Binani Cement Ltd., Kolkata V. D.C.IT CC - XXVIII,kolkata., Kolkata

ITA 1892/KOL/2012

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 87706 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 2 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 27-02-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 24-12-2012
• Court: TRIBUNAL
• Department Lawyers: SANJAY ACIT
• Assessee Lawyers: KUNAL BESWALCA
• Keywords: Depreciation; Rectification of order; Retrospective amendment; Revised return; Unabsorbed depreciation
• Section: 143(3); 234B; 115JB; 80G; 32; 147; 263; 12; 90; 154; 11; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOLKATA [BEFORE HON BLE SHRI MAHAVIR SINGH, JM & HON BLE SHRI SHAMIM YAHYA AM ] I.T.A NO.1892/KOL/2012 ASSESSMENT YEAR: 2009 - 10 BINANI CEMENT LTD. VS. D.C.I.T., CENTRAL CIRCLE - XXVIII KOLKATA KOLKATA (APPELLANT) ( RESPONDENT) (PAN: AABCB 3087 C) FOR THE APPELLANT : SHRI VIJAY MEHTA, CA & SHRI KUNAL BESWAL,CA FOR THE RESPONDENT : SHRI SANJAY, ACIT DATE OF HEARING : 25 .02 .2015. DATE OF PRONOUNCEMENT: ORDER PER SHRI SHA MIM YAHYA, AM : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF LD. CIT(A) - CENTRAL - I, KOLKATA DATED 23.11.2012 AND PERTAIN S TO ASSESSMENT YEAR 2009 - 10. 2. THE GROUNDS OF APPEAL READ AS UNDER : - 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LEARNED CIT(A) LEGALLY ERRED IN CONFIRMING THE LEVY OF INTEREST U/S 234B OF THE IT ACT, 1961 AMOUNTING TO RS.98,52,442/ - AND U/S 234C AT RS.82,91,886/ - RESPECTIVELY ON THE MAT INCOME DETERMINED BY THE ASSESSING OFFICER UNDER SEC.115JB OF THE ACT. 2. THE APPELLANT CRAVES LEAVE TO ADD, TO ALTER OR AMEND THE GROUNDS OF APPEAL ON OR BEFORE THE HEARING OF THIS APPEAL. 3. IN THIS CASE THE ASSESSEE FILED ITS RETURN OF INCOME ON 29.09.2009 ELECTRONICALLY DISCLOSING TOTAL INCOME AT RS.14,98,05,000/ - . IT FILED REVISED RETURN DECLARING TOTAL INCOME AT RS.14,85,54,995/ - TO CLAIM DEDUCTION U/S 80G AMOUNTING TO RS.12,50,000/ - . HOWEVER, IT HAD PAID TAXES U/S 115JB OF IT ACT, 1961 ON BOOK PROFITS AT RS.1 , 53,50,25,905/ - . SUBSEQUENTLY THE CASE WAS SELECTED F OR SCRUTINY AND ORDER U/S 143(3) OF THE IT ACT WAS PAS SED. IN THE ASSESSMENT ORDER ASSESSMENT WAS DONE U/S 143(3) ON A BOOK PROFIT OF R S.1,53,50,25,905/ - U/S 115JB AS TAX ON MAT , AS IT WAS ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 2 HIGHER THAN TAX ON NORMAL INCOME. AO ALSO LEVIED INTEREST U/S 234 B AND 234C OF THE ACT. 3.1. IN APPEAL FILED AGAINST THE ASSESSMENT ORDER BEFORE THE LD. CIT(A) THE ASSESSEE ALSO RAISED THE FOLLOWING ISSUE : 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE, THE AO LEGALLY ERRED IN CHARGING INTEREST U/S 234B & 234C OF RS.9 8,52,442 AND RS.82,91,886 RESPECTIVELY ON MAT TAXES U/S 115JB OF THE IT ACT. 3.2. IN THE APPELLATE ORDER THE LD. CIT(A) DECIDED THIS ISSUE AGAINST THE ASSESSEE BY HOLDING AS UNDER : - GROUND NO.3 IS RELATED TO THE CHARGING OF INTEREST U/S 234B AND 234C ON TAXES COMPUTED ON MAT PROFIT U/S 115JB. THE ACTION OF THE AO IS UPHELD IN VIEW OF THE DECISION OF THE APEX COURT IN THE CASE OF ROLTA INDIA LTD 330 ITR 470. GROUND NO.3 IS DISMISSED. AGAINST THE ABOVE ORDER THE ASSESSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE COUNSEL AND CAREFULLY PERUSED THE RECORDS. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THERE IS NO DISPUTE THAT AS PER ORDER OF THE HON BLE APEX COURT IN THE CASE OF ROLTA INDIA LTD NOW INTEREST U/S 234B AND 234C OF THE ACT IS LEVIA BLE ON ASSESSMENTS MADE UNDER MAT IN RESPECT OF INTEREST U/S 234B AND 234C OF THE ACT. HOWEVER, THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THIS DECISION OF THE HON BLE APEX COURT WAS DELIVERED ON 7 TH JANUARY, 2011. THE LD. COUNSEL SUBMITTED THAT PRIOR TO THAT THERE WAS A DIVERGENCE OF OPINION AMONG VARIOUS COURTS AND ASSESSEE WAS UNDER A BONA FIDE BELIEF THAT IT WAS NOT LIABLE TO PAY INTEREST U/.S 234B AND 234C OF THE ACT IN CASE OF MAT U/S 115JB OF THE ACT. IN THIS REGARD THE LD. COUNSEL REFERRED TO SE VERAL CASE LAWS AS UNDER : - 1. JUDGEMENT OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF SNOWCEM INDIA LTD. VS DCIT (313 ITR 170) 2. ORDER OF THE HON BLE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF CHARBUJA INDUSTRIES P.LTD. V. ADDL. CIT [2014] (31 ITR (T RIB.)89) 3. ORDER OF THE HON BLE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF ROCKLINE DEVELOPERS P.LTD. VS. ITO [2014 ] (31 ITR (TRIB.)123) 4. JUDGEMENT OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF PRIME SECUR ITIES LTD. V. ACIT (333 ITR 464) ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 3 5. ORDER OF THE HON BLE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF EXPRESS NEWSPAPER LTD. V. JT.CIT (103 TTJ 122) 6. HON BLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ROYAL JORDANIAN AIRLINES V. DDIT (119 TTJ 145) 7. HON BLE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF DATAMATICS LTD. VS. ACIT (299 ITR (AT) 286) 5. THE LD. DR, ON THE OTHER HAND, RELIED UPON THE ORDERS OF THE AUTHORITIES BELOW. 6. DURING THE COURSE OF HEARING A QUESTION WAS PUT BEFORE THE LD. COUNSEL OF THE ASSESSEE AS TO WHETHER ANY OF THE DECISIO NS REFERRED BY HIM HAD CONSIDERED THE DECISIONS OF THE HON BLE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. 