M/s Madurai Power Corporation Pvt. Ltd., Chennai V. ACIT, Nellore

ITA 409/HYD/2009

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 69737 (ITAT-HYDERABAD)
• Duration Of Justice: 4 year(s) 4 month(s) 22 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-08-2013
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 15-02-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 23-03-2009
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D SUDHAKARA RAO
• Assessee Lawyers: DR ANITHA SUMANTH
• Keywords: Retrospective amendment
• Section: 234B; 115JB; 28

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B, HYDERABAD BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI SAKTIJIT DEY, JUDICIAL MEMBER S.NO. ITA NO. AY APPELLANT RESPONDENT 1 TO 4 480 TO 483/H/12 2003-04, 2004-05, 2005-06 & 2008-09 MADURAI POWER CORPORATION PVT. LTD., CHENNAI. (PAN AACCM7661C) ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 1, NELLORE. 5 TO 8 553 TO 556/H/12 -DO- ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 1, NELLORE. MADURAI POWER CORPORATION PVT. LTD., CHENNAI. (PAN AACCM7661C) 9 TO 12 409 TO 411/H/09 AND 49/H/10 2003-04, 2004-05, 2005-06 & 2006-07 MADURAI POWER CORPORATION PVT. LTD., CHENNAI. (PAN AACCM7661C) ASST. COMMISSIONER OF INCOME-TAX, CIRCLE 1, NELLORE. ASSESSEE BY : DR. ANITHA SUMANTH REVENUE BY : SHRI D. SUDHAKARA RAO DATE OF HEARING : 01/08/2013 DATE OF PRONOUNCEMENT : 14/0 8/2013 ORDER PER SAKTIJIT DEY, J.M.: ALL THESE APPEALS PREFERRED BY THE ASSESSEE AS WEL L AS THE REVENUE ARE DIRECTED AGAINST THE RESPECTIVE ORDERS OF CIT(A). SINCE IDENTICAL ISSUES ARE INVOLVED IN THESE APPEAL S, THEY WERE CLUBBED AND HEARD TOGETHER, THEREFORE, WE FIND IT C ONVENIENT TO DISPOSE OF THESE APPEALS BY WAY OF THIS CONSOLIDATE D ORDER. ITA NOS. 480 TO 483/H/12 AND 409 TO 411/H/09 AND 49 /H/10 APPEALS BY ASSESSEE 2. AT THE OUTSET, THE LEARNED AR REPRESENTING THE ASSESSEE SUBMITTED THAT UNDER THE INSTRUCTION OF THE ASSESSE E, SHE DOES MADURAI POWER CORPORATION PVT. LTD. 2 NOT WANT TO PRESS THE GROUND RAISED RELATING TO THE TAXABILITY OF PROVISIONS CREATED BY THE ASSESSEE FOR DIFFERENT AS SESSMENT YEARS. IN THIS CONTEXT, THE LEARNED AR ALSO SUBMITT ED A PETITION, CONTENDING AS UNDER: BEFORE THE INCOME TAX APPELLATE TRIBUNAL, HYDERABA D ITA NOS: 409-411/2009, 49/2010, 480-483/2012 OF M/S MADURAI POWER CORPORATION PRIVATE LIMITED. THE ABOVE APPEALS PERTAIN TO ASSESSMENT YEARS 2003- 04, 04-05,05- 06, 06-07 AND 08-09. VARIOUS ISSUES HAVE BEEN RAISE D THEREIN PERTAINING TO THE TAXABILITY OF