Assistant Commissioner of Income Tax, Circle-2, Jaipur V. M/s. Om Metal infraproject Limited, Jaipur

ITA 1510/JPR/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 0679 (ITAT-JAIPUR)
• Duration Of Justice: 3 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-03-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2011-2012
• Appeal Filed On: 26-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VARINDER MEHTA DHK
• Assessee Lawyers: B V MAHESHWARI
• Keywords: Business income; Maximum Marginal Rate; Rule of consistency
• Section: 43B; 115JB; 10

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH FOT; IKY JKWO] U;KF;D LNL; ,OA JH FOE FLAG ;K NO ] YS[KK LNL; DS LE{K BEFORE: SHRI VIJAY PAL RAO, JM AND SHRI VIKRAM SING H YADAV, AM VK;DJ VIHY LA-@ ITA NO. 1509 TO 1512/JP/2018 FU/KZKJ.K O'K Z@ ASSESSMENT YEARS : 2010-11 TO 13-14. THE ACIT, CIRCLE-2, JAIPUR. CUKE VS. M/S. OM METAL INFRAPROJECT LTD., OM TOWERS, CHURCH ROAD, M.I. ROAD, JAIPUR. LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AAACO 8245 J VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI B.V. MAHESHWARI (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI VARINDER MEHTA (CIT-DR) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 20.03.2019. ?KKS'K .KK DH RKJH[K@ DATE OF PRONOUNCEMENT : 27/03/2019. VKNS'K@ ORDER PER BENCH : THESE FOUR APPEALS BY THE REVENUE ARE DIRECTED AGAI NST FOUR SEPARATE ORDERS OF THE LD. CIT (A)-I, JAIPUR ALL DATED 04.10.2018 F OR THE ASSESSMENT YEARS 2010-11 TO 2013-14. COMMON GROUNDS HAVE BEEN RAISED BY THE REVENUE IN THESE APPEALS. THE GROUNDS RAISED FOR THE ASSESSMENT YEAR 2010-11 ARE AS UNDER :- (I) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN DELETING T HE ADDITION OF RS. 53,26,040/- MADE TO BOOK PROFIT U/S 115 JB FOR CALCULATION OF MAT ? (II) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT (A) WAS JUSTIFIED IN DELETING T HE ADDITION OF RS. 53,26,040/- MADE TO BOOK PROFIT U/S 115JB WHICH WAS THE SHARE OF PROFIT FROM JV FIRM CALLED OMIL-JSC-JV ? 2 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. THE APPELLANT CRAVES THE RIGHT TO AMEND ALTER OR AD D TO ANY OF THE GROUNDS OF APPEAL GIVEN ABOVE. 2. THE ONLY ISSUE ARISES IN THESE APPEALS OF THE RE VENUE IS REGARDING ADDITION MADE BY THE AO ON ACCOUNT OF ADJUSTMENT MADE IN THE BOOK PROFIT COMPUTED UNDER SECTION 115JB OF THE ACT IN RESPECT OF SHARE OF THE ASSESSEE IN THE INCOME OF JOINT VENTURE. 3. WE HAVE HEARD THE LD. D/R AS WELL AS THE LD. A/R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. AT THE OUTSET, WE NOTE THAT TH E LD. CIT (A) HAS DELETED THE ADDITION MADE BY THE AO BY FOLLOWING THE DECISION O F THIS TRIBUNAL IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2014-15. WE FURTHER N OTE THAT THE TRIBUNAL VIDE ORDER DATED 23 RD AUGUST, 2018 IN ITA NO. 759/JP/2018 FOR THE ASSESS MENT YEAR 2014-15 HAS CONSIDERED THIS ISSUE IN PARA 13 TO 15 AS UNDER :- 13. WE HAVE HEARD THE RIVAL SUBMISSIONS AS WELL AS THE RELEVANT MATERIAL ON RECORD. THE ASSESSING OFFICER HAS REJEC TED THE CONTENTION OF THE ASSESSEE THAT THE SHARE OF PROFIT FROM AOP/J OINT VENTURE SHALL BE EXCLUDED FOR THE COMPUTATION OF BOOK PROFIT U/S 115JB OF THE ACT. THE RELEVANT FINDING OF THE ASSESSING OFFICER ARE A S UNDER: I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE A SSESSEE AND FIND THE SAME NOT ACCEPTABLE IN VIEW OF THE FOLLOWING REASONS: 1) IN THE INSTANT CASE THE SHARE OF PROFIT FROM THE JOINT VENTURE COMPANY REPRESENT THE SHARE OF PROFIT FROM AOP. AS PER SECT ION 10(2 A), ONLY THE SHARE OF PROFITS FROM A FIRM GOVERNED BY THE PARTNERSHIP ACT IS EXCLUDED FROM COMPUTATION OF TOTAL INCOME. IN COMPUTING THE BOOK PROFIT ALSO THE SHARE OF PROFITS FROM THE FIRM WOULD HAVE EXCLUDED IN VIEW O F EXPLANATION (II) TO SEC. 3 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. 