305 ITR 227 (SC). IN REPLY THE LD. COUNSEL OF THE ASSESSEE ACCEPTED THAT IN NONE OF THE DECISIONS REFERRED BY HIM THE HON BLE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE (SUPRA) HAS BEEN CONSIDERED. THE LD. COUNSEL OF THE ASSESSEE SUBMITTED THAT THOUGH IT IS TRUE THAT THE LAW INTERPRETED BY THE HON BLE APEX COURT IS EXPECTED TO BE PREVAILING FROM THE IN CEPTION OF THE LAW, H E STILL CONTENDED THAT THE ASSESSEE COULD NOT FORESEE SUCH AN ORDER AND HENCE THE ASSESSEE CANNOT BE VISITED WITH THE LIABILITY OF INTEREST U/S 234 B AND 234C OF THE ACT IN CASE OF ASSESSMENTS ON BOOK PROFIT UNDER MAT U/S 115JB OF THE ACT. 7. WE HAVE CAREFULLY CONSIDERED THE SUBMISSIONS. WE CAN GAINFULLY HERE REFER TO THE PROVISIONS OF SECTION 115JB, SECTIONS 234B AND 234C OF THE ACT. [ SPECIAL PROVISION FOR PAYMENT OF TAX BY CERTAIN COMPANIES. 115JB. (1) NOTWITHSTANDING ANYTHING CO NTAINED 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 T HE 1 ST DAY OF APRIL, [2007], IS LESS [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]]. (2) EVERY ASSESSEE, BEING A COMPANY, SHALL, FOR THE PURPOSES OF THIS SECTION, PREPARE ITS PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR IN ACCORDANCE WITH THE PROVISIONS OF PARTS II AND III OF SCHEDULE VI70 TO THE COMPANIES ACT, 19 56 ( 1 OF 1956) : PROVIDED THAT WHILE PREPARING THE ANNUAL ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT, ( I ) THE ACCOUNTING POLICIES; ( II ) THE ACCOUNTING STANDARDS ADOPTED FOR PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT; ( III ) THE METHOD AND RATES ADOPTED FOR CALCULATING THE DEPRECIATION, ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 4 SHALL BE THE SAME AS HAVE BEEN ADOPTED FOR THE PURPOSE OF PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT AND LAID BEFORE THE COMPANY AT ITS ANNUAL GENERAL MEETING IN ACCORDANCE WITH THE PROVISIONS OF SEC TION 210 OF THE COMPANIES ACT, 1956 (1 OF 1956) : PROVIDED FURTHER THAT WHERE THE COMPANY HAS ADOPTED OR ADOPTS THE FINANCIAL YEAR UNDER THE COMPANIES ACT, 1956 (1 OF 1956), WHICH IS DIFFERENT FROM THE PREVIOUS YEAR UNDER THIS ACT, ( I ) THE ACCOUNTING POLI CIES; ( II ) THE ACCOUNTING STANDARDS ADOPTED FOR PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT; ( III ) THE METHOD AND RATES ADOPTED FOR CALCULATING THE DEPRECIATION, SHALL CORRESPOND TO THE ACCOUNTING POLICIES, ACCOUNTING STANDARDS AND THE METHOD AND RATES FOR CALCULATING THE D EPRECIATION WHICH HAVE BEEN ADOPTED FOR PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT FOR SUCH FINANCIAL YEAR OR PART OF SUCH FINANCIAL YEAR FALLING WITHIN THE RELEVANT PREVIOUS YEAR. EXPLANATION [ 1 ] . FOR THE PUR POSES OF THIS SECTION, BOOK PROFIT MEANS THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR PREPARED UNDER SUB - SECTION (2), AS INCREASED BY ( A ) THE AMOUNT OF INCOME - TAX PAID OR PAYABLE, AND THE PROVISION THEREFOR; OR ( B ) THE AMOUNTS CARRIED TO ANY RESERVES, BY WHATEVER NAME CALLED[, OTHER THAN A RESERVE SPECIFIED UNDER SECTION 33AC]; OR ( C ) THE AMOUNT OR AMOUNTS SET ASIDE TO PROVISIONS MADE FOR MEETING LIABILITIES, OTHER THAN ASCERTAINED LIABILITIES; OR ( D ) THE AMOUNT B Y WAY OF PROVISION FOR LOSSES OF SUBSIDIARY COMPANIES; OR ( E ) THE AMOUNT OR AMOUNTS OF DIVIDENDS PAID OR PROPOSED ; OR ( F ) THE AMOUNT OR AMOUNTS OF EXPENDITURE RELATABLE TO ANY INCOME TO WHICH [SECTION 10 (OTHER THAN THE PROVISIONS CONTAINED IN CLAUSE ( 38 ) THEREOF) OR [***] SECTION 11 OR SECTION 12 APPLY; OR] [( G ) THE AMOUNT OF DEPRECIATION,] [ ( H ) THE AMOUNT OF DEFERRED TAX AND THE PROVISION THEREFOR, IF ANY AMOUNT REFERRED TO IN CLAUSES ( A ) TO ( H ) IS DEBITED TO THE PROFIT AND LOSS ACCOUNT, AND AS REDUCED B Y ] [( I ) THE AMOUNT WITHDRAWN FROM ANY RESERVE OR PROVISION (EXCLUDING A RESERVE CREATED BEFORE THE 1ST DAY OF APRIL, 1997 OTHERWISE THAN BY WAY OF A DEBIT TO THE PROFIT AND LOSS ACCOUNT), IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCOUNT: PROV IDED THAT WHERE THIS SECTION IS APPLICABLE TO AN ASSESSEE IN ANY PREVIOUS YEAR, THE AMOUNT WITHDRAWN FROM RESERVES CREATED OR PROVISIONS MADE IN A PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR COMMENCING ON OR AFTER THE 1ST DAY OF APRIL, 1997 SHALL NOT BE REDUCED FROM THE BOOK PROFIT UNLESS THE BOOK PROFIT OF SUCH YEAR HAS BEEN INCREASED BY THOSE RESERVES OR PROVISIONS (OUT OF WHICH THE SAID AMOUNT WAS WITHDRAWN) UNDER THIS EXPLANATION OR EXPLANATION BELOW THE SECOND PROVISO TO SECTION 115JA, AS THE CASE MA Y BE; OR] ( II ) THE AMOUNT OF INCOME TO WHICH ANY OF THE PROVISIONS 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 [( II A ) THE AMOUNT OF DEPRECIATION DEBITED TO THE PROFIT AND LOSS ACCOUNT (EXCLUDING THE DEPRECIATION ON ACCOUNT OF REVALUATION OF ASSETS); OR ( IIB ) THE AMOUNT WITHDRAWN FROM REVALUATION RESERVE AND CREDITED TO THE PROFIT AND LOSS ACCOUNT, TO THE EXTENT IT DOES NOT EXCEED THE AMOUNT OF DEPRECIATION ON ACCOUNT OF REVALUATION OF ASSETS REFERRED TO IN CLAUSE ( IIA ); OR] ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 5 [( III ) THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION, WHICHEVER