DCIT, Ludhiana V. M/s Gee City Builder (P) Ltd, Chandigarh

ITA 765/CHANDI/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 7370 (ITAT-CHANDIGARH)
• Duration Of Justice: 2 year(s) 10 month(s) 20 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-04-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Next Hearing Date: 03-04-2019
• Assessment Year: 2012-2013
• Appeal Filed On: 10-06-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ABHISHEK PAL GARG SR DR
• Keywords: Business income; Depreciation; Search and seizure; Deemed to accrue or arise in india; Question of law; Competent authority; Tax effect; Unabsorbed depreciation; Set aside
• Section: 143(3); 10AA; 80HHC; 153A; 115JB; 80IB; 205; 32; 27; 12; 139

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL, CHANDIGARH BENCH A CHANDIGARH , !'# $ % &' , '( BEFORE: SH. SANJAY GARG, JUDICIAL MEMBER & SMT. ANNAPURNA GUPTA, ACCOUNTANT MEMBER ./ ITA NO. 422,423,780/CHD/2016 / A.Y : 2008-09, 2009-10,2010-11 M/S GEE CITY BUILDERS P.LTD., # 1664, GROUND FLOOR, SECTOR 43-B, CHANDIGARH. THE DCIT, CENTRAL CIRCLE-1, LUDHIANA. ./ PAN NO: AACCG0887A / APPELLANT / RESPONDENT & ./ ITA NO. 781/CHD/2016 / A.Y : 2012-13 M/S GEE CITY BUILDERS P.LTD., # 1664, GROUND FLOOR, SECTOR 43-B, CHANDIGARH. THE DCIT, CENTRAL CIRCLE-1, LUDHIANA. ./ PAN NO: AACCG0887A / APPELLANT / RESPONDENT ./ ITA NO. 765/CHD/2016 / ASSESSMENT YEAR : 2012-13 THE DCIT, CENTRAL CIRCLE-1, LUDHIANA. M/S GEE CITY BUILDERS P.LTD., # 1664, GROUND FLOOR, SECTOR 43-B, CHANDIGARH. ./ PAN NO: AAC CG0887A / APPELLANT / RESPONDENT ! ' / ASSESSEE BY : SHRI SUDHIR SEHGAL # ! ' / REVENUE BY : SHRI ABHISHEK PAL GARG,SR.DR $ % ! &/ DATE OF HEARING : 03.04.2019 '()* ! &/ DATE OF PRONOUNCEMENT : 30.04.2019 ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 2 OF 31 / ORDER PER ANNAPURNA GUPTA, ACCOUNTANT MEMBER: THE ABOVE CAPTIONED APPEALS AND CROSS APPEAL RELATE TO THE SAME ASSESSEE AND HAVE BEEN FILED AGAINST SEPARATE ORDERS PASSED BY THE LD. COMMISSIONER OF INCOME TAX(APPEAL S) -5, LUDHIANA,(IN SHORT REFERRED TO AS CIT(A), U/S 250(6 ) OF THE INCOME TAX ACT,1961,(HEREINAFTER REFERRED TO AS AC T) PERTAINING TO ASSESSMENT YEARS (A.Y) 2008-09, 2009-10, 2010-11 & 2012- 13 RESPECTIVELY. WHILE THE ASSESSES APPEAL FOR A.Y 2008-09 & 2009-10 IS AGAINST CONSOLIDATED ORDER OF THE LD.CIT (A) DATED 10.02.2016,THE APPEAL FOR A.Y 2010-11 & THE CROSS APPEALS FOR A.Y 2012-13 ARE AGAINST SEPARATE ORDERS OF THE LD.C IT(A) BOTH DATED 18.03.2016. 2. THE ASSESSEE'S APPEALS IN ITA 422 AND 423/CHD/2 016 HAVE BEEN RESTORED BACK BY THE HON'BLE HIGH COURT V IDE ITS ORDER IN ITA 417 & 418 OF 2016( O&M ) DATED 26.04.2017, S ETTING ASIDE THE EARLIER ORDER PASSED BY A SINGLE MEMBER O F THE TRIBUNAL ,HOLDING THAT THE APPEAL SHOULD BE HEARD B Y A DIVISION BENCH. ACCORDINGLY, THE IMPUGNED APPEALS WERE FIXE D BEFORE US. 3. IT WAS COMMON GROUND THAT THE ISSUE INVOLVED IN ALL THE APPEALS WAS IDENTICAL, RELATING TO WHETHER THE ASSE SSEE WAS LIABLE TO PAY MINIMUM ALTERNATE TAX (MAT) UNDER THE PROVISIONS OF SECTION 115JB OF THE ACT. THEY WERE THEREFORE HE ARD TOGETHER ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 3 OF 31 AND ARE BEING DISPOSED OF BY WAY OF THIS COMMON CON SOLIDATED ORDER. 4. FOR THE SAKE OF CONVENIENCE, WE SHALL BE DEALING WITH THE FACTS IN THE CASE OF ITA NO. 422/CHD/2016 RELATING TO ASSESSMENT YEAR 2008-09 AND OUR DECISION RENDERED THEREIN WOULD APPLY MUTATIS-MUTANDIS TO THE REST OF THE APP EALS. 5. THE BRIEF FACTS RELATING TO THE CASE ARE THAT TH E ASSESSEE IS A PRIVATE LIMITED COMPANY DEALING IN THE BUSINESS O F DEVELOPMENT OF HOUSING PROJECT UNITS. IT FILED ITS RETURN OF INCOME FOR THE IMPUGNED ASSESSMENT YEAR I.E. A.Y 20 08-09 ON 04.03.2009 DECLARING INCOME OF RS. 2,20,013/-. THE ASSESSING OFFICER (AO) FRAMED ASSESSMENT U/S 153A READ WITH S ECTION 143(3) OF THE ACT AND ASSESSED THE TOTAL INCOME AT RS. 12,74,720/- AND THE TAX PAYABLE UNDER MAT WAS DETE RMINED AT RS. 96,28,336/-. THE TAX COMPUTED UNDER MAT BEING H IGHER THAN THAT UNDER THE NORMAL PROVISIONS, THE SAME WAS DETERMINED AS PAYABLE BY THE ASSESSEE. AGGRIEVED BY THE LEVY OF TAX UNDER MAT, THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A), CONTENDING THAT IT WAS EXEMPT FROM PAYING TAX UNDE R MAT, AS PER SECTION 115JB(6) OF THE ACT. THE LD.CIT(A) , DI SMISSED THE CONTENTION OF THE ASSESSEE AND UPHELD THE ORDER OF THE AO. 6. AGGRIEVED BY THE SAME, THE ASSESSEE HAS NOW COME UP IN APPEAL BEFORE US RAISING THE FOLLOWING GROUNDS: ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 4 OF 31 1. ON THE FACTS & IN THE CIRCUMSTANCES OF THE CASE AND IN THE LAW, THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) HAS ER RED IN UPHOLDING THE LEVY OF MINIMUM ALTERNATIVE TAX (MAT) U/S 115JB OF THE INCOME TAX ACT WHEREAS AS PER SUB SECTION (6) OF SECTION 1 15JB OF THE INCOME TAX ACT, THE PROVISIONS OF MINIMUM ALTERNATIVE TAX ARE NOT APPLICABLE TO THE ASSESSEE APPELLANT. 