TMI Blog2002 (12) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... amount of Rs. 539.35 crores is an income of the current year but exempt from income tax levy, the factual position is that this amount represents income of the subsequent year but shown in the profit and loss account of the present year. However, it is correct that in that subsequent year, the aforesaid amount of Rs. 539.35 crores was exempt from income-tax under section 10(33) which came into force in that subsequent year itself. 3. The assessee company is a large public sector undertaking and it has a number of subsidiaries from which it receives dividends. As per the method of accounting followed by the assessee, it has taken into account the dividend declared by the subsidiaries relating to the previous year 1996-97 as income in the profit and loss account for the previous year 1996-97, even though admittedly these dividends are declared, distributed and paid in the subsequent previous year. In other words, these dividends are included as income of the previous year in respect of which the dividends are declared, rather than income of the previous year during which these dividends are declared, distributed or paid-as is the scheme of the Income-tax Act. Therefore, the divide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons of Chapter III applied to the dividend income, so far as present assessment year is concerned. It was also pointed out that Explanation (ii) only applied to the income to which provisions of Chapter ill applies, and since provisions of Chapter ill are admittedly not applicable for the present assessment year, the dividend income could not be excluded for computation of book profit for the present assessment year i.e. 1997-98. It was also mentioned that once the assessee himself includes an amount in the profit and loss account, the same cannot be, without enabling legal provision, excluded from book profit. Aggrieved, assessee carried the matter in appeal before the CIT(A) but without any success. Still aggrieved, the assessee is in second appeal before us. 6. We have heard Shri Mukerjee, learned counsel for the assessee, and Shri Mishra, learned Senior Departmental Representative. We have also carefully perused the orders of the authorities below, as indeed the paper book filed before us, and deliberated upon the applicable legal position. 7. We may first refer to the fact that Chapter XIID, consisting of special provisions relating to tax on distributed profits of domesti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessee for the current year. 8. There is little dispute about the proposition that the very purpose of section 115JA is to ensure a system whereby every company pays a minimum corporate tax on the profits declared by it in its own accounts. Section 115JA(2), however, provides for certain adjustments to be made from such profits reflected by assessee's profit and loss account, which is to required to be prepared in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, in order to arrive at the 'book profit', which is subject matter of the tax under the scheme of section 115JA. One of these adjustments provides that the "the amount of income to which any of the provisions of Chapter III applies, if any such amount is credited to the profit and loss account" is inter alia required to be reduced from the net profit, as shown in the profit and loss account for the relevant previous year. A careful analysis of this clause shows that in order to be covered by this exclusion clause: - the amount should be in the nature of income; - the income should be liable to be excluded from computation of total income under Chapter III of the Income-tax Act, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ditionally made available to the members, which can only be done after the relevant previous year has ended, the taxability falls in the year(s) subsequent to the relevant previous year. It is thus clear that, under the scheme of the Act as in force at the relevant point of time, dividends could not be treated as income of the previous year in respect of which the company had declared dividends. The accounting method adopted by the company receiving dividends, however, reflected dividends in the previous year in respect of profits of which the subsidiaries had declared dividends. It is thus clear that the dividend credits in the hands of the assessee did not constitute income of the assessee for that year, and it was for this reason that the assessee-company had excluded the same from being considered as income of that year. Having satisfied ourselves that the impugned credit of Rs. 539.35 crores was not in the nature of income, we are of the considered view that the assessee's case fails on the very basic requirement of the exclusion clause. Similarly, when we examine the impugned adjustment on the second test, since the amount is not even in the nature of income in the sense that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0. We may mention that it is not for this Tribunal to supply the casus omissus, even if any, in the statute. A casus omissus, which broadly refers to a matter which has not been provided in the statute but should have been there to make the statute workable, cannot be supplied by us, as, to do so will be clearly beyond the call and scope of our duty which is only to interpret the law as it exists. Hon'ble Supreme Court, in the case of Smt. Tarulata Shyam v. CIT [1977] 108 ITR 345 at page 356 has observed: "We have given anxious thought to the persuasive arguments....(which) if accepted, will certainly soften the rigour of this extremely drastic provision and bring it more in conformity with logic and equity. But the language of sections....is clear and unambiguous. There is no scope for importing into the statute the words which are not there. Such interpretation would be, not to construe, but to amend the statute. Even if there be a casus omissus, the defect can be remedied only by legislation and not by judicial interpretation....To us, there appears no justification to depart from normal rule of construction according to which the intention of legislature is primarily to be ga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1 is dismissed. 13. We now move on to second grievance of the assessee, covered by Ground Nos. 2 and 3, which is directed against charging of interest under sections 234B and 234C of the Act. 14. The relevant material facts are that even though the assessee had no taxable income, but only deemed income on book profits computed under section 115JA of the Act, and the Assessing Officer levied interest under sections 234B and 234C in respect of the same. The Assessing Officer rejected assessee's claim that interest under sections 234B and 234C is not applicable in respect of the same. Aggrieved, assessee carried the matter in appeal before the CIT(A) who confirmed the action of the Assessing Officer by observing that he is unable to agree with the contentions of the assessee 'because section 115JA(4) clearly specifies that all other provisions of the Income-tax Act shall apply to an assessee being a company for the purpose of section 115JA of the Act' and that 'all other provisions include sections 234B and 234C of the Act'. The assessee is aggrieved and in appeal before us. 15. Heard the parties, perused the orders of the authorities below and deliberated upon the applicab ..... 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