115JB. BUT THE SHARE OF PROFITS FROM AOP WHICH MAY BE EXEMPT FROM TAXATION IN THE HANDS OF THE MEMBERS BY THE VIRTUE OF SECTION 8 6, CANNOT BE EXCLUDED WHILE THE COMPUTING THE BOOK PROFITS OF THE MEMBERS OF AO P, UNDER ANY OF THE EXPLANATION UNDER SEC. 115JB OF THE ACT. 2) HERE, IT IS PERTINENT TO MENTION THAT THE AOP AN D PARTNERSHIP FIRM ARE VERY MUCH DISTINGUISHABLE IN NATURE. 3) FURTHER, THE ITAT BENCH, HYDERABAD IN THE CASE OF ACIT CIRCLE HYDERABAD V/S SEENAIAH & CO. PROJECTS LTD HYDERABAD HAS HELD THAT THE ADJUSTMENTS HAVE TO BE MADE ONLY ON THE BASIS OF EX PLANATION CONTAINED UNDER SECTION 115JB OF THE ACT AND THE EXPLANATIONS OF TH E PROVISIONS ARE CLEAR THAT NO SUCH ADJUSTMENT AS MADE BY THE ASSESSEE I.E. REDUCT ION OF PROFIT FROM JV IS ALLOWABLE UNDER EYES OF LAW. 4) MOREOVER, CLAUSE (IIC) HAS BEEN INSERTED IN EXPL ANATION 1 BELOW SUB- SECTION (2) OF SECTION 115JB BY THE FINANCE ACT 201 5 W.E.F. 01.04.2016 (I.E. A.Y. 2016- 17). IT IS APPARENT THAT THE AMENDMENT (TO EX CLUDE SHARE OF THE ASSESSEE IN THE INCOME OF AN AOP ON WHICH NO INCOME TAX IS P AYABLE IN ACCORDANCE WITH THE PROVISION OF SECTION 86) HAS NOT BEEN MADE APPL ICABLE RETROSPECTIVELY. HENCE RS. 37,60,20,402/- AS PER PROFIT FROM OMIL & JSC (JV) SHALL NOT BE DEDUCTIBLE IN ACCORDANCE WITH AS PER PART II & III OF SCHEDULE VI AND ACCORDINGLY BE ADDED TO THE BOOK PROFIT. 14. THE ASSESSEE CHALLENGED THE ACTION OF THE ASSES SING OFFICER BEFORE THE LD. CIT(A) AND RELIED UPON THE DECISION OF MUMBAI BENCHES OF THE TRIBUNAL IN THE CASE OF M/S GOLDGERG FINANCE PV T. LTD. VS ACIT (SUPRA). THE LD. CIT(A) HAS DECIDED THE ISSUE BY HO LDING AS UNDER: (IV) I HAVE DULY CONSIDERED THE SUBMISSIONS OF THE APPELLANT, ASSESSMENT ORDER AND THE MATERIAL PLACED ON RECORD. THE ISSUE IS RELATING TO COMPUTATION OF BOOK PROFIT U/S 115JB OF THE ACT VIZ A VIZ PROFI T AND LOSS ACCOUNT PREPARED BY THE APPELLANT AS PER THE PROVISIONS OF COMPANIES AC T AND THE APPLICABILITY OF 4 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. CLAUSE (IIC) TO EXPLANATION 1 TO SECTION 115JB OF T HE ACT, WHICH HAS BEEN INSERTED BY THE FINANCE ACT, 2015 W.E.F. 01.04.2016 . IN THE ASSESSMENT ORDER, IT HAS HELD BY THE AO THAT THE SAID CLAUSE WAS APPL ICABLE W.E.F. 2016- 17 I.E. IT WAS NOT APPLICABLE TO THE YEAR UNDER CONSIDERATION AND IT WAS NOT MADE APPLICABLE RETROSPECTIVELY. IT WOULD BE APPROPRIATE TO REPRODUCE CLAUSE (IIC) TO EXPLANATION 1 TO SECTION 115JB AS UNDER: (IIC) THE AMOUNT OF INCOME , BEING THE SHARE OF THE ASSESSEE IN THE INCOME OF AN ASSOCIATION OF PERSONS OR BODY OF INDI VIDUALS , ON WHICH NO INCOME-TAX IS PAYABLE IN ACCORDANCE WITH THE PRO VISIONS OF SECTION 86, IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AN D LOSS ACCOUNT; OR (V) IT MAY BE MENTIONED THAT THE ISSUE UNDER CONSID ERATION HAS BEEN CONSIDERED BY THE HON'BLE ITAT, MUMBAI IN THE CASE OF GOLDGERG FINANCE (P.) LTD. VS ACIT [2017] 78 TAXMANN.COM 123 (MUMBAI - TR IB.) .... .. (VI) IT MAY BE MENTIONED THAT IN A NUMBER OF JUDICI AL PRONOUNCEMENTS, THE CASE OF APOLLO TYRES LTD. V. CIT [2002] 255 ITR 273/122 TAXMAN 562 (SC), HAS BEEN DISTINGUISHED. IN THESE JUDGEMENTS, IT HAS BEEN OBSERVED THAT THE OBJECT OF MINIMUM ALTERNATE TAX (MAT) PROVISIONS IN CORPORATED IN SEC.LL5JB OF THE ACT WAS TO BRING OUT REAL PROFIT OF COMPANIES A ND THE THRUST WAS TO FIND OUT REAL WORKING RESULTS OF COMPANY. IT WAS FURTHER OBSERVED THAT INCLUSION OF RECEIPT WHICH ARE NOT IN THE NATURE OF INCOME IN CO MPUTATION OF BOOK PROFITS FOR MAT WOULD DEFEAT TWO FUNDAMENTAL PRINCIPLES, IT WOULD LEVY TAX ON RECEIPT WHICH WAS NOT IN NATURE OF INCOME AT ALL AND SECOND LY IT WOULD NOT RESULT IN ARRIVING AT REAL WORKING RESULTS OF COMPANY. REAL W ORKING RESULT COULD BE ARRIVED AT ONLY AFTER EXCLUDING THIS RECEIPT WHICH HAD BEEN CREDITED TO P&L A/C AND NOT OTHERWISE. THE RELIANCE IS PLACED ON THE CA SES OF JSW STEEL LTD. VS ACIT [2017] 82 TAXMANN.COM 210 (MUMBAI - TRIB.); SI CPA INDIA (P.) LTD. VS DCIT [2017] 80 TAXMANN.COM 87 (KOLKATA - TRIB.), DY. CIT V. BINANI INDUSTRIES LTD. [2016] 178 TTJ 658 AND HONBLE ITAT, JAIPUR IN THE CASE OF ACIT VS SHREE CEMENT LTD. IN ITA NO. 614, 615 & 635/JP/2010 FOR A Y 2004-05, 05-06 & 06-07. 