The DCIT, Central Circle-2(1), Ahmedabad V. Intas Pharmaceuticals Ltd., Ahmedabad

ITA 1740/AHD/2014

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8505 (ITAT-AHMEDABAD)
• Duration Of Justice: 3 year(s) 3 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2017
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 05-06-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: P M MEHTA
• Section: 11A; 234B; 115JB; 263; 90; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I MAHAVIR PRASAD , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CENTRAL CIRCLE - 2(1), AHMEDABAD (APPELLANT) VS INTAS PHARMACEUTICALS LTD. 203, CHINUBHAI CENTRE, NR. NEHRU BRIDGE, ASHRAM ROAD, AHMEDABAD PAN: AAACI5120L (RESPONDENT) REVENUE BY : S H RI K. MADHUSUDAN , SR. D . R. ASSESSEE BY: S H RI P.M. MEHTA , A.R. DATE OF HEARING : 13 - 07 - 2 017 DATE OF PRONOUNCEMENT : 2 6 - 09 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2010 - 11 , AR ISES FROM ORDER OF THE CIT(A) - III, AHMEDABAD DATED 31 - 03 - 2014 , IN PROCEEDINGS UNDER SECT ION 154 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE REVENUE HAS RAISED FOLLOWING GROUND OF APPEAL: - I T A NO . 1740 / A HD/20 14 A SSESSME NT YEAR 2010 - 11 I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 2 ON THE FACTS A ND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN DIRECTING TO COMPUTE SURCHARGE AND EDUCATION CESS AFTER REDUCING BASIC TAX LIABILITY BY MAT CREDIT U/S.115JAA OF THE I T ACT. 3. IN THIS CASE, RETURN OF INCOME DECLARING INCOME OF RS. 84,89,14,760/ - WAS FILED ON 08/10/2006. THE TOTAL TAX ON THE INCOME OF THE ASSESSEEE WAS COMPUTED AT RS. 25,46,74,428/ - AS PER THE PROVISIONS OF INCOME TAX ACT. THE TAX LIABILITIES AS PER THE PROVISION OF S ECTION 111JB WAS DETERMINED AT R S. 17,18 , 54,839/ - . T HE ASSESSEE HA S NOTICED FROM THE INTIMATION RECEIVED U/S. 143(1) OF THE ACT THAT THE TAX LIABILITY HAS BEEN DETERMINED AFTER PROVIDING MAT CR EDIT FOR R S. 4,61,81,503/ - AS AGAINST MAT CREDIT OF RS. 8,28,19,589/ - CLAIMED BY T HE ASSESSEE. THEREFORE , THE ASSESSEE HAD APPLIED FOR NECESSARY RECTIFICATION A S PER THE PROVISION OF SECTION 154 OF THE ACT. SUBSEQUENTLY , THE ASSESSING OFFICER HAS PASSED RECTIFICATION OR D ER U/S. 154 OF T HE ACT ON 01 - 05 - 2012 AND PROVIDED MAT CREDIT OF RS. 8,28,19 ,589/ - AS CLAIMED BY THE ASSESSEE. THEREAFTER, THE ASSESSEE PREFERRED APPEAL BEFORE THE LD. CIT (A) AGAINST THE ORDER OF THE ASSESSING OFFICER ON THE GROUND THAT SURCHARGE AND EDUCATION CESS HAS BEEN COMPUTED ON THE TAX PAYABLE BEFORE REDUCING THE MAT C REDIT AND CLAIMED THAT SAME SHOULD HAVE BEEN COMPUTED AFTER ALLOWING THE MAT CREDIT . THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 9.3. IT IS SEEN THAT ASSESSMENT YEAR INVOLVED IN PRESENT YEAR IS A.Y. 2010 - 2011 AND APPELLA NT COMPANY IS REQUIRED TO FILE ITS RETURN OF INCOME IN ITR - 6 WHEREIN COMPUTATION OF TAX LIABILITY ON TOTAL INCOME AT PART B - TTI WAS PRESCRIBED AS UNDER : PART B - TTI COMPUTATION OF TAX LIABILITY ON TOTAL INCOME C O M 1 TA X PAYABLE ON DEEMED TOTAL INCOME UNDER SECTION 115JB (7 OF 1 I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 3 SCHEDULE MAT) 1 TAX PAYABLE ON TOTAL INCOME A TAX AT NORMAL RATES 1A B TAX AT SPECIAL RATES (11 OF SCHEDULE - SI) 1B C TAX PAYABLE ON TOTAL INCOME (2A+2B) 1C 3 GROSS TAX PAYABLE (ENTER HIGHER OF 2C AND 1) 3 4 CREDIT UNDER SECTION 115JAA OF TAX PAID IN EARLIER YEARS (IF 1 IS MORE THAN (2C) (7 OF SCHEDULE MATC) 4 5 TAX PAYABLE AFTER CREDIT UNDER SECTION 115JAA [(3 - 4)] 5 2 REBATE 2 3 BALANCE TAX PAYABLE (1 - 2) 3 4 SURCHARG E ON 3 4 4 EDUCATION CESS, INCLUDING SECONDARY AND HIGHER EDUCATION CESS ON (3) 4 5 GROSS TAX LIABILITY (3+4) 5 6 TAX RELIEF A SECTION 90 7A B SECTION 91 7B C TOTAL (6A+6B) 6C 7 NET TAX LIABILITY (5 - 6C) 7 8 INTEREST PAYABLE A FOR DEFAULT IN FURNISHING THE RETURN (SECTION 234A) 8A B FOR DEFAULT IN PAYMENT OF ADVANCE TAX (SECTION 234B) 8B C FOR DEFERMENT OF ADVANCE TAX (SECTION 234C) 8C D TOTAL INTEREST PAYABLE (8A+8B+8C) 8D 9 AGGREGATE LIABILITY (7+8D) 9 10 T AXES PAID TAXES PAID A ADVANCE TAX (FROM SCHEDULE - IT) 11A B TDS (COLUMN 7 OF SCHEDLE - TDS2) 11B C TCS (COLUMN 7 OF SCHEDULE - TCS 11C D SELF ASSESSMENT TAX (FROM SCHEDULE - IT) 11D E TOTAL TAXES PAID (10A+10B+10C+10D) 10E 11 AMOUNT PAYA BLE (ENTER IF 9 IS GREATER THAN 10E, ELSE ENTER 0) 11 12 REFUND (IF 10E IS GREATER THAN 9, ALSO GIVE THE BANK ACCOUNT DETAILS IN SCHEDULE - BA) 12 9.4 IT CAN BE SEEN FROM AFORESAID COMPUTATION PRESCRIBED IN ITR - 6 BEING INCOME TAX FORM PRESCRIBED FOR F ILING RETURN OF INCOME THAT ASSESSEE IS REQUIRED TO FIRST COMPUTE GROSS TAX PAYABLE BEING HIGHER AMOUNT OF TWO FIGURES I.E. (I) TAX PAYABLE ON DEEMED TOTAL INCOME U/S 115JB AND (II) TAX PAYABLE ON TOTAL INCOME AS PER NORMAL PROVISIONS OF THE ACT 9.5 FROM SUCH GROSS AMOUNT, CREDIT U/S 115JAA IS REQUIRED TO BE REDUCED AND ONLY ON SUCH NET AMOUNT, SURCHARGE AND EDUCATION CESS IS REQUIRED TO BE COMPUTED. 