IS LESS AS PER BOOKS OF ACCOUNT. EXPLANATION . FOR THE PURPOSES OF TH IS CLAUSE, ( A ) THE LOSS SHALL NOT INCLUDE DEPRECIATION; ( B ) THE PROVISIONS OF THIS CLAUSE SHALL NOT APPLY IF THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION IS NIL; OR] ( IV ) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC, C OMPUTED UNDER CLAUSE ( A ) OR CLAUSE ( B ) OR CLAUSE ( C ) OF SUB - SECTION (3) OR SUB - SECTION (3A), AS THE CASE MAY BE, OF THAT SECTION, AND SUBJECT TO THE CONDITIONS SPECIFIED IN THAT SECTION; OR ( V ) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80H HE COMPUTED UNDER SUB - SECTION (3) OR SUB - SECTION (3A), AS THE CASE MAY BE, OF THAT SECTION, AND SUBJECT TO THE CONDITIONS SPECIFIED IN THAT SECTION; OR ( VI ) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHF COMPUTED UNDER SUB - SECTION (3) OF THAT SECTION, AND SUBJECT TO THE CONDITIONS SPECIFIED IN THAT SECTION; OR ( VII ) THE AMOUNT OF PROFITS OF SICK INDUSTRIAL COMPANY FOR THE ASSESSMENT YEAR COMMENCING ON AND FROM THE ASSESSMENT YEAR RELEVANT TO THE PREVIOUS YEAR IN WHICH THE SAID COMPANY HAS BECOME A SICK INDUSTRIAL COMPANY UNDER SUB - SECTION (1) OF SECTION 17 OF THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 (1 OF 1986) AND ENDING WITH THE A SSESSMENT YEAR DURING WHICH THE ENTIRE NET WORTH OF SUCH COMPANY BECOMES EQUAL TO OR EXCEE DS THE ACCUMULATED LOSSES. EXPLANATION. FOR THE PURPOSES OF THIS CLAUSE, NET WORTH SHALL HAVE THE MEANING ASSIGNED TO IT IN CLAUSE ( GA ) OF SUB - SECTION (1) OF SECTION 3 OF THE SICK INDUSTRIAL COMPANIES (SPECIAL PROVISIONS) ACT, 1985 (1 OF 1986); OR [ ( VIII ) THE AMOUNT OF DEFERRED TAX, IF ANY SUCH AMOUNT IS CREDITED TO THE PROFIT AND LOSS ACCOUNT. ] [ EXPLANATION 2. FOR THE PURPOSES OF CLAUSE ( A ) OF EXPLANATION 1, THE AMOUNT OF INCOME - TAX SHALL INCLUDE ( I ) ANY TAX ON DISTRIBUTED PROFITS UNDER SECTION 115 - O O R ON DISTRIBUTED INCOME UNDER SECTION 115R; ( II ) ANY INTEREST CHARGED UNDER THIS ACT; ( III ) SURCHARGE, IF ANY, AS LEVIED BY THE CENTRAL ACTS FROM TIME TO TIME; ( IV ) EDUCATION CESS ON INCOME - TAX, IF ANY, AS LEVIED BY THE CENTRAL ACTS FROM TIME TO TIME; AND ( V ) SECONDARY AND HIGHER EDUCATION CESS ON INCOME - TAX, IF ANY, AS LEVIED BY THE CENTRAL ACTS FROM TIME TO TIME. ] (3) NOTHING CONTAINED IN SUB - SECTION (1) SHALL AFFECT THE DETERMINATION OF THE AMOUNTS IN RELATION TO THE RELEVANT P REVIOUS YEAR TO BE CARRIED FORWARD TO THE SUBSEQUENT YEAR OR YEARS UNDER THE PROVISIONS OF SUB - SECTION (2) OF SECTION 32 OR SUB - SECTION (3) OF SECTION 32A OR CLAUSE ( II ) OF SUB - SECTION (1) OF SECTION 72 OR SECTION 73 OR SECTION 74 OR SUB - SECTION (3) OF SECTION 74A. (4) EVERY COMPANY TO WHICH THIS SECTION APPLIES, SHALL FURNISH A REPORT IN THE PRESCRIBED FORM83 FROM AN ACCOUNTANT AS DEFINED IN THE EXPLANATION BELOW SUBSECTION (2) OF SECTION 288, CERTIFYING THAT THE BOOK PROFIT HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THI S SECTION ALONG WITH THE RETURN OF INCOME FILED UNDER SUB - SECTION (1) OF SECTION 139 OR ALONG WITH THE RETURN OF INCOME FURNISHED IN RESPONSE TO A NOTICE UNDER CLAUSE ( I ) OF SUB - SECTION (1) OF SECTION 142. (5) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, AL L OTHER PROVISIONS OF THIS ACT SHALL APPLY TO EVERY ASSESSEE, BEING A COMPANY, MENTIONED IN THIS SECTION.] [(6) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE INCOME ACCRUED OR ARISING ON OR AFTER THE 1ST DAY OF APRIL, 2005 FROM ANY BUSINESS CARRIED ON, OR SERVICES RENDERED, BY ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 6 AN ENTREPRENEUR OR A DEVELOPER, IN A UNIT OR SPECIAL ECONOMIC ZONE, AS THE CASE MAY BE.] [INTEREST FOR DEFAULTS IN PAYMENT OF ADVANCE TAX. ] 234B. (1) SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION, WHERE, IN ANY FINANCIAL YEA R, AN ASSESSEE WHO IS LIABLE TO PAY ADVANCE TAX UNDER SECTION 208 HAS FAILED TO PAY SUCH TAX OR, WHERE THE ADVANCE TAX PAID BY SUCH ASSESSEE UNDER THE PROVISIONS OF SECTION 210 IS LESS THAN NINETY PER CENT OF THE ASSESSED TAX, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FROM THE 1ST DAY OF APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR [TO THE DATE OF DETERMINATION OF TOTAL INCOME UNDER SUB - SECTION (1) OF SECTION 143 [AND WHERE A REGULAR ASSESSMENT IS MADE, TO THE DATE OF SUCH REGULAR ASSESSMENT, ON AN AMOUNT]] EQUAL TO THE ASSESSED TAX OR, AS THE CASE MAY BE, ON THE AMOUNT BY WHICH THE ADVANCE TAX PAID AS AFORESAID FALLS SHORT OF THE ASSESSED TAX. [ EXPLANATION 1. IN T HIS SECTION, ASSESSED TAX MEANS THE TAX ON THE TOTAL INCOME DETERMINED UNDER SUB - SECTION (1) OF SECTION 143 AND WHERE A REGULAR ASSESSMENT IS MADE, THE TAX ON THE TOTAL INCOME D ETERMINED UNDER SUCH REGULAR ASSESSMENT AS REDUCED BY THE AMOUNT OF, ( I ) ANY TAX DEDUCTED OR COLLECTED AT SOURCE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII ON ANY INCOME WHICH IS SUBJECT TO SUCH DEDUCTION OR COLLECTION AND WHICH IS TAKEN INTO ACCOUNT IN COMPUTING SUCH TOTAL I NCOME; ( II ) ANY RELIEF OF TAX ALLOWED UNDER SECTI ON 90 ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; ( III ) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90A