NEHA HOME BUILDERS PVT. LTD.,MUMBAI vs. CIT - 13, MUMBAI

This is an appeal filed by the assessee against the order of CIT-13, Mumbai dated 30/03/2016 for A.Y.2011-12 in the matter of order passed u/s.263 of the IT Act. 2. The following grounds have been taken by the assessee:-

Rival contentions have been heard and record perused.

In this case, CIT invoked powers u/s.263 and directed the AO not to allow deduction u/s. 80IB(10) while computing book profit u/s.115JB of the IT Act. CIT has taken a view that assessee had incorrectly reduced deduction u/s.80IB which was accepted during the scrutiny assessment. Therefore, Assessment order is erroneous and prejudicial to the interest of revenue. Accordingly, CIT set-aside the assessment order after placing reliance on the decision of Karnataka High Court. 5. It was contention of learned AR that with regard to allowing deduction in respect to the profit earned from housing project u/s.80(IB)(10) is covered by the judicial pronouncements in assessee’s favour and the AO has taken the plausible view with which the CIT did not agree. As per learned AR, when there are two views possible and AO has taken one view, it cannot be rated as erroneous order prejudicial to the interest of revenue. 6. On the other hand contention of learned DR is that CIT in his order u/s.263 has correctly relied on the decision of Karnataka High Court wherein it has been held that provision of Section 115JB would apply in case of assessee who is entitled to deduction u/s.80IB and while calculating taxability u/s.115JB, deduction u/s.80 IB would not be available.

From the record, we found that while computing book profit u/s.115JB, the AO has reduced the amount of profit exempt u/s.80IB (10) in respect of housing project from the book profit. However, after placing reliance on judgement of Hon'ble Karnataka High Court and on decision of Hon'ble Ahmedabad Tribunal, the Ld. CIT has noted that while computing book profit for MAT u/s. 115JB of the Act, the assessee had incorrectly reduced deduction under section 80IB which was accepted during the scrutiny assessment for the year, under normal provisions. Thereafter, vide order dated 30.03.2016 the Ld. CIT set aside the order of the Ld. AO and directed him to pass a fresh order after considering the ratio mentioned in her order.

So far as reduction of profit eligible for deduction u/s.80IB is concerned while computing book profit u/s.115JB, there are the two views possible. As per settled judicial pronouncements by Hon’ble Supreme Court in case of Max India Ltd., 295 ITR 282 where two view are possible and the AO has taken one of the plausible view, the order passed by AO cannot be said to be erroneous and prejudicial to interest of revenue.

Therefore the moot question arises in the case of the assessee is as under:

In this regard, we observe that explanation 2(d) under section 263 specifically states that revision is possible only due to judgments of the jurisdictional or supreme court. However, in the instant case before us the decision relied on by CIT was not of jurisdictional High Court.

Even on merits we observe that Sec 115JB relates to special provision for payment of tax by certain companies. Sub-Section (5) is reproduced hereunder- (5) Save as otherwise provided in this section, all other provisions of this Act shall apply to every assessee being a company, mentioned in this section

Sub-sec 5 clearly provides that all the provisions of the I.T act will be applicable to the computation governed by sec. 115JB. As such if any income is not taxable because of a specific provision of the Act, the same will not form part of Book profit u/s 115JB. Like Sec.80IB(10) exclude the income from housing project for taxation purpose under normal provisions of the Act. Thus, it will not be taxable u/s 115JB.

Sec.80IB(10) and 115JB have presence of a non-obstante clause. Therefore, the non-obstante clause as incorporated in Sec.80-IB should prevail, as it is in consonance with the intention of the legislature in granting exemption in respect of the income earned by the assessee from housing project. Reliance is placed on the following judicial pronouncements.

Sub-section (5) which says that save as otherwise provided in this section. Similar provision was incorporated in sub sec (4) of sec 115JA which is the predecessor of sec 115JB. But absent in section 115J which preceded sec 115JA. This peculiar provision raised a controversy as to the legal implication of insertion of sub-sec (5) and sub-sec (4) in sec 115JB and 115JA respectively. This legal issue has been considered by Mumbai Bench of the Tribunal in the case of ITO v.Frigsales (India) Ltd.4 SOT 376 (Mum). The issue related to capital gains arising on a depreciable asset which is exempt u/s 50 of the Act. Taking notice of sub-sec (4) of sec 115JA which provisions, as stated above, was not available in sec 115J, the tribunal held that the exempt income under sec 50 would remain exempted as per provisions of sub-sec (4) of sec 115JA and therefore, capital gain arising to an assessee u/s 50 on a depreciable asset is liable to be excluded from calculation of deemed profits u/s 115JA. Exemption/ deduction allowed by one provision of the Act cannot be taken away by another provision of the Act. Sec. 115JA, the predecessor to Sec. 115JB, was introduced to the statute book and the budget speech of the finance minister while introducing the Bill in the M/s. Neha Home Builders Pvt. Ltd., House and also to the subsequent board circular, for levying a minimum alternate tax to those companies which were though paying handsome dividends to its shareholders and had good amount of book profit, was, nevertheless, filing a return of nil income for the purpose of income tax.

