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MAT disallowance of provision for diminution in value of assets - Section 115JA |
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MAT disallowance of provision for diminution in value of assets - Section 115JA |
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Brief about amendment in S. 115JA and 115JB Vide the Finance (No.2) Act 2009 these sections were amended inter alia to provide that any provision for diminution in value of assets shall not be allowed while computing book profit u/s 115JA and 115JB. These amendments have been made with retrospective effect from the date from which and the period during which respective section was/ is in force. and 115JB recent amendment and decision of Allahabad High Court. In appeal or reference Courts are bound to follow amendment so long it is on statute book: Courts are bound to follow amendment so long it is on the statute book. Therefore, until and unless the amendment is struck off or held invalid, the courts have to follow the law as written in the Act. If any one want to say that the amendment is not valid, it has to be challenged separately by way of a suitable Writ Petition before High Court or The Supreme Court. Cases have been even before the Supreme Court in which assessee contended that the provision is not valid. However, even Supreme Court held that in a reference on question of law or appeal on substantial question of law, court cannot go into the constitutional validity of provision. So long provision is there the court is bound to consider the same. Challenge is desirable: After discussion of a recent judgment the author has discussed aspects relating to challenge of the provisions. Recent judgment: In Oxford Academy For Career Development v. Chief CIT & Ors. (2009) 30 (I) ITCL 415 (All-HC): In this case the court considered a situation in which the Tribunal had decided the issue before the recent amendment of these sections as briefed above and as discussed in detail later on. The court decided the issue in accordance with the amended law, because before the judgment of the court, the amendment has become effective. The matter before the Court is discussed below: The appeal was filed by the revenue against the order dated 8-2-2008 passed in ITA No. 458/Bang/2007 by the Tribunal, Bangalore, in respect of the respondent/ assessee M/s Mysore Breweries Ltd. The respondent assessee is a company hence MAT provisions apply to it when it has a book profit. The appeal was for assessment year 2003-04 and the dispute related to the ascertainment of book profits of the company for the purpose of section 115JB of the Income Tax Act, 1961 (for short 'the Act'). The CIT(A) allowed and Tribunal confirmed relief from the addition of a sum of Rs. 53 lakhs in book profit , which the A.O. has made in terms of clause (c) of Explanation 1 to sub-section (2) of section 115J. The first appellate authority as well as the Tribunal opined that it is not an amount which fits into this particular clause and therefore does not get back into the quantification of the book profits of the assessee, which in turn would result in the reduction of the tax liability of the assessee. The matter is by way of an appeal under section 260A of the Act by the Revenue. During pendency of appeal before the high Court , the law is amended and Sri Aravind, learned standing counsel pointed out the same. He pointed out that in the Explanation, one more clause viz., clause (i) had come to be inserted by this amendment which reads as follows : "(i) the amount or amounts set aside as provision for diminution in the value of any asset, if any amount referred to in clauses (a) to (i) is debited to the P&L a/c, and as reduced by,—" and in this view of the development of law, learned standing counsel for the revenue would submit that the question is now squarely covered by the statutory provisions and it virtually pre-empts a debate which otherwise would have been necessitated. S. 115JA - Learned standing counsel also point out that a consequence of this nature has been taken note by this court to the changes brought about in the provisions of section 115JA of the Act by the very Finance Act as per the provisions of section 44 of this Act, whereunder an additional clause (g) had come to be inserted corresponding to the present clause (i) in section 115JA and because of the insertion of clause (g) therein as one of the clauses to the Explanation to sub-section (2) of section 115JA. The amendment having retrospective effect with effect from 1-4-1998 and the assessment being of the year 2003-04, the amendment necessarily covers this period and therefore, the question has to be answered in favour of the revenue and against the assessee. Sri Shivacharan, learned counsel for the respondent-assessee was heard on this aspect. Tthe learned counsel wanted some more time for further submissions. However, he agreed that prima facie though the view taken by this court in the earlier appeal in IT Appeal No. 113 of 2007 disposed of on 9-9-2009, appears to be the legal position and that covers this case also and would nevertheless request some more time to make further submissions. Courts order: Court held that We are not inclined to grant time as prayed for by the learned counsel for the assessee to contribute further to the debate as we find no further scope and hence we decline the request for further