ACIT CENTRAL CIR6(4), MUMBAI vs. M/S. MARIANA INFRASTRUCTURTE LTD, MUMBAI

ITA No.2395/Mum/20121 A.Y. 2017-18 1 The ACIT, CC-6(4) Vs. Mariana Infrastructure Ltd.

IN THE INCOME TAX APPELLATE TRIBUNAL “D” BENCH, MUMBAI BEFORE SHRI ABY T VARKEY, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER ITA No.2395/Mum/2021 (A.Y. 2017-18) The Asstt. Commissioner Vs. Mariana Infrastructure of Income Tax, Central Limited, M-62 &63, Circle -6(4) 1st Floor, Connaught Room No. 1925, 19th Place, New Delhi Floor, Air India Building, 110 001 Nariman Point, Mumbai – 400021 स्थायी लेखा सं./जीआइआर सं./ PAN/GIR No: AAFCM2619H Appellant .. Respondent Appellant by : Ajay Chandra Respondent by : K. Gopal Date of Hearing 13.10.2022 Date of Pronouncement 31.10.2022 आदेश / O R D E R Per Amarjit Singh (AM): The present appeal filed by the revenue is directed against the order passed by the ld. CIT(A)-54, Mumbai which in turn arises from the order passed by the A.O u/s 143(3) of the Act. The revenue has raised the following grounds before us: “1. Whether the Ld.CIT(A) erred in allowing the claim of deduction of revenue of cancelled transaction of Rs.27,78,65,132/- cancelled in subsequent year from the book profit though section 115JB is a self-contained code where even the additions and deductions from the book profit are specified the provisions of section 115JB des not allow any such deductions?."

ITA No.2395/Mum/20121 A.Y. 2017-18 2 The ACIT, CC-6(4) Vs. Mariana Infrastructure Ltd.

ITA No.2395/Mum/20121 A.Y. 2017-18 3 The ACIT, CC-6(4) Vs. Mariana Infrastructure Ltd.

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without any reason the A.O has made disallowance of the same while computing MAT u/s 115JB of the Act. The ld. Counsel has placed reliance on the judicial pronouncements in the case of Shivalik Venture (P) Ltd. Vs. DCIT-8(3) (2015) 60 taxmann.com 314 (Mumbai Trib) and Bata India ltd. Vs. DCIT, circle -2(1) (2019) 111 taxmann.com 453 (Kolkata Trib). The ld. Counsel has also furnished paper book comprising copies of auditors report along with accounting notes and copies of profit and loss account etc. 5. Heard both the sides and perused the material on record. During the course of assessment the A.O allowed the claimed of deduction of revenue reversed item amounting to Rs.27,78,65,132/- on cancellation of transaction while computing total income under normal provision. However, the AO disallowed the said amount of revenue reversed cancelled transaction to the amount of Rs.27,78,65,132/- while computing book profit u/s 115JB of the Act. On perusal of material on record it is noticed that assessee company entered into an agreement dated 16.09.2016 with M/s Indiabulls Housing Finance Ltd as a buyer to acquire from the assessee company G + 24 floor with parking from its project situated in sector 104, Gurgaon, Haryana. After cancelation of the aforesaid transaction the amount credited to the profit and loss account by the assessee company was reduced in the computation of income while computing the income for the year assessment year under consideration. In this regard it is noticed that in the computation of income the assessee had categorically claimed deduction of Rs.27,78,65,132/- under the head revenue reversed for cancelled transaction. During the course of assessment proceedings the A.O has allowed the claim of deduction of amount revenue reversed for cancel transaction under normal provision. However, the A.O had disallowed the

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said claim while computing book profit u/s 115JB of the Act. During the course of appellate proceedings before the ld. CIT(A) ld. CIT(A) has also considered the decision of Hon’ble Delhi High Court in the case of CIT(A) Vs. Sain Processing 7 Wvg. Mills (P) Ltd. (2010) 325 ITR 565 (Del).