ON ACCOUNT OF TAX PAID IN A SPECIFIED TERRITORY OUTSIDE INDIA REFERRED TO IN THAT SECTION; ( IV ) ANY DEDUCTION, FROM THE INDIAN INCOME - TAX PAYABLE, AL LOWED UNDER SECTION 91, ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; AND ( V ) ANY TAX CREDIT ALLOWED TO BE SET OFF IN ACCORDANCE WITH THE PROVISIONS OF SECTION 115JAA EXPLANATION 2. WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 [OR SECTION 153A], THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PURPOSES OF THIS SECTION. [ EXPLANATION 3. IN EXPLANATION 1 AND IN SUB - SECTION (3) TAX ON THE TOTAL INCOME DETERMINED UNDER SUB - SEC TION (1) OF SECTION 143 SHALL NOT INCLUDE THE ADDITIONAL INCOME - TAX, IF ANY, PAYABLE UNDER SECTION 143.] (2) WHERE, BEFORE THE DATE OF [DETERMINATION OF TOTAL INCOME UNDER SUB - SECTION (1) OF SECTION 143 OR] C OMPLETION OF A REGULAR ASSESSMENT, TAX IS PAID BY THE ASSESSEE UNDER SECTION 140A OR OTHERWISE, ( I ) INTEREST SHALL BE CALCULATED IN ACCORDANCE WITH THE FOREGOING PROVISIONS OF THIS SECTION UP TO THE DATE ON WHICH THE TAX IS SO PAID, AND REDUCED BY THE INTEREST, IF ANY, PAID UNDER SECTION 140A TOWARDS THE INTEREST CHARGEABLE UNDER THIS SECTION; ( II ) THEREAFTER, INTEREST SHALL BE CALCULATED AT THE RATE AFORESAID ON THE AMOUNT BY WHICH THE TAX SO PAID T OGETHER WITH THE ADVANCE TAX PAID FALLS SHORT OF THE ASSESSED TAX. (3) WHERE, AS A RESULT OF AN ORDER OF REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 [OR SECTION 153A], THE AMOUNT ON WHICH INTEREST WAS PAYABLE UNDER SUB - SECTION (1) IS INCREASED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DAY FOLLOWING [THE DATE OF DETERMINATION OF TOTAL INCOME UNDER SUB - SECTION (1) OF SECTION 143 [AND WHERE A REGULAR ASSESSMENT IS MADE AS IS REFERRED TO IN SUB - SECTION (1) FOLLOWING THE DATE OF SUCH REGULAR AS SESSMENT]] AND ENDING ON THE DATE OF THE REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 [OR SECTION 153A], ON THE AMOUNT BY WHICH THE TAX ON ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 7 THE TOTAL INCOME DETERMINED ON THE BASIS OF THE REASSESSMENT OR RECOMPUTATION EXCEEDS THE TAX ON THE TOTAL INCOME DETERMINED [UNDER SUB - SECTION (1) OF SECTION 143 OR] ON THE BASIS OF THE REGULAR ASSESSMENT AFORESAID. EXPLANATION. [* * *] (4) WHERE, AS A RESULT OF AN ORDER UNDER SECTION 154 OR SECTION 155 OR SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR S ECTION 263 OR SECTION 264 OR AN ORDER OF THE SETTLEMENT COMMISSION UNDER SUB - SECTION (4) OF SECTION 245D, THE AMOUNT ON WHICH INTEREST WAS PAYABLE UNDER SUB - SECTION (1) OR SUB - SECTION (3) HAS BEEN INCREASED OR REDUCED, AS THE CASE MAY BE, THE INTEREST SHAL L BE INCREASED OR REDUCED ACCORDINGLY, AND ( I ) IN A CASE WHERE THE INTEREST IS INCREASED, THE ASSESSING OFFICER SHALL SERVE ON THE ASSESSEE A NOTICE OF DEMAND IN THE PRESCRIBED FORM SPECIFYING THE SUM PAYABLE AND SUCH NOTICE OF DEMAND SHALL BE DEEMED TO B E A NOTICE UNDER SECTION 156 AND THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY; ( II ) IN A CASE WHERE THE INTEREST IS REDUCED, THE EXCESS INTEREST PAID, IF ANY, SHALL BE REFUNDED. (5) THE PROVISIONS OF THIS SECTION SHALL APPLY IN RESPECT OF ASSESSMENTS FOR THE ASSESSMENT YEAR C OMMENCING ON THE 1ST DAY OF APRIL, 1989 AND SUBSEQUENT ASSESSMENT YEARS.] [ INTEREST FOR DEFERMENT OF ADVANCE TAX. ] 234C. (1) [WHERE IN ANY FINANCIAL YEAR, ( A ) THE COMPANY WHICH IS LIABLE TO PAY ADVANCE TAX UNDER SECTION 208 HAS F AILED TO PAY SUCH TAX OR ( I ) THE ADVANCE TAX PAID BY THE COMPANY ON ITS CURRENT INCOME ON OR BEFORE THE 15TH DAY OF JUNE IS LESS THAN FIFTEEN PER CENT OF THE TAX DUE ON THE RETURNED INCOME OR THE AMOUNT OF SUCH ADVANCE TAX PAID ON OR BEFORE THE 15TH DAY O F SEPTEMBER IS LESS THAN FORTY - FIVE PER CENT OF THE TAX DUE ON THE RETURNED INCOME OR THE AMOUNT OF SUCH ADVANCE TAX PAID ON OR BEFORE THE 15TH DAY OF DECEMBER IS LESS THAN SEVENTY - FIVE PER CENT OF THE TAX DUE ON THE RETURNED INCOME, THEN, THE COMPANY SHAL L BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF 98[ONE] PER CENT PER MONTH FOR A PERIOD OF THREE MONTHS ON THE AMOUNT OF THE SHORTFALL FROM FIFTEEN PER CENT OR FORTY - FIVE PER CENT OR SEVENTY - FIVE PER CENT, AS THE CASE MAY BE, OF THE TAX DUE ON THE RETURN ED I NCOME; ( II ) THE ADVANCE TAX PAID BY THE COMPANY ON ITS CURRENT INCOME ON OR BEFORE THE 15TH DAY OF MARCH IS LESS THAN THE TAX DUE ON THE RETURNED INCOME, THEN, THE COMPANY SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CENT ON THE AMO UNT OF THE SHORTFALL FROM THE TAX DUE ON THE RETURNED INCOME: PROVIDED THAT IF THE ADVANCE TAX PAID BY THE COMPANY ON ITS CURRENT INCOME ON OR BEFORE THE 15TH DAY OF JUNE OR THE 15TH DAY OF SEPTEMBER, IS NOT LESS THAN TWELVE PER CENT OR, AS THE CASE MAY BE , THIRTY - SIX PER CENT OF THE TAX DUE ON THE RETURNED INCOME, THEN, IT SHALL NOT BE LIABLE TO PAY ANY INTEREST ON THE AMOUNT OF THE SHORTFALL ON THOSE DATES; ( B ) THE ASSESSEE, OTHER THAN A COMPANY, WHO IS LIABLE TO PAY ADVANCE TAX UNDER SECTION 208 HAS FAIL ED TO PAY SUCH TAX OR, ( I ) THE ADVANCE TAX PAID BY THE ASSESSEE ON HIS CURRENT INCOME ON OR BEFORE THE 15TH DAY OF SEPTEMBER IS LESS