PROVISIONS CREATED BY THE ASSESSEE HEREIN. IN THE FINANCIAL YEAR 2008-09 RELATING TO A Y 2009-10; THE ASSESSEE HAS COMMENCED WRITE OFF OF THE PROVISIONS. IN RESPECT OF AY 2009-10, SUCH WRITE OFF WAS INITIALLY NOT ACCEPT ED BY THE AO BUT THE CLT(A) VIDE HIS ORDER DATED 7 MAY 2012 HAS REVE RSED THE ORDER OF THE AO AND HAS ACCEPTED THE WRITE OFF. IN RESPEC T OF THE AY 2010- 11, THE AO HIMSELF VIDE ORDER OF ASSESSMENT DATED 3 1 MAY 2013 HAS ACCEPTED THE WRITE OFF OF PROVISIONS CREATED. IN THE ABOVE CIRCUMSTANCES, WE ARE INSTRUCTED BY TH E ASSESSEE THAT THE ABOVE APPEALS TO WHICH THEY PERTAIN TO THE CREA TION OF PROVISIONS SUBSEQUENTLY WRITTEN OFF MAY NOT BE PERS UED. THE PRESENT APPEALS MAY THUS BE CLOSED ON THE ABOVE BAS IS WITH AN OBSERVATION THAT IN THE EVENT THE WRITE OFF, FOR AN Y REASON IS NOT ACCEPTED FOR THE SUB SEQUENT YEARS, THE ASSESSEE IS PERMITTED TO REVIVE THE PRESENT APPEALS AT A LATER STAGE, IF REQ UIRED. WITH RESPECT TO AY 2006-07, AN ADDITIONAL GROUND AR ISES BEING THE LEVY OF INTEREST UNDER SECTION 234B, THE ASSESSEE I NTENDS TO PERSUE THIS GROUND OF APPEAL ALONE (GROUND NO 9 TO 11 IN I TA 49/2010) . DATED AT HYDERABAD, THIS THE FIRST DAY OF AUGUST 20 13. SD/- COUNSEL FOR ASSESSEE 3. THE LEARNED AR ALSO IN SUPPORT OF HER CONTENTION S AND SUBMISSIONS IN THE AFORESAID PETITION SUBMITTED BEF ORE US A COPY OF THE ORDER PASSED BY THE CIT(A) FOR THE AY 2009-1 0 ALLOWING WRITE OFF OF THE PROVISIONS CREATED. THEREFORE, CON SIDERING THE SUBMISSIONS MADE BY THE LEARNED AR BEFORE US, BOTH ORALLY AND IN MADURAI POWER CORPORATION PVT. LTD. 3 THE PETITION FILED AS AFORESAID, WE DISMISS GROUNDS RAISED IN THIS BEHALF AS NOT PRESSED AND ACCORDINGLY THE AFORESAID APPEALS OF THE ASSESSEE ARE ALSO DISMISSED. HOWEVER, WE MAKE IT CL EAR THAT WE HAVE NOT EXPRESSED ANY OPINION ON THE MERITS OF THE ADDITIONS. 4. SO FAR AS THE ASSESSEES APPEAL NO. 49/HYD/2010 IS CONCERNED, THOUGH WE DISMISS THE GROUNDS RAISED REL ATING TO WRITE-OFF OF PROVISION AS NOT PRESSED AN ADDITIONAL ISSUE RAISED IN GROUND NOS. 9 TO 11 REGARDING LEVY OF INTEREST U/S 234B OF THE ACT, HOWEVER, SURVIVES, WHICH WILL BE DEALT AT A LA TER STAGE WHILE DEALING WITH THE DEPARTMENTAL APPEALS ON IDENTICAL ISSUE. ITA NOS. 553 TO 556/HYD/2012 REVENUE APPEALS. 5. THE ONLY ISSUE RAISED IN THE AFORESAID APPEALS O F THE DEPARTMENT AS WELL AS ASSESSEES APPEAL IN ITA NO. 49/H/12 IS WITH REGARD TO CHARGEABILITY OF INTEREST U/S 234B O F THE ACT WHILE COMPUTING BOOK PROFIT U/S 115JB OF THE ACT. 6. WHILE THE CIT(A) FOR THE ASSESSMENT YEARS, 2003- 04, 2004- 05, 2005-06 AND 2008-09 HAS DELETED INTEREST CHARGE D U/S 234B OF THE ACT AGAINST WHICH THE DEPARTMENT IS IN APPEA L. FOR THE AY 2006-07, THE CIT(A) HAS UPHELD THE LEVY OF INTEREST U/S 234B OF THE ACT, WHICH IS ASSAILED BY THE ASSESSEE. 