adjournment and dispose of the appeal answering the question in favour of the revenue and against the assessee only on the basis of the amendment. Thus, the court allowed the appeal of revenue in terms of amendment which was already considered by the court in another case while dealing with S. 115JA amendment of which is also similar to amendment of S. 115JB. An important ruling of Allahabad High Court was not considered: In Krishna Mohan Agrawal v. CIT [2007] 295 ITR 190 (All) it was held that in fiscal legislation the rule is that the law which will govern computation of income of any previous year should be known to the assessee before commencement of the previous year itself. An amendment which is passed after commencement of any previous year, cannot be applied to such year or years. Though case of Krishna Mohan Agrawal related to amendment in section 64 which was to take effect from 1-4-1976 came for consideration by the same High Court. The court held that it is not applicable to assessment year 1976-77 but will apply only from assessment year 1977-78 because the amendment itself was made after 01.04.1976. The court considered and reasoned on various aspects which are discussed lateron. If the counsels of assessee had pressed this vital rule, as laid down by the same High Court, perhaps the ruling in relation ot S. 115JA and 115JB could be in favor of assessee. Better course for assessee: The assessee can make a petition before the High Court to consider the matter again as the above ruling was not considered. Better course would have been to first challenge constitutional validity of the amendments and their application with retrospective effect. Now we consider the provisions and the scope of their challenge: Changes relating to Minimum Alternate Tax (MAT) through the Finance (No.2) Act, 2009 relating to diminution in value of assets. In the bill we find several proposals to amend provisions relating to MAT vide clauses nos. 43 to 45. The clause no. 44 was about amendment of S. 115JAA. The clauses 43 and 45 are in relation to disallowance of diminution in value of assets besides clause 45 also provide for changes in rate of tax. These clauses with relevant notes, in so far relevant to provision for diminution in value of assets, are reproduced below one by one with necessary highlights as aid in analysis and understanding and also later discussed one by one: Amendment of section 115JA 43. In section 115JA of the Income-tax Act, in sub-section (2), after the second proviso, in the Explanation, after clause (f), for the words, brackets and letters "if any amount referred to in clauses (a) to (f) is debited to the profit and loss account, and as reduced by,—"the following shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 1998, namely:— "(g) the amount or amounts set aside as provision for diminution in the value of any asset, if any amount referred to in clauses (a) to (g) is debited to the profit and loss account, and as reduced by,—". Amendment of section 115JB 45. In section 115JB of the Income-tax Act,— (a) (b) in sub-section (2), after the second proviso, in Explanation 1, after clause (h), for the words, brackets and letters "if any amount referred to in clauses (a) to (h) is debited to the profit and loss account, and as reduced by", the following shall be substituted and shall be deemed to have been substituted with effect from the 1st day of April, 2001, namely:— "(i) the amount or amounts set aside as provision for diminution in the value of any asset, if any amount referred to in clauses (a) to (i) is debited to the profit and loss account, and as reduced by,—". Enactment of the above proposals in budget as part of statutory provisions: The Finance (No.2) Bill has been assented by the President and the above proposals have now become part of Income-tax Act, 1961 without any change. There appears no speech, by the Finance Minister on these proposals and there was also no discussion on these proposals in the Parliament. Any purpose of amendment has not been given: Relevant notes explaining the above clauses read as follows (with highlights provided): Clause 43 of the Bill seeks to amend section 115JA of the Income-tax, relating to deemed income relating to certain companies. The existing provisions of the said section provides that in the case of an assessee, being a company, the total income computed in respect of any previous year relevant to the assessment year commencing on or after the 1st April, 1997 but before 1st April, 2001 is less than thirty per cent of its book profit, the total income of such assessee chargeable to tax for the relevant previous year shall be deemed to be an amount equal to thirty per cent of such book profit. The expression "book profit" has been defined in the Explanation after second proviso which defines the book profit as the net profit as shown in the profit and loss account prepared in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956 as increased or reduced by certain adjustments, as specified in the said section. It is proposed to amend the said section so as to provide that any provision for diminution in the value of any asset will also be included in the computation of book profit under the said section. This amendment will take effect retrospectively from 1st April, 1998 and will, accordingly, apply in relation to the assessment year 1998-99 and subsequent years. Relevant explanatory memorandum on