9.6 THE APPELLANT COMPANY HAS COMPUTED TAX LIABILITY AS PER PROVISIONS OF THE ACT AND FORMULA PRESCRIBED IN ITR - 6 REFERRED SUPRA. THUS, IN MY CONSIDERED VIEW, THE ASSESSING OFFICER WAS NOT JUSTIFIED IN COMPUTING TAX LIABILITY ADOPTING FORMULA DIFFERENT THAN AS STATED HEREIN ABOVE. CONSIDERING THE SAME, ASSESSING OFFICER IS DIRECTED TO FIRST REDUCE BASIC TAX L IABILITY BY MAT CREDIT U/S 115JAA OF THE ACT AND ONLY ON BALANCE AMOUNT, SURCHARGE AND EDUCATION CESS IS REQUIRED TO BE COMPUTED. THUS, GROUNDS OF APPEAL RAISED BY APPELLANT ARE ALLOWED. I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 4 4. DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, LD. DEPART MENTAL REPRESENTATIVE HAS VEHEMENTLY CONTEND ED THAT THE LD. CIT HAS COMMITTED ERROR IN HOLDING T HA T SURCHARGE AND EDUCATION CESS IS TO BE COMPUTED AFTER REDUCTION OF MA T CREDIT U/S. 115JA A OUT OF THE GROSS T AX PAYABLE IN THE CASE OF THE ASSESSEE. HE HA S R EFERRED THE PROVISION OF SECTION 2(43) AND SECTION 4 OF THE ACT RELATING TO CHARGING OF INCOME TAX. HE HAS ALSO CONTENDED THAT THE FINANCE ACT IS A PA RT OF THE INCOME TAX A CT IN WHICH RATE O F INCOME TAX ARE MENTIONED IN T H E CHAPTER II. HE HAS ALSO PLACED RELIANCE ON THE JUDICI AL PRONOUNCEMENT OF THE HON BLE SUPREME COURT IN THE CASE OF CIT VS. K. SRI NIVASAN 83 ITR 346 WHEREIN THE SUPREME C OURT HELD THAT SURCHARGE IS TO BE TREATED AS PART OF THE INCOME TAX. ON THE OTHER HAND, LD. COUNSEL HAS SUPPORTED THE ORDER OF THE LD. CIT(A) AND CONTENDED THAT SURCHARGE ARE SEPARATE CHARGE AND FURTHER CONTENDED THAT IN CASE VIEW IS TAKEN THAT TAX IS INCLUSIVE OF SURCHARGE THEN ASSESSING OFFICER MAY BE DIRECTED THAT THE MAT CREDIT TO BE GIVEN IN ASSESSEE S CASE SHALL AL SO BE INCREASED B Y THE AMOUNT OF SURCHARGE AND EDUCATION CESS APPLICABLE T O THE SAID INCOME TAX. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE JUDICIAL PRONOUNCEMENTS AND MATERIAL ON RECORD PLACED BY BOTH THE SIDES. WE HAVE NOTICED THAT SUB - SECTION (1) S ECOND PROVISO TO SUB - SECTION (3), SUB - SECTION ( 11 ) AND SUB - SECTION (12) OF SECTION 2 O F THE FINANCE ACT, 2010 PROVIDES AS UNDER : - 2. 1) SUBJECT TO THE PROVISIONS OF SUB - SECTIONS (2) AND (3), FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2010 , INCOME - TAX SHALL BE CHARGED AT THE RATES SPECIFIED IN PART I OF THE FIRST SCHEDULE AND SUCH TAX SHALL BE INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN EACH CASE IN THE MANNER PROVIDED THEREIN. I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 5 P ROVIDED FURTHER THAT IN RESPECT OF A NY INCOME CHARGEABLE TO TAX UNDER SECTIONS 115A, 115AB, 115AC, 115ACA, 115AD, 115B, 115BB, 115BBA, 115BBC, 115E AND 115JB OF THE INCOME - TAX ACT, THE AMOUNT OF INCOME - TAX COMPUTED UNDER THIS SUB - SECTION SHALL BE INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED, ( A ) IN THE CASE OF A DOMESTIC COMPANY, AT THE RATE OF TEN PER CENT OF SUCH INCOME - TAX WHERE THE TOTAL INCOME EXCEEDS ONE CRORE RUPEES; ( B ) IN THE CASE OF EVERY COMPANY, OTHER THAN A DOMESTIC COMPANY, AT THE RATE O F TWO AND ONE - HALF PER CENT OF SUCH INCOME - TAX WHERE THE TOTAL INCOME EXCEEDS ONE CRORE RUPEES . (11) THE AMOUNT OF INCOME - TAX AS SPECIFIED IN SUB - SECTIONS (1) TO (10) AND AS INCREASED BY THE APPLICABLE SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MANNER PROVIDED THEREIN, SHALL BE FURTHER INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE EDUCATION CESS ON INCOME - TAX , CALCULATED AT THE RATE OF TWO PER CENT OF SUCH INCOME - TAX AND SURCHARGE SO AS TO FULFIL THE C OMMITMENT OF THE GOVERNMENT TO PROVIDE AND FINANCE UNIVERSALISED QUALITY BASIC EDUCATION : (12) THE AMOUNT OF INCOME - TAX AS SPECIFIED IN SUB - SECTIONS (1) TO (10) AND AS INCREASED BY THE APPLICABLE SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MA