7. BRIEFLY THE FACTS RELATING TO THE AFORESAID ISSU E ARE WHILE COMPLETING THE ASSESSMENT FOR THE AFORESAID ASSESSM ENT YEARS, THE AO MADE CERTAIN ADDITIONS BY TAKING RECOURSE TO THE AMENDED PROVISIONS OF SECTION 115JB AS INTRODUCED TO THE ST ATUTE BY WAY OF CLAUSE (A) TO (F) OF EXPLANATION 1 TO SUB-SECTION ( 2) OF SECTION 115JB BY THE FINANCE ACT, 2008 WITH RETROSPECTIVE E FFECT FROM 01/04/2001. AS A RESULT OF ADDITIONS/ADJUSTMENTS MA DE, TOTAL MADURAI POWER CORPORATION PVT. LTD. 4 INCOME WAS DETERMINED AT A MUCH HIGHER FIGURE AND T HE AO WHILE COMPUTING THE TAX ALSO LEVIED INTEREST U/S 234B OF THE ACT. THE ASSESSEE CHALLENGED THE LEVY OF INTEREST BEFORE THE FIRST APPELLATE AUTHORITY BY CONTENDING THAT AS THE ADDITIONS WERE MADE BY VIRTUE OF RETROSPECTIVE AMENDMENT TO SECTION 115JB OF THE ACT, NO INTEREST CAN BE LEVIED U/S 234B OF THE ACT. IT WAS SUBMITTED THAT THE ASSESSEE COULD NOT HAVE VISUALIZED THAT THE ADD ITIONAL LIABILITY WOULD BE FASTENED ON IT ON ACCOUNT OF ADJUSTMENT OF PROVISIONS TO THE NET PROFIT FOR DETERMINING THE BOOK PROFIT. IT WAS CONTENDED BY THE ASSESSEE THAT SINCE THE ASSESSEE HAS COMPUTE D ITS ADVANCE TAX LIABILITY AND PAID IT AS PER THE PROVISIONS PRE VAILING ON THE DATE OF PAYMENT OF ADVANCE TAX, AND THE SUBSEQUENT AMENDMENT BROUGHT TO THE STATUTE WITH RETROSPECTIVE EFFECT CA NNOT GIVE RISE TO LEVY OF INTEREST FOR NON-PAYMENT/SHORT PAYMENT O F ADVANCE TAX. IN SUPPORT OF SUCH CONTENTIONS, THE ASSESSEE R ELIED ON THE DECISION OF HONBLE SUPREME COURT IN CASE OF CIT VS . HINDUSTAN ELECTRO GRAPHITES LTD., [2000] 243 ITR 48 AND THE D ECISION OF UTTARANCHAL HIGH COURT IN THE CASE OF CIT VS. SEDCO FOREX INTERNATIONAL DRILLING CO. LTD., [2003] 264 ITR 320 . THE CIT(A) AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE I N THE CONTEXT OF THE RATIO LAID DOWN IN THE AFORESAID DECISIONS H ELD THAT LEVY OF INTEREST U/S 234B OF THE ACT IS NOT JUSTIFIED. HOW EVER, SO FAR AS THE ASSESSMENT YEAR 2006-07 IS CONCERNED, THE CIT(A ) UPHELD THE LEVY OF INTEREST. 