2. THAT THE APPELLANT CRAVES PERMISSION TO ELUCIDAT E, ADD, AMEND, MODIFY, DELETE ANY GROUND OR GROUNDS OF APPEAL BEFO RE THE DISPOSAL IN THE INTEREST OF SUBSTANTIAL JUSTICE. 7. BEFORE US, PRIMARILY TWO ALTERNATE CONTENTIONS W ERE RAISED BY THE LD. COUNSEL FOR THE ASSESSEE AGAINST THE LEV Y OF TAX U/S 115JB OF THE ACT : I) THAT IT QUALIFIED FOR EXEMPTION FROM PAYMENT OF MAT AS PER SECTION 115JB(6) OF THE ACT; AND ALTERNATELY II) THAT DEDUCTION U/S 80IB(10) WAS TO BE ALLOWED WHILE COMPUTING BOOK PROFITS FOR THE PURPOSE OF PAYMENT OF TAX UNDER MAT. 8. TAKING UP THE FIRST ARGUMENT, LD. COUNSEL FOR TH E ASSESSEE CONTENDED THAT THE PROVISIONS OF SECTION 115JB OF T HE ACT WERE NOT APPLICABLE TO IT AS ITS INCOME WAS FROM THE BUS INESS CARRIED ON AS A DEVELOPER, WHICH WAS EXEMPTED FROM MAT BY S UB SECTION (6) OF 115JB OF THE ACT. OUR ATTENTION WAS DRAWN TO THE SUBMISSIONS MADE BEFORE THE LD. CIT(A) IN THIS REGA RD, REPRODUCED AT PARA 4.1, PAGE 3 OF THE CIT(A)S ORDE R AS UNDER : 4.1 DURING THE COURSE OF APPELLATE PROCEEDINGS, TH E AR OF THE APPELLANT SUBMITTED HIS ARGUMENTS AS UNDER: FOR THE SAKE OF FACILITY, I BEG TO MAKE THE FOLLOW ING WRITTEN SUBMISSION FOR YOUR HONOR'S KIND CONSIDERATION WHILE DISPOSING OF THE APPEAL NOTED IN THE SUBJECT. THE BRIEF FACTS ARE THAT THE ASSESSEE COMPANY IS A DEVELOPER OF HOUSING PROJECT UNITS. DURING THE YEAR ASSESSEE COMPANY WAS HAVING INCOME FROM THE SALE OF ITS FLATS. THE INCOME OF WHICH EXEMPTED UNDER SECTION 80IB(10) ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 5 OF 31 OF THE INCOME TAX ACT AS EACH UNIT IS HAVING AREA L ESS THAN 1500 SQ. FEETS. THE ASSESSEE COMPANY CLAIMED EXEMPTION AND F ILED RETURN DECLARING NIL INCOME AND FURTHER CLAIMED THAT THE P ROVISIONS OF SECTION 115JB ARE NOT APPLICABLE TO THE DEVELOPER COMPANY B UT THE CLAIM OF THE ASSESSEE COMPANY WAS DISALLOWED THE AO. HENCE THIS APPEAL. THAT DURING THE ASSESSMENT PROCEEDINGS THE ASSESSEE COMPANY CLAIMED THAI THE PROVISIONS OF SECTION 115JB ARE NOT APPLIC ABLE TO THE ASSESSEE COMPANY AS THE INCOME OF THE ASSESSEE COMPANY IS FR OM THE BUSINESS CARRIED AS A DEVELOPER. THE CLAIM OF THE ASSESSEE C OMPANY IS IN- ACCORDANCE WITH THE PROVISIONS OF SECTION 115JB(6) OF THE ACT RE- PRODUCED HERE AS UNDER:- SECTION 115JB(6): 'THE PROVISIONS OF THIS SECTION S HALL NOT APPLY TO THE INCOME ACCRUED OR ARISING ON OR AFTER THE I S ' DAY OF APRIL, 2005 FROM ANY BUSINESS CARRIED ON OR SERVICES RENDERED BY AN ENTREPRENEUR OR A DEVELOPER , IN A UNIT OR SPECIAL ECONOMIC ZONE , AS THE CASE MAY BE. ' THE PROVISIONS HAS BEEN BIFURCATED INTO THREE PARTS . EACH PART IS EXPLAINED AS UNDER : BUSINESS CARRIED ON, OR SERVICES RENDERED AN ENTREPRENEUR OR A DEVELOPER A UNIT OR SPECIAL ECONOMIC ZONE . IN ALL THE THREE PARTS A WORD OR HAS BEEN USED WHIC H SHOWS THAT THE PROVISIONS ARE APPLICABLE EVEN TO THE ASSESSEE HAVING FULFILLED ON E PART OF THE ABOVE. THEREFORE, AFTER REMOVING THE OTHER PART THE PROVISIONS IF REA D SHOULD BE AS UNDER :- SECTION 115JB(6): 'THE PROVISIONS OF THIS SECTION S HALL NOT APPLY TO THE INCOME ACCRUED OR ARISING ON OR AFTER THE I S ' DAY OF APRIL, 2005 FROM ANY BUSINESS CARRIED ON, BY A DEVELOPER, IN A UNIT, AS THE CASE MAY BE. ' ADMITTEDLY THE ASSESSEE COMPANY IS HAVING BUSINESS INCOME AS DEVELOPER IN A UNIT (DEVELOPMENT OF RESIDENTIAL UNIT). AS SUCH, AS PER PROVISIONS OF SECTION 115JB(6) OF THE I.T.ACT MAT IS NOT APPLICABLE TO THE CASE. FURTHER, IT IS A WELL SETTLED LAW THAT IF THERE IS SOME AMBIGUITY IN THE INTERPRETATION OF LAW THE AMBIGUITY OF INTERPRETATION BE RESOLVED IN FAVOUR OF THE ASSESSEE AS HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. PODAR CEMENT PVT. LTD. (1197)226 1TR 625, 648 (SC). THE HON'BLE SUPRE ME COURT HAS HELD THAT IF THERE IS TWO POSSIBLE INTERPRETATION, IT IS WELL SETTLED THAT THE ONE FAVOURABLE TO THE ASSESSEE HAS TO BE PREFERRED. IN VIEW OF THE AB OVE, THE ASSESSING OFFICER IS NOT JUSTIFIED BY LEVYING A TAX TO THE ASSESSEE DEVELOPE R COMPANY ON THE EXEMPTED INCOME UNDER SECTION 115JB OF THE INCOME TAX ACT 9. REFERRING TO THE SAME, LD. COUNSEL FOR THE ASSES SEE CONTENDED THAT SECTION 115JB(6) HAS BEEN BIFURCATED INTO THREE PARTS RELATING TO BUSINESS OR SERVICES CARRIED ON , AS AN ENTREPRENEUR OR DEVELOPER IN A UNIT OR SPECIAL E CONOMIC ZONE AND BY TAKING ONE OF THE OPTIONS IN EACH PART SEPAR ATED BY OR, ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 6 OF 31 THE PROVISION COULD BE READ AS EXEMPTING FROM MAT , BUSINESS CARRIED ON BY DEVELOPER IN A UNIT WHICH THE ASSESSE E ADMITTEDLY IS, SINCE IT IS IN THE BUSINESS OF DEVELOPING HOUSI NG PROJECT UNITS. THE LD. COUNSEL FOR THE ASSESSEE FURTHER CONTENDED THAT IF THERE IS SOME AMBIGUITY IN THE INTERPRETATION OF LAW, IT SHOULD BE RESOLVED IN FAVOUR OF THE ASSESSEE. FOR THIS, RELI ANCE WAS PLACED ON THE DECISION OF THE APEX COURT IN THE CASE OF CI T VS PODDAR CEMENT PVT. LTD. (1997) 226 ITR 625, 648 (S.C). 