TMI Blog2015 (9) TMI 1176X X X X Extracts X X X X X X X X Extracts X X X X ..... onable opportunity of being heard to the assessee. - Decided in favour of revenue for statistical purposes. - I.T.A. No. 2612/KOL/ 2005, I.T.A. No. 385/KOL/ 2007 - - - Dated:- 1-9-2015 - Shri S.V. Mehrotra and Shri Mahavir Singh, JJ. For The Department : Shri Sachidananda Srivastava, CIT, D.R., For The Assessee : Shri R.N. Bajoria, Sr. Advocate, ORDER Per S.V. Mehrotra: We first take up the ITA No. 2612/KOL/2005. The appeal has been filed by the Revenue against the order of ld. Commissioner of Income Tax (Appeals)-X, Kolkata dated 20.09.2005 for the assessment year 2002-03 for the following ground of appeal:- That under the circumstances of the case, the CIT(A) has erred in directing the A.O. to give credit for MAT paid in earlier assessment years at par with other prepaid taxes . 2. The appeal is time-barred by eight days. The Department has filed condonation petition dated 19.12.2005 in which the delay in filing appeal has been explained as under:- The date of limitation in the case expired on 12.12.2005. The appeal could not be filed by the above due date and there is delay of 8 (eight) days in filing the appeal. Date-wise delay is expl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .- ACIT reported in 92 ITR 441 directed the Assessing Officer to allow admissible available MAT credit as per the Income Tax Act and Rules after verification of available MAT credit under section 115JAA for the assessment year 1999-2000 to be carried forward and set off in the subsequent years. 6. Ld. Sr. Counsel filed before us a copy of the decision of the Hon ble Supreme Court in the case of CIT vs.- Sage Metals Limited reported in (2012) 26 taxmann.com 258(SC), wherein the Hon ble Supreme Court in its decision dated 11.09.2012 disposed of the appeal in favour of assessee by following its judgment dated 16.12.2010 in the case of CIT, Chennai vs.- Tulsyan NEC Limited and has observed in para 9 to 13 as under:- 9. We have discussed hereinabove the scheme of section 115JA(1) and section 115JAA. The entire scheme of sections 115JA(1) and 115JAA shows that if an assessee is entitled to a tax credit as a consequence of the assessee making payment of tax under section 115JA(1) in the year one, then, the set off of such tax credit follows as a matter of course once the conditions mentioned in section 115JAA are fulfilled and the grant of such credit is not dependent upon dete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be a notice of demand under section 156 and all the provisions of the Act shall apply thereto. This section itself makes it clear that whilst the Assessing Officer determines the tax payable he has to give credit for all taxes paid either by way of deduction at source, advance tax, self assessment tax or tax paid otherwise which would include or which cannot exclude tax credit under section 115JAA(1). However, the question before us is of priority of adjustment for the MAT credit. In this connection, it is important to bear in mind that the credit allowed is the excess of the normal tax liability over MAT liability in the subsequent years. In this connection the following illustration on MAT credit be seen: Particulars Amount (Rs.) Year 1 115JB liability 1,600 Normal tax liability 400 Credit which can be carried forward-1 1,200 Year 2 115JB liability (A) 600 Norm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n if the assessee does not have to pay advance tax in the current year, because of his brought forward MAT credit balance, he would nevertheless be required to pay advance tax, and if he fails, interest under section 234B would be chargeable. The consequence of adopting the case of the Department would lapse after five succeeding assessment years under section 115JAA(3); that no interest would be payable on such credit by the Government under the proviso to section 115JAA(2) and that the assessee would be liable to pay interest under sections 234B and 234C on the shortfall in the payment of advance tax despite existence of MAT credit standing to the account of the assessee. Thus, despite MAT credit standing to the account of the assessee, the liability of the assessee gets increased Instead of it getting reduced. 13. Lastly, it is immaterial that the relevant form prescribed under Income-tax Rules, at the relevant time (i.e., before1-4-2007), provided for set off of MAT credit balance against the amount of tax plus interest i.e., after the computation of interest under section 234B. This was directly contrary to a plain reading of section 115JAA(4). Further, a form prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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