8. BEING AGGRIEVED OF THE RESPECTIVE ORDERS OF THE CIT(A), BOTH THE DEPARTMENT AS WELL AS THE ASSESSEE ARE IN APPEA L BEFORE US. 9. WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. WE HAVE ALSO CAREFULLY APPLIED OUR MIND TO THE DECISIONS PLACED BEFORE US. IT IS NOT DISPUTED THAT THE ADDITIONS/ADJUSTMENTS U/S 115JB OF THE ACT WERE MAD E ON ACCOUNT MADURAI POWER CORPORATION PVT. LTD. 5 OF RETROSPECTIVE AMENDMENT BROUGHT TO THE STATUTE W ITH EFFECT FROM 01/04/2001 BY THE FINANCE ACT, 2008 BY INTRODU CING EXPLANATION TO SUB-SECTION (2) OF SECTION 115JB OF THE ACT. THUS, WHEN THE ASSESSEE FILED ITS RETURN OF INCOME FOR TH E AFORESAID ASSESSMENT YEARS THE BOOK PROFIT WAS COMPUTED AS PE R THE PROVISIONS PREVAILING AT THE RELEVANT POINT OF TIME BEFORE IT WAS AMENDED BY INTRODUCTION OF EXPLANATION 1 TO SUB-SEC TION (2) OF SECTION 115JB BY FINANCE ACT, 2008 WITH RETROSPECTI VE EFFECT FROM 01/04/2001. THEREFORE, THE ASSESSEE COULD NOT HAVE VISUALIZED THE PROPOSED AMENDMENT TO BE BROUGHT TO THE STATUTE . HENCE, THE LIABILITY FOR PAYMENT OF ADVANCE TAX COULD NOT HAVE BEEN FASTENED UPON THE ASSESSEE. THE HONBLE SUPREME COURT IN THE CASE OF HINDUSTAN ELECTRO GRAPHITES LTD. (SUPRA) WHILE EXAM INING SIMILAR ISSUE OF IMPOSITION OF ADDITIONAL TAX U/S 143(1)(A) BY VIRTUE OF RETROSPECTIVE AMENDMENT HELD AS UNDER: THE CASE BEFORE US DOES NOT REPRESENT EVEN A BONA F IDE MISTAKE. IN FACT IT IS NOT A CASE WHERE UNDER SOME MISTAKEN BELIEF THE ASSESSEE DID NOT DISCLOSE THE CASH COMPE NSATORY SUPPORT RECEIVED BY IT WHICH HE COULD OFFER TO TAX. IT IS TRUE THAT INCOME BY WAY OF CASH COMPENSATORY SUPPORT BEC AME TAXABLE RETROSPECTIVELY WITH EFFECT FROM APRIL 1, 1 967, BUT THAT WAS BY AMENDMENT OF SECTION 28 BY THE FINANCE ACT OF 1990 WHICH AMENDMENT COULD NOT HAVE BEEN KNOWN BEFO RE THE FINANCE ACT CAME INTO FORCE. LEVY OF ADDITIONAL TAX BEARS ALL THE CHARACTERISTICS OF PENALTY. ADDITIONAL TAX WAS LEVIED AS THE ASSESSEE DID NOT IN HIS RETURN SHOW THE INCO ME BY WAY OF CASH COMPENSATORY SUPPORT. THE AO ON THAT AC COUNT LEVIED ADDITIONAL INCOME-TAX. NO ADDITIONAL TAX WOU LD HAVE BEEN LEVIABLE ON THE CASH COMPENSATORY SUPPORT IF T HE FINANCE ACT, 1990, HAD NOT SO PROVIDED EVEN THOUGH RETROSPECTIVELY. THE ASSESSEE COULD NOT HAVE SUFFER ED ADDITIONAL TAX BUT FOR THE FINANCE ACT OF 1990. AFT ER HE HAD FILED HIS RETURN OF INCOME, WHICH WAS CORRECT AS PE R LAW ON THE DATE OF FILING OF THE RETURN, IT WAS THEREAFTER THAT THE CASH COMPENSATORY SUPPORT ALSO CAME WITHIN THE SWAY OF SECTION 28. WHEN ADDITIONAL TAX HAS THE IMPRINT OF PENALTY, THE REVENUE CANNOT BE HEARD TO SAY THAT THE LEVY OF ADDITIONAL TAX IS AUTOMATIC U/S 143(1A) OF THE ACT. IF ADDITIONAL TAX COULD BE LEVIED IN SUCH CIRCUMSTANCE S, IT WILL BE PUNISHING THE ASSESSEE FOR NO FAULT OF HIS. THAT CANNOT MADURAI POWER CORPORATION