5 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. (VII) IN VIEW OF THE ABOVE DISCUSSION AND LOOKING T O THE TOTALITY OF FACTS AND CIRCUMSTANCES OF THE CASE, IT IS HELD THAT THE ASSE SSING OFFICER WAS NOT JUSTIFIED IN NOT EXCLUDING PROFIT OF SHARE OF THE APPELLANT FROM ITS AOP WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT AND THUS, THE AO I S HEREBY DIRECTED TO EXCLUDE THE SAME WHILE COMPUTING BOOK PROFIT U/S 115JB OF T HE ACT. THUS, IT IS CLEAR THAT THE LD. CIT(A) HAS GIVEN A F INDING ON THE ISSUE BY FOLLOWING THE DECISIONS OF THIS TRIBUNAL. WE FURTHE R NOTE THAT THE PROVISIONS OF SECTION 86 OF THE ACT CONTEMPLATES TH AT NO INCOME TAX SHALL BE PAYABLE BY THE ASSESSEE IN RESPECT OF HIS SHARE IN THE INCOME OF ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS AND S UCH SHARE IN THE ASSOCIATION OR BODY IS COMPUTED IN THE MANNER PROVI DED U/S 67A OF THE ACT. THOUGH, THE SHARE OF PROFIT IN THE ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS AS ENVISAGED U/S 86 AS WELL AS SECTION 67A OF THE ACT IS NOT LIABLE TO INCOME TAX, HOWEVER, THE SAME SHALL BE IN CLUDED IN THE TOTAL INCOME OF THE ASSESSEE FOR THE PURPOSE OF DETERMINI NG THE AVERAGE MARGINAL RATE OF TAX IN TERMS OF SECTION 66 OF THE ACT. THE SECOND PROVISO TO SECTION 86 SET OUT THE EXCEPTION IN THE CASE WHERE NO INCOME TAX IS CHARGEABLE ON THE TOTAL INCOME OF THE ASSOCI ATION OF PERSONS OR BODY OF INDIVIDUALS THEN THE SHARE OF A MEMBER SHAL L BE CHARGEABLE TO TAX AS PART OF HIS TOTAL INCOME AND THE BENEFIT OF SECTION 86 SHALL NOT BE AVAILABLE TO THE MEMBER OF ASSOCIATION OR BODY. 15. FOR READY REFERENCE, WE REPRODUCE THE PROVISION S OF SECTION 66, 67A AND 86 OF THE ACT AS UNDER: SECTION 66. IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE, THER E SHALL BE INCLUDED ALL INCOME ON WHICH NO INCOME-TAX IS PAYABLE UNDER CHAP TER VII 38 [* * *]. SECTION 67A. (1) IN COMPUTING THE TOTAL INCOME OF AN ASSESSEE W HO IS A MEMBER OF AN ASSOCIATION OF PERSONS OR A BODY OF INDIVIDUALS WHE REIN THE SHARES OF THE MEMBERS ARE DETERMINATE AND KNOWN [OTHER THAN A COMPANY OR A CO OPERATIVE SOCIETY OR A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 18 60 (21 OF 1860), OR UNDER ANY LAW CORRESPONDING TO THAT ACT IN FORCE IN ANY PART OF I NDIA], WHETHER THE NET RESULT OF THE COMPUTATION OF THE TOTAL INCOME OF SUCH ASSOCIATION OR BODY IS A PROFIT OR A LOSS, HIS SHARE (WHETHER A NET PROFIT OR NET LOSS) SHALL BE C OMPUTED AS FOLLOWS, NAMELY : 6 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. ( A ) ANY INTEREST, SALARY, BONUS, COMMISSION OR REMUNERA TION BY WHATEVER NAME CALLED, PAID TO ANY MEMBER IN RESPECT OF THE PREVIOUS YEAR SHALL BE DEDUCTED FROM THE TOTAL INCOME OF THE ASSOCIATION OR BODY AND THE BALANCE ASCERTAINED AND APPORTIONED AMONG THE MEMBERS IN THE PROPORTIONS IN WHICH THEY ARE ENTITLED TO SHARE IN THE INCOME OF THE ASSOCIATION OR BODY ; ( B ) WHERE THE AMOUNT APPORTIONED TO A MEMBER UNDER CLAU SE ( A ) IS A PROFIT, ANY INTEREST, SALARY, BONUS, COMMISSION OR REMUNER ATION AFORESAID PAID TO THE MEMBER BY THE ASSOCIATI ON OR BODY IN RESPECT OF THE PREVIOUS YEAR SHALL BE ADDED TO THAT AMOUNT, AND THE RESULT SHALL BE TREATED AS THE MEMBER'S SHARE IN THE INCOME OF THE ASSOCIATION OR BODY ; ( C ) WHERE THE AMOUNT APPORTIONE D TO A MEMBER UNDER CLAUSE ( A ) IS A LOSS, ANY INTEREST, SALARY, BONUS, COMMISSION OR REMUNERATION AFORESAID PAID TO THE MEMBER BY THE ASSOCIATION OR BODY IN RESPECT OF THE PREVIOUS YEAR SHALL BE ADJUS TED AGAINST THAT AMOUNT, AND THE RESULT SHALL BE TREATED AS THE MEMBER'S SHARE IN THE INCOM E OF THE ASSOCIATION OR BODY. (2) THE SHARE OF A MEMBER IN THE INCOME OR LOSS OF THE ASSOCIATION OR BODY, AS COMPUTED UNDER SUB-SECTION (1), SHALL, FOR THE PURPOSES OF A SSESSMENT, BE APPORTIONED UNDER THE VARIOUS HEADS OF INCOME IN THE SAME MANNER IN WHICH THE INCOME OR LOSS OF THE ASSOCIATION OR BODY HAS BEEN DETERMINED UNDER EACH HEAD OF