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TMI Blog2015 (5) TMI 823X X X X Extracts X X X X X X X X Extracts X X X X ..... the facts and in circumstances of the case and in law, the Hon'ble Tribunal is right in law to hold that no interest u/s.234B can be levied consequent to inclusion of various items while computing the book profit as per in the Explanation to section 115JB which has been brought on the statute by the Finance Act, 2008 with retrospective effect from 01, April 2001 ? (3) Whether, on the facts and in the circumstances of the case and in law, the Hon'ble Tribunal is right in law in deleting the addition of Rs. 8,94,26,631/- made by the AO u/s.14A r.w. Explanation 1 of section 115JB of the Act the purpose of computing book profit u/s.115JB of the Income Tax Act, 1961?" 2. It is contended by Mr.Tejveer Singh that the assessee filed a return of income declaring income of Rs. 7,76,31,388/- under the normal provisions of Income Tax Act, 1961 (for short "said Act") and Rs. 1,23,15,74,564/- under the MAT provisions of section 115JB of the said Act. 3. The assessing officer noted that the assessee had earned dividend income of Rs. 6,42,35,165/- from shares in JSW Steels Ltd. The total investment of the assessee company from which the dividend was receivable has been illustrated in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ldings Ltd. being Income Tax Appeal No.438 of 2012 which was disposed of by this Court on 7th August, 2014 and by clarification. Mr.Kaka, therefore, submits that the assessee has no objection if the same clarification is issued so that interests of the revenue are not prejudiced but protected. He, therefore, submits that question nos. 1 and 3 do not arise from the order of remand or restoration back to the assessing officer. 7. Mr.Tejveer Singh would submit that clause (f) of Explanation (1) to section 115JB of the said Act cannot be lost sight of and the assessing officer must take note of it while reconsidering the issue. Hence the substantial of law would arise for determination and consideration. 8. We have found from reading of the impugned order of the Tribunal that insofar as the first question is concerned, the relevant facts have been referred in paragraphs 2 and 3 and in paragraph 4 to 6 the findings of the Commissioner and rival contentions have been noted. In paragraph 7 the Tribunal set aside the Commissioner's order in the light of judgment of this Court in the case of Godrej and Boyce Manufacturing Co. Ltd. Vs. Deputy Commissioner of Income Tax (2010) 328 ITR 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l by the Revenue at page 3. They read as under: "(A) Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT is right in setting aside and restoring back the issue to the file of AO for de novo adjudication in light of the provisions of Rule 8D ? (B) Whether on the facts and circumstances of the case and in law, the Hon'ble ITAT is right in deleting the addition of Rs. 4.06 crores made by the AO u/s 14A of the Act for the purpose of computing book profit u/s 115JB(f) of the Income Tax Act 1961 ?" 3. In relation to the second question, Mr Ahuja stated that it is a substantial question of law simply because the Tribunal while remanding and restoring the case to the file of the Assessing Officer has given a finding with regard to the course to be adopted after restoration by the Assessing Officer. The Tribunal should not have done this. In such circumstances, the Appeal raises substantial questions of law. We are of the view that the Tribunal had only reiterated in paragraph 8 of the order under challenge delivered on 29th July 2011 the finding on the expenditure as per rule 8D r/w section 14A of the Income Tax Act 1961. In relation to that, the T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is liable to pay advance tax under section 208 has failed to pay such tax or where the advance tax paid is less than 90% of the assessed tax. Thus, this is a provision whereunder interest could be recovered wherein advance tax for the assessment year fails to take note of the amendment to the Income Tax Act which is brought in subsequently. When the Parliament stepped into to amend the Act though with retrospective effect but in 2008, then, there is no default in payment of advance tax for the assessment year 2006-07. The computation of income based on which the advance tax was paid was in tune with the law prevailing on the date on which tax was due and payable. Any further addition in the income by way of amended provisions and which were incorporated subsequently, therefore, does not attract payment of interest as there is no default. 13. Mr.Kaka also invited our attention to section 115JB and particularly, insertion of clause (h) in Explanation (1). That clause reads as under: "(h) The amount of deferred tax and the provision therefor." 14. This clause has been substituted by Finance Act, 2008 with restrospective effect from 1st April, 2001. Prior to the same it read as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he year 2006-07 cannot be faulted and it cannot be said that the assessee is in default and therefore, there is any liability to pay interest in terms of section 234B of the Income Tax Act, 1961. 18. In the case of Star India Pvt. Ltd. Vs. Commissioner of Income Tax (2006) 280 ITR 321 the Hon'ble Supreme Court held that the service of "broadcasting" was made a taxable service with effect from July 16, 2001, by the Finance Act, 2001. The appellant disputed its liability to make any payment for service tax on the ground that it did not broadcast. The Commissioner, however, held against the appellant. The matter was carried before the Commissioner of Income Tax (Appeals) and during pendency of appeal the Finance Act, 2001 was amended by the Finance Act, 2002. The effect of amendment, inter alia, was to make an agent, such as the appellant, before the Supreme Court, liable to pay service tax as broadcaster. 19. The Supreme Court noted that the Appellants' appeal pending before the Commissioner was rejected by him on the basis of this amendment. The tribunal also maintained this order and that part of the order passed by the Commissioner was not challenged in appeal. However, ..... 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