PVT. LTD. 6 EVER BE THE LEGISLATIVE INTENT. IT SHOCKS THE VERY CONSCIENCE IF IN THE CIRCUMSTANCES SECTION 143(1A) COULD BE IN VOKED TO LEVY THE ADDITIONAL TAX. 10. THE HONBLE UTTARANCHAL HIGH COURT IN CASE OF C IT VS. SEDCO FOREX INTERNATIONAL DRILLING CO. LTD. (SUPRA) WHILE EXAMINING THE ISSUE OF CHARGEABILITY OF INTEREST U/S 234 B OF THE ACT AS A RESULT OF NON-PAYMENT OF ADVANCE TAX DUE TO RETROSPECTIVE AMENDMENT OF THE PROVISIONS HELD AS UNDER: ALTHOUGH WE AGREE WITH THE CONCLUSIONS OF THE TRIBU NAL, WE PREFER TO GIVE OUR OWN REASONS IN SUPPORT OF OUR CO NCLUSION THAT ON THE FACTS AND CIRCUMSTANCES OF THIS CASE, L EVY OF INTEREST U/S 234B ON THE ASSESSEE IS NOT JUSTIFIED. FIRSTLY, THE DECISIONS OF THE TRIBUNAL ON THE INTERPRETATION OF THE CONTRACTS REGARDING ON PERIOD AND OFF PERIOD SALARY WERE CONFLICTING. ULTIMATELY, THE LEGISLATURE HAS STEPPE D INTO CLARIFY THE POSITION BY THE FINANCE ACT OF 1999. I N THIS CONNECTION, IT IS IMPORTANT TO NOTE THAT SECTION 23 4B IMPOSES INTEREST, WHICH IS COMPENSATORY IN NATURE A ND NOT AS A PENALTY (SEE UNION HOME PRODUCTS LTD. VS. UNIO N OF INDIA [1965] 215 ITR 758, 766 (KARN.). SECONDLY, AL THOUGH SECTION 191 OF THE ACT IS NOT OVERRIDDEN BY SECTION S 192, 208 AND 209(1)(A)(D) OF THE ACT, THE SCHEME OF SECTIONS 208 AND 209 OF THE ACT INDICATES THAT IN ORDER TO COMPUTE A DVANCE TAX THE ASSESSEE HAS TO, INTER ALIA, ESTIMATE HIS C URRENT INCOME AND CALCULATE THE TAX ON SUCH INCOME BY APPL YING THE RATES IN FORCE. THAT UNDER SECTION 209(1)(D) THE IN COME TAX CALCULATED IS TO BE REDUCED BY THE AMOUNT OF TAX WH ICH WOULD BE DEDUCTIBLE AT SOURCE OR COLLECTIBLE AT SOU RCE, WHICH IN THIS CASE HAS NOT BEEN DONE BY THE EMPLOYER COMP ANY ACCORDING TO THE LAW PREVAILING FOR WHICH THE ASSES SEE CANNOT BE FAULTED. AS STATED ABOVE THE RELEVANT TI ME THERE WERE CONFLICTING DECISIONS OF THE TRIBUNAL. A BONA FIDE DISPUTE WAS PENDING. THE ASSESSEE HAD TO ESTIMATE H IS CURRENT INCOME. THE WORDS USED U/S 209(1)(A) MAKE T HE ASSESSEE ESTIMATE HIS CURRENT INCOME AND SINCE A BO NA FIDE DISPUTE WAS PENDING, IMPOSITION OF INTEREST UNDER S ECTION 234B WAS NOT JUSTIFIED WITHOUT HEARING AND WITHOUT REASONS. ACCORDINGLY, WE ANSWER THIS QUESTION IN THE AFFIRMA TIVE, I.E., IN FAVOUR OF THE ASSESSEE AND AGAINST THE DEPARTMEN T. 11. THE HONBLE MADRAS HIGH COURT IN CASE OF CIT VS . REVATHI EQUIPMENT LTD. [2008] 298 ITR 67 HELD THAT LAW DOES NOT COMPEL MADURAI POWER CORPORATION PVT. LTD. 7 TO DO THE IMPOSSIBLE. WHEN THE ASSESSEE CANNOT VISU ALIZE TILL THE PAYMENT OF LAST