10. THE LD. DR ON THE OTHER HAND RELIED ON THE ORDE R OF THE CIT(A). DRAWING OUR ATTENTION TO PARA 5.1 OF THE S AME AS UNDER: 5.1 IT IS SEEN THAT THE AR'S RELIANCE UPON THE EX CEPTION CARVED OUT U/S 115JB(6) IS MISPLACED AS IT IS QUITE APPARENT THAT THE EXCEPTION ARE IN RESPECT OF CONCERN ENTREP RENEUR OR DEVELOPER AS DEFINED UNDER THE SEZ ACT) SITUATED IN A UNIT OR SPECIAL ECONOMIC ZONE, (ALSO DEFINED UNDER THE SEZ ACT) AS THE CASE MAY BE. THE ASSESSEE IS NOT SITUATED IN A UNIT OR SPECIFIC ECONOMIC ZONE (WHICH ARE DEFINED UNDER SEZ ACT, 2005). THEREFORE, THE CASE OF THE ASSESS DOES NOT F ALL UNDER U/S 115JB(6). THE INTERPRETATION GIVEN ON BEHALF OF THE ASSESSEE DEFIES THE LOGIC OF ENACTING THE AMENDED P ROVISIONS OF SECTION 115JB. THE EXCEPTION CANNOT BE AS LARGE AS THE MAIN PROVISION SO SUCH SO TO NULLIFY THE LEGISLATIV E INTENT OF IMPOSING TAX ON SPECIFIED COMPANIES U/S 115JB. IN T HE CIRCUMSTANCES, THERE IS NO MERIT IN ARS CLAIM ON T HE ISSUE. HENCE THE ACTION OF THE A.O. IN CHARGING THE MAT IN THIS CASE IS SUSTAINED. ACCORDINGLY, THIS GROUND OF APPEAL IS DISMISSED. THE LD. DR CONTENDED THAT THE MEANING OF THE TERMS USED IN THE SECTION HAS TO BE TAKEN FROM THE SEZ ACT, 2005, FRO M WHERE IT WAS INSERTED AND ACCORDINGLY THE PROVISION OF SECTI ON 115JB(6) PROVIDED AN EXEMPTION FROM PAYMENT OF MAT TO ONLY ENTREPRENEURS AND DEVELOPERS AS DEFINED UNDER THE S EZ ACT, ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 7 OF 31 SITUATED IN UNITS OR SPECIAL ECONOMIC ZONE AS DEFI NED IN THE SAID ACT. IN NUTSHELL THE LD. DR CONTENDED THAT THE EXEMPTION WAS ONLY TO UNITS IN SEZS .TO BUTTRESS ITS CONTENT ION, LD. DR FURTHER DREW OUR ATTENTION TO THE EXPLANATORY NOTE TO THE PROVISIONS OF THE FINANCE ACT, 2011 STATING THAT TH E FINANCE ACT 2011 HAD WITHDRAWN THIS EXEMPTION GRANTED U/S 115JB (6) AND A PERUSAL OF THE EXPLANATORY NOTES TO THE FINANCE ACT CLEARLY REVEALED THAT THE EXEMPTION WAS AVAILABLE ONLY TO U NITS IN SPECIAL ECONOMIC ZONES. OUR ATTENTION WAS DRAWN TO THE HEADING CLARIFYING THE WITHDRAWAL OF EXEMPTION AT P ARA 19 AND THE PARA 19.2.2 WHICH READS AS UNDER: 19. PROVISIONS RELATING TO MINIMUM ALTERNATE TAX ( MAT) AND DIVIDEND DISTRIBUTION TAX (DDT) IN CASE OF SPECIAL ECONOMIC ZONES. . . . 19.2.2 THE AVAILABILITY OF EXEMPTION FROM MINIMU M ALTERNATE TAX IN THE CASE OF SEZ DEVELOPERS UNITS IN SEZS HAS NOW BEEN SUNSET IN THE INCOME TAX ACT AS WELL AS THE S'EZ ACT AND THE PROVISIONS OF SECTION 115 J B(6) WILL CEASE TO HAVE EFFECT FROM 1-4-2012. 12. IT WAS POINTED OUT FROM THE SAME THAT THEY SQUA RELY REFERRED TO WITHDRAWAL OF EXEMPTION FROM MAT IN THE CASE OF SEZ DEVELOPERS & UNITS IN SEZ, THUS, REVEALING THAT TH E EXEMPTION WAS EARLIER AVAILABLE ONLY TO SEZ DEVELOPERS & UNIT S OF SEZS AND NOT TO ANY DEVELOPER AS CONTENDED BY THE LD. CO UNSEL FOR THE ASSESSEE. THE LD. DR FURTHER CONTENDED THAT THE IN TERPRETATION OF THE WORD DEVELOPER BY THE LD. COUNSEL FOR THE ASSESSEE AS INCLUDING HOUSING PROJECT DEVELOPERS WAS TOTALLY IN CORRECT SINCE ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 8 OF 31 THIS PROVISION WAS BROUGHT ON THE STATUTE BY THE SE Z ACT, 2005 WHICH CONTAINED THE DEFINITION OF DEVELOPERS IN S ECTION 2 SUB- SECTION (G) AS MEANING A PERSON WHICH HAS BEEN GRAN TED A LETTER OF APPROVAL FROM THE BOARD SET UP UNDER THE SPECIAL ECONOMIC ZONE ACT. SECTION 2(G) READS AS UNDER: 2(G) 'DEVELOPER' MEANS A PERSON WHO, OR A STATE GOVERNME NT WHICH, HAS BEEN GRANTED BY THE CENTRAL GOVERNMENT A LETTER OF APPROVAL UNDER SUB-SECTION (10) OF SECTION 3 AND IN CLUDES AN AUTHORITY AND A CO-DEVELOPER 14. THE LD. DR FURTHER CONTENDED THAT THE LD. COUNS EL WAS DERIVING THE MEANING OF THE WORD DEVELOPER FROM S ECTION 80IB OF THE ACT AND POINTED OUT THAT THE SAME WAS ALSO M ISPLACED SINCE THE SAID SECTION DID NOT USE ANY SUCH TERM FO R HOUSING PROJECT DEVELOPERS BUT ON THE CONTRARY, IT WAS PO INTED OUT THAT THE WORD USED WAS AN UNDERTAKING DEVELOPING AND BU ILDING HOUSING PROJECTS. THE LD. DR CONTENDED THAT IT WA S THE LD. COUNSEL FOR THE ASSESSEE WHO HAD GIVEN HIS OWN INTE RPRETATION AND USED THE TERM DEVELOPER FOR THE PURPOSE OF SE CTION 80IB AND BORROWED IT FOR THE PURPOSE OF SECTION 115JB(6) OF THE ACT, WHICH WAS TOTALLY MISPLACED. THE LD. COUNSEL FOR THE ASSESSEE AT THIS JUNCTURE REBUTTED THE CONTENTIONS OF THE LD. DR STATING THAT THE RELIANCE PLACED BY THE LD. DR ON THE FINANCE ACT, 2011 IN ISOLATION WAS MI SPLACED. ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 9 OF 31 15. THE NEXT CONTENTION RAISED BY THE LD. COUNSEL F OR THE ASSESSEE WAS AN ALTERNATE ARGUMENT THAT EVEN IF IT WAS REQUIRED TO PAY TAXES UNDER MAT, SINCE IT WAS ELIGIBLE FOR D EDUCTION U/S 80IB(10) OF THE ACT THE SAID DEDUCTION WAS ALSO T O BE MADE FROM THE PROFITS OF THE ASSESSEE WHILE WORKING OUT/ CALCULATING THE BOOK PROFITS ON WHICH TAXES WERE TO BE PAID U/S 115JB OF THE ACT. THE LD. COUNSEL FOR THE ASSESSEE IN THIS REGARD RELIED UPON THE DECISION OF THE MUMBAI BENCH OF THE ITAT I N THE CASE OF NEHA HOME BUILDERS PVT. LTD. VS CIT-13, MUMBAI ( 2018) 92 TAXMANN.COM 102. COPY OF THE ORDER WAS PLACED BEFOR E US. 16. THE LD. DR COUNTERED BY STATING THAT THIS ARGU MENT HAD BEEN TAKEN UP FOR THE FIRST TIME BY THE ASSESSEE BE FORE US. 17. WE HAVE HEARD THE RIVAL CONTENTIONS CAREFULLY AND GONE THROUGH THE ORDER OF THE AUTHORITIES BELOW. THE ISS UE BEFORE US RELATES TO THE LIABILITY OF THE ASSESSEE TO PAY MIN IMUM ALTERNATE TAX (MAT) AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. TO DELIBERATE ON THE SAME, THEREFORE, WE CONSIDER IT F IT TO REPRODUCE THE RELEVANT PROVISIONS OF SECTION 115JB, AS UNDER:- 115JB.(1) NOTWITHSTANDING ANYTHING CONTAINED IN AN Y OTHER PROVISION OF THIS ACT, WHERE IN THE CASE OF A N ASSESSEE, BEING A COMPANY, THE INCOME-TAX, PAYABLE ON THE TOTAL INCOME AS COMPUTED UNDER THIS ACT IN RESP ECT 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, [SUC H BOOK PROFIT SHALL BE DEEMED TO BE THE TOTAL INCOME OF TH E ASSESSEE AND THE TAX PAYABLE BY THE ASSESSEE ON SUC H ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 10 OF 31 TOTAL INCOME SHALL BE THE AMOUNT OF INCOME-TAX AT T HE RATE OF [TEN PER CENT]]. (2) EVERY ASSESSEE, BEING A COMPANY, SHALL, FOR THE PURPOSES OF THIS SECTION, PREPARE ITS PROFIT AND LO SS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR IN ACCORDANCE WITH T HE PROVISIONS OF PARTS II AND III OF SCHEDULE VI TO T HE COMPANIES ACT, 1956 (1 OF 1956) : PROVIDED THAT WHILE PREPARING THE ANNUAL ACCOUNTS I NCLUDING PROFIT AND LOSS ACCOUNT, (I ) THE ACCOUNTING POLICIES; (II ) THE ACCOUNTING STANDARDS ADOPTED FO R PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT; (III ) THE METHOD AND RATES ADOPTED FOR CA LCULATING THE DEPRECIATION, SHALL BE THE SAME AS HAVE BEEN ADOPTED FOR THE PURP OSE OF PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS A CCOUNT AND LAID BEFORE THE COMPANY AT ITS ANNUAL GENERAL M EETING IN ACCORDANCE WITH THE PROVISIONS OF SECTION 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 POLICIES; (II ) THE ACCOUNTING STANDARDS ADOPTED FO R PREPARING SUCH ACCOUNTS INCLUDING PROFIT AND LOSS ACCOUNT; (III ) THE METHOD AND RATES ADOPTED FOR CA LCULATING THE DEPRECIATION, SHALL CORRESPOND TO THE ACCOUNTING POLICIES, ACCOUN TING STANDARDS AND THE METHOD AND RATES FOR CALCULATING THE DEPRECIATION 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. ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 11 OF 31 EXPLANATION [1] .FOR THE PURPOSES OF THIS SECTION , 'BOOK PROFIT' MEANS THE NET PROFIT AS SHOWN IN THE PROFIT AND LOSS ACCOUNT FOR THE RELEVANT PREVIOUS YEAR PREPARED UND ER SUB- SECTION (2), AS INCREASED BY (A ) THE AMOUNT OF INCOME-TAX PAID OR PAY ABLE, 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 ASCERTAINE D LIABILITIES; OR (D ) THE AMOUNT BY WAY OF PROVISION FOR L OSSES OF SUBSIDIARY COMPANIES; OR (E ) THE AMOUNT OR AMOUNTS OF DIVIDENDS PAID OR PROPOSED ; OR (F ) THE AMOUNT OR AMOUNTS OF EXPENDITUR E 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 PRO VISION THEREFOR, IF ANY AMOUNT REFERRED TO IN CLAUSES (A ) TO (H) IS DEBITED TO THE PROFIT AND LOSS ACCOUNT, AND AS REDUCED BY] [( 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: PROVIDED THAT WHERE THIS SECTION I S 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 ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 12 OF 31 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 MAY BE; OR] (II ) THE AMOUNT OF INCOME TO WHICH ANY O F 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 [( IIA) THE AMOUNT OF DEPRECIATION DEBITED TO T HE 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] [( III) THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION, WHICHEVER IS LESS AS PER BOOKS OF ACCOUNT. EXPLANATION.FOR THE PURPOSES OF T HIS CLAUSE, (A) THE LOSS SHALL NOT INCLUDE DEPRECIATION; (B) THE PROVISIONS OF THIS CLAUSE SHALL NOT A PPLY IF THE AMOUNT OF LOSS BROUGHT FORWARD OR UNABSORBED DEPRECIATION IS NIL; OR] (IV ) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHC , COMPUTED 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 ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 13 OF 31 (V ) THE AMOUNT OF PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80HHE COMPUTED UNDER