INCOME. (3) ANY INTEREST PAID BY A MEMBER ON CAPITAL BORROW ED BY HIM FOR THE PURPOSES OF INVESTMENT IN THE ASSOCIATION OR BODY SHALL, IN COMPUTING HIS SHARE CHARGEABLE UNDER THE HEAD 'PROFITS AND GAINS OF BUSINESS OR PROFESSION' IN RESPECT OF HIS SHARE IN THE INCOME OF THE ASSOCIATION OR BODY, BE DEDUCTED FROM HIS SHARE. EXPLANATION. IN THIS SECTION, 'PAID' HAS THE SAME MEANING AS IS ASSIGNED TO IT IN CLAUSE ( 2 ) OF SECTION 43 .] SECTION 86. WHERE THE ASSESSEE IS A MEMBER OF AN ASSOCIATION O F PERSONS OR BODY OF INDIVIDUALS (OTHER THAN A COMPANY OR A CO-OPERATIVE SOCIETY OR A SOCIETY REGISTERED UNDER THE SOCIETIES REGISTRATION ACT, 1860 (21 OF 1860), OR U NDER ANY LAW CORRESPONDING TO THAT ACT IN FORCE IN ANY PART OF INDIA), INCOME-TAX SHALL NOT B E PAYABLE BY THE ASSESSEE IN RESPECT OF HIS SHARE IN THE INCOME OF THE ASSOCIATION OR BODY COMP UTED IN THE MANNER PROVIDED IN SECTION 67A : PROVIDED THAT, ( A ) WHERE THE ASSOCIATION OR BODY IS CHARGEABLE TO TAX O N ITS TOTAL INCOME AT THE MAXIMUM MARGINAL RATE OR ANY HIGHER RATE UNDER ANY OF THE P ROVISIONS OF THIS ACT, THE SHARE OF A MEMBER COMPUTED AS AFORESAID SHALL NOT BE INCLUDED IN HIS TOTAL INCOME; ( B ) IN ANY OTHER CASE, THE SHARE OF A MEMBER COMPUTED A S AFORESAID SHALL FORM PART OF HIS TOTAL INCOME : PROVIDED FURTHER THAT WHERE NO INCOME-TAX IS CHARGEABLE ON THE TOTA L INCOME OF THE ASSOCIATION OR BODY, THE SHARE OF A MEMBER COMPUTED AS AFORESAI D SHALL BE CHARGEABLE TO TAX AS PART OF HIS TOTAL INCOME AND NOTHING CONTAINED IN THIS SECTION SHALL APPLY TO THE CASE.] 7 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. THE CO-JOINT READING OF SECTION 66, 67A AND 86 OF T HE ACT REVEALS THAT THE INCOME TAX SHALL BE PAYABLE BY THE ASSESSEE IN RESP ECT OF HIS SHARE IN THE INCOME OF ASSOCIATION OF PERSONS OR BODY OR INDIVID UALS COMPUTED IN THE MANNER PROVIDED IN SECTION 67A SUBJECT TO THE CONDI TION THAT THE TOTAL INCOME OF SUCH ASSOCIATION OR BODY OR PERSON IS NOT EXEMPT FROM INCOME TAX. HOWEVER, SUCH SHARE OF MEMBER SHALL BE INCLUDED WHI LE COMPUTING THE TOTAL INCOME FOR THE PURPOSE OF AVERAGE MARGINAL TAX. THE SHARE OF A PARTNER IN THE TOTAL INCOME OF THE FIRM IS EXEMPT AS PER PROVISION S OF SECTION 10(2A) OF THE ACT AND CONSEQUENTLY IS EXCLUDED FROM THE TOTAL INC OME OF THE PARTNER AND THEREFORE, THE SAID SHARE SHALL BE EXCLUDED WHILE C OMPUTING THE BOOK PROFIT U/S 115JB OF THE ACT AS ENVISAGED IN CLAUSE (II) OF EXPLANATION (1) TO THE SAID SECTION. SO FAR AS SECOND PROVISO TO SECTION 86 OF THE ACT IS CONCERNED, IT REFERS TO THE ASSOCIATION OF PERSONS OR BODY OF IND IVIDUALS WHOSE TOTAL INCOME IS EXEMPT FROM INCOME TAX AND THEREFORE, IN OUR VIE W, THE REFERENCE IN SECOND PROVISO TO SECTION 86 IS MADE TO THE ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS WHOSE TOTAL INCOME IS EXEMPT U/S 10 OF THE ACT AND NOT OTHERWISE. ONCE THE SHARE IN THE JOINT VENTURE WHICH IS TREATE D AS SHARE IN THE ASSOCIATION OF PERSONS IS NOT HIT BY THE SECOND PRO VISO TO SECTION 86 THEN THE SAME IS AKIN THE SHARE FROM THE PARTNERSHIP FIRM. T HUS TO BRING IT TO THE PARITY OF SHARE IN PARTNERSHIP FIRM, THE AMENDMENT IN SECT ION 115JB OF THE ACT VIDE FINANCE ACT, 2015 WAS BROUGHT BY INSERTING CLAUSE ( IIC) W.E.F. 1/4/2016. THEREFORE, THE PURPOSE AND INTENTION TO BRING THE A MENDMENT IS TO REMOVE THE MISCHIEF OR HARDSHIP OF THE ASSESSEE ON MAT IN RESPECT OF THE INCOME BEING SHARE IN THE ASSOCIATION OF PERSONS OR BODY O F INDIVIDUALS WHICH IS OTHERWISE NOT SUBJECT TO INCOME TAX IN ACCORDANCE W ITH THE PROVISIONS OF SECTION 86 OF THE ACT. THE MUMBAI BENCHES OF THE TR IBUNAL IN THE CASE OF M/S GOLDGERG FINANCE PVT. LTD. VS ACIT (SUPRA) WHILE DE ALING WITH THIS ISSUE HAS HELD IN PARA 10 AND 11 AS UNDER: 10. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED TH E RELEVANT FINDINGS GIVEN IN THE IMPUGNED ORDER. THE ADDITION OF SHARE INCOME OF AOP IN THE BOOK PROFIT HAS BEEN MADE ON THE GROUND THAT THE ASSESSEE ITSELF HAS CRE DITED THE SHARE INCOME FROM AOP IN THE P&L ACCOUNT AND CONSEQUENTLY THE BOOK PROFIT HA S TO BE COMPUTED ON THE BASIS OF AMOUNT SHOWN IN THE P&L ACCOUNT. ON A PERUSAL OF EXPLANATION TO SECTION 115JB 8 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. SPECIFICALLY THE SECOND PART DEALING WITH EXCLUSION /REDUCTION FROM THE BOOK PROFIT IT CAN BE SEEN THAT CLAUSE (II) PERMITS CERTAIN DEDUCT ION FROM BOOK PROFIT WITH REGARD TO THE AMOUNT OF INCOME TO WHICH THE PROVISIONS OF SEC TIONS 10, 11 OR 12 APPLIES IF SUCH AMOUNT HAS BEEN CREDITED TO THE P&L ACCOUNT. THE SA ID CLAUSE READS AS UNDER: 'THE AMOUNT OF INCOME TO WHICH ANY OF THE PROVISION S OF SECTION 10 [OTHER THAN THE PROVISIONS CONTAINED IN CLAUSE (38) THEREOF] OR SECTION 11 OR SECTION 12 APPLY, IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCOUNT; OR' SECTION 10 INCLUDES SECTION 10(2A) ALSO WHICH PROVI DES FOR EXEMPTION OF SHARE INCOME OF PARTNER FROM THE PARTNERSHIP FIRM. THUS, IF SHARE INCOME OF PARTNER IS CREDITED TO THE PROFIT & LOSS ACCOUNT, THEN, EXPLANATION 1 TO SEC 115JB ENVISAGES ITS EXCLUSION OR DEDUCTION FROM BOOK PROFIT. HOWEVER, T HERE WAS NO SUCH ENABLING PROVISION FOR THE SHARE INCOME FROM THE AOP WHICH C AN BE EXCLUDED FROM THE COMPUTATION OF BOOK PROFIT. IN ORDER TO EXTEND THIS BENEFIT AND TO PROVIDE REMEDIAL MEASURES IN THE CASE OF AOP ALSO, A NEW CLAUSE HAS BEEN INSERTED BY THE FINANCE ACT, 2015 W.E.F. 1.4.2016, WHICH READS AS UNDER: '( IIC ) THE AMOUNT OF INCOME, BEING THE SHARE OF THE ASSE SSEE IN THE INCOME OF AN ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS, ON W HICH NO INCOME TAX IS PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 86 IF ANY , SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCOUNT; OR' THE RATIONALE BEHIND THIS SECTION HAS BEEN EXPLAINE D IN THE EXPLANATORY NOTES TO THE FINANCE ACT, 2015 IN THE FOLLOWING MANNER: 'RATIONALISING THE PROVISIONS OF SECTION 115JB THE EXISTING PROVISIONS CONTAINED IN SECTION 115JB OF THE ACT PROVIDE THAT IN THE CASE OF A COMPANY, IF THE TAX PAYABLE ON THE TOTAL INCOM E AS COMPUTED UNDER THE ACT IN RESPECT OF ANY PREVIOUS YEAR RELEVANT TO THE ASSESS MENT YEAR COMMENCING ON OR AFTER 1ST DAY OF APRIL, 2012, IS LESS THAN EIGHTEEN AND O NE-HALF PERCENT OF ITS BOOK PROFIT, SUCH BOOK PROFIT SHALL BE DEEMED TO BE THE TOTAL IN COME OF THE ASSESSEE AND THE TAX PAYABLE FOR THE RELEVANT PREVIOUS YEAR SHALL BE EIG HTEEN AND ONE-HALF PERCENT OF BOOK PROFIT. THIS TAX IS TERMED AS MINIMUM ALTERNATE TAX (MAT). EXPLANATION BELOW SUB- SECTION (2) OF SECTION 115JB PROVIDES THAT THE EXPR ESSION 'BOOK PROFIT' MEANS NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT PREP ARED IN ACCORDANCE WITH THE PROVISIONS OF THE COMPANIES ACT, OR IN ACCORDANCE W ITH THE PROVISIONS OF THE ACT GOVERNING A COMPANY AS INCREASED OR REDUCED BY CERT AIN ADJUSTMENTS, AS SPECIFIED IN THE SECTION. SECTION 86 OF THE ACT PROVIDES THAT NO INCOME-TAX I S PAYABLE ON THE SHARE OF A MEMBER OF AN AOP, IN THE INCOME OF THE AOP IN CERTAIN CIRC UMSTANCES. HOWEVER, UNDER THE PRESENT PROVISIONS, A COMPANY WHICH IS A MEMBER OF AN AOP IS LIABLE TO MAT ON SUCH SHARE ALSO SINCE SUCH INCOME IS NOT EXCLUDED FROM T HE BOOK PROFIT WHILE COMPUTING THE MAT LIABILITY OF THE MEMBER. IN THE CASE OF A PARTN ER OF A FIRM, THE SHARE IN THE PROFITS OF THE FIRM IS EXEMPT IN THE HANDS OF THE PARTNER A S PER SECTION 10(2A) OF THE ACT AND NO MAT IS PAYABLE BY THE PARTNER ON SUCH PROFITS . IN VIEW OF THE ABOVE, IT IS PROPOSED TO AMEND THE S ECTION 115JB SO AS TO PROVIDE THAT THE SHARE OF A MEMBER OF AN AOP, IN THE INCOME OF T HE AOP, ON WHICH NO INCOME-TAX IS PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 86 OF THE ACT, SHOULD BE 9 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. EXCLUDED WHILE COMPUTING THE MAT LIABILITY OF THE M EMBER UNDER SECTION 115JB OF THE ACT. THE EXPENDITURES, IF ANY, DEBITED TO THE PROFI T LOSS ACCOUNT, CORRESPONDING TO SUCH INCOME (WHICH IS BEING PROPOSED TO BE EXCLUDED FROM THE MAT LIABILITY) ARE