NNER PROVIDED THEREIN, SHALL ALSO BE INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE SECONDARY AND HIGHER EDUCATION CESS ON INCOME - TAX , CALCULATED AT THE RATE OF ONE PER CENT OF SUCH INCOME - TAX AND SURCHARGE SO AS TO FUL FIL THE COMMITMENT OF THE GOVERNMENT TO PROVIDE AND FINANCE SECONDARY AND HIGHER EDUCATION WE HAVE ALSO PERUSED THE DECISION OF APEX COURT IN THE CASE OF CIT VS. K. SRINIVASAN 83 ITR 346 WHEREIN THE HON BLE SUPREME COURT HAS HELD THAT THE SURCHARGE IS TO BE TREATED AS PART OF INCOME TAX. WE REPRODUCED THE RELEVANT PART OF THE DECISION OF THE HON BLE COURT AS UNDER: - THE MEANING OF THE WORD 'SURCHARGE' AS GIVEN IN THE WEBSTER'S NEW INTERNATIONAL DICTIONARY INCLUDES, AMONG OTHERS, 'TO CHARGE (ONE) TOO M UCH OR IN ADDITION................'; ALSO 'ADDITIONAL TAX'. THUS, THE MEANING OF SURCHARGE IS TO CHARGE IN ADDITION OR TO SUBJECT TO AN ADDITIONAL OR EXTRA CHARGE. IF THAT MEANING IS APPLIED TO SECTION 2 OF THE FINANCE ACT, 1963, IT WOULD LEAD TO THE RESUL T THAT INCOME - TAX AND SUPER - TAX WERE TO BE CHARGED IN FOUR DIFFERENT WAYS OR AT FOUR DIFFERENT RATES WHICH MAY BE DESCRIBED AS : ( I ) THE BASIC CHARGE OR RATE (IN PART I OF THE FIRST SCHEDULE); ( II ) SURCHARGE ; ( III ) SPECIAL SURCHARGE ; AND ( IV ) ADDITIONAL SURCHARGE CALCULATED IN THE MANNER PROVIDED IN THE SCHEDULE. READ IN THIS WAY, THE ADDITIONAL CHARGES FORM A PART OF THE INCOME - TAX AND SUPER - TAX. IT IS POSSIBLE TO ARGUE, AND THAT ARGUMENT HAS BEEN COMMENDED ON BEHALF OF THE REVENUE, THAT THE WORD 'SURCHA RGE' HAS BEEN USED IN ARTICLE 271 FOR THE PURPOSE OF SEPARATING IT FROM THE BASIC CHARGE OF A TAX OR DUTY FOR THE PURPOSE OF DISTRIBUTING THE PROCEEDS OF THE SAME BETWEEN THE UNION AND THE STATES. THE PROCEEDS OF THE SURCHARGE ARE EXCLUSIVELY ASSIGNED TO T HE UNION. EVEN IN THE FINANCE ACT ITSELF IT IS EXPRESSLY STATED THAT THE SURCHARGE IS MEANT FOR THE PURPOSE OF THE UNION. IT WOULD APPEAR THAT, SINCE THE FINANCE ACT, 1943, UP TO THE FINANCE ACT, 1967, A PROVISION WAS MADE FOR TAXING THE INCOME UNDER THE H EAD 'SALARIES' ACCORDING TO THE PROVISIONS OF THE FINANCE ACT OF THE PRECEDING YEAR RATHER THAN OF THE CURRENT YEAR IF THE ASSESSEE HAD ANY INCOME IN ADDITION TO HIS INCOME BY WAY OF SALARY. ACCORDING TO THE TRIBUNAL THIS WAS DONE BECAUSE IF THE I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 6 INCOME UND ER THE HEAD 'SALARIES' WAS TO BE ASSESSED AT THE RATES FIXED BY THE FINANCE ACT ENACTED FOR THE CURRENT YEAR IT WOULD ENTAIL CONSIDERABLE ADMINISTRATIVE WORK IN THE FORM OF A REFUND OR COLLECTION IN THE FINAL ASSESSMENT. SINCE BY THE FINANCE ACT OF 1967, T HIS METHOD OR PROCEDURE WAS DROPPED WE DO NOT CONSIDER THAT MUCH SIGNIFICANCE CAN BE ATTACHED TO THIS ASPECT. IN THE RESULT WE ARE UNABLE TO SUSTAIN THE VIEW OF THE HIGH COURT. THE QUESTION THAT WAS REFERRED MUST BE ANSWERED IN THE AFFIRMATIVE AND IN FAVOU R OF THE REVENUE. IN VIEW OF THE NATURE OF THE POINT INVOLVED THE PARTIES ARE LEFT TO BEAR THEIR OWN COSTS IN THIS COURT. THE APPEAL BY CERTIFICATE IS DISMISSED. WE HAVE NOTICED THAT ON THE IDENTICAL ISSUE THE HON BLE HIGH COURT OF CALCUTTA HAS DECIDED TH E MATTER IN FAVOUR OF T HE REVENUE IN THE CASE OF SREI INFRASTRUCTURE FINANCE PVT. LTD. VS. DCIT, CIRCLE - 11(2) [2017] 395 ITR 291 (CALCU TTA) . THE RELEVANT PART OF THE PRONOUNCEMENT IS REPRODUCED AS UNDER: - 3. THE QUESTION RAISED BY THE ASSESSEE HAS ITS RO UTE IN THE FORM OF INCOME TAX RETURN. IN OTHER WORDS, THE ASSESSEE, WE ARE INCLINED TO THINK, WAS PROBABLY INSPIRED TO RAISE THE ISSUE BY THE FORM OF INCOME TAX RETURN FOR THE ASSESSMENT YEAR 2008 - 09, THE RELEVANT PORTION WHEREOF READS AS FOLLOWS: COMPUTA TION OF TAX LIABILITY ON TOTAL INCOME 1 TAX PAYABLE ON DEEMED TOTAL INCOME UNDER SECTION 115JB (7 OF SCHEDULE MAT) 1 2 TAX PAYABLE ON TOTAL INCOME IN ITEM 11 OF PART B - TI A TAX AT NORMAL RATES 2 A B TAX AT SPECIAL RATES (11 OF SCHEDULE - SI) 2 B C TAX PAYABLE ON TOTAL INCOME IN ITEM 11 OF PART B - TI (2A + 2B) 2C 3 GROSS TAX PAYABLE (ENTER HIGHER OF 2C AND 1) 3 4 CREDIT UNDER SECTION 115JAA OF TAX PAID IN EARLIER YEARS (IF 1 IS MORE THAN 2C) (7 OF SCHEDULE MATC) 4 5 TAX PAYABLE AFTER CREDIT UNDER SECTION 115JAA [(3 4)] 5 6 REBATE UNDER SECTION 88E (4 OF SCHEDULE - STTR) 6 7 BALANCE TAX PAYABLE (5 - 6) 7 8 SURCHARGE ON 7 8 9 EDUCATION CESS, INCLUDING SECONDARY AND HIGHER EDUCATION CESS ON (7+8) 9 10 GROSS TAX LIABILITY (7+ 8+9) 1 0 PORTION OF THE FORM SET OUT HEREIN ABOVE SUGGEST THAT THE CREDIT UNDER SECTION 115JAA HAS TO BE ALLOWED BEFORE ADDITION IS MADE ON ACCOUNT OF SURCHARGE AND CESS. THE ASSESSEE WANTS THAT IT SHOULD BE ALLOWED TO DO SO. THE LEARNED TRIBUNAL, HOWEV ER, HAS HELD THAT: 'WE FIND NO MERIT IN THE CONTENTION OF THE ASSESSEE THAT MAT CREDIT SHOULD FIRST BE REDUCED FROM THE TAX PAYABLE AND THEREAFTER ON THE RESIDUAL AMOUNT THE SURCHARGE AND EDUCATIONAL CESS BE LEVIED.' 