TMI Blog2011 (4) TMI 1037X X X X Extracts X X X X X X X X Extracts X X X X ..... under section 115J of the Act - appeal is dismissed - Tax Appeal No. 390 of 1999 - - - Dated:- 7-4-2011 - Harsha Devani, Bela Trivedi, JJ. K.M. Parikh for the Appellant J.P. Shah for the Respondent JUDGEMENT Harsha Devani: 1. In this appeal under section 260A of the Income Tax Act, 1961 (the Act), the appellant revenue has challenged order dated 7th May, 1999 made by the Income Tax Appellate Tribunal, Ahmedabad Bench 'A' in ITA No.4681/Ahd/1992 for assessment year 1989-90. 2. At the time of admitting the appeal, this Court had, by an order dated 4th September, 2000, formulated the following two substantial questions of law:- 1. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in upholding the order of the CIT(A) deleting the addition of Rs.20,77,946/- made by the Assessing Officer to the book profit on account of additional depreciation debited in the accounts for the earlier years because of change in the method of providing depreciation retrospectively? 2. Whether, on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in law in uphold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt assessee. 5. Mr. M.J. Shah, learned advocate for the respondent assessee drew the attention of the Court to the impugned order of the Tribunal. It was pointed out that before the Tribunal, on behalf of the assessee, the decision of the Tribunal in the case of Deputy Commissioner of Income Tax (Assessment), SR-2, Baroda vs. M/s. Rubamin (P) Ltd. in ITA No.1544/Ahd/93 dated 12th August, 1998 had been relied upon wherein an identical issue had been decided in favour of the assessee. It was submitted that the decision of the Tribunal in the aforesaid case was carried in appeal before this Court and that this Court held in favour of the assessee by placing reliance upon the decision of the Apex Court in the case of Apollo Tyres Ltd. vs. Commissioner of Income-Tax, (2002) 255 ITR 273. It was, accordingly, submitted that the controversy involved in the present case stands concluded by the aforesaid decisions of this High Court as well as the Supreme Court. 6. The facts are not in dispute. In the present case, the Assessing Officer had made the addition in question on the ground that the assessee could not claim depreciation which was not provided for in the books of accounts of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unts so maintained as a basis for computing the company's income for levy of income tax. The Court also held that there cannot be two incomes, one for the purpose of the Companies Act and another for the purpose of income-tax maintained under the same Act. 8. This Court, in the case of CIT vs. Rubamin (P) Ltd. was called upon to decide the question as to whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in upholding the deletion of addition of Rs.61,602/- being the difference in the amount of depreciation as a result of changing the method of providing the depreciation from the Straight Line Method to the Written Down Value Method. The Court followed the decision of the Apex Court in the case of Apollo Tyres Ltd. vs. C.I.T. (supra) and held in favour of the assessee. Thus, it is apparent that the controversy involved in the case of Commissioner of Income Tax vs. Rubamin (P) Ltd. (supra) is similar to the controversy involved in the present case and as such the same stands concluded in favour of the assessee by the decision rendered in the said case. 9. In the circumstances, for the reasons stated in the decision of this C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the liability for interest arises. Section 208 contemplates the liability to pay advance tax in every case where the amount of such tax payable by the assessee during that year, as computed in accordance with the provisions of this Chapter is Rs.1,500 or more. The computation of advance tax is provided under section 209. Under section 209(1)(a) firstly, the estimate of current income is to be made. If there is no current income there is no liability for making the estimate. It is not a case where the Income-tax Officer has passed an order for payment of advance tax. Under section115J, where the total income of the company is less than 30 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 30 per cent of such book profit. It is thus, by way of deeming fiction that this income has been considered to be the deemed income. The profit and loss account has to be prepared in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act. In the Explanation under section 115J(1A) it is provided that for the purposes of this section "book profit" means the ne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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