THAN THIRTY PER CENT OF THE TAX DUE ON THE RETURNED INCOME OR THE AMOUNT OF SUCH ADVANCE TAX PAID ON OR BEFORE THE 15TH DA Y OF DECEMBER IS LESS THAN SIXTY PER CENT OF THE TAX DUE ON THE RETURNED INCOME, THEN, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CENT PER MONTH FOR A PERIOD OF THREE MONTHS ON THE AMOUNT OF THE SHORTFALL FROM THIRTY PER C ENT OR, AS THE CASE MAY BE, SIXTY PER CENT OF THE TAX DUE ON THE RETURNED INCOME; ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 8 ( II ) THE ADVANCE TAX PAID BY THE ASSESSEE ON HIS CURRENT INCOME ON OR BEFORE THE 15TH DAY OF MARCH IS LESS THAN THE TAX DUE ON THE RETURNED INCOME, THEN, THE ASSESSEE SHALL B E LIABLE TO PAY SIMPLE INTEREST AT THE R ATE OF [ONE] PER CENT ON THE AMOUNT OF THE SHORTFALL FROM THE TAX DUE ON THE RETURNED INCOME :] [ PROVIDED THAT NOTHING CONTAINED IN THIS SUB - SECTION SHALL APPLY TO ANY SHORTFALL IN THE PAYMENT OF THE TAX DUE ON THE R ETURNED INCOME WHERE SUCH SHORTFALL IS ON ACCOUNT OF UNDER - ESTIMATE OR FAILURE TO ESTIMATE ( A ) THE AMOUNT OF CAPITAL GAINS; OR ( B ) INCOME OF THE NATURE REFERRED TO IN SUB - CLAUSE ( IX ) OF CLAUSE ( 24 ) OF SECTION 2, AND THE ASSESSEE HAS PAID THE WHOLE OF THE AMOUNT OF TAX PAYABLE IN RESPECT OF INCOME REFERRED TO IN CLAUSE ( A ) OR CLAUSE ( B ), AS THE CASE MAY BE, HAD SUCH INCOME BEEN A PART OF T HE TOTAL INCOME, AS PART OF THE 1[REMAINING INSTALMENTS OF ADVANCE TAX WHICH ARE DUE OR WHERE NO SUCH INSTALMENTS ARE DUE ], BY THE 31ST DAY OF MARCH OF THE FINANCIAL YEAR:] [ PROVIDED FURTHER THAT NOTHING CONTAINED IN THIS SUB - SECTION SHALL APPLY TO ANY SHORTFALL IN THE PAYMENT OF THE TAX DUE ON THE RETURNED INCOME WHERE SUCH SHORTFALL IS ON ACCOUNT OF INCREASE IN THE RATE OF SURCHARGE UNDER SECTION 2 OF THE FINANCE ACT, 2000 (10 OF 2000), AS AMENDED BY THE TAXATION LAWS (AMENDMENT) ACT, 2000 (1 OF 2001), AND THE ASSESSEE HAS PAID THE AMOUNT OF SHORTFALL, ON OR BEFORE THE 15TH DAY OF MARCH, 2001 IN RESPECT OF THE INSTALMENT OF ADVANCE TAX DUE ON THE 15TH DAY OF JUNE, 2000, THE 15TH DAY OF SEPTEMBER, 2000 AND THE 15 TH DAY OF DECEMBER, 2000 :] [ PROVIDED ALSO THAT NOTHING CONTAINED IN THIS SUB - SECTION SHALL APPLY TO ANY SHORTFALL IN THE PAYMENT OF THE TAX DUE ON THE RETURNED INCOM E WHERE SUCH SHORTFALL IS ON ACCOUNT OF INCREASE IN THE RATE OF SURCHARGE UNDER SECTION 2 OF THE FINANCE ACT, 2000 (10 OF 2000) AS AMENDED BY THE TAXATION LAWS (AMENDMENT) ACT, 2001 (4 OF 2001) AND THE ASSESSEE HAS PAID THE AMOUNT OF SHORTFALL ON OR BEFORE THE 15TH DAY OF MARCH, 2001 IN RESPECT OF THE INSTALMENT OF ADVANCE TAX DUE ON THE 15TH DAY OF JUNE, 2000, THE 15TH DAY OF SEPTEMBER, 2000 AND 15TH DAY OF DECEMBER, 2000.] [ EXPLANATION. IN THIS SECTION, TAX DUE ON THE RETURNED INCOME MEANS THE TAX CHARG EABLE ON THE TOTAL INCOME DECLARED IN THE RETURN OF INCOME FURNISHED BY THE ASSESSEE FOR THE ASSESSMENT YEAR COMMENCING ON THE 1ST DAY OF APRIL IMMEDIATELY FOLLOWING THE FINANCIAL YEAR IN WHICH THE ADVANCE TAX IS PAID OR PAYABLE, AS REDUCED BY THE AMOUNT O F, ( I ) ANY TAX DEDUCTIBLE OR COLLECTIBLE AT SOURCE IN ACCORDANCE WITH THE PROVISIONS OF CHAPTER XVII ON ANY INCOME WHICH IS SUBJECT TO SUCH DEDUCTION OR COLLECTION AND WHICH IS TAKEN INTO ACCOUNT IN COMPUTING SUCH TOTAL INCOME; ( II ) ANY RELIEF OF TAX ALLO WED UNDER SECTION 90 ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; ( III ) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90A ON ACCOUNT OF TAX PAID IN A SPECIFIED TERRITORY OUTSIDE INDIA REFERRED TO IN THAT SECTION; ( IV ) ANY DEDUCTION, FROM THE INDIAN INCOME - TAX PAYABLE, ALLOWED UNDER SECTION 91, ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; AND ( V ) ANY TAX CREDIT ALLOWED TO BE SET OFF IN ACCORDANCE WITH THE PROVISIONS OF SECTION 115JAA ] (2) THE PROVISIONS OF THIS SECTION SHALL APPLY IN RESPECT OF ASSES SMENTS FOR THE ASSESSMENT YEAR C OMMENCING ON THE 1ST DAY OF APRIL, 1989 AND SUBSEQUENT ASSESSMENT YEARS.]] 7.1. WE FIND THAT THE ISSUE AS TO LEVY OF INTEREST U/S 234B AND 234C OF THE ACT ON ASSESSMENTS ON BOOK PROFIT U/S 115JB OF THE ACT IS SETTLED AS PE R THE DECISION OF THE ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 9 HON BLE APEX COURT IN THE CASE OF ROLTA INDIA LIMITED (SUPRA). THE HON BLE APEX COURT HAS REFERRED TO THE PROVISIONS OF SECTION 234B AND 234C OF THE ACT AND EXPOUNDED AS UNDER : - AT THE OUTSET, IT MAY BE STATED THAT SECTIONS 234B AN D 234C DO NOT MAKE ANY REFERENCE TO SECTION 115J/115JA. SECTION 234B LAYS DOWN THAT WHERE ADVANCE TAX IS REQUIRED TO BE PAID UNDER SECTION 208 AND TH ERE IS A FAILURE ON THAT IF THE AMOUNT OF A DV ANCE TAX PAID UNDER SECTION 210 IS LESS THAN 90 PER CENT OF TH E ASSESSED TAX, IN THAT CASE THE ASSESSEE IS LIABLE TO PAY INTEREST. SECTION 234C REFERS TO INTEREST FOR DEFERMENT OF ADVANCE TAX. IT SAYS THAT IF THE ASSESSEE HAS TO PAY ADVANCE TAX ON ITS CURRENT INCOME ON OR BEFORE 15 TH OF JUNE AND THE TAX PAID IS LESS THAN 15 PER CENT OF THE TAX DUE ON THE RETURNED INCOME OR THE AMOUNT OF THE ADVANCE TAX PAID ON OR BEFORE 15 TH OF SEPTEMBER IS LESS THAN 45 PER CENT OF THE TAX DUE ON THE RETURNED INCOME OR THE AMOUNT OF SUCH ADVANCE TAX PAID ON OR BEFORE 15 