TMI Blog2003 (2) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... ncelled." 2. The relevant facts are that the assessee s income under s. 143(1)(a) was determined after applying the provisions of s. 115JA of the Act and levied interest under ss. 234B and 234C was also levied. In appeal before the learned CIT(A), it was submitted that interest cannot be levied when the income has been determined under the deeming provisions of s. 115JA of the Act. Reliance was also placed upon the decision of the Karnataka High Court in the case of Kwality Biscuits Ltd. vs. CIT (2000) 159 CTR (Kar) 316 : (2000) 110 Taxman 47 (Kar). However, the learned CIT(A) did not accept the submissions made by the assessee for the following reasons: (i) It is an admitted fact that there is a failure on the part of the appellant in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n preference to the decision of the Karnataka High Court cited supra. 4. Still aggrieved, the assessee is in further appeal and while reiterating the submissions as made before the lower authorities, it was pleaded for deletion of the interest charged under ss. 234B and 234C as income is being determined under s. 115JA of the Act. It was also submitted that 90 per cent of the book profit is due to capital gains and the disputable amount cannot be looked into while sending intimation under s. 143(1)(a) of the Act. Moreover, the issue stands already decided in favour of the assessee by Kwality Biscuits Ltd. and even if contrary view is there from Gauhati High Court in the case of Assam Bengal Carriers, more favourable decision to the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interest is not chargeable. 7. I have heard both the sides, gone through the orders of the authorities below and looked into the case law cited by both the sides. 8. After careful consideration of arguments of both the sides, going through the record and in the light of relevant provisions of law and case law cited, I find that s. 207 of the Act envisions that tax shall be payable in advance during any financial year for current income in accordance with the scheme provided in ss. 208 and 219 (both inclusive) in respect of total income of the assessee that would be chargeable to tax for the assessment year immediately following that financial year. Sec. 215(5) of the Act spelled out what is the assessed tax i.e., the tax determined o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the income was that of book profit could be only at the end of the financial year, the provisions of ss. 207 to 210 cannot be made applicable, until and unless the accounts were audited and the balance sheet is prepared, cannot be held to be proper because even under the normal provisions (other than under s. 115JA) exact profit is only known when books of accounts are audited and balance sheet is prepared whereas all instalments of advance tax are required to be paid on different dates prescribed during the financial year and those too before the close of the year. 10. As regards legal fiction, similar situation arose before the Hon ble Supreme Court in the case of A.S. Glittre D/5 1/S Garonne Ors. vs. CIT (1997) 140 CTR (SC) 97 : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt year, and the difference between the sum so paid and the amount of tax found payable by him on such assessment shall be paid by the assessee or refunded to him. The ad hoc assessment made under s. 172(4) of the Act is suspended and a regular assessment is made as per the provisions of the Act. In such a case, it is only proper and appropriate to hold that all "the provisions" of the Act in the determination of tax liability, including the ancillary or incidental or consequential matters pertaining to it, are necessarily attracted. Sec. 172(7) of the Act provides that payment under this section shall be treated as a payment in advance of the tax leviable for that assessment year. Such payments are treated on par with advance income-ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court is based on various Supreme Court decisions besides the fact that before arriving at the conclusion entire relevant provision has been thoroughly examined and the issue has been decided in favour of the Revenue. 12. In view of the facts and circumstances and the discussions as held above, I find it to be appropriate, just and proper to follow Gauhati High Court decision to decide the issue in favour of the Revenue and this view of mine is further fortified by another decision of Kerala High Court in the case titled Karimtharuvi Tea Estate Ltd. Anr. vs. Dy. CIT (2000) 163 CTR (Ker) 565 whereby it has been held that non-payment of tax under s. 115J rightly attracted additional tax under s. 143(1A) and interest under s. 234B. Similar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