ALSO PROPOSED TO BE ADDED BACK TO THE BOOK PROFIT FOR TH E PURPOSE OF COMPUTATION OF MAT .' [EMPHASIS ADDED IS OURS] THIS HAS BEEN FURTHER EXPLAINED AND CLARIFIED BY TH E CBDT CIRCULAR IN THE SIMILAR MANNER. FROM THE READING OF ABOVE CLARIFICATION IT IS OSTENSIBLE THAT, THE BACKGROUND AND INTENTION BEHIND FOR SUCH AN INSERTION OF CLAUSE WA S THAT, IN CASE OF A PARTNER OF A FIRM, THE SHARE IN THE PROFIT OF THE FIRM WHICH IS EXEMPT IN THE HANDS OF THE PARTNER IN TERMS OF SECTION 10(2A), THERE WERE NO LIABILITY TO PAY MAT BY THE PARTNER ON SUCH PROFIT. HOWEVER, THIS BENEFIT WAS LACKING IN THE CASE OF SH ARE OF A MEMBER OF AN AOP WHERE IN CERTAIN CIRCUMSTANCES WAS NOT TAXABLE IN HANDS OF M EMBER IN TERMS OF SECTION 86 WERE NOT EXCLUDED FROM THE BOOK PROFIT WHILE COMPUTING T HE MAT LIABILITY OF THE MEMBER. IT WAS FELT BY THE LEGISLATURE THAT THE SHARE OF MEMBE R OF AN AOP ON WHICH NO INCOME TAX IS PAYABLE IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 86 SHOULD BE EXCLUDED WHILE COMPUTING THE MAT LIABILITY OF THE MEMBER U/S 115JB . IT WAS FURTHER PROVIDED THAT EXPENDITURE IF ANY DEBITED TO THE P&L ACCOUNT CORRE SPONDING TO SUCH INCOME WHICH IS TO BE EXCLUDED FROM THE MAT LIABILITY SHALL BE ADDED B ACK TO THE BOOK PROFIT FOR THE PURPOSE OF COMPUTATION OF MAT. THE INTENTION OF THE LEGISLATURE WHICH CAN BE GAUGED BY THE EXPLANATORY NOTES TO THE AMENDING ACT, WAS T O PROVIDE SIMILAR REMEDY WHICH WAS APPLICABLE TO THE PARTNERS WHOSE SHARE INCOME FROM THE PROFIT OF THE FIRM WAS NOT LIABLE FOR MAT. IF A PROVISION HAS BEEN BROUGHT TO EXTEND THE BENEFIT TO CERTAIN CLASS OF ASSESSEES WHICH WAS EARLIER APPLICABLE TO OTHER CLA SS OF ASSESSEES ON A SIMILAR CIRCUMSTANCES AND IS REMEDIAL IN NATURE, THEN, THE SAME HAS TO BE RECKONED AS RETROSPECTIVE. IT IS QUITE A TRITE PROPOSITION THAT EXPLANATORY ACT WHICH IS CURATIVE IN NATURE OR ANY REMEDIAL STATUTE IS BROUGHT IN THE ST ATUTE EITHER TO REMEDY UNINTENDED CONSEQUENCE OR TO PROVIDE BENEFIT WHICH IS APPLICAB LE TO PARTICULAR CLASS OF ASSESSEE AND IS EXTENDED TO OTHER CLASS OF ASSESSEE, THEN, ON RE ASONABLE INTERPRETATION IT SHOULD BE DECLARED AS RETROSPECTIVE IN OPERATION. IN OUR OPIN ION, IF AN AMENDMENT IN LAW HAS BEEN BROUGHT BY THE LEGISLATURE IN THE STATUTE WHICH IS CURATIVE IN NATURE, TO AVOID UNINTENDED CONSEQUENCE AND TO PROVIDE SIMILAR BENEFIT TO OTHER CLASS OF ASSESSEE, THEN, IT HAS TO BE TREATED AS RETROSPECTIVE IN NATURE EVEN THOUGH IT H AS NOT BEEN STATED SPECIFICALLY BY THE AMENDING ACT. THIS PROPOSITION FIND STRONG SUPPORT FROM THE JUDGMENTS OF THE HON'BLE SUPREME COURT IN THE CASE OF ALLIED MOTORS (P.) LTD. ( SUPRA ) AND IN THE CASE OF ALOM EXTRUSIONS LTD. ( SUPRA ). THE HON'BLE APEX COURT WHILE INTERPRETING THE PR OVISO TO SECTION 43B BROUGHT IN THE STATUTE WITH A PARTICULA R DATE WAS TREATED AS CURATIVE AND WAS HELD TO BE APPLICABLE RETROSPECTIVELY. THE RELEVANT OBSERVATION OF THE HON'BLE SUPREME COURT IN THE CASE OF ALOM EXTRUSIONS LTD . FOLLOWING THE RATIO OF IN THE CASE OF ALLIED MOTORS (P.) LTD . ( SUPRA ) READS AS UNDER: 'ONCE THIS UNIFORMITY IS BROUGHT ABOUT IN THE FIRST PROVISO, THEN, IN OUR VIEW, THE FINANCE ACT, 2003, WHICH IS MADE APPLICABLE BY THE PARLIAMENT ONLY W.E.F. 1ST APRIL, 2004, WOULD BECOME CURATIVE IN NATURE, H ENCE, IT WOULD APPLY RETROSPECTIVELY W.E.F. 1ST APRIL, 1988 (I.E. THE DA TE ON WHICH THE RELATED LEGAL PROVISION WAS INTRODUCED). SECONDLY, IT MAY BE NOTE D THAT, IN THE CASE OF ALLIED MOTORS (P.) LTD. V. CIT [1997] 139 CTR (SC) 364: [1997] 224 ITR 677 (SC ), THE SCHEME OF S. 43B OF THE ACT CAME TO BE EXAMINED . IN THAT CASE, THE QUESTION WHICH AROSE FOR DETERMINATION WAS, WHETHER SALES-TAX COLLECTED BY THE ASSESSEE AND PAID AFTER THE END OF THE RELEVANT PRE VIOUS YEAR BUT WITHIN THE 10 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. TIME ALLOWED UNDER THE RELEVANT SALES-TAX LAW SHOUL D BE DISALLOWED UNDER S. 43B OF THE ACT WHILE COMPUTING THE BUSINESS INCOME OF THE PREVIOUS YEAR? THAT