this clause and partly for clause 45 so far both relates to adjustment in book profit reads as follows( with high lights) Clarification regarding add back of 'provision for diminution in the value of asset', while computing book profits Section 115JB of the Income-tax Act provides for levy of Minimum Alternate Tax (MAT) on the basis of book profits of a company. As per Explanation 1 after sub-section (2), the expression "book profit" means net profit as shown in the profit and loss account prepared in accordance with the provisions of Part-II and Part-III of Schedule-VI to the Companies Act, 1956 as increased or reduced by certain adjustments, as specified in that section. It is proposed to insert a new clause (i) in Explanation 1 after sub-section (2) of the said section so as to provide that if any provision for diminution in the value of any asset has been debited to the profit and loss account, it shall be added to the net profit as shown in the profit and loss account for the purpose of computation of book profit. Similar amendment is also proposed in section 115JA of the Income-tax Act by way of insertion of a new clause (g) in the Explanation after sub-section (2) of the said section. The amendment to section 115JA is proposed to be made effective retrospectively from 1st day of April, 1998 and will, accordingly, apply in relation to assessment year 1998-99 and subsequent years. The amendment to section 115JB is proposed to be made effective retrospectively from 1st day of April, 2001 and will, accordingly, apply in relation to assessment year 2001-02 and subsequent assessment years. [Clauses 43, 45] Discussion: No reason has been given: From reading of the proposals, notes thereon as well as memorandum explaining the proposals it appears that no reason has been given at all. It is simply stated that it is proposed - Without a valid reason an amendment that too with retrospective effect is invalid. Furthermore adjustment now being inserted is not similar to adjustments already provided in the provisions, therefore, it is wrong to say that they belong to a class of adjustments that are on the statute already. In absence of any reason such amendment is not at all valid amendment. The amendment cannot be called a clarification. It really provides a new formula for computation of book profit and the formula is against the natural and normal meaning of 'book profit'. As per normally accepted accounting policies diminution in value of all assets is required to be provided to prepare profit and loss account on conservative basis, to show real profits and to state assets at their correct valuation. Section 115JA ( life 1997-98 to 2000-2001) Section 115JA was in force for assessment years 1997-98 to 2000-2001. Therefore, more than eight and nine years have lapsed since end of the last relevant assessment year and the relevant previous year (1999-2000). It is really shocking that for such an old provision an amendment has been made with retrospective effect to unsettle some settled aspects with effect from assessment year 1998-99. It is not understandable as to why the first year of operation of this section that is assessment year 1997-98 has been left out of retrospective ambit of amendment. Comparison with existing items of adjustments for increasing book profit:
Whether the amendments is valid: Insertion of new clauses (g) and (i) in Explanation to S. 115JA and 115JB, as discussed above cannot be called valid for the following reasons: No reason has been given for such changes. The new entries are of not similar nature or like nature as other entries are found in this regard in S. 115J, 115JA and 115JB. There was no such provision in S. 115J, which was basic provision introduced for MAT, though provision for diminution in value of assets is not a new thing, such provision and accounting policies have always been in vogue. There has been no change in facts and circumstances at all or there has been no substantial changes in facts and circumstances which could prompt an amendment. There appears no specific disclosure to draw attention of members, no discussion on these aspects in the Parliament. It is not the case of the Finance Minister that it is not legislative intention to allow such deductions. Even if suppose it is so stated, then the question is how legislative intention as prevailed on 01.04.1998 is ascertained on 06.07.09 by the Finance Minister who took charge as such of a newly formed government. Amendment cannot be uniformly applied: The income-tax Act, 1961 is a Central Legislation and is to be applied uniformly all over India and in respect of all assesses according to applicable provisions. The retrospective amendment cannot be applied in case of all companies who may be affected by the amendment. This is for several reason like: Most of cases are assessed as per return and in those cases any proceedings will not be pending, and new proceedings may not be initiated due to limitation. Even otherwise it is not possible to monitor all such cases and to apply the amended law with ultimate effective date that is 01.04.1998. In many of cases which are assessed after scrutiny the A.O. might have allowed deduction by applying own judgment or by following experts opinions, orders of appellate authorities etc. and any proceedings may not be pending. Any new proceedings may not be initiated due to limitation. In such cases also it is not possible to monitor