TMI Blog2016 (3) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... xpected to be followed by all the assessees and also important to note that the above format of ITR 6 was amended w.e.f. AY 2012-13 by CBDT. Moreover, this is more relevant for the department also. These formats are regulated by CBDT. Assessing Officer cannot overlook these formats and (interpret it in his own method of calculating tax credit while making assessment u/s 143(1) of the Act.) proceed to calculate the MAT credit to compute assessment u/s 143(1) applying different methods when the proper and correct method as proposed by CBDT in ITR-6. The Assessing Officer is expected to follow the ITR-6 format to complete the assessment u/s 143(1) or 143(3) of the Act. Assessee has relied on the ITR – 6 format to arrive at the total liability as well as the MAT credit calculations and paid tax accordingly. In our view, the assessee had followed the procedure properly and the Assessing Officer had made the calculations applying his own interpretation or relied on the programme, we are not sure whether it is programme hitch or the interpretation of Assessing Officer was not in line with the calculations proposed in ITR-6. Therefore, we delete the addition made. - ITA No. 146/Hyd/201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Finance Act under Paragraph E as 30 per cent of the total income' and does not refer to any deductions there from. Though the provisions of sec.115JB apply to the appellant, in view of the fact that tax under the regular provisions was higher than the tax u/s 115JB, the income-tax was levied under the regular provisions of the Act. The income-tax payable was, accordingly, as per Paragraph E of the First Schedule of the Finance Act, 30 per cent of the total income, amounting to ₹ 12,86,36,907. As per the Finance Act, it was 'the incometax', i.e. this sum of ₹ 12,86,36,907 on which the surcharge of 5 per cent was to be levied. Similarly, u/s 11 of the Finance Act, the basis for computation of education cess was also the income-tax. 5.6 Further, MAT credit is treated under the Act on par with prepaid taxes. This is clear from sec.140A where the self- assessment tax is required to be determined after deducting advance tax, TDS and other relief u/s 90, 90A and 91. It follows that surcharge and education cess are levied on the gross amount of income tax and not the net figure after deducting advance tax, TDS etc. In fact, though the appellant had claimed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... omit, substitute, amend or withdraw the above grounds of appeal, at any time before or at, the time of hearing, of the appeal, so as to enable the Hon'ble Income Tax Appellate Tribunal, Hyderabad to decide this appeal in accordance with law and on the facts and circumstances of the case. 7. With regard to Ground Nos. 1, 2 3: Ld. AR submitted that it is clear from the return of income filed by the assessee that the difference between the tax payable under normal provisions and as per MAT provisions is ₹ 4,22,45,804 (i.e. ₹ 13,91,20,812 less ₹ 9,68,75,009). On the other hand, as per intimation u/s 143(1) of the Act, it is ₹ 3,90,62,234 (i.e. ₹ 12,86,36,907 less ₹ 8,95,74,673). Hence, in the intimation, the eligible MAT credit considered for set off has been erroneously calculated, exclusive of surcharge and education cess at ₹ 3,90,62,234 as against the correct eligible MAT credit available for set off of ₹ 4,22,45,803, inclusive of surcharge and education cess as considered in the return of income filed by the Company. 7.1 The ld. AR further submitted that the brought forward MAT credit for A Y 2008-09 is ₹ 3,86,45 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge education cess. 7.6 He submitted that the MAT credit is arrived at by the assessee based on the ITR 6 form, which is being followed universally by all the assessees under the Act. He, therefore, submitted that the AO also bound to follow the same. He also submitted that CIT(A) has not considered the judicial precedent in the case of K. Srinivasan Vs. CIT, [1972] 83 ITR 346 (SC),on which reliance placed by the assessee, to bring to the knowledge of CIT(A) that in the above judgment, the Apex Court has held that the term tax includes surcharge. Ld. AR also referred to the section 115JAA (2A) of the Act and the provisions of such Act describes the tax credit to be allowed shall be the difference of the tax paid for any AY under subsection (1) of section 115JB and the amount of tax payable by the assessee on total income computed in accordance with the other provisions of the Act. From the above, it is important that the assessee has paid the tax which includes surcharge and education cess, hence, the MAT credit should include surcharge and education cess. Ld. AR also submitted alternate MAT credit calculation before us to demonstrate that the method adopted by the assessee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per normal provisions of the income tax Act is more than tax payable under section 115JB and it shall be allowed to the extent of the following: Tax payable on total income under the normal provisions of the Act tax payable under section 115JB = MAT credit to be allowed. 9.3 On careful reading, the sub-section 2A, the tax credit to be allowed shall be the difference of tax paid for any AY under sub-section (1) of 115JB and the amount of tax payable on his total income computed in accordance with the other provisions of this Act. The important word used is tax paid and as per the Hon ble Apex Court decision in the case of K. Srinivasan (supra), the term tax includes surcharge. 9.4 It is also important to evaluate sub-section (5) of section 115JAA. Set off in respect of brought forward tax credit shall be allowed for any AY to the extent of difference between tax on his total income and the tax which would have been payable u/s 115JB, as the case may be for that AY. On careful reading, the term used are tax not income tax or any other term. Needless to say the term tax includes surcharge. 9.5 The sub-section (5) of section 115JAA are applied as it is in the ITR 6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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