Further the ld. CIT(A) has also referred the case of Bata India Ltd. Vs. DCIT 111 taxman.com 453 wherein it is held that as per requirement of AS-15 the assesse is required to ascertain the liability towards employees benefits which should have been recognized till date and the liability which has already been recognized in the books of account. The copy of accounting note 42 for the year ended 31.03.2017 as a part auditors report of the assessee company is placed at page no. 39 of the paper book. The relevant part is reproduced as under:

“b. The Company entered into an Agreement dated 16 September, 2016 (hereinafter referred to as "the Agreement") with India bulls Housing Finance Limited (hereinafter referred to as "buyer") by virtue of which the company intended to sell G+24 floors with parking at three basement floors, having total area admeasuring 1,79,649 square feet situated in Sector 104, Gurgaon Haryana (bearing license number 9 of 27.12011) to buyer. The from this Project has been recognized in the financial statements. However, certain conditions precedent for continuation of agreement as in Clause 81 of the Agreement have not been fulfilled. The Company and the Buyer are evaluating options / in discussion for continuation of the Agreement.” The assessee has not claimed reversal of revenue in the tax return for A.Y. 2018-19. The relevant finding of the ld. CIT(A) is also reproduced as under:

“5.3 The findings of the AO in the assessment order and the submission made by the appellant has been considered. 5.3.1 The AO has added the amount of Rs.27,78,65,132/- in the computation of book profit u/s 115JB of the Act. The reasons given by the AO is that the judgments relied upon by the appellant are not applicable to facts of the case of the appellant as the judgments were on the issue of capital receipt but appellant's claim was related to revenue receipt. The AO has referred to the provisions of section 115JB and held that revenue for Cancelled Transaction is not specified in the explanation to 115JB of the act. The AO has also relied upon the decision of

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the Hon'ble Supreme Court in the case of Apollo Tyres and held that no addition & deduction is allowed for computing under 115JB except as provided in the explanation of the section 115JB Accordingly, revenue for Cancelled Transaction amounting to Rs.27,78,65,132/- has been disallowed while computing Book Profit u/s 115JB of the Act 5.3.2 The appellant has submitted that that the decision in the case of Apollo Tyres was rendered in the context of section 115J of the Act, Section 115J did not contain provision similar to section 115JB(5) of the Act which provides that 'save as otherwise provided in section 115JB, all other provisions of the Act shall apply. It means that Section 4 and 5 of the Act shall be applicable for taxation of the real income earned by the assessee even under section 115JB of the Act. The ratio of Apollo Tyres does not envisage a situation of receipts which are not taxable being subjected to MAT. Relying upon the decision in the case of Indo Rama Synthetics Ltd -vs- CIT [[(2011) 330 ITR 363 (SC), it is argued that inclusion of capital receipt in the computation of MAT would defeat two fundamental principles. Firstly, it would levy tax on receipt which is not in the nature of income at all and secondly it would not result in arriving at real working results of the company. It is also submitted that the AO can amend the book profit if it is not in accordance with Part II & Part III of Sch. VI, likewise the assessee also can re- compute the book profit for the purpose of Sec. 115J8 of the Act For this proposition the appellant has relied upon the decision in the case of CIT vs Veekaylal Investment Co. (P) Ltd. (2001) 249 ITR 597 (Bom) The appellant has further submited that the note forming part of the profit and loss account which explained the nature of the income is an integral pan of the profit and loss account and profit arrived after adjustment of the note should be considered for MAT computation. The appellant has referred to the decision of the Hon'ble Kolkata ITAT in the case of DCIT vs Binani Industries Limited TS-111- ITAT - 2016) (Kolkata ITAT) Hon'ble Delhi High Court in the case of CIT v. Sain Processing & Wvg.Mills (P) Ltd. (2010) 325 ITR 565, Hon'ble Kolkata Tribunal in the case of Bata India Ltd vs DCIT reported in 111 taxmann.com 453, Shivalik Ventures Private Limited vs. DCIT 8(3) [ITA No. 2008/Mum/2012] It is also brought to my notice that the AO has allowed Rs. 27.78 Crs. on revenue for cancelled transactions under normal provisions of the Act, however, the AO has made disallowance u/s 115JB of Rs. 27.78 Crs on revenue for cancelled transactions. Accordingly. it is submitted that when an income which does not have an income character under normal provisions of the Act, cannot be added back under Books Profit merely because of the enabling provision specified in Section 115JB. The appellant has relied upon the decision in the case of Sutlej Cotton Mills Limited vs Assistant Commissioner of Income Tax 45 ITD 22 (Calcutta), wherein Hon'ble Calcutta ITAT has held that what was specifically exempted under section 45 read with section 54E could yet be taxed wider section 115J. It is also stated by the appellant that the appellant has not claimed the reversal of revenue in the tax return of AY 2018-19.

