TMI Blog2011 (10) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ivil No. 6629 of 2011 - - - Dated:- 24-10-2011 - Shri N. Kumar and Shri Ravi Malimath, JJ. Represented by: Shri K.V. Aravind for the Appellant. Shri K.S. Ravishankar for the Respondent. JUDGMENT N. Kumar, J. - There is a delay of two days in preferring this appeal. Respondent has no objection for the same. Accepting the cause shown in the affidavit filed in support of the application for condonation of delay, delay of two days is condoned. 2. The revenue has preferred this appeal challenging the order passed by the Tribunal allowing the assessee's appeal and granting rebate under Section 88E for the Securities Transaction Tax paid by the assessee. 3. The assessee is a company, which is engaged in the business of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ong with the statement of total income and also MAT computation and therefrom, the assessee claimed a rebate under Section 88E of the Act for the STT paid by it. The Assessing Officer rejected the claim of the assessee for rebate on STT and computed the tax liability against the income computed under Section 115JB of the Act. Aggrieved by the said order, the assessee preferred an appeal to the Commissioner of Income Tax (Appeals) who confirmed the said order. The assessee preferred a second appeal to the Tribunal. The Tribunal on consideration of the rival contentions held that the rebate under Section 87 of the Act is to be granted from the amount of income tax chargeable on the total income of the assessee. The income tax is computed afte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a self contained code in itself and the income chargeable arrived at in terms of Section 115JB, does not attract rebate. Therefore, he submits that the impugned order passed by the Tribunal is erroneous and requires to be set aside. 5. Per contra, the learned Counsel for the assessee supported the impugned order. 6. Section 115JB provides that if the tax payable on the total income is less than 7.5% of the book profit, the tax payable under this provision shall be the amount of income tax at the rate of 7.5% of book profit. In other words, if computation of income is done under the provisions of the Act and if the tax payable is less than 7.5% of the book profit and the assessee is a company, then the minimum tax payable by such a compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the taxable securities transactions entered into in the course of his business during that previous year; Provided that no deduction under this sub-section shall be allowed unless the assessee furnishes along with the return of income, evidence of payment of securities transaction tax in the prescribed form : Provided further that the amount of deduction under this sub-section shall not exceed the amount of income-tax on such income computed in the manner provided in sub-section (2). (2) For the purposes of sub-section (1), the amount of income tax on the income arising from the taxable securities transactions, referred to in that sub-section, shall be equal to the amount calculated by applying the average rate of income-tax o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a payment." 11. In Black's Law Dictionary, Second Edition, the meaning assigned to the word rebate is: "Discount; reducing the interest of money in consideration of prompt payment. Also a deduction from a stipulated premium on a policy of insurance, in pursuance of an antecedent contract and also a deduction or drawback from a stipulated payment, charge, or rate not taken out in advance of payment, but handed back to the payer after he has paid the full stipulated sum." 12. Corpus Juris Secundum defines the word rebate as "The etymological or dictionary meaning of the term includes any discount or deduction from a stipulated payment, charge, or rate not taken as in advance of payment, but handed back to the payer after he has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly after realizing the consideration. However, if that transaction is included in the total income of the assessee where the total income is assessed either under the provisions of the Act or under Section 115JB when tax chargeable on such income is arrived at, he is given the benefit of tax deductions of the amount, which he has paid under section 88E by virtue of Section 87. When under Section 82A, the assessee is made liable to pay tax with an assurance that it will be deducted and section 87 of the Act gives effect to such promise made under the statute. That is the reason why the word used is rebate. The amount paid is handed back to the assessee. In other words, payment of tax twice on the same income is avoided. 17. Therefore, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