4. MR. KHAITAN, LEARNED SENIOR ADVOCAT E SUBMITTED THAT THE FORM OF INCOME TAX RETURN PRESCRIBED FOR THE YEAR 2008 - 09, QUOTED ABOVE, CONTINUED TO HOLD THE FIELD UP TO THE ASSESSMENT YEAR 2011 - 12. IT IS ONLY FOR THE YEAR 2012 - 13 THAT THE FORM WAS CHANGED, WHICH READS AS FOLLOWS: COMPUTATION OF TAX LIABILITY ON TOTAL INCOME 1 1 A TAX PAYABLE ON DEEMED TOTAL INCOME UNDER SECTION 115JB (7 OF SCHEDULE MAT) 1 A I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 7 1 B SURCHARGE ON (A) ABOVE 1 B 1 C EDUCATION CESS ON (1A + 1B) ABOVE 1 C 1 D TOTAL TAX PAYABLE U/S 115JB (1A+1B+1C) 1 D 2 TAX PAYABLE ON TOTAL INCOME IN ITEM 11 OF PART B - TI A TAX AT NORMAL RATES 2 A B TAX AT SPECIAL RATES (11 OF SCHEDULE - SI) 2 B C TAX PAYABLE ON TOTAL INCOME IN ITEM 11 OF PART B - TI (2A + 2B) 2C 3 SURCHARGE ON 2C 3 4 EDUCATION CESS, INCLUDING SECONDARY AND HIGHER EDUCATION CESS ON (2C+3) 4 5 GROSS TAX LIABILITY (2C+3+47) 5 6 GROSS TAX PAYABLE (HIGHER OF 5 AND 1D) 6 7 CREDIT UNDER SECTION 115JAA OF TAX PAID IN EARLIER YEARS (IF 5 IS MORE THAN 1D) (7 OF SCHEDULE MATC) 6 8 TAX PAYABLE AFTER CREDIT UNDER SECTION 115JAA [ (6 - 7)] 8 5. MR. KHAITAN RELIED UPON THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF CIT V. VACMENT INDIA [2014] 369 ITR 30 4/230 TAXMAN 18/55 TAXMANN.COM 314 , THE DIVISION BENCH, IN THAT CASE, SOLELY ON THE BASIS OF THE FORM OF THE INCOME TAX RETURN PRESCRIBED FOR THE YEAR 2008 - 09 WHICH CONTINUED TO HOLD THE FIELD UP TO THE YEAR 2011 - 12, ANSWERED THE ISSUE AS FOLLOWS: - 'THE A FORESAID ENTRIES LEAVE NO MANNER OF AMBIGUITY IN REGARD TO THE METHOD OF COMPUTATION OF TAX LIABILITY. ENTRY 3 REQUIRES COMPUTATION OF THE GROSS TAX PAYABLE. UNDER ENTRY 4, CREDIT IS REQUIRED TO BE GIVEN UNDER SECTION 115JAA OF THE ACT OF THE TAX PAID IN E ARLIER YEARS. ENTRY 5 REQUIRES A COMPUTATION OF THE TAX PAYABLE AFTER CREDIT UNDER SECTION 115JAA OF THE ACT. THE MATTER IS PLACED BEYOND DOUBT BY THE PARENTHESIS, WHICH INDICATES THAT TAX PAYABLE UNDER ENTRY 5 IS TO BE ARRIVED AT BY DEDUCTING THE CREDIT U NDER SECTION 115JAA OF THE ACT (UNDER ENTRY 3) FROM THE GROSS TAX PAYABLE (UNDER ENTRY 4). THE SURCHARGE IS COMPUTED ON THE AMOUNT REFLECTED IN ENTRY 5.' 5.1 MR. KHAITAN DREW OUR ATTENTION TO SUB - SECTION (1) OF SECTION 4 OF THE INCOME TAX ACT AS IT WAS AT THE RELEVANT PERIOD OF TIME WHICH READS AS FOLLOWS: - 'WHERE ANY CENTRAL ACT ENACTS THAT INCOME - TAX SHALL BE CHARGED FOR ANY ASSESSMENT YEAR AT ANY RATE OR RATES, INCOME - TAX AT THAT RATE OR THOSE RATES SHALL BE CHARGED FOR THAT YEAR IN ACCORDANCE WITH, AND [SUBJECT TO THE PROVISIONS (INCLUDING PROVISIONS FOR THE LEVY OF ADDITIONAL INCOME - TAX) OF, THIS ACT] IN RESPECT OF THE TOTAL INCOME OF THE PREVIOUS YEAR [***] OF EVERY PERSON: PROVIDED THAT WHERE BY VIRTUE OF ANY PROVISION OF THIS ACT INCOME - TAX IS TO BE CHARGED IN RESPECT OF THE INCOME OF A PERIOD OTHER THAN THE PREVIOUS YEAR, INCOME - TAX SHALL BE CHARGED ACCORDINGLY.' ON THE BASIS OF SUB - SECTION (1) OF SECTION 4, MR. KHAITAN CONTENDED, THAT THE CENTRAL ACT CAN ONLY PROVIDE THE RATE OR RATES OF APPLICABLE INCOME TAX. IT CANNOT ALSO PROVIDE FOR PAYMENT OF SURCHARGE AND CESS WHICH IS NOT CONTEMPLATED BY THE INCOME TAX ACT. THE SURCHARGE AND CESS HAVE BEEN IMPOSED BY THE FINANCE ACT AND, THEREFORE DO NOT AMOUNT TO INCOME TAX. 5.2 HE THEN DREW OUR ATTENTION TO SECTION 115JAA. HE RELIED UPON SUB - SECTIONS (1A), (2A), (4), (5) AND (6). '(1A) WHERE ANY AMOUNT OF TAX IS PAID UNDER SUB - SECTION (1) OF SECTION 115JB BY AN ASSESSEE, BEING A COMPANY FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2006 AND ANY SUBSEQUENT ASSESSMENT YEAR, THEN, CREDIT IN RESPECT OF TAX SO PAID SHALL BE ALLOWED TO HIM IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION. (2A) THE TAX CREDIT TO BE ALLOWED UNDER SUB - SECTION (1A) SHALL BE THE DIFFERENCE OF THE TAX PAID FOR ANY ASSESSMEN T YEAR UNDER