SUB-SECTION (3) OR SUB-SECTION (3A), AS THE CASE MAY BE, OF THA T 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 INDUSTR IAL 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 ASSESSMENT YEAR DURING WHICH THE ENTIRE NET WORTH OF SUCH COMPANY BECOMES EQUAL TO OR EXCEEDS THE ACCUMULATED LOSSES. EXPLANATION.FOR THE PURPOSES OF T HIS CLAUSE, 'NET WORTH' SHALL HAVE THE MEANING ASSIGNED TO IT I N 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 I NCLUDE (I ) ANY TAX ON DISTRIBUTED PROFITS UNDE R SECTION 115-O OR 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; ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 14 OF 31 (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 AFFE CT THE DETERMINATION OF THE AMOUNTS IN RELATION TO THE REL EVANT PREVIOUS YEAR TO BE CARRIED FORWARD TO THE SUBSEQUE NT 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, SH ALL FURNISH A REPORT IN THE PRESCRIBED FORM FROM AN ACC OUNTANT AS DEFINED IN THE EXPLANATION BELOW SUB-SECTION (2) OF SECTION 288 , CERTIFYING THAT THE BOOK PROFIT HAS BEEN COMPUTED IN ACCORDANCE WITH THE PROVISIONS OF THIS SECTION ALONG WITH THE RETURN OF INCOME FILED UNDER SUB-SEC TION (1) OF SECTION 139 OR ALONG WITH THE RETURN OF INCOME FURNISHED IN RESPONSE TO A NOTICE UNDER CLAUSE (I ) OF SUB-SE CTION (1) OF SECTION 142 . (5) SAVE AS OTHERWISE PROVIDED IN THIS SECTION, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO EVERY ASSESSE E, BEING A COMPANY, MENTIONED IN THIS SECTION.] [(6) THE PROVISIONS OF THIS SECTION SHALL NOT APPL Y TO THE INCOME ACCRUED OR ARISING ON OR AFTER THE 1ST DAY O F APRIL, 2005 FROM ANY BUSINESS CARRIED ON, OR SERVICES REND ERED, BY AN ENTREPRENEUR OR A DEVELOPER, IN A UNIT OR SPE CIAL ECONOMIC ZONE, AS THE CASE MAY BE.] 18. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE HAS REFERRED AND RELIED UPON SUB-SECTION (6) OF SECTION 115JB OF THE ACT, CLAIMING THAT IT IS EXEMPT FROM PAYMENT OF MAT AS PER THE SA ID SUB-SECTION, SINCE IT IS CARRYING ON THE BUSINESS AS A DEVELOPER IN A UNIT. ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 15 OF 31 19. THE LD. D.R., ON THE OTHER HAND, HAS CONTENDED THAT SUB- SECTION (6) EXEMPTS ONLY THE INCOMES OF UNITS IN SE Z OR DEVELOPERS OF SEZ AND NOT ANY OTHER ENTITY AND THE ASSESSEE BE ING NEITHER, IS NOT EXEMPT FROM THE PAYMENT OF MAT. 20. WE ARE IN AGREEMENT WITH THE CONTENTION OF THE LD. D.R. THE REASONS ARE AS FOLLOWS. SUB-SECTION (6) TO SECTION 115JB OF THE ACT WAS I NSERTED BY THE SPECIAL ECONOMIC ZONE ACT, 2005 (HEREINAFTER REFERR ED TO AS SEZ ACT), WHICH WAS ENACTED TO PROVIDE FOR THE ESTAB LISHMENT, DEVELOPMENT AND MANAGEMENT OF SPECIAL ECONOMIC ZONE S FOR THE PROMOTION OF EXPORTS AND FOR MATTERS CONNECTED THER EWITH OR INCIDENTAL THERETO. THE ACT IS A COMPLETE CODE IN ITSELF DEALING WITH ALL ASPECTS RELATING TO SEZS, MAKING NECESSARY AME NDMENTS IN OTHER ACTS, AS REQUIRED. THE APPLICABILITY OF THE INCOME TAX ACT,1961 AND MODIFICATIONS THERETO FOR THE PURPOS ES OF THE SEZ ACT ,HAVE BEEN MADE BY SECTION 27 OF THE SAID ACT , AND THE SECOND SCHEDULE TO THE ACT .SECTION 27 OF THE SEZ ACT READ S AS UNDER:- 27. THE PROVISIONS OF THE INCOME-TAX ACT, 1961, AS IN FORCE FOR THE TIME BEING, SHALL APPLY TO, OR IN RELATION TO, THE DEVELOPER OR ENTREPRENEUR FOR CARRYING ON THE AUTHORISED OPERATI ONS IN A SPECIAL ECONOMIC ZONE OR UNIT SUBJECT TO THE MODIFI CATIONS SPECIFIED IN THE SECOND SCHEDULE. 21. THE SECOND SCHEDULE TO THE SEZ ACT ,LISTING MOD IFICATIONS TO THE INCOME TAX ACT,1961, INSERTS SUB-SECTION (6) TO SECTION 115JB OF THE ACT, BY WAY OF CLAUSE (H) WHICH READS AS UN DER:- (H) IN SECTION 115JB, AFTER SUB-SECTION (5), THE FO LLOWING SUB- SECTION SHALL BE INSERTED, NAMELY:- '(6) THE PROVISIONS OF THIS SECTION SHALL NOT APPLY TO THE INCOME ACCRUED OR ARISING ON OR AFTER THE 1 ST DAY OF APRIL, 2005 FROM ANY BUSINESS CARRIED ON, OR SERVICES RENDERED, BY A N ENTREPRENEUR OR A DEVELOPER, IN A UNIT OR SPECIAL E CONOMIC ZONE, AS THE CASE MAY BE. ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 16 OF 31 22. READING SECTION 27 OF THE SEZ ACT ALONG WITH TH E SECOND SCHEDULE THERETO, IT IS CLEAR, THAT THE SEZ ACT MAD E THE PROVISIONS OF THE INCOME TAX ACT, 1961, APPLICABLE TO DEVELOPERS AND ENTREPRENEURS CARRYING OUT AUTHORIZED ACTIVITIES IN SEZS AND UNITS AND THE SEZ ACT MODIFIED THE PROVISIONS OF THE INCO ME TAX ACT BY EXEMPTING DEVELOPERS AND ENTREPRENEURS FROM PAYMENT OF MAT BY INSERTING SUB SECTION (6) TO SECTION 115JB.THUS THE SEZ ACT IS THE MAIN ACT WHICH HAS BROUGHT ABOUT THE IMPUGNED AMEND MENT TO THE INCOME TAX ACT. THE HARMONIOUS INTERPRETATION OF T HE SUB SECTION (6) TO SECTION 115JB, THEREFORE REQUIRES IT TO BE READ IN CONFORMITY AND IN SYNC WITH THE MAIN ACT, I.E THE SEZ ACT. THE WORDS USED IN THE SUB