TMI Blog2017 (8) TMI 523X X X X Extracts X X X X X X X X Extracts X X X X ..... for A.Y. 2005- 06 could file the revised return after complying with the provisions of Sec. 139(5) up to 31.3.2007. The revised return filed on 26.9.2006 was thus validly filed within limitation. Consequently, the claim of the petitioner-assessee for the refund of the additional tax deposited is valid and justified – Decided in favour of assessee Applicability of provisions of Section 115JB - Assessee is an insurance company incorporated under the Insurance Act - Held that:- Provisions of Section 115JB are not applicable in the case of the assessee as the assessee is engaged in the business of general insurance. This ground of the assessee stands allowed. - ITA No.968 /Mum/2015 - - - Dated:- 16-6-2017 - Shri P K Bansal, Vice President And Shri Pawan Singh, Judicial Member For The Appellant : Shri Nishant Thakkar For The Respondent : Shri Anand Mohan ORDER Per P.K. Bansal, Vice President This appeal has been filed by the assessee against the order of the CIT(A) -6, Mumbai dated 14.10.2014 for A.Y. 2005-06 by taking the following effective grounds of appeal: - 1. The learned CIT(A) erred in permitting the reassessment proceedings under sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned A.Y. subsequent to the issue of the intimation under section 143(1) is valid or not. The facts relating to this ground are that the assessee filed the original return of income on 28.10.2005 declaring Nil income under the normal provisions of the Income Tax Act while computing the book profit under section 115JB at ₹ 13,80,48,000/-. The original return was processed under section 143(1) on 06.10.2005. The assessee subsequently filed a revised return under section 139(5) on 31.03.2006. In the revised return the assessee has increased the loss available for set off which was claimed at ₹ 24,74,10,047/- in the original return. In the revised return the assessee has set off brought forward losses at ₹ 2,57,03,358/- and claimed carry forward of loss at ₹ 32.76 crores. The assessment under section 143(3) was completed on 28.12.2007 wherein the original loss of ₹ 32,76 crores was allowed to be set off as per the revised return of income of A.Y. 2004-05. Subsequently the assessment so completed was reopened by issue of notice under section 148 dated 24.06.2011 as it was found that brought forward losses have been allowed in excess. The assessee, in resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e computation of income , sometimes the determination of the amount of tax payable and sometimes the whole procedure laid down in the Act for imposing liability upon the tax payer . In the scheme of things, as noted above, the intimation under section 143(1)(a) cannot be treated to be an order of assessment. The distinction is also well brought out by the statutory provisions as they stood at different points of time. Under section 143(l) (a) as it stood prior to April 1, 1989, the Assessing Officer had to pass an assessment order if he decided to accept the return, but under the amendedprovision, the requirement of passing of an assessment order has been dispensed with and instead an intimation is required to be sent. Various circulars sent by the Central Board of Direct Taxes spell out the intent of the Legislature, i.e., to minimize the departmental work to scrutinize each and every return and to concentrate on selective scrutiny of returns. These aspects were highlighted by one of us (D. K. Jain J) in Apogee International Limited v. Union of India [1996] 220 ITR 248 (Delhi). It may be noted above that under the first proviso to the newly substituted sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... posited by it till the date the refund is granted. The assessee-petitioner shall also be entitled to the amount of interest on interest. The aforesaid directions shall be subject to adjustment of the amount which might have already been paid to the assessee-petitioner. The needful shall be done within a period of three months from the date of receipt of a certified copy of this order. 11. In view of the above, we allow the writ petition and direct that the refund be released to the petitioner within three months from the date of receipt of certified copy of order along with interest at the rate of 12% per annum till the date of making the payment to him. Similar issue has arisen before the Hon'ble Gujarat High Court in the case of S.R. Koshti vs. CIT 276 ITR 165 in which also the Hon'ble High Court took the view that the intimation issued under section 143(1) cannot be treated as order of assessment and on the basis of such order the assessee denied his statutory rights to file a revised return within the period of limitation. No contrary decision was brought to our notice. In view of the aforesaid decisions of both the High Courts, we set aside the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee by holding as under: - 36. The assessee has also raised an additional ground which pertains to provisions of section 115JB. Counsel for the assessee has submitted that by virtue of powers conferred vide section 254 of the Act read with Rule 11 of the Income Tax Appellate rules, the Tribunal has jurisdiction to pass any order which is deemed fit after giving opportunity of being heard to the parties, therefore, the additional ground of appeal may be allowed and the additional ground may be decided on merit. On the other hand the Ld. Dr opposed the application on the ground that since this ground was not raised by the assessee before the Ld. CIT(A) the assessee is estopped from taking additional ground at this stage. 37. In ICICI Lombard General Insurance Co Ltd. Vs ACIT, (2012) 27 taxman.com.326 (Mum), the coordinate Bench of the Mumbai ITAT has allowed the similar application holding as under: - We have heard the Id. AR of the assessee as well as the Id. DR on the point of admissibility of the additional ground and considered the relevant material on record. Since the additional ground raised by the assessee is on the issue of applicability of the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act do not apply in the case of the assessee. 12. We have also considered the contention raised by the learned D.R. that in view of Explanation 3 the provisions of Section 115JB could apply to the assessee. We have gone through Explanation 3 to section 115JB. We noted that the said Explanation has been inserted by Finance Act, 2012 w.e.f. 01.04.2013. The question before us is whether this amendment is retrospective and is applicable in the impugned assessment year or not. We noted that similar issue has arisen before the Delhi Bench of this Tribunal in the case of The Bank of Tokyo Mitsubishi UFJ Ltd. vs. ADIT 152 ITD 796 in which this Tribunal duly considered the plea whether Explanation 3 inserted in section 115JB is retrospective or not. The Tribunal in para 74 of the order held as under: - 74. Ld. CIT(DR) however, pointed out that Tribunal has not considered in detail the import of this amendment and has simply on the basis of date of insertion has observed that it is prospective. He has pointed out that in the case of State Bank of Hyderabad primarily the decision in the case of Maharashtra State Electricity Board has been followed and Explanation 3 has not been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted because Section 115JB is subject to Section 90(2) of the Act and the taxable income of the Assessee would have to be computed in terms of Article 7(3) of the DTAA. What is significant is that the profit and loss account of the Assessee has not been prepared in terms of Part II of Schedule VI of the Companies Act, 1956 and in fact could not have been prepared in terms thereof. Consequently, the question of applicability of Section 1I5JB did not arise. As rightly pointed out till the insertion of Section 115JB, banking companies were required to prepare their accounts in terms of special acts that they were governed by, and therefore there were no computation provisions as regards such banking companies. The change brought out by Section 115JB was therefore not retrospective. 14. No contrary decision was brought to our notice. Even we noted that the Revenue has gone before the Hon'ble Bombay High Court against the order of this Tribunal in the case of the assessee in ITA No. 7748/Mum/2013 but has not raised the issue regarding applicability of provisions of Section 115JB. In view of this fact we set aside the order of the CIT(A) and hold that provisions of Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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