TH OF DECEMBER IS LESS THAN 75 PER CENT OF THE TAX DUE ON THE RETURNED INCOME, THEN THE ASSESSEE SHALL BE LIABLE TO PAY INTEREST AT THE SPECIFIED RATE ON THE AMOUNT OF THE SHORTFALL FROM 15 PER CENT OR 45 PER CENT OR 75 PER CENT, AS THE CASE MAY BE, OF THE TAX DUE ON THE RETURNED INCOME. IN OUR VIEW, SECTION 115J/115JA ARE SPECIAL PROVISIONS. SECTION 207 ENVISAGES THAT TAX SHALL BE PAYABLE IN ADVANCE DURING ANY FINANCIAL YEAR ON CURRENT INCOME IN ACCORDANCE WITH THE SCHEME PROVIDED IN SECTIONS 208 TO 219 (BOTH IN CLUSIVE) IN RESPECT OF THE TOTAL INCOME OF THE ASSESSEE THAT WOULD BE CHARGEABLE TO TAX FOR THE ASSESSMENT YEAR IMMEDIATELY FOLLOWING THAT FINANCIAL YEAR. SECTION 215(5) OF THE ACT DEFINED WHAT IS ASSESSED TAX , I.E., TAX DETERMINED ON THE BASIS OF REGULA R ASSESSMENT SO FAR AS SUCH TAX RELATES TO INCOME SUBJECT TO ADVANCE TAX. THE EVALUATION OF THE CURRENT INCOME AND THE DETERMINATION OF THE ASSESSED INCOME HAD TO BE MADE IN TERMS OF THE STATUTORY SCHEME COMPRISING SECTION 115J/115JA OF THE ACT. HENCE, LEV YING OF INTEREST WAS INESCAPABLE. THE ASSESSEE WAS BOUND TO PAY ADVANCE TAX UNDER THE SAID SCHEME OF THE ACT. SECTION 115J/115JA OF THE ACT WERE SPECIAL PROVISIONS WHICH PROVIDED THAT WHERE IN THE CASE OF AN ASSESSEE, THE TOTAL INCOME AS COMPUTED UNDER THE ACT IN RESPECT OF ANY PREVIOUS YEAR RELEVANT TO THE ASSESSMENT YEAR IS LESS THAN 30 PER CENT OF THE BOOK PROFIT, THE TOTAL INCOME OF THE ASSESSEE SHALL BE DEEMED TO BE AN AMOUNT EQUAL TO 30 PER CENT OF SUCH BOOK PROFIT. THE OBJECT IS TO TAX ZERO - TAX COMP ANIES. SECTION 115J WAS INSERTED BY THE FINANCE ACT, 1987 WITH EFFECT FROM APRIL 1, 1988. THIS SECTION WAS IN FORCE FROM APRIL 1, 1988 TO MARCH 31, 1991. AFTER APRIL 1, 1991, SECTION 115JA WAS INSERTED BY THE FINANCE ACT OF 1996 WITH EFFECT FROM APRIL 1, 1997. AFTER INSERTION OF SECTION 115JA, SECTION 115JB WAS INSERTED BY THE FINANCE ACT, 2000 WITH EFFECT FROM APRIL 1, 2001. IT IS CLEAR FROM READING SECTIONS 115JA AND 115JB THAT THE QUESTION WHETHER A COMPANY WHICH IS LIABLE TO PAY TAX UNDER EIT HER PROVISIONS DOES NOT ASSUME IMPORTANCE BECAUSE SPECIFIC PROVISION (S) IS MADE IN THE SECTION SAYING THAT ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO THE MAT COMPANY (SECTION 115JA(4) AND SECTION 115JB(5)). SIMILARLY, AMENDMENTS HAVE BEEN MADE IN THE RELEVANT FINANCE ACTS PROVIDING FOR PAYMENT OF ADVANCE TAX UNDER SECTIONS 115JA AND 115JB. SO FAR AS INTEREST LEVIABLE UNDER SECTION 234B IS CONCERNED, THE SECTION IS CLEAR THAT IT APPLIES TO ALL COMPANIES. THE PRE - REQUISITE CONDITION FOR APPLICABILITY OF SECTION 234B IS THAT THE ASSESSEE IS LIABLE TO PAY TAX UNDER SECTION 208 AND THE EXPRESSION ASSESSED TAX IS DEFINED TO MEAN THE TAX ON THE TOTAL INCOME DETERMINED UNDER SECTION 143(1) OR UNDER SECTION 143(3) AS REDUCED BY THE AMOUNT OF TAX DEDUCTED OR CO LLECTED AT SOURCE. THUS, THERE IS NO EXCLUSION OF SECTION 115J/115JA IN THE LEVY OF INTEREST UNDER SECTION 234B. THE EXPRESSION ASSESSED TAX IS DEFINED TO MEAN THE TAX ASSESSED ON REGULAR ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 10 ASSESSMENT WHICH MEANS THE TAX DETERMINED ON THE APPLICATION OF SE CTION 115J/115JA IN THE REGULAR ASSESSMENT. THE QUESTION WHICH REMAINS TO BE CONSIDERED IS WHETHER THE ASSESSEE, WHICH IS A MAT COMPANY, WAS NOT IN A POSITION TO ESTIMATE ITS PROFITS OF THE CURRENT YEAR PRIOR TO THE END OF THE FINANCIAL YEAR ON 31 ST MARCH. IN THIS CONNECTION THE ASSESSEE PLACED RELIANCE ON THE JUDGMNENT OF THE KARNATAKA HIGH COURT IN THE CASE OF KWALITY BISCUITS LTD. V. CIT REPORTED IN [2000] 243 ITR 519 AND, ACCORDING TO THE KARNATAKA HIGH COURT, THE PROFITS AS COMPUTED UNDER THE IN COME - TAX ACT, 1961 HAD TO BE PREPARED AND THEREAFTER THE BOOK PROFIT AS CONTEMPLATED UNDER SECTION 115J OF THE ACT HAD TO BE DETERMINED AND THEN, THE LIABILITY OF THE ASSESSEE TO PAY TAX UNDER SECTION 115J OF THE ACT AROSE, ONLY IF THE TOTAL INCOME AS CO MPUTED UNDER THE PROVISIONS OF THE ACT WAS LESS THAN 30 PER CENT OF THE BOOK PROFIT. ACCORDING TO THE KARNATAKA HIGH COURT, THIS ENTIRE EXERCISE OF COMPUTING INCOME OR THE BOOK PROFITS OF THE COMPANY COULD BE DONE ONLY AT THE END OF THE FINANCIAL YEAR AND HENCE THE PROVISIONS OF SECTIONS 207, 208, 209 AND 210 (PREDECESSORS OF SECTIONS 234B AND 234C) WERE NOT APPLICABLE UNTIL AND UNLESS THE ACCOUNTS STOOD AUDITED AND THE BALANCE SHEET STOOD PREPARED, BECAUSE TILL THEN EVEN THE ASSESSEE MAY NOT KNOW WHETHER T HE PROVISIONS OF SECTION 115J WOULD BE APPLIED OR NOT. THE COURT, THEREFORE, HELD THAT THE LIABILITY WOULD ARISE ONLY AFTER THE PROFIT IS DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF THE COMPANIES ACT, 1956 AND, THEREFORE, INTEREST UNDER SECTIONS 234B AND 234C IS NOT LEVIABLE IN CASES WHERE SECTION 115J APPLIED. THIS VIEW OF THE KARNATAKA HIGH COURT IN KWALITY BISCUITS LTD. WAS NOT SHARED BY THE GAUHATI HIGH COURT IN ASSAM BENGAL CARRIERS LTD. V. CIT REPORTED IN [1999] 239 ITR 862 AND THE MADHYA PRADESH HIGH COURT IN ITARSI OIL AND FLOURS (P) LTD V. CIT REPORTED IN [2001] 250 ITR 686 AS ALSO BY THE BOMBAY HIGH COURT IN THE CASE OF CIT V. KOTAK MAHINDRA FINANCE LTD. REPORTED IN [2003] 130 TAXMAN 730 WHICH