WAS A CASE WHICH RELATED TO ASST YR. 1984-85. THE RELEVANT ACCOUNTING PERIOD ENDED ON 30TH JUNE, 1983. THE ITO DISALLOWED THE DEDUCTION CLAIMED BY THE ASSESSEE WHICH WAS ON ACCOUNT OF SALES-TAX C OLLECTED BY THE ASSESSEE FOR THE LAST QUARTER OF THE RELEVANT ACCOUNTING YEAR. T HE DEDUCTION WAS DISALLOWED UNDER S. 43B WHICH, AS STATED ABOVE, WAS INSERTED W .E.F. 1ST APRIL, 1984. IT IS ALSO RELEVANT TO NOTE THAT THE FIRST PROVISO WHICH CAME INTO FORCE W.E.F. 1ST APRIL, 1988 WAS NOT ON THE STATUTE BOOK WHEN THE AS SESSMENTS WERE MADE IN THE CASE OF ALLIED MOTORS (P.) LTD. ( SUPRA ). HOWEVER, THE ASSESSEE CONTENDED THAT EVEN THOUGH THE FIRST PROVISO CAME TO BE INSER TED W.E.F. 1ST APRIL, 1988, IT WAS ENTITLED TO THE BENEFIT OF THAT PROVISO BECAUSE IT OPERATED RETROSPECTIVELY FROM 1ST APRIL, 1984, WHEN S. 43B STOOD INSERTED. T HIS IS HOW THE QUESTION OF RETROSPECTIVITY AROSE IN ALLIED MOTORS (P.) LTD. ( SUPRA ). THIS COURT, IN ALLIED MOTORS (P.) LTD. ( SUPRA ) HELD THAT WHEN A PROVISO IS INSERTED TO REMEDY UNINTENDED CONSEQUENCES AND TO MAKE THE SECTION WOR KABLE, A PROVISO WHICH SUPPLIES AN OBVIOUS OMISSION IN THE SECTION AND WHI CH PROVISO IS REQUIRED TO BE READ INTO THE SECTION TO GIVE THE SECTION A REAS ONABLE INTERPRETATION, IT COULD BE READ RETROSPECTIVE IN OPERATION, PARTICULARLY TO GIVE EFFECT TO THE SECTION AS A WHOLE. ACCORDINGLY, THIS COURT IN ALLIED MOTORS (P.) LTD. ( SUPRA ), HELD THAT THE FIRST PROVISO WAS CURATIVE IN NATURE, HENCE, RETROS PECTIVE IN OPERATION W.E.F. 1ST APRIL, 1988. IT IS IMPORTANT TO NOTE ONCE AGAIN THA T, BY FINANCE ACT, 2003 NOT ONLY THE SECOND PROVISO IS DELETED BUT EVEN THE FIR ST PROVISO IS SOUGHT TO BE AMENDED BY BRINGING ABOUT AN UNIFORMITY IN TAX, DUT Y, CESS AND FEE ON THE ONE HAND VIS-A-VIS CONTRIBUTIONS TO WELFARE FUNDS OF EM PLOYEE(S) ON THE OTHER. THIS IS ONE MORE REASON WHY WE HOLD THAT THE FINANCE ACT , 2003, IS RETROSPECTIVE IN OPERATION. MOREOVER, THE JUDGMENT IN ALLIED MOTORS (P.) LTD. ( SUPRA ) IS DELIVERED BY A BENCH OF THREE LEARNED JUDGES, WHICH IS BINDING ON US. ACCORDINGLY, WE HOLD THAT FINANCE ACT, 2003, WILL O PERATE RETROSPECTIVELY W.E.F. 1ST APRIL, 1988 (WHEN THE FIRST PROVISO STOO D INSERTED). LASTLY, WE MAY POINT OUT THE HARDSHIP AND THE INVIDIOUS DISCRIMINA TION WHICH WOULD BE CAUSED TO THE ASSESSEE(S) IF THE CONTENTION OF THE DEPARTM ENT IS TO BE ACCEPTED THAT FINANCE ACT, 2003, TO THE ABOVE EXTENT, OPERATED PR OSPECTIVELY. TAKE AN EXAMPLE IN THE PRESENT CASE, THE RESPONDENTS HAVE D EPOSITED THE CONTRIBUTIONS WITH THE R.P.F.C. AFTER 31ST MARCH (END OF ACCOUNTI NG YEAR) BUT BEFORE FILING OF THE RETURNS UNDER THE IT ACT AND THE DATE OF PAY MENT FALLS AFTER THE DUE DATE UNDER THE EMPLOYEES' PROVIDENT FUND ACT, THEY WILL BE DENIED DEDUCTION FOR ALL TIMES. IN VIEW OF THE SECOND PROVISO, WHICH STO OD ON THE STATUTE BOOK AT THE RELEVANT TIME, EACH OF SUCH ASSESSEE(S) WOULD NOT B E ENTITLED TO DEDUCTION UNDER S. 43B OF THE ACT FOR ALL TIMES. THEY WOULD L OSE THE BENEFIT OF DEDUCTION EVEN IN THE YEAR OF ACCOUNT IN WHICH THEY PAY THE C ONTRIBUTIONS TO THE WELFARE FUNDS, WHEREAS A DEFAULTER, WHO FAILS TO PAY THE CO NTRIBUTION TO THE WELFARE FUND RIGHT UPTO 1ST APRIL, 2004, AND WHO PAYS THE C ONTRIBUTION AFTER 1ST APRIL, 2004, WOULD GET THE BENEFIT OF DEDUCTION UNDER S. 4 3B OF THE ACT. IN OUR VIEW, THEREFORE, FINANCE ACT, 2003, TO THE EXTENT INDICAT ED ABOVE, SHOULD BE READ AS RETROSPECTIVE. IT WOULD, THEREFORE, OPERATE FROM 1S T APRIL, 1988 WHEN THE FIRST PROVISO WAS INTRODUCED. IT IS TRUE THAT THE PARLIAM ENT HAS EXPLICITLY STATED THAT FINANCE ACT, 2003, WILL OPERATE W.E.F. 1ST APRIL, 2 004. HOWEVER, THE MATTER 11 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. BEFORE US INVOLVES THE PRINCIPLE OF CONSTRUCTION TO BE PLACED ON THE PROVISIONS OF FINANCE ACT, 2003.' 