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5.3.3 The facts of the case are that the appellant entered into an agreement dated 16.9.2016 with Indiabulls Housing Finance Ltd. As per the agreement, the appellant company was to sell the ground and 24 floors with parking at three basement floors, having total area admeasuring 1,79,649 square feet situated in Sector 104, Gurgaon Haryana to Indiabulls Housing Finance Ltd. For this, the appellant received the consideration of Rs.650,020,609/ from Indiabulls Housing Finance Ltd, on which TDS of Rs 6,565,867/- was deducted u/s 1941A and it was duly reflected in Form 26AS. During the year under consideration, the appellant reported revenue from operations of Rs 70.71 Crore from M's Indiabulls Housing Finance Limited and booked corresponding cost of Rs 42.92 Crore. The appellant reported profit before tax of Rs. 27.88 Crore. The revenue from the said transaction was recognized in the financials with an appropriate disclosure at Note 42(b) forming part of the audited financials for FY 2016-17. However, the Agreement was cancelled vide Letter dated 29.06.2017. Accordingly, the sum received by the assessee from M/s IHFL was duly refunded and the revenue reversed in next financial year with a due disclosure at Note 45(b) in the audited financials for the Financial Year 2017-18. The cancellation of the agreement and refund of money to IHBL occurred before the due date of ITR, therefore, the appellant has reversed the revenue from cancellation of agreement in computation of total income file alongwith the ITR. From the assessment order, it is seen that the AO has not taken into account the notes forming part of the financial accounts as on 31.03.2017 and as on 31.03.2018. The notes forming part of the financials are very much a part of the financials and it has to be taken into consideration to arrive at the net profit according to the provisions of Part II and III of Schedule VI to the Companies Act if the notes forming part of the financials are considered, then the net profit as per Part II and IL of Schedule V to the Companies Act would also be reduced by the amount of cancellation of the revenue to the extent of Rs. 27.79 Crore. In this regard the decisions in the following cases are relevant. Hon'ble Delhi High Court in the case of CIT v. Sain Processing & Wvg. Mills (P) Ltd. [2010] 325 ITR 565 (Del), has held that current year's depreciation, which had not been charged to profit and loss account but had been disclosed in notes appended to accounts, would be deducted from net profit in determining book profit for purpose of section 115J. The Hon'ble Delhi High Court has held as under: The Explanation to section 115J(1A) makes it clear that the book profit for the purpose of the said section means net profit as shown in the profit and loss account for the relevant previous year, prepared under sub-section (1A) of section 115J. Sub section (1A) imposes an obligation on every assessee to prepare its profit and loss account for the relevant previous year in accordance with provisions of Parts II and III of Schedule VI to the Companies Act, 1956 [Para 4.4] Undisputedly the assessee had prepared the profit and loss account in the form prescribed, i.e, Parts II and III of Schedule VI to the Companies Act, but it had not charged depreciation in the profit and loss account and instead had disclosed said fact along with the quantum of current year's