When once the assessee company had developed housing project, where the income is exempted u/s 80IB(10), the assessee company had legitimate expectation to enjoy the benefit of exemption and even a legitimate expectation being in the nature of an assurance in law if it flows out of the statutory provisions, that cannot be denied to the assessee company. Reliance is placed on the following judicial pronouncements. I) MRF LTD VS. Asst. CST (2006) 148 STC 225 (SC) II) Bannari Amman Sugars Ltd., vs. CIT (2005) 1 SCC 625 III) M P Oil Extraction vs. State of MP (1997) 7 SCC 592 17. The receipts which are not taxable cannot bring to tax under any other section.”CIT vs. D.P.Sandhu Brothers 273 ITR 1 (SC) 18. In the newly inserted sec. 115JC the legislature clearly mention that "deduction claimed, if any, under the heading "C.-Deductions in respect of certain incomes";, i.e. If the legislature have intention :; not give benefit of sec.8OIB(l0) for the purpose of MAT calculation then legislature will also provide same type of provision in section 115JB which is currently absent, i.e legislature wants to give benefit of deduction u/s 80IB(10) for the purpose of sec. 115JB calculation. 19. Hon’ble Gujarat High Court in case of Indian Petrochemicals Corporation Ltd., 74 Taxmann.com 163 held that deduction u/s.80HHC M/s. Neha Home Builders Pvt. Ltd., can be allowed while computing book profit u/s.115JA even though assessee had no taxable income under normal provisions of Act. Similarly, Kerala High Court in case D.C. Mills Pvt. Ltd., 387 ITR 64 held that where two views are possible and AO has taken one plausible view, such order of the AO cannot be branded as prejudicial to the interest of Revenue. In this case, assessee was entitled for deduction of profit on export business. AO allowed setting off loss incurred in one unit against profit of other two units which were as per the judicial pronouncements. It was held that Commissioner taking a different view and branding the order of the AO erroneous and prejudicial to the interest of the revenue was not justified.

In the instant case assessee was undisputedly entitled for deduction u/s.80IB(10) in respect of housing profit. Accordingly AO while framing scrutiny assessment order allowed the same out of normal income as well as while computing book profit. However, according to the Ld. CIT, the assessee is liable to pay the MAT on the profit earned u/s.80IB(10). In terms of the decision of Supreme Court in case of Max India (supra) whenever two views are possible and the AO has taken one view, with which the CIT does not agree, it cannot be treated as an erroneous order, prejudicial to the interests of the Revenue.

ITAT Mumbai Bench in case of Frigsales (India) Ltd., SOT 376 held that a receipt which is not in the nature of income cannot be taxed as income u/s.115JA. The head notes of the case reads as under:-

In ITO V. SURAJ JEWELLERY (INDIA) LTD. 21 SOT 79 (MUM), Mumbai Tribunal again held that capital receipts which do not constitute income under the Act cannot be brought to tax net by employing the mechanism of section 115JB. The Tribunal further held that section 115JB has not intended to bring all non-income items within the domain of the Act.

By inserting sub-sec. (4) in sec. 115JA and sub-sec. (5) in sec. 115JB, the legislature has made both these sections as part of the Act now. Further, In SUTLEJ COTTON MILLS LTD. V. ACIT 45 ITD 22 (CAL) (SB) Special Bench held that the expression book profit u/s. 115J is intended to be confined to business profit and that the term book profit is not intended to include profit in realization of any asset. It is further held that what is specifically exempted u/s. 54E could not be taxed u/s. 115J. This decision supports our contention. 24. Supreme Court in the case of CIT vs. D.P.Sandhu Brothers reported in 273 ITR 1 held that the receipts which are not taxable cannot brought to tax under any other section. Deduction claimed by assessee in the instant case u/s.80IB (10) is not taxable under the normal provisions of the Act cannot be treated as part of book profit u/s.115JB, hence, the ld. M/s. Neha Home Builders Pvt. Ltd., AO has adopted one of the possible view. Thus, Income arising from development of housing projects are not taxable (Sec 80IB(10) and were excluded from its purview. Therefore, Sec. 80IB(10) income will not be part of MAT income and MAT tax. Thus, the assessment order was rightly passed and cannot be termed as erroneous & prejudicial to interest of revenue. 25. In our considered view, provision of section 263 will apply when decision of AO is erroneous as well as prejudicial to the interests of the Revenue. But in a case where two views are possible and the AO has taken one view, with which the CIT does not agree, it cannot be treated as an erroneous order, prejudicial to the interests of the Revenue. In that situation provision of section 263 cannot be invoke. 26. The moot question arises in the case of the assessee is as under:- "Whether the Ld. CIT can invoke the powers under section 263 of the Act, by placing reliance in the decision of non -jurisdictional high court and specifically in absence of decision of jurisdictional court ?"

In this regards, explanation 2(d) under section 263 specifically states that revision is possible only due to judgments of the jurisdictional High Court or supreme court. Further, the assessee has placed the reliance on the various decision where the ratio was laid down were in favour of the assessee. The considerable favourable view was available. Therefore, as there were two views were available, the Ld. CIT should not be allowed to invoke the powers u/s.263. If the answer of the above refereed question M/s. Neha Home Builders Pvt. Ltd., held as yes, then the Ld. CIT will invoke power in each and every cases and will create a huge mess. Therefore, the power of CIT is restricted to the decision of the jurisdiction high court or Supreme Court which were overlooked by the assessing authority.

In view of above discussion we do not find any merit in the action of CIT u/s.263. 29. In the result, appeal of the assessee is allowed.