all such cases and to apply the amended law with ultimate effective date that is 01.04.1998. In many cases the appellate authorities might have allowed such deduction and the matter might have attained finality on acceptance / non filing of appeal by revenue. It is government's policy not to disturb settled matters, not to litigate on matters where revenue effect is not substantial etc. however, if such amendment takes place, the government policy may not be complied with and the A.O. may have to initiate proceedings even on petty matters by issuing notices for rectification, re-assessment or by taking initiative by writing to the CIT for revision etc. Therefore, as appears the amended provisions can be applied only in respect of cases where suitable proceedings are pending and where substantial amount is involved or where new proceedings can be initiated and in case where assessee has to file a return. Let us take an example, an assessee company Quick Ltd has filed return for assessment year 2009-10 before coming into force of the amendment, the other assessee Late Ltd files return after coming into force of the amendment. The assessee Quick Ltd was not required to add back any amount as per the amended provision, whereas Late Ltd is required to add back such amount. Retrospective amendment is not valid: Retrospect effect is not valid because: it unsettle settled things and proceedings. the law became totally un-certain, the basic principles of interpretation cannot be given effect to, one cannot plan his affairs, a professional cannot give his opinion on any matter where even lowest authority is taking a different view, because practically view taken by A.O. long ago is reflected in retrospective amendments. It would not be wrong to say that in such cases factually the view taken by the primary and low ranking authority is being enforced in name of legislative intention. In an open economy, the law of land must be certain; any change must be announced well in time and before the intended date of commencement of law. In fiscal legislation the rule is that the law which will govern computation of income of any previous year should be known to the assessee before commencement of the previous year itself. An amendment which is passed after commencement of any previous year, cannot be applied to such year or years. In this regard we can consider decision In Krishna Mohan Agrawal v. CIT [2007] 295 ITR 190 (All) which related to amendment in section 64 which was to take effect from 1-4-1976 came for consideration. The court held that it is not applicable to assessment year 1976-77 but will apply only from assessment year 1977-78 because the amendment itself was made after 01.04.1976. The court considered and reasoned on the following aspects: when the Finance Act determines a new rate of tax or surcharge, it normally comes into effect with effect from April 1. It governs the previous year of the assessee which is to commence thereafter, i.e., with effect from April 1. Unless the amending Act provides otherwise either expressly or by necessary implication, the normal presumption would be that any amendment brought about, would apply only to the previous year which is yet to come, on or after the date on which such amendment is enforced. The amendment effected by the Taxation Laws (Amendment) Act, 1975 received the assent of the President of India on 07.08.1975. That is to say after the commencement of the previous year 1975-76 on 01.04.1975 relevant to assessment year 1976-77 The Tribunal was legally not correct in holding that the amendment to section 64(1) of the Income-tax Act, 1961, enforced with effect from April 1, 1976, was applicable to the assessment year 1976-77 which would be relatable to the previous year 1975-76 inasmuch as that previous year was already over on the date of enforcement of the amendment. Before the amendment, newly added clubbing provisions were not applicable. Income of minor child by way of profit share in a firm in which he was admitted to as a partner was to be taxed in the hands of the minor as income of the minor and was not to be added or clubbed to the income of the assessee (guardian of the minor). Only after the amendment such income (profit share in firm) was to be clubbed with the income of the assessee / parent of minor. As per the High Court the reason is obvious that if such charge or rate of charge was to govern the previous year which has already gone by, there would be utter chaos, inasmuch as the assessee would have no idea in advance as to what would be the rate of tax or surcharge or exemption on his currently earned income and investments and he would not be able to either plan out his taxation or to discharge the various obligations of the assessee which arise under the Act throughout his "previous year", from time to time. Applying the above logic, it can be said that amendment in rate of tax of MAT cannot be applied to AY 2010-11 and going further it can also be said that any retrospective amendment is not a good law. Merely by saying that a provision will apply with a retrospective effect is not enough, the assessee must be made aware of law applicable to any previous year before the previous year beguns. The wrong tendency of government: The law as enacted and as prevailing at any time is relevant for the public as well as the Government. The intention of government (unfortunately called, branded or disguised