INSTALMENT OF ADVANCE TAX THAT HE W OULD NOT BE ENTITLED TO DEDUCT VRS PAYMENTS, THE ASSESSEE COULD NOT HAVE DONE ANYTHING OTHER THAN TO ESTIMATE THE LIABILITY TO PAY ADVANCE TAX ON THE BASIS OF EXISTING PROVISIONS. HENCE, THE CHARGEABILITY OF INTEREST U/S 234B OF THE ACT BY VIRTUE OF AMENDMENT BROUGHT WITH RETROSPECTIVE EFFECT WAS HELD TO BE NOT JUSTIF IED. THE ITAT, AHMEDABAD BENCH IN ITA NO. 1010/AHD/2009 DATED 05/0 6/2009 IN CASE OF SUN PETROCHEMICALS PVT. LTD. VS. ITO WHILE DEALING WITH IDENTICAL ISSUE OF LEVY OF INTEREST U/S 234B OF THE ACT WHILE COMPUTING BOOK PROFIT UNDER THE AMENDED PROVISION O F SECTION 115JB FOLLOWED THE DECISION OF HONBLE MADRAS HIGH COURT IN THE CASE OF CIT VS. REVATHI EQUIPMENT LTD. (SUPRA) AND HELD AS UNDER: 5. THE CONTENTION OF THE ASSESSEE BEFORE US IS BAS ED ON THE JUDGMENT OF THE MADRAS HIGH COURT IN IN CIT VS. REVATHI EQUIPMENT LIMITED (298 ITR 67). IN THIS JUDGMENT TH E HIGH COURT HAS HELD THAT TILL THE FINANCE BILL BECOMES LAW (BY BEING ASSENTED TO BY THE HON 'BLE PRESIDENT OF INDIA) THE ASSESSEE CA NNOT VISUALISE THAT A LIABILITY TO PAY TAX WOULD BE FASTENED ON HI M AND THEREFORE CANNOT PAY THE ADVANCE TAX ON THE SAME. IT WAS FURT HER HELD THAT IF THERE WAS NO POSSIBILITY OF KNOWING THE LIABILITY O N THE DATE ON WHICH ADVANCE TAX WAS PAYABLE, AND ON THAT DATE ADVANCE T AX WAS NOT PAYABLE ON THE AMOUNT IN QUESTION, THE ASSESSEE WOU LD NOT BE LIABLE TO PAY INTEREST U/S 234B WHEN BY RETROSPECTIVE AMEN DMENT MADE LATER THE AMOUNT BECOMES TAXABLE. THIS JUDGMENT APP LIES TO THE PRESENT CASE SO FAR AS THE DEFERRED TAX IS CONCERNE D. IN HARYANA WAREHOUSING CORPORATION VS. DCIT, 75 ITD 155(TM) IT HAS BEEN HELD BY THE THIRD MEMBER THAT IF ON THE DATE OF PAY ING ADVANCE TAX THERE WAS NO LIABILITY TO PAY THE SAME ON A PARTICU LAR AMOUNT, THE FACT THAT BY REASON OF A LATER DECISION OF THE SUPR EME COURT THE AMOUNT BECAME TAXABLE WOULD NOT MAKE THE ASSESSEE L IABLE FOR PAYING INTEREST U/S 234B. PRIYANKA OVERSEAS LTD V D CIT 79 ITD 353 IS A DECISION DEALING WITH THE LIABILITY TO PAY INT EREST U/S 234B BY REASON OF A RETROSPECTIVE AMENDMENT, AS IN THE PRES ENT CASE. THE DELHI BENCH OR THE TRIBUNAL HELD THAT THE ASSESSEE WAS NOT LIABLE TO' PAY INTEREST. THE ORDER OF THE HYDERABAD BENCH OR THE TRIBUNAL IN ACIT V JINDAL IRRIGATION SYSTEMS LTD (56 ITD 164) IS ONE IN WHICH THE EFFECT OF RETROSPECTIVE AMENDMENT WAS NOT CONSI DERED, BUT THE MADURAI POWER CORPORATION PVT. LTD. 8 CASE WAS DECIDED ON THE GENERAL PRINCIPLE OF LAW TH AT 'LEX NON COGIT AD IMPOSSIBILIA' (THE LAW