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TMI Blog2018 (10) TMI 121X X X X Extracts X X X X X X X X Extracts X X X X ..... 143(3) of the Income Tax Act, 1961 (hereinafter referred to as "the Act") dated 27.02.2012 relevant to Assessment Year (AY) 2008-09. 2. The grounds of appeal raised by the assessee are as under:- "1. That on the facts and circumstances of the case & in law, the order passed by the Learned Commissioner of Income Tax (Appeals) ("Ld. C1T( A)") under section 250 of the Income Tax Act. (the "Act") confirming the assessment order passed by the Ld. AO under section 143(3) read with section 144C of the Act is bad in law. 2. That on the facts and circumstances of the case & in law, the Ld. CIT(A) erred in confirming the action of the Ld. AO in relation to bringing to tax the Net Profit declared in the Profit & Loss Account as Book Profit under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation before Hon'ble Gujarat High Court in SCA No 11581 of 2008 wherein following prayers were made: "[17] The petitioner, therefore, prays that this Hon'ble Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or a writ of certiorari or a writ in the nature of certiorarior any other appropriate writ, direction or order and be pleased to: [a] declare the provisions of clause (iii) of Explanation 1 of section 115JB of the Act as ultravires the Constitution and liable to be struck down; [b] restrain the Respondents from giving effect to the provisions of clause (iii) of Explanation 1 of section 115JB of the Act; [c] issue writ of mandamus or an order directing the respondent No.2 & 3 to allow the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he provisions of the Income Tax Act after allowing all allowable deductions, because the income tax payable works out to less than ten per cent of book profits that the petitioner has become liable to be assessed under provisions of section 115JB of the Act on its book profits. Thus, merely because, in the peculiar facts and circumstances of the case of the petitioner, the petitioner has not been able to set off its losses against its income while computing its income under section 115JB of the Act, the same would not render the statutory provisions unconstitutional or invalid. In the circumstances, the challenge to the provisions of section 115JB of the Act must necessarily fail. [17.19] Though not specifically pleaded in the petition, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v, D.T.C. azdoor Congress, 1991 Supp (1) SCC 600, C.B. Gautam v. Union of India, (1993) 1 SCC 78, and Rapti Commission Agency v. State of U.P., (2006) 6 SCC 522). [7.21] In the present case, the Court does not find the impugned provision to be in any manner unconstitutional, hence, the question of reading it down to save its constitutional validity does not arise, Besides, the provisions of clause (iii) of the Explanation to section 115JB are clear and ambiguous and it is not possible to take two views as to the meaning of the statutory language. Hence, the request to read down the provision also does not merit acceptance. Consequently, the question of directing the respondents to allow reduction of the brought forward losses of Rs. 11,67 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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