SECTION ,AS A CONSEQUENCE, NECESSARILY DERI VE THEIR MEANING FROM THE SEZ ACT AND AN INDEPENDENT INTERPRETATION THERETO WOULD DEFEAT THE OBJECT WITH WHICH IT WAS BROUGHT ON STAT UTE AND WOULD BE AGAINST ALL THE ESTABLISHED RULES OF INTERPRETATION OF STATUTES. THE HONBLE APEX COURT IN THE CASE OF SURANA STEELS VS DCIT, REPORTED IN 237 ITR 777(SC), HAS HELD THAT WHEN A S INGLE SECTION OF AN ACT OF PARLIAMENT IS INTRODUCED INTO ANOTHER ACT , IT MUST BE READ IN THE SENSE IT BORE IN THE ORIGINAL ACT FROM WHICH IT WAS TAKEN, AND CONSEQUENTLY IT IS PERFECTLY LEGITIMATE TO REFER TO ALL THE REST OF THAT ACT IN ORDER TO ASCERTAIN WHAT THE SECTION MEANS. DEALING WITH THE INTERPRETATION OF THE TERM LOSS USED IN CLAUSE (I V) OF THE EXPLANATION TO SECTION 115J, THE HONBLE COURT HELD THAT IN THE SAID CLAUSE THE PROVISIONS OF SECTION 205 OF THE COMPANI ES ACT STOOD BODILY LIFTED AND INCORPORATED AND THEREFORE IT HA S TO BE READ IN THE SENSE IT BORE IN THE ORIGINAL ACT. THE HONBLE APEX COURT HELD AS UNDER: 6.SEC. 115J, EXPLN. CL. (IV), IS A PIECE OF LEGIS LATION BY INCORPORATION. DEALING WITH THE SUBJECT, JUSTICE G.P. SINGH STATES IN PRIN CIPLES OF STATUTORY INTERPRETATION (7TH EDN., 1999) 'INCORPORATION OF AN EARLIER ACT INTO A LATER ACT I S A LEGISLATIVE DEVICE ADOPTED FOR THE SAKE OF CONVENIENCE IN ORDER TO AVOID VERBA TIM REPRODUCTION OF THE ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 17 OF 31 PROVISIONS OF THE EARLIER ACT INTO THE LATER. WHEN A N EARLIER ACT OR CERTAIN OF ITS PROVISIONS ARE INCORPORATED BY REFERENCE INTO A LAT ER ACT, THE PROVISIONS SO INCORPORATED BECOME PART AND PARCEL OF THE LATER AC T AS IF THEY HAD BEEN BODILY TRANSPOSED INTO IT. THE EFFECT OF INCORPOR ATION IS ADMIRABLY STATED BY LORD ESHER, M.R. : IF A SUBSEQUENT ACT BRINGS INTO ITSELF BY REFERENCE SOME OF THE CLAUSES OF A FORMER ACT, THE LEGAL EFFECT OF TH AT, AS HAS OFTEN BEEN HELD, IS TO WRITE THOSE SECTIONS INTO THE NEW ACT AS IF THEY HAD BEEN ACTUALLY WRITTEN IN IT WITH THE PEN, OR PRINTED IN IT. (P. 233) : 'EVEN THOUGH ONLY PARTICULAR SECTIONS OF AN EARLIER ACT ARE INCORPORATED INTO LATER, IN CONSTRUING THE INCORPORATED SECTIONS IT M AY BE AT TIMES NECESSARY AND PERMISSIBLE TO REFER TO OTHER PARTS OF THE EARLIER STATUTE WHICH ARE NOT INCORPORATED. AS WAS STATED BY LORD BLACKBURN: WHE N A SINGLE SECTION OF AN ACT OF PARLIAMENT IS INTRODUCED INTO ANOTHER ACT, I THINK IT MUST BE READ IN THE SENSE IT BORE IN THE ORIGINAL ACT FROM WHICH IT WAS TAKEN, AND THAT CONSEQUENTLY IT IS PERFECTLY LEGITIMATE TO REFER TO ALL THE REST OF THAT ACT IN ORDER TO ASCERTAIN WHAT THE SECTION MEANT, THOUGH THOSE OTHER SECTIONS ARE NOT INCORPORATED IN THE NEW ACT' (P. 244). ONCE WE HAVE ASCERTAINED THE OBJECT BEHIND THE LEGI SLATION AND HELD THAT THE PROVISIONS OF S. 205 QUOTED HEREINABOVE STAND BODIL Y LIFTED AND INCORPORATED INTO THE BODY OF S. 115J OF THE IT ACT, ALL THAT WE HAVE TO DO IS TO READ THE PROVISIONS PLAINLY AND APPLY RULES OF INTERPRETATIO N IF ANY AMBIGUITY SURVIVES. SEC. 205(1), PROVISO CL. (B), OF THE COMPANIES ACT BRINGS OUT THE UNABSORBED PORTION OF THE AMOUNT OF DEPRECIATION ALREADY PROVI DED FOR COMPUTING THE LOSS FOR THE YEAR. THE WORDS 'THE AMOUNT PROVIDED FOR DE PRECIATION' AND 'ARRIVED AT IN BOTH CASES AFTER PROVIDING FOR DEPRECIATION' MAD E IT ABUNDANTLY CLEAR THAT IN THIS CLAUSE LOSS REFERS TO THE AMOUNT OF LOSS ARR IVED AT AFTER TAKING INTO ACCOUNT THE AMOUNT OF DEPRECIATION PROVIDED IN THE P&L A/C. 24. WE FIND THAT THE ITAT MUMBAI BENCH HAD AN OCCAS ION TO DEAL WITH THE QUESTION WHETHER SPECIAL ECONOMIC ZONE ACT , 2005 AND SPECIAL ECONOMIC ZONE RULES COULD BE INVOKED TO DEC IDE THE BENEFITS ADMISSIBLE TO THE ASSESSEE UNDER THE INCOM E TAX ACT, IN THE CASE OF ITO, WARD 4(3), AHMEDABAD VS. FOREVER P RECIOUS JEWELLERY & DIAMONDS LTD. IN ITA NO.2329/A/2008 AND ITA NO.1142/A/2010, DT 30-09-16 (SPEAKING THROUGH ONE O F US I.E. THE LD. JUDICIAL MEMBER). THE ISSUE IN THE SAID CASE RE LATED TO CLAIM OF EXEMPTION OF PROFITS OF UNITS LOCATED IN SEZS U/S 10AA OF THE ACT, WHICH SECTION WAS ALSO INTRODUCED BY THE SEZ ACT, 2005. THE CLAIM OF THE ASSESSEE HAD BEEN DENIED BY THE AO ON FINDIN G THAT THE ASSESSEE WAS NOT CARRYING OUT ANY MANUFACTURING ACT IVITY BUT WAS IN FACT OUTSOURCING IT TO THIRD PARTIES. THE ITAT, IN THE SAID CASE, ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 18 OF 31 NOTED THAT THE SEZ ACT,2005, WAS THE MAIN ACT PROVI DING CERTAIN INCENTIVES TO SPECIAL ECONOMIC ZONE UNITS AND THROU GH THIS ACT CORRESPONDING AMENDMENTS WERE MADE IN THE RELEVANT PROVISIONS OF THE VARIOUS RELATED ACTS WHICH ALSO INCLUDED THE IN COME TAX ACT. THEREAFTER, REFERRING TO SECTION 27 OF THE SPECIAL ECONOMIC ZONE ACT READ ALONG WITH SECTION 57, IT WAS HELD THAT TO AVA IL THE BENEFITS UNDER