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2019 (7) TMI 35 - GUJARAT HIGH COURTConstitutional validity of clause (iii) of Explanation 1 of section 115JB - non availability to claim brought forward loss where either loss brought forward or unabsorbed depreciation is nil - the provision has been challenged as being discriminatory towards those assessees, who do not have capital asset based infrastructure and as such would not have any unabsorbed depreciation. Thus, despite having substantial brought forward loss, the petitioner in the light of the provisions of clause (iii) of the Explanation to section 115JB of the Act is still liable to pay tax on the book profit without the same being reduced by the amount of brought forward loss. HELD THAT:- As in CAIRN EXPLORATION (NO. 7) LTD & 1 VERSUS UNION OF INDIA & 2 [2010 (10) TMI 1182 - GUJARAT HIGH COURT] Court does not find the impugned provision to be in any manner unconstitutional, hence, the question of reading it down to save its constitutional validity does not arise. Besides, the provisions of clause (iii) of the Explanation to section 115JB are clear and ambiguous and it is not possible to take two views as to the meaning of the statutory language. Hence, the request to read down the provision also does not merit acceptance. Consequently, the question of directing the respondents to allow reduction of the brought forward losses of the petitioner company from the net profit in order to compute book profits under section 115JB of the Act in absence of any unabsorbed depreciation in the assessment year under consideration, also cannot be accepted.
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