SUB - SECTION (1) OF SECTION 115JB AND THE AMOUNT OF TAX PAYABLE BY THE ASSESSEE ON HIS TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE OTHER PROVISIONS OF THIS ACT: PROVIDED THAT NO INTEREST SHALL BE PAYABLE ON THE TAX CREDIT ALLOWED UNDER SUB - SEC TION (1A) (4) THE TAX CREDIT SHALL BE ALLOWED SET - OFF IN A YEAR WHEN TAX BECOMES PAYABLE ON THE TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS ACT OTHER THAN SECTION 115JA [OR SECTION 115JB, AS THE CASE MAY BE]. (5) SET OFF IN RESPECT OF B ROUGHT FORWARD TAX CREDIT SHALL BE ALLOWED FOR ANY ASSESSMENT YEAR TO THE EXTENT OF THE DIFFERENCE BETWEEN THE TAX ON HIS TOTAL INCOME AND THE TAX WHICH WOULD HAVE BEEN PAYABLE UNDER THE PROVISIONS OF SUB - SECTION (1) OF SECTION 115JA [OR SECTION 115JB, AS THE CASE MAY BE] FOR THAT ASSESSMENT YEAR. (6) WHERE AS A RESULT OF AN ORDER UNDER SUB - SECTION (1) OF SUB - SECTION (3) OF SECTION 143, SECTION 144, SECTION 147, SECTION 154, SECTION 155, SUB - SECTION (4) OF SECTION 245D, SECTION 250, SECTION 254, SECTION 260 , SECTION 262, I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 8 SECTION 263 OR SECTION 264, THE AMOUNT OF TAX PAYABLE UNDER THIS ACT IS REDUCED OR INCREASED, AS THE CASE MAY BE, THE AMOUNT OF TAX CREDIT ALLOWED UNDER THIS SECTION SHALL ALSO BE INCREASED OR REDUCED ACCORDINGLY.]' HE WANTED US TO COMPARE T HE AFORESAID PROVISIONS OF SECTION 115JAA WITH SUB - SECTION (1) OF SECTION 115JB, WHICH IS AS FOLLOWS: 'NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHER PROVISION OF THIS ACT, WHERE IN THE CASE OF AN ASSESSEE, BEING A COMPANY, THE INCOME - TAX, PAYABLE ON THE TOTAL INCOME AS COMPUTED UNDER THIS ACT IN RESPECT OF ANY PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, [2007], IS LESS THAN [TEN PER CENT] OF ITS BOOK PROFIT, [SUCH BOOK PROFIT SHALL BE DEEMED TO BE THE TOTAL INCOME OF THE ASSESSEE AND THE TAX PAYABLE BY THE ASSESSEE ON SUCH TOTAL INCOME SHALL BE THE AMOUNT OF INCOME - TAX AT THE RATE OF [TEN PER CENT]]' HE SUBMITTED THAT SECTION 115JB PROVIDES FOR PAYMENT OF INCOME TAX AT THE RATE OF 10%. THE SUB - SECTION (1) DOE S NOT PROVIDE FOR ANY PAYMENT ON ACCOUNT OF SURCHARGE OR CESS. SIMILARLY, SECTION 115JAA, IN PARTICULAR, THE SUB - SECTIONS QUOTED ABOVE PROVIDE FOR TAX CREDIT TO BE ALLOWED TO THE EXTENT OF THE DIFFERENCE OF THE TAX PAID FOR ANY ASSESSMENT YEAR UNDER SECTIO N 115JB AND THE AMOUNT OF TAX PAYABLE BY THE ASSESSEE ON HIS TOTAL INCOME COMPUTED IN ACCORDANCE WITH THE OTHER PROVISIONS OF THE ACT. BY THE EXPRESSION 'COMPUTED IN ACCORDANCE WITH THE OTHER PROVISIONS OF THE ACT' WHAT IS MEANT IS THE NORMAL COMPUTATION. 5.3 MR. KHAITAN, ON THE BASIS OF THE AFORESAID PROVISIONS CONTENDED THAT SECTION 115JB PROVIDES FOR PAYMENT OF INCOME TAX AT THE RATE OF 10% AND SECTION 115JAA PROVIDES FOR CREDIT COMPUTED ON THE BASIS OF TAX PAID AND TAX PAYABLE. HE CONTENDED THAT TAX PAI D HAS TO BE THE TAX CALCULATED UNDER SUB - SECTION (1) OF SECTION 115JB AND PAYABLE HAS TO BE ASSESSED ON THE BASIS OF NORMAL COMPUTATION WITHOUT TAKING INTO ACCOUNT ANY SURCHARGE BECAUSE SURCHARGE IS NOT CHARGEABLE UNDER THE PROVISIONS OF THE INCOME TAX ACT . 6. IN SUPPORT OF HIS SUBMISSION HE RELIED UPON CLAUSE 43 OF SECTION 2 WHICH PROVIDES A DEFINITION OF THE WORD 'TAX' AND DOES NOT CONTAIN ANY REFERENCE TO ANY SURCHARGE OR CESS. FINALLY, HE SUBMITTED THAT THE SURCHARGE OR THE CESS DOES NOT ALTER THE RATE OF TAX. HIS SUBMISSIONS MAY BE SUMMARIZED AS FOLLOWS: ( A ) SURCHARGE AND CESS DO NOT FALL WITHIN THE CATEGORY OF INCOME TAX. THEY ARE PAYABLE IN ADDITION TO INCOME TAX. ( B ) IN CALCULATING THE AMOUNT OF TAX PAYABLE UNDER SECTION 115JB THE ELEMENT OF SU RCHARGE AND CESS CANNOT BE TAKEN INTO ACCOUNT. ( C ) SIMILARLY IN CALCULATING THE AMOUNT OF CREDIT THE AMOUNT OF SURCHARGE AND CESS PAID BY THE ASSESSEE ARE TO BE EXCLUDED. 