THE INCOME TAX ACT, THE PROVISIONS OF THE SPE CIAL ECONOMIC ZONE ACT AND RULES HAVE TO BE INVOKED. THE RELEVAN T FINDINGS AT PAGES 13 AND 14 AND THEREAFTER AT PAGE 20 ARE, AS U NDER:- THE ABOVE REPRODUCED APPROVAL LETTER READ WITH SEC TION 15(9) OF THE SEZ ACT 2005 AND RULE 19 OF THE SEZ RULES 20 06 REVEALS THAT THE FACILITIES AND PRIVILEGES AS ADMISSIBLE TO THE UNITS SITUATED IN SEZ HAVE BEEN GRANTED TO THE ASSESSEE F OR THE MANUFACTURE OF PLAIN GOLD JEWELLERY UPTO 500 KG ON THE BASIS OF MAXIMUM UTILIZATION OF PLANT AND MACHINERY. THE ASS ESSEE HAS ALSO BEEN GRANTED FACILITIES AND PRIVILEGES AS ADMI SSIBLE FOR TRADING ACTIVITY IN GOLD AND POLISHED DIAMONDS AS N OTED ABOVE. IT IS PERTINENT TO NOTE HERE THAT THE DEVELOPMENT C OMMISSIONER HAS TO PARTICULARLY SPECIFY AS TO WHAT ACTIVITIES O R AUTHORIZED OPERATION ARE ALLOWED TO BE CARRIED OUT IN AN SEZ U NIT FOR THE CLAIM OF PRIVILEGES AND BENEFITS UNDER SEZ ACT. NOW THE QUESTION COMES WHETHER THE ABOVE PROVISIONS OF THE SEZ ACT AND SEZ RULES CAN BE INVOKED TO DECIDE THE BENEFITS ADMISSIBLE TO AN ASSESSEE UNDER THE INCOME TAX ACT. SECTION 57 OF THE SEZ ACT IS RELEVANT IN THIS RESPECT WHICH READ AS UNDER: '57. WITH EFFECT FROM SUCH DATE AS THE CENTRAL GOVERNMENT MAY BY NOTIFICATION APPOINT, THE ENACTME NTS SPECIFIED IN THE THIRD SCHEDULE SHALL BE AMENDED IN THE MANNER SPECIFIED THEREIN: PROVIDED THAT DIFFERENT D ATES MAY BE APPOINTED ON WHICH THE AMENDMENTS SPECIFIED IN THE THIRD SCHEDULE SHALL APPLY TO A PARTICULAR SPEC IAL ECONOMIC ZONE OR A CLASS OF SPECIAL ECONOMIC ZONES OR ALL SPECIAL ECONOMIC ZONES.' AFTER GOING THROUGH THE RELEVANT PROVISIONS OF THE ABOVE STATUTES, WE FIND THAT THE SEZ ACT IS THE MAIN ACT UNDER PROVIDES TO GIVE CERTAIN INCENTIVES TO THE SEZ UNIT S. TO GIVE ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 19 OF 31 EFFECT TO THE PROVISIONS OF THE SEZ ACT, CORRESPOND ING AMENDMENTS HAVE BEEN MADE IN THE RELEVANT PROVISION S OF VARIOUS RELATED ACTS AS MENTIONED IN THE THIRD SCHE DULE TO THE ACT, RELAXING THE CONDITIONS OR PROVIDING FOR INCEN TIVES OR DEDUCTIONS TO THE SEZ UNITS. IT IS TO BE MENTIONED HERE THAT INCOME TAX ACT 1961 INTER ALIA IS ALSO INCLUDED IN THE THIRD SCHEDULE AND IT HAS ALSO BEEN PROVIDED AS TO WHAT AMENDMENTS ARE MADE INTO THE PROVISIONS OF THE INCO ME TAX ACT TO GIVE EFFECT TO THE PROVISIONS OF THE SEZ ACT 2005. FURTHER SECTIONS 27 AND 57 OF THE SEZ ACT ARE ALSO RELEVANT IN THIS RESPECT WHICH READ AS UNDER: '27. THE PROVISIONS OF THE INCOME-TAX ACT, 1961, AS IN FORCE FOR THE TIME BEING, SHALL APPLY TO, OR IN REL ATION TO, THE DEVELOPER OR ENTREPRENEUR FOR CARRYING ON THE AUTHORISED OPERATIONS IN A SPECIAL ECONOMIC ZONE OR UNIT SUBJECT TO THE MODIFICATIONS SPECIFIED IN THE SECON D SCHEDULE.' '51. (1) THE PROVISIONS OF THIS ACT SHALL HAVE EFFE CT NOTWITHSTANDING ANYTHING INCONSISTENT THEREWITH CONTAINED IN ANY OTHER LAW FOR THE TIME BEING IN FO RCE OR IN ANY INSTRUMENT HAVING EFFECT BY VIRTUE OF ANY LA W OTHER THAN THIS ACT.' SO A PERUSAL OF THE RELEVANT PROVISIONS REVEAL BEYO ND DOUBT THAT TO GET THE INCOME TAX BENEFITS UNDER THE ACT T HERE MUST BE SOME MANUFACTURE OR PRODUCTION OF A THING OR PROVID ING OF SERVICES BY A UNIT SITUATED IN SEZ AND HAVING APPRO VAL OF THE COMPETENT AUTHORITY IN THIS RESPECT. THE MANUFACTUR ING ACTIVITY OR SERVICES ACTIVITY SHOULD BE PROVIDED BY THE UNIT SITUATED IN THE SEZ. THE LOCATION OF THE UNIT IN THE SEZ AND TH E REQUIRED APPROVALS OF THE COMPETENT AUTHORITY TO CARRY OUT T HE OPERATIONS ARE VERY MUCH NECESSARY. HENCE AS PER TH E PROVISIONS OF SECTION 10AA OF THE INCOME TAX ACT 19 61, THE ASSESSEE IS ENTITLED TO DEDUCTION ON THE MANUFACTUR ING ACTIVITY ONLY AS APPROVED IN THE ABOVE REPRODUCED APPROVAL L ETTER OF THE DEVELOPMENT COMMISSIONER OF THE SEZ. THE ASSESSEE'S UNIT HAS NOT BEEN APPROVED FOR PROVIDING OF ANY SERVICES . . . ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 20 OF 31 . . 20. WE FIND THAT THE CLAIM OF THE ASSESSEE IS REQUI RED TO BE EXAMINED IN THE LIGHT OF THE PROVISIONS OF SEZ ACT/ SEZ RULES AND ALSO THE PROVISIONS AS ENVISAGED IN SEZ SCHEME 2007 TO 2009 AS REFERRED TO IN THE APPROVAL LETTER OF THE D EVELOPMENT COMMISSIONER DATED 21.09.2005. 