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2005 (2) TMI 747 - ITAT MUMBAIMinimum alternate tax - difference between the revalued price of the shares and the book value of shares as shown prior to revaluation to the Investment Revaluation Reserve Account in the balance sheet - whether the ‘net profit’ as shown in the audited profit and loss account can be altered - HELD THAT:- In the case before us, we are concerned with section 115JA which brings "book profits", and not "total income", to the charge of Minimum Alternative Tax. Explanation to sub-section (2) of section 115JA defines "book profits" to mean "net profits as shown in the profit and loss account for the relevant previous year prepared under sub-section (2)", as increased or decreased by the amounts mentioned therein. It is clear that no discretion is available to the Assessing Officer to alter 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 except in the manner provided in the Explanation to sub-section (2) of section 115JA. There is nothing before us to suggest that the accounts of the assessee-company prepared and submitted before the Assessing Officer were either rejected or modified by the authorities under the Companies Act or were not approved/adopted in the Annual General Meeting of the assessee-company. Thus, the book profit as shown in the accounts of the assessee-company stood not only certified by the statutory auditors of the assessee-company but also accepted by all concerned under the Companies Act. In other words, the book profit as shown in the accounts of the assessee was book profit for all intent and purposes under the Companies Act. In the case before us, the accounts as also the book profits shown therein are duly certified by the statutory auditors of the assessee-company and the impugned adjustments sought to be made by the Assessing Officer are also not authorized by Explanation to sub-section (2) of section 115JA which is similar to Explanation to section 115J. Hence, the adjustments made by the Assessing Officer to the book profit shown by the assessee in the Profit & Loss Account cannot be sustained in law. Thus, in the light of the law laid down by the Hon’ble Supreme Court in Apollo Tyres Ltd.’s case [2002 (5) TMI 5 - SUPREME COURT] and the Hon’ble jurisdictional High Court in Kinetic Motor Co. Ltd.’s case [2003 (1) TMI 47 - BOMBAY HIGH COURT], wherein an identical issue was involved and decided against the department, we find no merit in the appeal filed by the Department. Appeal filed by the Revenue is, therefore, dismissed.
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