7. WE HAVE NOT BEEN IMPRESSED BY THE SUBMISSIONS ADVANCED BY MR. KHAITAN FOR THE FOLLOWING REASONS: - ( A ) IT WAS NOT DISPUTED BY MR. KHAITAN THAT THE CREDIT IN THIS CASE UNDER SECTION 115JAA WAS NOT CLAIMED BY THE ASSESSEE WITHOUT TAKING INTO ACCOUNT THE AMOUNT OF SURCHARGE AND CESS. THEREFORE, THE SUBMISSION, WHICH MR. KHAITAN ADVANC ED, DOES NOT MATCH WITH THE FACTS AND CIRCUMSTANCES OF THIS CASE. ( B ) WE ARE INCLINED TO THINK THAT BOTH SURCHARGE AND CESS ARE PART OF THE INCOME TAX THOUGH PAYABLE IN ADDITION TO THE INCOME TAX CALCULATED AT THE RATE PROVIDED IN SECTION 115JB. 8. WE ARE SUPPORTED IN OUR VIEW BY SUB - SECTION (1), THE SECOND PROVISO TO SUB - SECTION (3); SUB - SECTION (11) AND SUB - SECTION (12) OF SECTION (2) OF THE FINANCE ACT, 2008, WHICH PROVIDES AS FOLLOWS: '(1) SUBJECT TO THE PROVISIONS OF SUB - SECTION (2) AND (3), FOR T HE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2008, INCOME - TAX SHALL BE CHARGED AT THE RATES SPECIFIED IN PART I OF THE FIRST SCHEDULE AND SUCH TAX AS REDUCED BY THE REBATE OF INCOME - TAX CALCULATED UNDER CHAPTER VIII - A OF THE INCOME - TAX ACT, 1961 (43 OF 1961) (HEREINAFTER REFERRED TO AS THE INCOME - TAX ACT) SHALL BE INCREASED BY A SURCHARGE FOR PURPOSES OF THE UNION CALCULATED IN EACH CASE IN THE MANNER PROVIDED THEREIN.' SECOND PROVISO TO SUB - SECTION (3): - 'PROVIDED FURTHER THAT IN RESPECT OF ANY I NCOME CHARGEABLE TO TAX UNDER SECTIONS 115A, 115AB, 115AC, 115ACA, 115AD, 115B, 115BB, 115BBA, 115BBC, 115E AND 115JB OR FRINGE BENEFITS CHARGEABLE TO TAX UNDER SECTION 115WA OF THE INCOME - TAX ACT, THE AMOUNT OF INCOME - TAX COMPUTED UNDER THIS SUB - SECTION S HALL BE INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED.' 'SUB - SECTION (11). THE AMOUNT OF INCOME - TAX AS SPECIFIED IN SUB - SECTIONS(1) TO (10) AND AS INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MANNER PROVIDED THER EIN, SHALL BE FURTHER INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE 'EDUCATION CESS ON INCOME - TAX', CALCULATED AT THE RATE OF TWO PER CENT OF SUCH INCOME - TAX AND SURCHARGE SO AS TO FULFIL THE COMMITMENT OF THE GOVERNMENT TO PROVIDE AND FINANCE UNIVERSALISED QUALITY BASIC EDUCATION.' I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 9 'SUB - SECTION (12). THE AMOUNT OF INCOME - TAX AS SPECIFIED IN SUB - SECTIONS (1) TO (10) AND AS INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MANNER PROVIDED THEREIN, SHAL L ALSO BE INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE SECONDARY AND HIGHER 'EDUCATION CESS ON INCOME - TAX', CALCULATED AT THE RATE OF ONE PER CENT OF SUCH INCOME - TAX AND SURCHARGE SO AS TO FULFIL THE COMMITMENT OF THE G OVERNMENT TO PROVIDE AND FINANCE SECONDARY AND HIGHER EDUCATION.' THE UNDERLINED PORTIONS OF THE STATUTE INDICATED ABOVE MAY BE COLLATED AS FOLLOWS: - ( A ) SUB - SECTION (1) OF SECTION 2 OF THE FINANCE ACT, 2008 PROVIDES INTER ALIA AS FOLLOWS: - ' .. SUC H TAX AS REDUCED BY THE REBATE OF INCOME TAX CALCULATED UNDER CHAPTER VIII - A OF THE INCOME TAX ACT, 1961 (43 OF 1961) (HEREINAFTER REFERRED TO AS THE INCOME TAX ACT) SHALL BE INCREASED BY A SURCHARGE ' ( B ) SECOND PROVISO TO SUB - SECTION (3) OF THE F INANCE ACT, 2008 PROVIDES, INTER ALIA AS FOLLOWS: - ' .. THE AMOUNT OF INCOME TAX COMPUTED UNDER THIS SUB - SECTION SHALL BE INCREASED BY A SURCHARGE, .' ( C ) SUB - SECTION (11) OF SECTION 2 OF THE FINANCE ACT, 2008 PROVIDES, INTER ALIA AS FOLLOWS: - 'THE AMOUNT OF INCOME TAX AS SPECIFIED IN SUB - SECTIONS (1) TO (10) AND AS INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MANNER PROVIDED THEREIN, SHALL BE FURTHER INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE 'EDUCATION CESS ON INCOME TAX, ..' ( D ) SUB - SECTION (12) OF SECTION 2 OF THE FINANCE ACT, 2008 PROVIDES, INTER ALIA AS FOLLOWS: - 'THE AMOUNT OF INCOME TAX AS SPECIFIED IN SUB - SECTIONS (1) TO (10) AND AS INCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN THE MANNER PROVIDED THEREIN, SHALL ALSO BE INCREASED BY AN ADDITIONAL SURCHARGE, FOR PURPOSES OF THE UNION, TO BE CALLED THE SECONDARY AND HIGHER 'EDUCATION CESS ON INCOME TAX', ...'. ALL THE PROVISIONS QUOTED ABOVE SPEAK ABOUT INCOME TAX BEING INCREASED BY THE AMOUNT OF SURCHARGE AND CESS. CAN IT IN THAT CASE BE CONTENDED THAT SURCHARGE IS ANYTHING OTHER THAN INCOME TAX? WE THINK THE ANSWER IS 'NO'. 9. IT IS TRUE THAT SUB - SECTION (1) OF SECTION 4 OF THE INCOME TAX AC T PROVIDES FOR RATE OR RATES OF INCOME TAX TO BE STIPULATED BY THE CENTRAL ACT. IF THE LEGISLATURE CHOOSES TO REALISE PART OF THE AMOUNT BY WAY OF TAX AND PART OF IT BY WAY OF SURCHARGE AND CESS THEREON RATHER THAN PROVIDING FOR A HIGHER RATE TO REALISE TH E INTENDED AMOUNT OF TAX, CAN IT BE SAID THAT THE RATE OF INCOME TAX IS WHAT APPEARS TO HAVE BEEN PROVIDED WITHOUT TAKING INTO ACCOUNT THE SURCHARGE AND THE CESS? THE ANSWER WE THINK AGAIN IS AN EMPHATIC 'NO'. THE REASON BEHIND INCREASE OF INCOME TAX BY TH E AMOUNT OF SURCHARGE AND CESS HAS BEEN SPELT OUT ON THE BASIS WHEREOF IT CAN BE SAID THAT THE INTENTION IS THAT PART OF THE AMOUNT REALIZED BY WAY OF INCOME TAX IS EARMARKED FOR BEING SPENT IN EDUCATION AND HIGHER EDUCATION. 