DOES NOT COMPEL A PERSON TO DO THE IMPOSSIBLE). THE JUDGMENT OF THE MADRAS HIGH COURT AND THE ORDERS OF THE TRIBUNAL CITED SUPRA ARE ALL IN SUPPORT OF T HE ASSESSEE'S CASE BEFORE US. THE JUDGMENT OF THE MADRAS HIGH COURT ( SUPRA) IS A CASE OF LIABILITY ARISING ON ACCOUNT OF A RETROSPECTIVE AME NDMENT, AS IN THE CASE BEFORE US. NO CONTRARY DECISION WAS BROUGH T TO OUR NOTICE BY THE REVENUE. 6. IN THE ABOVE CIRCUMSTANCES, WE HOLD THAT THE LEV Y OF INTEREST IN RESPECT OF THE AMOUNT OF DIFFERENT TAX DEDUCTED WHILE ARRIVING AT THE BOOK PROFIT IN THE RETURN IS INVALID. THE OTHER POINT, VIZ., THE LEVY OF INTEREST ON THE FRINGE BENEFIT TAX WAS NOT ARGUE D AND HENCE CONFIRMED. 12. THE ITAT CHENNAI BENCH IN CASE OF M/S SAMALPATT I POWER COMPANY PVT. LTD. IN ITA NO. 894/MDS/2009 DATED 24/ 05/2011 ALSO HELD THAT INTEREST U/S 234B IS NOT LEVIABLE ON TAX COMPUTED UNDER THE AMENDED PROVISIONS OF SECTION 115JB OF TH E ACT, AS SUCH AMENDMENT WAS MADE RETROSPECTIVELY AND THE ASS ESSEE HAD ESTIMATED ADVANCE TAX AS PER THE EXISTING LAW. THE ITAT ACCORDINGLY DELETED INTEREST LEVIED U/S 234B OF THE ACT. 13. THEREFORE, CONSIDERING THE AFORESAID POSITION O F LAW AS LAID DOWN IN VARIOUS JUDICIAL PRECEDENTS WE ARE OF THE V IEW THAT NO INTEREST U/S 234B OF THE ACT IS LEVIABLE ON THE BAS IS OF TAX COMPUTED ON THE INCOME DETERMINED UNDER THE RETROSP ECTIVELY AMENDED PROVISION U/S 115JB OF THE ACT. ACCORDINGLY , WE UPHOLD THE ORDERS OF THE CIT(A) IN RESPECT OF ASSESSMENT Y EARS 2003-04, 2004-05, 2005-06 AND 2008-09 AND DISMISS THE GROUND S RAISED BY THE DEPARTMENT AND DELETE THE INTEREST LEVIED U/S 2 34B OF THE ACT FOR AY 2006-07 BY ALLOWING THE GROUND RAISED BY TH E ASSESSEE ON THE AFORESAID ISSUE. 14. IN THE RESULT, ALL THE DEPARTMENTAL APPEALS ARE DISMISSED AND THE ASSESSEES APPEAL IN ITA NO. 49/HYD/12 IS ALLOW ED IN PART. MADURAI POWER CORPORATION PVT. LTD. 9 15. TO SUM UP, ALL THE ASSESSEES APPEALS BEING IT A NOS. 480 TO 483/H/12 & 409 TO 411/H/09 AND REVENUE APPEALS BEIN G ITA NOS. 553 TO 556/H/12 ARE DISMISSED AND THE ASSESSEES AP PEAL BEING ITA NO. 49/H/12 IS PARTLY ALLOWED. PRONOUNCED IN THE OPEN COURT ON 14/08/2013. SD/- SD/- (CHANDRA POOJARI) (SAKTIJIT DEY) ACCOUNTANT MEMBER JUDICIAL MEMB ER HYDERABAD, DATED: 14 TH AUGUST, 2013. KV COPY TO:- 1) MADURAI POWER CORPORATION PVT. LTD., G-1, SESHAD RI MANOR, SESHADRI ROAD, ALWARPET, CHENNAI 600 018 2) ACIT, CIRCLE 1, D.NO. 24-2-438, GNT ROAD, DARG AMITTA, NELLORE. 3) CIT(A), GUNTUR 4) CIT-I, GUNTUR. 5) THE DEPARTMENTAL REPRESENTATIVE, I.T.A.T ., HYDERABAD.