SAVITA OIL TECHNOLOGIES LTD.,MUMBAI vs. ACIT, CC 8(4), MUMBAI

This appeal has been filed against the order of Commissioner of Income-tax (Appeals)-50, Mumbai (hereinafter called CIT(A)] dated 28-02- 2015 passed against the assessment order u/s 143(3) dated 30th March, 2013 for A.Y. 2010-11 on the following grounds:-

The solitary issue raised by the assessee before us is that while granting MAT credit available u/s 115JAA of tax paid as per the provisions of MAT in earlier years should be granted along with surcharge and education cess as against the action of AO granting credit of merely tax amount.

During the course of hearing, Ld. Counsel of the assessee submitted that fairness and equity demands that the provisions of the Act should be interpreted in such a manner that there should not be unjust enrichment of the Revenue at the cost of the taxpayer. The law provides that whatever excess amount tax is paid on account of MAT as compared to the amount of tax payable under the normal provisions of the Act, it is eligible for carry forward for deducting from the amount of tax liability of subsequent years whenever tax will be payable under the normal provisions of the Act in the subsequent years. Under these circumstances, if the tax payable under MAT is further increased by education cess and surcharge, then while making it’s carry forward and set off also the amount of surcharge and education cess should be included. He placed reliance on the judgment of Hon’ble Allahabad High Court in the case of CIT vs Vacment India 369 ITR 304 (All) and Calcutta High Court in the case of M/s Srei Infrastructure Finance Ltd vs DCIT (G.A. No. 115 of 2016 (ITAT No.245 of 2016) Dt 12th August, 2016. Per contra, the Ld. DR fairly submitted that neither the working submitted by the assessee was correct

We have gone through the facts of this case. We have been called upon to decide in this case the correct manner of computing tax liability and also amount of credit available u/s 115JA keeping in view levy of surcharge and education cess in the process. We have examined the entire scheme of the Act containing provisions with regard to payment of MAT u/s 115JB as well as availability of credit available u/s 115JAA. It is noted that it was held by the Hon’ble Allahabad High Court in the case of CIT vs Vacment India, (supra) that methodology of computation of tax liability and granting credit of MAT should be similar to the methodology provided in the prescribed form of filing of income-tax return i.e. ITR-6. But subsequently, Hon’ble Calcutta High Court in the case of M/s Srei Infrastructure Finance Ltd, supra examined this issue in detail and held that computation of tax liability and setting off of tax credit available should be done in accordance with law and not on the basis of ‘inappropriate’ form prescribed under the rules inadvertently. It is noted that Hon’ble Calcutta High Court has held that for the purpose of section 115JB, surcharge and cess are part of income-tax payable in accordance with provisions of section 115JB. Therefore, when the tax is paid u/s 115JB along with surcharge and cess, then entire amount would be considered for carry forward of the credit available u/s 115JAA and accordingly the entire amount would be available for the benefit of set off in the subsequent years from the amount of gross tax payable by the assessee. During the course of hearing before us, Ld. Counsel submitted before us three types of work sheets wherein tax payable after setting off

As a result, this appeal is partly allowed.