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depreciation computed in accordance with section 205(2) of the Companies Act, as per the requirement of clause 3(iv) of Part II of Schedule VI to the Companies Act, by way of a note to the account. [Para 4.5] The requirement of disclosure on failure to provide for depreciation in the profit and loss account as also the quantum of such arrears flows from section 211, read with clause 3(iv), of Part II of Schedule VI to the Companies Act, the reason being that there is an obligation cast on the company to present a true and fair view of its state of affairs to those who rely on its accounts. [Para 4.6] Thus, disclosure in the notes to the account is obligatory by virtue of the provision of sub-section (1A) of section 115J which requires that every assessee shall prepare profit and loss account in accordance with the provision of Parts II and III of Schedule VI to the Companies Act, 1956 [Para 4.7] Sub-section (6) of section 211 of the Companies Act provides that except where the context otherwise requires, any reference to a balance-sheet or profit and loss account shall include the notes thereon or documents annexed thereto, giving information required to be given and/or allowed to be given in the form of notes or documents by the Companies Act. It is obligatory under clause 3(iv) of Part II of Schedule VI to the Companies Act to give information with regard to depreciation, which has not been provided for along with the quantum of arrears. Once this information is disclosed in the notes to the account, it would clearly fall within the ambit of the Explanation to section 115J which defines 'book profit' to mean 'net profit as 'shown in the profit and loss account for the relevant assessment year [Para 4.9] In the instant case, as long as the depreciation was not charged to profit and loss account but was otherwise disclosed in the notes to the account, it would come within the ambit of the expression 'shown in the profit and loss account', as notes to the account form part of the profit and loss account by virtue of sub-section (6) of section 211 of the Companies Act, 1956. [Para 4.10] The net profit of a company cannot be determined till all items of income and expenses are recognized as well as depreciation is taken into account Depreciation is nothing but loss of value of an asset ansing from its use, efflux of time or obsolescence over a period of its useful life. Depreciation, undoubtedly, has a major impact on determination of the financial position of a company/enterprise. The use of the expression 'net profit' makes it clear that depreciation, which is not debited to the profit and loss account, would have to be taken into account while determining the 'book profit' under section 115J as long as it forms part of the prescribed accounts [Paras 4.11 & 4.12] Under clause (iv) of the Explanation to section 115J, the net profit as shown in the profit and loss account is to be reduced by the amount of loss or depreciation which would be required to be set off against profit of the relevant previous year as if the provisions of clause (b) of the first proviso

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to sub-section (1) of section 205 of the Companies Act are applicable. In other words, section 205(1), proviso (b) of the Companies Act read with clause (iv) of the Explanation fo section 115J, permits reduction in the net profit to the extent of past losses or unabsorbed depreciation, whichever is less. This makes the legislative intent clear if unabsorbed depreciation can be reduced from the net profit to arrive at book profit, there is no reason to say that current year's depreciation, even though not charged to the profit and loss account, but disclosed in the notes appended to the accounts, cannot be deducted from the net profit in determining the book profit for the purposes of section 115J. Therefore, the assessee was entitled to seek deduction of current year's depreciation from net profit to arrive at the book profit, even though it had not been charged to the profit and loss account, though had been disclosed in the notes appended to the account. [Para 5] Hon'ble Kolkata Tribunal in the case of Bata India Ltd vs DCIT 111 taxmann.com 453 has also taken a similar view. The Tribunal has held as under: As per the requirement of AS-15, the assessed is required to ascertain the liability towards employees' benefits which should have been recognized till date and the liability which has already been recognized in the books of account if the difference i.e the transitional liability is more than the liability that has been recognized as per the pre-revised AS-15, the enterprise is mandatorily required to immediately increase its defined benefit liability on the date on which the revised AS-15 has been adopted. In terms of revised AS-15, the transitional provision so provided can be accounted for under any of the following two alternative approaches: (a) as an immediate adjustment against the opening balance of revenue reserves and surplus, or (b) as an expense on a straight-line basis over/upto five years from the date of adoption of the Accounting Standard The change in the method of accounting pursuant to AS-15 (Revised) was duly highlighted in the Significant Accounting Policies forming part of the Notes to the Financial Statement of the assessee company. [Para 1] Section 115JB is a code itself to compute the book profit to determine and levy the correct income tax thereon and, therefore, the Profit and loss account and Balance Sheet should be read together with notes to accounts. Notes to account contain off Balance Sheet items and off profit and loss items Notes to accounts explain the figures of Profit and loss account and Balance Sheet and, therefore, these are part of Profit and loss account and Balance Sheet [Para 18] AS-15 is mandatory for the assessee company to make the compliance with effect from 7-12-2006 Therefore, the assessee company has to make provision in the books of account by following the AS-15 for transitional liability towards gratuity and leave salary. From the various decisions, it follows that the net profit as per the profit and loss account prepared in accordance with Part II of Schedule VI to the Companies Act, 1956 is the starting point for computation of book profit under section 115JB. Where

