [ITA-107/2018] Counsel for the appellant has framed the following substantial questions of law:- In DBITA No. 107/2018 “i) Whether the appellate Tribunal is right in law and on facts in confirming the order passed by the ld. Commissioner of Income Tax (Appeals) sustaining the charge of interest amounting to Rs. 4,36,630/- by the ld. AO u/s 234B of the Act of 1961? ii) Whether the ld. ITAT is right under law while holding the provisions of Sec. 115JC at par with the provisions of Sec. 115JA and 115JB in respect of liability of payment of advance tax prescribed u/s 208 charging of interest u/s 234B of the Income Tax Act, 1961 in case of non-payment of Advance Tax which cannot be computed without adjustment of total income as provided under Sub-section (2) of Sec. 115JC and the application of the provisions of said section only when a report is obtained in the prescribed form from an accountant certifying that the adjusted income and the AMT have been computed in accordance with the provisions of Chapter XIIBA? iii) Whether the ld. ITAT was justified under law while sustaining the findings of ld. CIT(A) for confirming the charge of interest u/s 234B of the Income Tax Act, 1961 in case of Assessee- Appellant who is a person other than a company and paid Alternate Minimum Tax (AMT) u/s 115JC before filing of the return of income duly audited and alongwith the report of accountant as prescribed under the said provision? iv) Whether the ld. ITAT was justified under law while ignoring the provision of law that tax credit for AMT paid by a person u/s 115JC is not refundable and no interest is payable on tax credit allowed and the tax credit is carried forward and set off in the tax liability of the following years, while the excess advance tax paid by an assessee is refundable with interest after passing of the assessment order by the AO?” In DBITA No. 106/2018 “i) Whether the appellate Tribunal is right in law and on facts in confirming the order passed by the ld. Commissioner of Income Tax (Appeals) sustaining the charge of interest amounting to Rs. 20,14,476/- by the ld. AO u/s 234A & 234B of the Act of 1961?

(3 of 6) [ITA-107/2018] ii) Whether the ld. ITAT is right under law while holding the provisions of Sec. 115JC at par with the provisions of Sec. 115JA and 115JB in respect of liability of payment of advance tax prescribed u/s 208 charging of interest u/s 234B of the Income Tax Act, 1961 in case of non-payment of Advance Tax which cannot be computed without adjustment of total income as provided under Sub-section (2) of Sec. 115JC and the application of the provisions of said section only when a report is obtained in the prescribed form from an accountant certifying that the adjusted income and the AMT have been computed in accordance with the provisions of Chapter XIIBA? iii) Whether the ld. ITAT was justified under law while sustaining the findings of ld. CIT(A) for confirming the charge of interest u/s 234B of the Income Tax Act, 1961 in case of Assessee- Appellant who is a person other than a company and paid Alternate Minimum Tax (AMT) u/s 115JC before filing of the return of income duly audited and alongwith the report of accountant as prescribed under the said provision? iv) Whether the ld. ITAT was justified under law while ignoring the provision of law that tax credit for AMT paid by a person u/s 115JC is not refundable and no interest is payable on tax credit allowed and the tax credit is carried forward and set off in the tax liability of the following years, while the excess advance tax paid by an assessee is refundable with interest after passing of the assessment order by the AO?” The case of the appellant is that the appellant was assessed under Section 115JC. Counsel for the appellant contended that Section 115JB & 115JC are not parimateria and the Tribunal has India Ltd.; 330 ITR 470 and the decision of Karnataka High Court in Kwality Biscuits Ltd. vs. CIT; 243 ITR 519. Counsel for the appellant has taken us to the provisions of Section 115JB & 115JC and also Finance Act, 2013 so also explanation to 115JB and contended that explanation which was (4 of 6) [ITA-107/2018] subsequently inserted was not there when the decision was rendered in Rolta India Ltd. (supra) by the Supreme Court. However, the Tribunal while considering the matter has specifically observed as under:- “3. Before us, the ld. AR of the assessee has submitted that while filing the return of income the assessee made payment of alternative minimum tax under the provisions of section 115JC however, while completing the assessment the AO charged interest u/s 234B for not paying the alternative minimum tax as per scheme of advance tax u/s 208. The Ld. AR has contended that the provisions of advance tax u/s 208 is not applicable to the facts of the case and in respect of the tax payment made u/s 115JC. He has further contended that the reliance of CIT(A) on the decision of Hon’ble taxmann 594 as well as Hon’ble Karnataka High Court payment of advance tax u/s 208 of the Act. Thus, in the entire chapter there is no a single word referring to payment of interest of any type leave aside section 234B. The ld. AR has further contended that deeming provisions create a legal fiction only for a definite purpose and they are limited to that purpose only and should not be extended beyond that unless it is clearly and expressly provided. Therefore, it is not permissible to impose the liability of supposition of law. In support of his contention he has relied upon the following decisions:- (i) CIT vs. Elphinstone Sps & Wvg. Mills Co [ITA-107/2018] 48 ITR 59 (SC) (iv) Executor & Trustees of Sir Cawasji assessment u/s 143(1) or u/s 143(3). The excess payment of advance tax is not carried forward to set off against tax liability of subsequent assessment years whereas in case of payment AMT the same is never refunded and as per the provision of section 115JD(4) the payment of AMT shall be carried forward for credit upto subsequently 10th assessment years. Further, in case of advance tax the Revenue is liable to pay interest u/s 244A(a) of the Act but no such refund is allowed on payment of AMT. Thus, the ld. AR has submitted that the assessee cannot be held liable for advance tax section 208 on account of tax liability u/s 115JC and consequently no interest can be levied u/s 234B on such tax liability.

(6 of 6) [ITA-107/2018] Hence, the appeals stand dismissed. (VIJAY KUMAR VYAS),J (K.S.JHAVERI),J A.Sharma/1-2