10. WE ARE, AS SUCH, OF THE OP INION THAT THE VIEW TAKEN BY THE LEARNED TRIBUNAL IS A CORRECT VIEW. THE LEARNED TRIBUNAL HAS RELIED ON THE JUDGEMENT OF THE APEX COURT IN THE CASE OF CIT V. TULSYAN NEC LTD. [2011] 330 ITR226/196 TAXMAN 181/[2010] 8 TAXMANN.COM 228 . MR. KHAITAN MAY BE RIGHT IN CONTENDING THAT THE POINT RAISED IN THIS APPEAL DID NOT FALL FOR CONSIDERATION BY THEIR LORDSHIPS IN THAT JUDGEMENT. THE QUESTION WHICH THEIR LORDSHIPS WERE CONSI DERING WAS WHETHER INTEREST UNDER SECTIONS 234A, 234B AND 234C HAS TO BE ADDED TO THE AMOUNT OF TAX BEFORE GRANTING CREDIT UNDER SECTIONS 115JA AND 115JAA? THEIR LORDSHIPS ANSWERED THAT QUESTION IN THE NEGATIVE. THE REASON IS VERY OBVIOUS. IN DETERMINING T HE LIABILITY OF THE ASSESSEE THE FIRST STEP HAS TO BE DETERMINATION OF TAX PAYABLE. THE INCOME TAX ACT CONTEMPLATES SELF - ASSESSMENT BY THE ASSESSEE AND QUARTERLY PAYMENT OF TAX IN ADVANCE AND THE REST WITH THE FILING OF THE RETURN. INTEREST CAN BE REALISED ONLY FOR THE AMOUNT IN DEFAULT. INTEREST CANNOT BE CHARGED FOR AN AMOUNT WHICH HAS ALREADY BEEN PAID OR FOR WHICH THE ASSESSEE IS ENTITLED TO A CREDIT. BEFORE ANY QUESTION OF REALISING INTEREST MAY ARISE THE AMOUNT OF LIABILITY ON ACCOUNT OF INCOME TAX HA S TO BE ASCERTAINED. IN ASCERTAINING THE LIABILITY, NECESSARILY THE AMOUNTS OF SURCHARGE AND CESS HAVE TO BE TAKEN INTO ACCOUNT. ONCE THAT IS DONE THE AMOUNT OF TAX PAYABLE HAS BEEN ASCERTAINED. THEN THE QUESTION ARISES FOR GIVING CREDIT FOR THE AMOUNT OF TAX ALREADY PAID IN ADVANCE OR CREDIT WHICH IS STATUTORILY AVAILABLE TO THE ASSESSEE. ONLY THEREAFTER THE QUESTION OF ANY ADDITION ON ACCOUNT OF INTEREST MIGHT ARISE. THIS WAS EXPLAINED BY THEIR LORDSHIPS. 11. IT IS ALSO NOT CORRECT TO SAY THAT THE JUDGMEN T IN THE CASE TULSYAN NEC LTD . [ SUPRA ] HAS NO APPLICATION TO THE FACTS AND CIRCUMSTANCES OF THIS CASE. IN THE CASE BEFORE US, THE ASSESSEE HAS DRAWN INSPIRATION FROM A MISTAKE IN THE FORM OF THE INCOME TAX RETURN. IDENTICAL MISTAKE WAS ALSO INVOLVED IN THE CASE OF TULSYAN NEC LTD . [ SUPRA ]. BUT THAT WAS A MISTAKE WITH REGARD TO THE CALCULATION OF INTEREST AND IT IS ON THIS BASIS THAT THE CLAIM AGAINST THE ASSESSEE WAS RAISED FAR IN EXCESS OF WHAT WAS PAYABLE BY THE ASSESSEE WHICH WAS NEGATIVED BY THEIR LORDS HIPS AND THEY PROCEEDED TO HOLD AS FOLLOWS: 'LASTLY, IT IS IMMATERIAL THAT THE RELEVANT FORM PRESCRIBED UNDER THE INCOME - TAX RULES, AT THE RELEVANT TIME (I.E. BEFORE APRIL 1, 2007), PROVIDED FOR SET OFF OF THE MAT CREDIT BALANCE AGAINST THE AMOUNT OF TAX PLUS INTEREST I.E. AFTER THE COMPUTATION OF INTEREST UNDER SECTION 234B. THIS WAS DIRECTLY CONTRARY TO A PLAIN READING OF SECTION 115JAA(4). I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 10 FURTHER, A FORM PRESCRIBED UNDER THE RULES CAN NEVER HAVE ANY EFFECT ON THE INTERPRETATION OR OPERATION OF THE PARE NT STATUTE.' NO ELABORATE REASONING IS, AS SUCH REQUIRED TO SHOW WHY ARE WE UNABLE TO FOLLOW THE JUDGMENT OF THE ALLAHABAD HIGH COURT IN THE CASE OF VACMENT INDIA ( SUPRA ) ? MR. KHAITAN ALSO RELIED UPON A JUDGMENT OF THE APEX COURT IN THE CASE OF CIT V. AJA NTA ELECTRICALS [1995] 215 ITR 114/81 TAXMAN 166 . HE RELIED UPON THE FOLLOWING VIEW EXPRESSED AT PAGE 119: 'THOUGH THE RULE CANNOT AFFECT, CONTROL OR DEROGATE FROM THE SECTION OF THE ACT, SO LONG AS IT DOES NOT HAVE THAT EFFECT, IT HAS TO BE REGARDED AS HAVING THE SAME FORCE AS THE SECTION OF THE ACT.' 12. THERE CAN BE NO QUARREL WITH THE AFORESAID VIEW. BUT THE SAME HAS NO APPLICATION TO THIS CASE BECAUSE THE FORM FOR THE RELEVANT YEAR, WHICH PROVIDED INSPIRATION TO THE ASSESSEE TO TAKE THIS POINT, DID IN FACT SEEK TO CONTROL OR DEROGATE FROM TH E SECTIONS QUOTED ABOVE. THAT FORM, AS A MATTER OF FACT, WAS ERRONEOUS. THAT FORM HAS SUBSEQUENTLY BEEN CORRECTED. HAD IT NOT B EEN A CASE OF A WRONG FORM, THE CORRECTED FORM WOULD IN THAT CASE BE CONTRARY TO LAW. OUR ATTENTION WAS NOT DRAWN NOR WAS IT CONTENDED THAT THE CORRECTED FORM IS CONTRARY TO LAW. BOTH THE FORMS, VIZ. THE ONE WHICH WAS PREVALENT AT THE RELEVANT PERIOD OF TI ME AND WHICH WAS CORRECTED FOR THE ASSESSMENT YEAR 2012 - 13, COULD NOT BE THE CORRECT