11. THUS, WE ARE OF THE OPINION THAT THE CLAUSE (IIC) INSERTED IN EXPLANATION 1 TO SECTION 115JB BY THE FINANCE ACT, 2015 IS REMED IAL AND CURATIVE IN NATURE AS IT WAS BROUGHT IN THE STATUTE TO PROVIDE SIMILAR BENEFIT TO THE MEMBER OF THE AOP WHICH WAS EARLIER APPLICABLE TO THE PARTNER OF THE FIRM, THEREFORE, IT IS TO BE RECKONED AS RETROSPECTIVE. THIS PROPOSITION CAN BE VIEWED FROM ANOTHER ANGLE THAT, THE AMENDING ACT HAD SOUGHT TO BRING PA RITY BETWEEN SIMILAR KIND OF SITUATION FACED BY TWO CLASS OF ASSESSEES, WHERE IN ONE CASE, STATUTE ENVISAGED THAT IF THE INCOME OF THE ASSESSEE IS NOT TAXABLE, THAT IS, IN CASE OF PARTNER THE SHARE INCOME FROM THE PARTNERSHIP FIRM, THEN IT CANNOT BE TAXED AS BOOK PROFIT UNDER MAT LIABILITY. SIMILARLY, IN SECO ND CASE ALSO, THAT IS, IN CASE OF MEMBER OF AN AOP WHERE NO INCOME-TAX IS PAYABLE ON THE SHARE OF A MEMBER OF AN AOP IN CERTAIN SITUATIONS IN TERMS OF SECTION 86, SHOULD ALSO NOT BE BROUGHT TO TAX UNDER MAT LIABILITY. THE LEGISLAT URE BY THIS AMENDMENT HAS THUS REMOVED THIS IMPARITY BETWEEN TWO CLASSES OF A SSESSEES SO THAT MISCHIEF OR PREJUDICE CAUSED TO OTHER CLASS OF ASSESSEES SHO ULD BE REMOVED. THE MISCHIEF WHICH HAS BEEN SOUGHT TO BE REMEDIED IS TH AT THE SHARE INCOME OF THE MEMBER OF THE AOP WHICH WAS NOT TAXABLE IN TERMS OF SECTION 86 WAS GETTING TAXED UNDER MAT WHILE COMPUTING THE BOOK PROFIT. TH IS WAS ALSO NEVER THE PURPOSE OF SECTION 115JB TO TAX ANY INCOME OR RECEI PTS WHICH IS OTHERWISE NOT TAXABLE UNDER THE ACT. IF THE INTENTION OF LEGISLAT URE WAS ALWAYS THAT INCOME WHICH IS NOT TAXABLE UNDER THE NORMAL PROVISIONS OF THE ACT SHOULD NOT BE BROUGHT TO TAX UNDER MAT ALSO, THEN IT HAS TO BE IN TERPRETED THAT SUCH A BENEFIT HAS TO BE GIVEN TO ALL AND WHERE THE INCOME IS OTHE RWISE NOT TAXABLE UNDER THE ACT CANNOT BE BROUGHT TO BE TAXED UNDER MAT. THEREF ORE, ANY REMEDY BROUGHT BY AN AMENDMENT TO REMOVE THE DISPARITY AND CURB TH E MISCHIEF HAS TO BE RECKONED AS CURATIVE IN NATURE AND HENCE, IS TO BE HELD RETROSPECTIVELY. ACCORDINGLY, THIS ISSUE IS ALLOWED IN FAVOUR OF THE ASSESSEE. THUS, IT WAS HELD THAT THE AMENDMENT WAS BROUGHT TO REMOVE THE HARDSHIP AND BRING THE PARITY OF THE INCOME BEING S HARE IN THE ASSOCIATION OF PERSONS OR BODY OF INDIVIDUALS, WHIC H IS OTHERWISE NOT LIABLE TO TAX AS PER THE PROVISIONS OF SECTION 86 O F THE ACT, THE SAME SHALL HAVE RETROSPECTIVE APPLICATION. IN ABSENCE OF ANY CONTRARY PRECEDENT BROUGHT TO OUR NOTICE AND TO MAINTAIN THE RULE OF CONSISTENCY, WE FOLLOW THE DECISION OF MUMBAI BENCH ES OF THE TRIBUNAL IN THE CASE OF M/S GOLDGERG FINANCE PVT. LTD. VS AC IT (SUPRA). ACCORDINGLY, WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE. HENCE, THIS GROUND OF REVENU ES APPEAL STANDS DISMISSED. 12 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR. IN PRINCIPLE, THE ISSUE IS COVERED BY THE EARLIER D ECISION OF THIS TRIBUNAL. HOWEVER, THE ONLY POINT IS TO BE CONSIDERED IS THAT WHETHER THE INCOME OF THE JOINT VENTURE ASSESSED AS AOP WAS EXEMPT OR NOT FROM THE INCOME T AX AND THEN THE SHARE IN THE INCOME OF THE AOP HAS TO BE TREATED AS PER THE PROV ISIONS OF SECTION 67A OF THE ACT. ACCORDINGLY, SO FAR AS THE ADDITION DELETED BY THE LD. CIT (A), WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE IMPUGNED ORDER OF THE CI T (A), HOWEVER, THE AO HAS TO VERIFY THE FACT WHETHER THE INCOME OR ANY PART OF T HE INCOME OF THE JOINT VENTURE CAN BE ASSESSED IN THE HANDS OF THE ASSESSEE IN TERMS O F SECTION 67A OF THE ACT. 4. IN THE RESULT, APPEALS OF THE REVENUE ARE DISMIS SED. ORDER IS PRONOUNCED IN THE OPEN COURT ON 27/03/ 2019. SD/- SD/- ( FOE FLAG ;KNO ) ( FOT; IKY JKWO (VIKRAM SINGH YADAV ) (VIJAY PAL RAO) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER JAIPUR DATED:- 27/03/2019. DAS/ VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. THE APPELLANT- THE ACIT, CIRCLE-2, JAIPUR. 2. THE RESPONDENT M/S. OM METAL INFRAPROJECT LTD. , JAIPUR. 3. THE CIT(A). 4. THE CIT, 5. THE DR, ITAT, JAIPUR 6. GUARD FILE (ITA NO. 1509 TO 1512/JP/2018) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR 13 ITA NOS. 1509 TO 512/JP/2018 M/S. OM METAL INFRAPROJECT LTD., JAIPUR.