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the profit and loss account is not strictly drawn up in accordance with Part II of Schedule VI to the Companies Act, 1956, the same is first to be adjusted to bring the same in line with the relevant provisions of the Companies Act, thereafter the adjustments enumerated in various clause of Explanation 1 to section 115JB are to be carried out In that view of the matter, where the adjustment is of the kind to align the net profit as per the profit and loss account in accordance with Part II of Schedule VI to the Companies Act, 1956, the same has to be carried out notwithstanding that such adjustment may not be within the scope of various clauses of Explanation 1 to the said section. As indicated in the accounting standard, in either case, the objective is to indicate the effect of such items on the current profit or loss. The fact that the assessee adopted the alternative approach of showing such items in the statement of profit and loss. after determination of current net profit or loss, does not mean that these items are not to be taken into account in computing net profit as envisaged in section 115JB Profit and loss account and Balance Sheet should be read together with Notes to accounts to compute the book profit under section 115JB Notes to accounts are part of Profit and loss account and Balance Sheet The ability towards leave encashment and gratuity has to be considered to determine net profit as the information was disclosed in the Notes appended to accounts, which have been held to be part of the accounts of the assessee-company Notes to accounts explain the figures of Profit and loss account and Balance Sheet and off balance sheet items and, therefore these are part of Profit and loss account and Balance Sheet Therefore, the Transitional Liability provided in books of account and adjusted against Opening General Reserve as per Paras 143 to 145 of AS-15 (Revised 2005), towards leave liability and towards gratuity liability done by an outside actuary under mandatory AS-15 (Revised 2005) on employee benefits issued by ICAI, should be reduced from current year's profit for computation of Book Profit under section 115JB. Therefore, considering the facts and circumstances of the case and the case laws it is to be noted that notes to accounts are part of financial statements (Profit & Loss account and Balance Sheel, cash flow statement etc) and, therefore, the computation of book profit under section 115JB should be done taking into account the figures mentioned in the notes to accounts Hence, the Assessing Officer is directed to allow deduction in respect of transitional provisions of leave liability and gratuity liability while assessing profit under section 115JB [para 19] The appellant has also relied upon the decisions in the case of Hon'ble Kolkata ITAT in the case of DCIT vs Binani Industries Limited (TS-111-ITAT-2016) (Kolkata ITAT) and Shivalik Ventures Private Limited vs DCIT 8(3) [ITA No. 2008/Mum/2012], wherein the similar view has been taken In view of the legal precedents and the facts of the case, the amount of Rs. 27.79 Crore is not required to be added to the net profit, as arrived after giving effect to the notes forming part of the financials, to compute book profit u/s 115JB of the Act. The appellant has also brought to my notice the fact that the AO has accepted the claim of reversal of revenue while computing total income under normal

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provisions of the Act, which is also evident from computation of income forming part of the assessment order However, the AO has made adjustment of reversal of revenue while computing book profit u/s 115JB of the Act. The view taken by the AO is contradictory. In view of the above discussion, Revenue for Cancelled Transaction amounting to Rs.27,78,65,132/- disallowed while computing Book Profit u/s 115JB of the Act by the AO cannot be sustained.” We have considered the findings of the ld. CIT(A) that A.O had accepted the claim of reversal of revenue while computing total income under normal provision of the Act, therefore making adjustment of the same amount while computing book profit u/s 115JB was not justified. In the light of the above facts findings and circumstances we don’t find any error in the decision of ld. CIT(A) therefore this ground of appeal of the revenue stand dismissed.

Order pronounced in the open court on 31.10.2022

Sd/- Sd/- (Aby T Varkey) (Amarjit Singh) Judicial Member Accountant Member Place: Mumbai Date 31.10.2022 Rohit: PS आदेश की प्रतितिति अग्रेतिि/Copy of the Order forwarded to : 1. अपीलाथी / The Appellant 2. प्रत्यथी / The Respondent. 3. आयकर आयुक्त(अपील) / The CIT(A)- 4. आयकर आयुक्त / CIT विभागीय प्रविवनवध, आयकर अपीलीय अवधकरण DR, ITAT, 5. Mumbai 6. गार्ड फाईल / Guard file.

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सत्यावपि प्रवि //True Copy// आदेशानुसार/ BY ORDER,

उि/सहायक िंजीकार (Dy./Asstt. Registrar) आयकर अिीिीय अतिकरण/ ITAT, Bench, Mumbai.