FORMS. IF THE FORM OF 2012 - 13 WAS CORRECT, THEN THE FORM OF 2008 - 09 WAS WRONG, AND NATURALLY CONTRARY TO LAW. 13. WE, AS SUCH, ANSWER THE QUESTION IN THE AFFIRMATIVE AND A GAINST THE ASSESSEE. WE HAVE OBSERVED THAT THE LD. CIT(A) HAS DECIDED THE MATTER ON THE BASIS FROM NO. ITR - 6 BY PRESUMING THAT INCOME TAX PAYABLE IS TO BE ARRIVED AT BY DEDUCTING THE CREDIT UNDER SECTION 115JAA OF THE ACT (UNDER ENTRY 3) FROM THE GROS S TAX PAYABLE (UNDER ENTRY 4). WE ARE NOT INCLINED WITH DECISION OF THE LD.CIT(A) IN VIEW OF SPECIFIC PROVISION OF THE FINANCE ACT, 2010 WHICH HAS BEEN ELABORATED AS SUPRA IN THIS ORDER. THE RATE OF INCOME TAX AND SURCHARGE ARE CHARGED FROM YEAR TO YEAR AS PRESCRIBED IN THE FINANCE ACT. WE ARE OF THE CONSIDERED VIEW THAT THE FINANCE ACT IS A PART OF THE INCOME TAX ACT FOR THE PURPOSE OF DETERMINING THE RATE OF INCOME TAX TO BE CHARGED FROM YEAR TO YEAR. THE PROVISION OF SECTION 2(1) OF THE FINANCE ACT 2010 READ AS UNDER: - 2. (1) SUBJECT TO THE PROVISIONS OF SUB - SECTIONS (2) AND (3), FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL, 2010, INCOME - TAX SHALL BE CHARGED AT THE RATES SPECIFIED IN PART I OF THE FIRST SCHEDULE AND SUCH TAX SHALL BE I NCREASED BY A SURCHARGE, FOR PURPOSES OF THE UNION, CALCULATED IN EACH CASE IN THE MANNER PROVIDED THEREIN . WE HAVE NOT FIND ANY AMBIGUITY IN THE AFORESAID CRYSTAL CLEAR PROVISION OF LEVYING SURCHARGE AS P ROVIDED IN THE FINANCE ACT . WE I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 11 HAVE NOT DISCERNED ANY OTHER SPECIFIC PROVISION IN THE ACT WHICH READS THAT THE MAT CREDIT U/S. 115JAA HAS TO BE PROVIDED BEFORE COMPUTING SURCHARGE AND CESS ON THE TAXABLE INCOME OF THE ASSESSEE. WE HAVE NOTICED THAT T HE TAX ON THE TOTAL INCOME OF THE ASSESSEE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IS DETERMINED AT RS. 25,46,74,428/ - AS AGAINST THE SAME THE ASSESSEE CLAIMED THAT THE SAME SHOULD BE DETERMINED AT RS. 19,47,11,533/ - ON THE GROUND THAT MAT CREDIT TO BE PR OVIDED BEFORE CHARGING OF SURCHARGE AND EDUCATION CESS. WE ARE OF THE VIEW THAT THERE IS NO PROVISION IN THE ACT WHICH PROVIDE THIS KIND OF SPECIAL INCENTIVE OF RS. 5 , 99 , 62 , 895/ - IN THE CASES WHEREIN THE ASSESEE HAS PAID MAT IN THE PRECEDING YEAR S . WE FIND THAT THE MAT CREDIT U/S. 115JAA IS ONLY A TAX CREDIT WHICH SHALL BE ALLOWED TO BE SET OFF IN A YEAR WHEN TAX BECOME PAYABLE ON THE TOTAL INCOME COMPUTED IN SUBSEQUENT YEAR ACCORDING TO THE RATE OF INCOME TAX INCLUDING SURCHARGE AND EDUCATION CESS AS P ER THE PROVISION OF FINANCE ACT WHICH IS A PART OF THE INCOME TAX ACT. IN VIEW OF THE AFORESAID FACTS AND CIRCUMSTANCES WE FIND TH ERE IS NO REASON THAT SURCHARGE AND CESS CAN BE EXCLUDED FROM THE DETERMINATION OF THE TAX IN VIEW OF THE SPECIFIC PROVISIONS OF THE FINANCE ACT, 2010 AS ELABORATED SUPRA IN THIS ORDER . THE HON BLE HIGH COURT S CALCUTTA IN ITS PRONOUNCEMENT ON THE IDENTICAL ISSUE AS ELABORATED SUPRA IN THIS ORDER HELD THAT THE DECISION OF THE LD. CIT(A) TO REDUCE CREDIT U/S. 115JAA WITHOUT IN CLUDING THE SURCHARGE AND EDUCATION CESS SIMPLY ON THE BASIS OF THE ITR FORM NO. 6 IS ERRONEOUS . I T WAS ALSO MENTIONED THAT SUCH NATURE OF ERROR OCCURRED IN THE ITR FORM FOR ASSESSMENT YEAR 2008 - I.T.A NO. 1740 /AHD/20 14 A.Y. 2010 - 11 PAGE NO DCIT VS. INTAS PHARMACEUTICAL LTD. 12 09 WHICH WAS CORRECTED IN THE SUBSEQUENT YEAR IN THE IT R FORM OF ASSESSMENT YEAR 2012 - 13. IT IS HELD BY THE HON BLE HIGH COURT THAT THE WRONG FORM OF ITR - 6 WAS WRONG AND NATURALLY CONTRARY TO LAW. AFTER CONSIDERING THE FACTS OF THE CASE AND LAW , THE JUDICIAL FINDINGS AS LAID DOWN IN THE JUDICIAL PRONOUNCEMEN TS AS SUPRA WE CONSIDERED THAT IN ASCERTAINING THE LIABILITY OF TAX FOR THE YEAR UNDER CONSIDERATION THE AMOUNT OF SURCHARGE AND CESS HAVE T O BE TAKEN INTO ACCOUNT BEFORE PROVIDING MAT CREDIT U/S. 115JAA OF THE ACT. IN VIEW OF ABOVE WE ARE NOT INCLINED W ITH THE DECISION OF THE LD. CIT(A) AND WE ALSO DO NOT FIND ANY MERIT IN THE ALTERNATIVE PLEA OF THE ASSESSEE , THEREFORE THE APPEAL OF THE REVENUE IS ALLOWED. 5. IN THE RESULT , THE APPEAL OF THE REVENUE IS ALLOWED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 26 - 09 - 201 7 SD/ - SD/ - ( MAHAVIR PRASAD ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 26 /09 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REV ENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,