DECIDE THE ISSUE IN FAVOUR OF THE DEPARTMENT AND AGAINST THE ASSESSEE. IT APPEARS THAT NONE OF THE ASSESSES CHALLENGED THE DECISIONS OF THE GAUHATI HIGH COURT, MADHYA PRADESH HIGH COURT AS WELL AS THE BOMBAY HIGH COURT IN THE SUPREME COURT. HOWEVER, IT MAY BE NOTED THAT THE JUDGMENT OF THE KARNATAKA HIGH COURT IN KWALITY BISCUITS LTD WAS CONFINED TO SECTION 115J OF THE ACT. THE ORDER OF THE SUPREME COURT DISMISSING THE SPECIAL LEAVE PETITION IN LIMINE FILED BY THE DEPARTMENT AGAINST KWALITY BISCUITS LTD. IS REPORTED IN [2006] 284 ITR 434. THUS, THE JUDGM ENT OF THE KARNATAKA HIGH COURT IN KWALITY BISCUITS STOOD AFFIRMED. HOWEVER, THE KARNATAKA HIGH COURT HAS THEREAFTER IN THE CASE OF JINDAL THERMAL POWER CO.LTD. V. DEPUTY CIT REPORTED IN [2006] 154 TAXMAN 547 DISTINGUISHED ITS OWN DECISION IN THE CASE OF K WALITY BISCUTIS LTD. (SUPRA) AND HELD THAT SECTION 115JB, WITH WHICH WE ARE CONCERNED, IS A SELF - CONTAINE D CODE PERTAINING TO MAT, WHICH IMPOSED LIABILITY FOR PAYMENT OF ADVANCE TAX ON MAT COMPANIES AND, THEREFORE, WHERE SUCH COMPANIES DEFAULTED IN PAYMEN T OF ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SECTION 115JB, IT WAS LIABLE TO PAY INTEREST UNDER SECTIONS 234BAND 234C OF THE ACT. THUS, IT CAN BE CONCLUDED THAT INTEREST UNDER SECTIONS 234B AND 234C SHALL BE PAYABLE ON FAILURE TO PAY ADVANCE TAX IN RES PECT OF TAX PAYABLE UNDER SECTION 115JA/115JB. FOR THE AFORE STATED REASONS, CIRCULAR NO.13 OF 2001 DATED NOVEMBER 9, 2001 ISSUED BY THE CENTRAL BOARD OF DIRECT TAXES REPORTED IN [2001] 252 ITR (ST.) 50 HAS NO APPLICATION. MOREOVER, IN ANY EVENT, PARA 2 OF THAT CIRCULAR ITSELF INDICATES THAT A LARGE NUMBER OF COMPANIES LIABLE TO BE TAXED UNDER THE MAT PROVISIONS OF SECTION 115JB WERE NOT MAKING ADVANCE TAX PAYMENTS. IN THE SAID CIRCULAR, IT HAS BEEN CLARIFIED THAT SECTION 115JB IS A SELF - CONTAINED CODE AN D THUS, ALL COMPANIES WERE LIABLE FOR PAYMENT OF ADVANCE TAX UNDER SECTION 115JB AND CONSEQUENTLY THE PROVISIONS OF SECTIONS 234B AND 234C IMPOSING INTEREST ON DEFAULT IN PAYMENT OF ADVANCE TAX WERE ALSO APPLICABLE. ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 11 FOR THE AFORE STATED REASONS THE COMMISSIONER OF INCOME - TAX SUCCEEDS IN THE CIVIL APPEAL ARISING OUT OF S.L.P. (C) NO.25746 OF 2009 (JOINT CIT V. ROLTA INDIA LTD.) AS ALSO IN THE CIVIL APPEAL ARISING OUT OF S.L.P. (C) NO. 18367 OF 2010 (CIT V. EXPORT CREDIT GUARANTEE CORPORATION OF INDIA LTD.). CONSEQUENTLY, CIVIL APPEAL NO.459 OF 2006 (NAHAR EXPORTS V. CIT) AND CIVIL APPEAL NO.7429 OF 2008 (LAKSHMI PRECISION SCREWS LTD. V. CIT) STAND DISMISSED WITH NO ORDER AS TO COSTS. 7.2 . A READING OF THE ABOVE EXPOSITION MAKES IT CLEAR THAT AS PER T HE HON BLE APEX COURT S EXPOSITION INTEREST U/S 234B AND 234C OF THE ACT IS CLEARLY LEVIABLE ON ASSESSMENTS ON BOOK PROFIT U/S 115JB OF THE ACT AS PER THE CLEAR INDENTMENT OF THE ACT. THE HON BLE APEX COURT HAS ITSELF REFERRED TO THE DECISION OF HON BLE K ARNATAKA HIGH COURT IN THE CASE OF KWALITY BISCUITS LTD. AND THE SUBSEQUENT DISMISSAL OF SPECIAL LEAVE PETITION BY THE HON BLE APEX COURT IN LIMINE AGAINST THE ABOVE ORDER. THE HON BLE APEX COURT HAD MENTIONED THAT THE SAID DECISION WAS CONFINED TO SECTIO N 115J OF THE ACT AND THEREAFTER IN THE CASE OF JINDAL THERMAL POWER CO.LTD. VS DCIT 154 TAXMAN 547 THE HON BLE KARNATAKA HIGH COURT HAS ITSELF DISTINGUISHED ITS OWN DECISION IN THE CASE OF KWALITY BISCUITS LTD. (SUPRA) AND HELD THAT SECTION 115JB OF THE A CT WAS A SELF - CONTAINED CODE PERTAINING TO MAT, WHICH IMPOSED LIABILITY FOR PAYMENT OF ADVANCE TAX ON MAT COMPANIES AND THEREFORE WHERE SUCH COMPANIES DEFAULTED IN PAYMENT OF ADVANCE TAX IN RESPECT OF TAX PAYABLE U/S 115JB, IT WAS LIABLE TO PAY INTEREST U/ S 234B AND 234C OF THE ACT. FROM THE ABOVE EXPOSITION WE FIND THAT REFERENCE TO THE HON BLE APEX COURT S DECISION IN THE CASE OF KWALITY BISCUITS LTD. (SUPRA) DOES NOT HELP THE CASE OF THE ASSESSEE. 7.3 . NOW WE REFER TO THE CASE LAWS REFERRED BY THE LD.C OUNSEL OF THE ASSESSEE. WE FIND THAT THE DECISION OF THE HON BLE BOMBAY HIGH COURT IN THE CASE OF SNOWCEM INDIA LTD. V. DCIT 313 ITR 170 WAS RENDERED PRIOR TO THE HON BLE APEX COURT DECISION IN THE CASE OF CIT VS ROLTA INDIA LTD.. HENCE THIS CASE LAW DOES NOT SUPPORT THE CASE OF THE ASSESSEE. THE DECISION OF THE HON BLE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF CHARBUJA INDUSTRIES P.LTD VS ADDL. CIT 31 ITR (TRIB) 889 AND IN THE CASE OF ROCKLINE DEVELOPERS P. LTD. VS ITO 31 ITR (TRIB) 123 DID NOT HAVE THE BENEFIT OF REFERENCE OF THE EXPOSITION OF THE HON BLE APEX COURT IN THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA). THE HON BLE BOMBAY HIGH COURT ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 12 DECISION IN THE CASE OF PRIME SECURITIES LTD. VS ACIT 333 ITR 464 DID NOT DEAL WITH THE INT EREST U/S 234B AND 234C OF THE ACT LEVIABLE ON BOOK PROFIT UNDE R MAT U/S 115JB OF THE ACT AND IT PERTAINED TO A DIFFERENT ISSUE. THE DECISION OF HON BLE CHENNAI BENCH OF THE TRIBUNAL IN THE CASE OF EXPRESS NEWSPAPER LTD. V. JT.CIT 103 TTJ 122 WAS ALSO REND ERED PRIOR TO THE HON BLE APEX COURT S DECISION IN THE CASE OF ROLTA INDIA LTD. THE