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2010 (1) TMI 56 - AT - Income TaxCIT(A) admitting additional ground - Addition u/s. 115JB - attributable to provision for FBT - whether CIT(A) has erred in admitting additional ground of appeal that "the assessee has erred in not reducing the amount on account of provision of FBT for the purpose of calculation of book profit under s. 115JB ignoring the fact that the assessee itself has added back the amount on account for tax which included an amount attributable to provision for FBT for the purpose of calculating book profit under s. 115JB? HELD THAT:- We find that in the case of Jute Corporation of India Ltd.[1990 (9) TMI 6 - SUPREME COURT], Hon'ble apex Court was dealing with powers of AAC and it was held that an appellate authority has all the powers which the original authority may have in deciding the question before it subject to the restriction and limitation, if any, prescribed by the statutory provisions. In the present case, CIT(A) has admitted the additional ground after making this observation that the additional ground is being admitted in the interest of justice. Hence, we feel that learned CIT(A) has properly admitted the additional ground raised by the assessee and hence we reject the ground raised by the Revenue before us. Whether the term income-tax includes FBT also? - From the definition of the term "tax", we find that the term "tax" is a wider term than the term "income-tax". The term "tax" includes "income-tax" as well as "FBT". By the Finance Act, 2005 w.e.f. 1st April, 2006, there is an amendment in s. 2(43) and in the definition of "tax", in addition to "income-tax" and "super tax" chargeable under the provisions of IT Act, 1961 "FBT" was also added payable under s. 115WA - This definition of the term "tax" proves beyond doubt that the term "tax" includes both "income-tax" as well as "FBT" and hence the term "income-tax" cannot include the term "FBT". When there was amendment made in s. 2(43) by the Finance Act, 2005 w.e.f. 1st April, 2006, no amendment was made in cl. (a) of Explanation to s. 115JB by either including the term "FBT" in addition to the term "income-tax" or by substituting the words "income-tax" by the term "tax" and thereby bringing "FBT" also within the purview of cl. (a) of Explanation to s. 115JB. We have seen that in the present case, the provisions of Expln. 1 to s. 115JB are clear and as per these provisions, payment or provision for "FBT" is not required to be added back for the purpose of computing book profit under s. 115JB of the Ad because we have seen that the term used in this clause of Explanation is "income-tax", which docs not include "FBT" and in spite of this fact that there is a term "tax" already on the statute book, which includes "FBT" also, the legislature has not used that term and has used the term "income-tax" in Explanation to s. 115JB. Hence, for this decision, help of any Board's circular or Explanatory Note is not required and therefore, this contention of the learned Departmental Representative of the Revenue has no relevance in the present case because in the present case, the assessee deserves to succeed on the basis of the provisions of s. 115JB of the Act without any help from the Board's circular or Explanatory Note. We, therefore, decide this issue in favour of the assessee.
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