as legislative intention) is to be interpreted as per law as it stands at any time. Public is expected to follow the law as it stands at the relevant time. In case the law is not clear or it does not express legislative intention or if there is change in legislative intention, then amendment should be made as early as possible and with prospective effect. However, the government has adopted tendency to amend law as and when it so think fit with retrospective effect for any number of years. This is in spite of fact that fiscal laws are reviewed continuously and at least once in any year there is substantial exercise made to amend laws through the regular Finance Bill. Besides Finance Bill, many other amendment Acts are passed. It is worth to mention that section 115JA and 115JB both have been amended several times. The last major exercise was made through the Budget 2008 to amend the Act. Therefore, any amendment should not go beyond that. Retrospective period should not go beyond last amendment: When law is amended every year, there should not be any amendment which goes beyond the period of last amendment. There should be a presumption that when the law was amended at last occasion, the legislature has made all amendments to make the law as per its intention. For example, suppose last amendment was made on 01.01.2008, then any amendment made after 01.01.2008 should not change law with retrospective effect prior to 01.01.2008, if at all retrospective effect is to be given it can be after 01.01.2008 and not even w.e.f. 01.01.2008 because there should be presumption that while amending law, due care has been taken to express legislative intention. There should be reason for retrospective effect: There should be valid reason to propose any amendment which has retrospective effect. Even a new law to be enacted should have valid reason. Without a valid reason and purpose, a law cannot be enacted. The purpose and reason are briefly stated in the preamble of any enactment. Legislative intention - basic cannon are being defied: Legislative intention is first of all expressed by the proposer in any proposed enactment. In case of Fiscal laws it is generally the Finance Minister who is supported by his team of finance ministry and various departments or wings of the same. The Bill is published, circulated and the legislatures consider the same and sometimes (though rarely) some changes are made on suggestion of members and public. Once the Bill is passed through the proper procedure and it is assented by the President/ Governor ( in case of states) the Bill become law. Therefore, legislative intention is an expression of house of members. The legislative intention is cumulative intention. Therefore, legislative intention, as prevailing at the time of original enactment can only be ascertained according to words used at that time. Therefore, how an ascertainment of true intention can be made subsequently after so many years? In case there is any change in legislative intention it can only be prospective. Even in case of personal written agreements intentions of parties are to be ascertained by interpretation of words used therein. In case parties to agreement find that there is some mistake in drafting, then changes can be made by mutual consent of all parties (or majority of parties) Therefore, the government should not have blanket permit to amend law as it suits to it and as and when it so wish. Is view of A.O. the legislative intention: If we go by various amendments and particularly amendments made with retrospective effect we find that such amendments are made to affirm views of the A.O. which he might have expressed in an assessment order long back .The appellate authorities and courts might have considered provisions, legislative intention and held that the view of the A.O. is not correct. In many cases the Supreme Court has ascertained and expressed legislative intention, on interpretation of law. However, subsequently the law is amended, in name of legislative intention, and the amended law is as per the view of the A.O. In such a situation there is a big mark on aspect of legislative intention. Can we dare to say that legislative intention is nothing but the wishes of the Assessing Officers and not what is written in the fiscal legislation. Fall in value of assets is a natural factor to be considered to ascertained real profit: In fact to ascertain real net book profits on conservative basis fall in value of assets is an important item for consideration. Suppose there is no change in capital structure. Net worth of a person at the beginning of previous year was say Rs. one crore, and at the end of previous year it is say Rs.one crore and five lakh (after consideration of fall in value of assets of Rs. ten lakh). Thus the assessee has a net profit only Rs. five lakh. Although the loss in value of assets may not be allowable and total income may be computed at Rs.15 lakh. But his book profit as per the basic theory of ascertaining profit based on net worth will be Rs. five lakh only. Significance of the amendment: If any amount is debited in the profit and loss account on account of provision for diminution of the value of any asset, then such amount shall be added back to determine book profit. For example: Profit as per P & L account Rs. 5,00,000 Add back: Amount of provision for diminution in value of: Investments Rs.1,00,000 Fixed assets Rs.2,00,000 Loans