DECISION OF THE HON BLE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF ROYAL JORDANIAN AIRLINES V. DDIT 119 TTJ 145 WAS WITH REFERENCE TO SECTION 44BBA OF THE ACT ALSO WAS REND ERED PRIOR TO THE HON BLE APEX COURT S DECISION IN THE CASE OF ROLTA INDIA LTD. 7.4 . FROM THE ABOVE IT IS CLEAR THAT THE ABOVE CASE LAWS DO NOT SU PPORT THE CASE OF THE ASSESSEE . I N THE CASE OF ACIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) THE HON BLE APEX COURT HAS EXPOUNDED IN PARA 42 THAT JUDGES DO NOT MAKE LAW, THEY ONLY DISCOVER OR FIND THE CORRECT LAW. THE LAW HAS ALWAYS BEEN THE SAME. IF A SUBSEQUENT DECISION ALTERS THE EARLIER ONE, IT (THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RETROSPECTIVELY. TO PUT IT DIFFERENTLY , EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOME TIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. THE RELEVANT PARA 42 IS REPRODUCED BELOW : - IN OUR JUDGMENT, IT IS ALSO WELL - SETTLED THAT A JUDICIAL DECISION ACTS RETROSPECTIVELY. ACCORDING TO BLACKSTONIAN THEORY, IT IS NOT THE FUNCTION OF THE COURT TO PRONOUNCE A NEW RULE BUT TO MAINTAIN AND EXPOUND THE OLD ONE . IN OTHER WORDS, JUDGES DO NOT MAKE LAW, THEY ONLY DISCOVER OR FIND THE CORRECT LAW. THE LAW HAS ALWAYS BEEN THE SAME. IF A SUBSEQUENT DECISION ALTERS THE EARLIER ONE, IT (THE LATER DECISION) DOES NOT MAKE NEW LAW. IT ONLY DISCOVERS THE CORRECT PRINCIPLE OF LAW WHICH HAS TO BE APPLIED RETROSPECTIVELY. TO PUT IT DIFFERENTLY, EVEN WHERE AN EARLIER DECISION OF THE COURT OPERATED FOR QUITE SOME TIME, THE DECISION RENDERED LATER ON WOULD HAVE RETROSPECTIVE EFFECT CLARIFYING THE LEGAL POSITION WHICH WAS EARLIER NOT CORRECTLY UNDERSTOOD. 7.5 . IF WE CONSIDER THE ABOVE EXPOSITION WITH REFERENCE TO THE FACTS OF THE CASE WE NOTE THAT THE ISSUE IS WHETHER INTEREST U/S 234B AND 234C OF THE ACT I S CHA RGEABLE ON ASSESSMENTS U/S 115J B UNDER MAT ON BOOK PROFITS. THE APEX COURT S DECISION CLEARLY EXPOUNDS THAT AS PER THE INDENTMENT OF SECTION 115JB OF THE ACT SUCH INTEREST IS ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 13 LEVIABLE ON DEFAULT IN PAYMENT OF ADVANCE TAX. THE PLEA OF THE ASESSEE THAT IT CANNOT FORESEE AS TO WHETHER ASSESSMENTS WOULD BE DONE ON BOOK PROFITS UNDER MAT U/S 115JB OF THE ACT HAS NOT BEEN SUSTAINED BY THE HON BLE APEX COURT . HENCE THE ASSESSEE CAN NOT TAKE SHELTER UNDER THE PLEA THAT THERE WAS DIVERGENCE OF OPINION IN THIS REGARD ALSO. 7.6 . THE ABOVE VIEW IS ALSO SUPPORTED BY THE HON BLE APEX COURT S DECISION IN THE CASE OF CIT VS ANJUM M.H.GHASWALA & OTHERS 252 ITR 1. IN THIS CASE THE HON BLE APEX COURT HAS EXPOUNDED THAT LEVY OF INTEREST U/S 234B AND 234C OF THE ACT IS MANDATORY IN NATURE. NOW ONCE WE FIND THAT LEVYING OF INTEREST U/S 234B AND 234C OF THE ACT IS MANDATORY IN NATURE AS PER THE HON BLE APEX COURT S DECISION IN THE CASE OF CIT VS ANJUM M.H.GHASWALA AND OTHERS (SUPRA) AND AS PER THE EXPOSITION OF THE HON BLE APEX COURT IN THE CASE OF ROLTA INDIA LTD. (SUPRA) THAT THE INDENTMENT OF THE ACT U/S 115JB OF THE ACT IS THAT INTEREST U/.S 234B AND 234C OF THE ACT IS LEVIABLE ON ASSESSMENTS ON BOOK PROFIT UNDER MAT, T HERE IS NO ROOM FOR AMBIGUITY AS TO WHETHER THE ASS ESSEE IS LIABLE FOR INTEREST U/S 234B AND 234C OF THE ACT. 7.7 . THIS VIEW IS FURTHER FORTIFIED BY HON BLE APEX COURT DECISION IN THE CASE OF SAURASHTRA KUTCH STOCK EXCHANGE LTD. (S UPRA) THAT HON BLE APEX COURT DOES NOT EXPOUND ANY NEW LAW. IT ONLY EXPLAI NS THE CORRECT PRINCIPLE OF LAW WHICH IS TO BE APPLIED RETROSPECTIVELY. WHEN THE LEVY OF INTEREST IS MANDATORY AND THE HON BLE APEX COURT DULY EXPLAINS THE CORRECT LAW FINDING THE ASSESSEE LIABLE, THE ASSESSEE CANNOT SEEK TO ES CAPE THE MANDATORY LEVY BEING FASTENED ON IT UNDER THE PLEA THAT IT HAD BONA FIDE BELIEF THAT IT IS NOT LIABLE. IT IS NOT A CASE OF REOPENING OR REVISION OR RECTIFICATION OF MISTAKE THAT THE ASSESSEE CAN TAKE SHELTER UNDER THE PLEA THAT THE ISSUE WAS EARLIER DEBATABLE AND/OR TWO VIEWS WERE POSSIBLE. A B ELIEF HOW SO EVER BONA FIDE CANNOT EXONERATE THE ASSESSEE FROM THE MANDATORY LEVY OF INTEREST U/S 234B AND 234C OF THE ACT ON ASSESSMENT ON BOOK PROFIT U/S 115JB OF THE ACT. IN VIEW OF THE ABOVE SAID DISCUSSION AND PLACING RELIANCE UPON TH E DECISION OF THE HON BLE APEX COURT S DECISION IN THE CASE OF CIT VS ANJUM M.H.GHASWALA AND OTHERS (SUPRA) , CIT VS ROLTA INDIA LTD. (SUPRA) AND CIT VS SAURASHTRA KUTCH STOCK EXCHANGE LTD. (SUPRA) WE ITA NO. 1892/KOL/2012 BINANI CEMENT LTD., A.YR. 2009 - 10 14 DO NOT FIND ANY INFIRMITY IN THE ORDERS OF THE LD. CIT( A). ACCORDINGLY WE UPHOLD THE SAME. 8. IN THE RESULT THE APPEAL OF THE ASSESSEE STANDS DISMISSED. ORDE R PRONOUNCED IN THE COURT ON 2 7.02.2015. SD/ - SD/ - [ MAHAVIR SINGH ] [SHAMIM YAHYA] JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 27.02.2015. R.G.(.P .S.) COPY OF THE ORDER FORWARDED TO: 1 . BINANI CEMENT LTD., 37/2, CHINAR PARK, NEW TOWN, RAJARHAT MAIN ROAD, P.O.HATIARA, NORTH 24 - PARGANAS, KOLKATA - 700 157. 2 D.C.I.T., CENTRAL CIRCLE - XXVIII, KOLKATA. 3 . CIT(A) - CENTRAL - I, KOLKATA 4. CIT - KOLKATA. 5. CIT - DR, KOLKATA BENCHES, KOLKATA TRUE COPY, BY ORDER, DEPUTY /ASST. REGISTRAR , ITAT, KOLKATA BENCHES