and advances Rs.2,00,000 Sundry debtors Rs.1,00,000 Intangible assets Rs.2,00,000 total Rs.8,00,000 Revised book profit for S. 115JA Rs.13,00,000 Provision vis a vis actual write off: The words used are "the amount or amounts set aside as provision for diminution in the value of any asset" Thus, it is clear that only a provision is to be adjusted. Where there is an actual loss ( ascertained in scientific manner) and such loss is written off, then this clause will not apply, even if such loss is not allowable in computation of income. For example suppose assessee company adopt method of investment valuation also at cost or market value whichever is less, and when market value is lower, investments are valued at market value and fall in value is debited in profit and loss account, as loss in value of investments, then such debit will be allowable in computation of book profit and it cannot be added back under the proposed clause (g) / (i) of Explanation in S. 115JA / 115JB respectively. This is in spite of fact that such debit will have to be added while computing total income because in case of capital assets, computation will be made when capital asset is transferred. Fall in value of stock-in-trade will not be covered: Where the assessee company adopt method of valuation of stock-in-trade as 'at cost or market value whichever is less", and consequently stock is valued at less than cost, the difference between cost and market value will not be a provision for diminution in value of any asset. However, if a hypothetical diminution is provided, then the same can be added back. Bad and doubtful loans, advances and sundry debtors: Book profit: Strictly speaking to properly prepare profit and loss account it is necessary that diminution in value of all assets should be debited in the profit and loss account. To ascertain correct profit in case of any company in overall sense, the perfect method is to compare net worth as on the opening date and closing date and for that purpose diminution in value of all assets is required to be debited. This is also clear when we find qualification on profit and loss account stating that the net value of investment is lower than the cost shown in books of account by Rs…. and the fall in value is considered temporary. In fact it is desirable that investments should also be valued at cost / book value or market value whichever is less and the provision for such diminution is in fact a loss suffered by erosion of net worth. Capital asset or all assets: The word used are 'any asset'. Therefore the revenue will try to say that it include any asset and not necessarily capital asset or non-depreciable assets. Therefore, revenue is likely to cover stock-in-trade as well as assets on which depreciation is allowed under the I.T.Act. One may not be surprised to find instances of revenue taking a view that even where excessive provision has been provided, such excess amount to provision and it should be added back. For example suppose 100% depreciation is allowed on an asset. Assessee adopts deprecation as per I.T.Act for accounts also. The A.O. may take view that normal deprecation should be 15% for wear and tear (as per general rate), therefore, excess above 15% is in nature of provision for diminution of value of asset and it should be added back. There cannot be such intentions of the law makers therefore, on consideration of apparent intention and also in the fitness of the scheme of the tax on income, it should be clarified that the amendment is meant to cover only capital assets other than assets for which depreciation is allowed if at all the amendment is considered proper. The expression Set aside as provision for diminution in the value of any asset is crucial: Scope: Any asset will be covered. The asset can be a current asset as well as fixed asset of business or an investment as well. It is not necessary that the asset should be a 'capital asset'. The revenue will try to cover even stock-in-trade if it is valued at lower than cost (even if market price is lower than cost), the revenue is also expected to add back bad debts written off, as it may take view that it amount to a provision in diminution of an asset (debts). Provision- Only provision will be covered. Therefore write off of actual loss will not be covered and need not be added back. Actual loss means what is actually suffered. This can be on a reasonable and scientific estimate basis also. However, if one can establish that there is no provision but actual loss, then the amendment will not apply. Suggestions -be forward looking: There should not be amendment in S. 115JA as because more than nine years have already lapsed since end of the relevant last previous year to which this section apply. During this period about 70% of cases of companies having MAT liability would have been assessed in summary manner. In about 25% cases regular assessments u/s 143(3) or through appeals would have attained finality. Hardly in 5% cases if at all proceedings may be pending before authorities or courts in which effective the amendment may be carried. In some cases reassessment proceedings may be initiated, but many of them may not succeed as the same may be challenged in writ petition. The amendment itself is amenable to challenge and if properly pursued, this is likely to be struck down.
By: C.A. DEV KUMAR KOTHARI - December 9, 2009
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