25. MOREOVER THE EXPLANATORY NOTE TO THE FINANCE AC T, 2011, WITHDRAWING THE EXEMPTION GRANTED FROM PAYMENT OF M AT U/S 115JB(6) OF THE ACT, FURTHER CLARIFIES THE LEGISLAT IVE INTENT ,BY CLEARLY REFERRING TO SPECIAL ECONOMIC ZONES, IN THE HEADING OF THE NOTE EXPLAINING THE PROVISION WITHDRAWING THE EXEMPTION, AS POINTED OUT BY THE LD.DR BEFORE US. THUS, WE HAVE NO HESITATION IN HOLDING THAT THE TE RMS USED IN SUB SECTION (6) OF 115JB, DERIVE THEIR MEANING FROM THE SEZ ACT, 2005. HAVING SAID SO, THE DEFINITION OF THE DIFFERENT TE RMS USED IN SUB SECTION (6) OF 115JB, IN SECTION 2 OF THE SEZ ACT , WE FIND IS AS UNDER:- (G) ' DEVELOPER ' MEANS A PERSON WHO, OR A STATE GOVERNMENT WHICH, HAS BEEN GRANTED BY THE CENTRAL GOVERNMENT A LETTER OF APPROVAL UNDER SUB-SECTION (10) OF SECTION 3 AND IN CLUDES AN AUTHORITY AND A CO-DEVELOPER. (Z) SERVICES MEANS SUCH TRADABLE SERVICES WHICH,- (I) ARE COVERED UNDER THE GENERAL AGREEMENT ON TRADE IN SERVICES ANNEXED AS IB TO THE AGREEMENT ESTABLISHIN G THE WORLD TRADE ORGANISATION CONCLUDED AT MARRAKES ON T HE 15' DAY OF APRIL, 1994; (II) MAY BE PRESCRIBED BY THE CENTRAL GOVERNM ENT FOR THE PURPOSES OF THIS ACT; AND (I) EARN FOREIGN EXCHANGE; ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 21 OF 31 (J) ' ENTREPRENEUR' MEANS A PERSON WHO HAS BEEN GRANTED A LETTER OF APPROVAL BY THE DEVELOPMENT COMMISSIONER UNDER SUB-SECTION (9) OF SECTION 15. (ZC) ' UNIT' MEANS A UNIT SET UP BY AN ENTREPRENEUR IN A SPECIAL ECONOMIC ZONE AND INCLUDES AN EXISTING UNIT , AN OFFSHORE BANKING UNIT AND A UNIT IN AN INTERNATIONA L FINANCIAL SERVICES CENTRE, WHETHER ESTABLISHED BEFORE OR ESTA BLISHED AFTER COMMENCEMENT OF THIS ACT; (ZA) ' SPECIAL ECONOMIC ZONE ' MEANS EACH SPECIAL ECONOMIC ZONE NOTIFIED UNDER THE PROVISO TO SUB-SECTION (4) OF SECTION 3 AND SUB-SECTION (7) OF SECTION 4 (INCLUDING FREE TR ADE AND WAREHOUSING ZONE) AND INCLUDES AN EXISTING SPECIAL ECONOMIC ZONE; 26. READING SECTION 115JB(6) OF THE ACT WITH THE DE FINITION PROVIDED OF THE TERMS USED IN THE SEZ ACT AS ABOVE, WE FIND THAT THE EXEMPTION FROM THE PAYMENT OF MAT IS PROVIDED ONLY TO THE UNITS SET UP IN A SEZ OR OFFSHORE BANKING UNIT OR IN AN I NTERNATIONAL FINANCE SERVICE CENTRE IN RELATION TO THE BUSINESS OR TRADABLE SERVICES AS ELIGIBLE UNDER THE SEZ ACT BY THE PERSO NS, WHO HAVE BEEN GRANTED LETTER OF APPROVALS UNDER THE SAID ACT . 27. THEREFORE, FOR ALL PURPOSES, THE BENEFIT OF EXE MPTION FROM MAT IS PROVIDED ONLY FOR BUSINESS, AS SPECIFIED, CARRIE D ON BY THE PERSONS WHO HAVE GOT APPROVALS UNDER THE SEZ ACT AN D WHICH ARE CARRIED ON IN SEZ OR UNITS THEREIN. 28. IN VIEW OF THE ABOVE WE DO NOT FIND ANY MERIT I N THE CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE THAT SUB-SECTION (6) IS TO BE INTERPRETED INDEPENDENTLY, THUS MAKING THE ASSESSEE ELIGIBLE FOR EXEMPTION FROM PAYMENT OF MAT ALSO, SI NCE IT IS A DEVELOPER OF HOUSING PROJECTS, AND DISMISS ALL ARGU MENTS MADE BY THE LD. COUNSEL FOR THE ASSESSEE IN THIS REGARD. WE, THEREFORE, HOLD THAT THE ASSESSEE IS NOT ELIGIB LE FOR EXEMPTION FROM PAYMENT OF MAT AS PER THE PROVISIONS OF SECTIO N 115JB(6) OF ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 22 OF 31 THE ACT, SINCE, ADMITTEDLY, IT DOES NOT QUALIFY AS A BUSINESS OR SERVICES RENDERED BY AN ENTREPRENEUR OR DEVELOPER I N A UNIT OR SEZ AS PER DEFINITION OF THE SAID TERMS IN THE SEZ ACT. 29. TAKING UP THE ALTERNATE CONTENTION OF THE ASSES SEE THAT PROFITS ELIGIBLE FOR DEDUCTION UNDER SECTION 80IB(1 0 ) OF THE ACT WERE TO BE REDUCED FOR ARRIVING AT THE BOOK PROFITS OF THE ASSESSEE ALSO, WE FIND THAT THE LD. COUNSEL FOR THE ASSESSEE FOR T HIS PURPOSE HAS RELIED HEAVILY ON THE PROVISIONS OF SECTION 115JB(5 ) OF THE ACT, POINTING OUT THAT AS PER THE SAID SUB-SECTION, ALL OTHER PROVISIONS OF THE ACT WOULD APPLY TO THE ASSESSEE AND, THEREFORE, THE PROVISIONS OF SECTION 80IB(10) OF THE ACT WOULD ALSO APPLY TO IT REQUIRING IT TO BE DEDUCTED /REDUCED FOR ARRIVING AT THE TAXABLE BOOK PROFITS. 30. WE DO NOT FIND ANY MERIT IN THIS CONTENTION OF THE LD. COUNSEL FOR THE ASSESSEE ALSO. THE REASONING IS AS FOLLOWS. SECTION 115JB OF THE ACT IS A CHARGING SECTION FOR COLLECTING MINIMUM TAXES FROM CORPORATES, WHICH THOUGH ARE APP ARENTLY PROSPEROUS SHOWING PROFITS IN THEIR PROFIT AND LOSS ACCOUNT AND PAYING DIVIDENDS, YET NOT PAYING TAXES AS PER THE I NCOME TAX ACT. UNDER THE SECTION, TAXES AT A SPECIFIED RATE ARE LE VIED ON THE BOOK PROFITS OF THE CORPORATE WHERE THEY EXCEED THE TAX PAYABLE ON ITS TOTAL INCOME AS COMPUTED UNDER THE INCOME TAX ACT A FTER AVAILING VARIOUS CONCESSIONS AND DEDUCTIONS. BEING A CHARGIN G SECTION, THE EXEMPTION, CONCESSION OR BENEFITS SHOULD COME FROM WITHIN THE PROVISION ITSELF, WHICH WE FIND ARE INCORPORATED IN THE SECTION BY WAY OF EXPLANATION 1 TO SUB SECTION 2 OF SECTION 1 15JB OF THE ACT, WHICH OUTLINES ALL THE ADJUSTMENTS TO BE MADE TO T HE PROFITS AS SHOWN IN THE PROFIT AND LOSS ACCOUNT PREPARED IN AC CORDANCE WITH THE COMPANIES ACT, TO ARRIVE AT THE BOOK PROFITS ON WHICH TAXES ARE TO BE LEVIED UNDER MAT.A PERUSAL OF THE EXPLANATION REVEALS THAT IT PROVIDES FOR REDUCTION FROM THE PROFITS OF ASSESSES , THE INCOMES ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 23 OF 31 EXEMPT FROM TAX UNDER SECTION 10 OF THE ACT, AS AL SO PROFITS ELIGIBLE FOR DEDUCTION U/S 80HHC,80HHE & 80HHF OF THE ACT, U NDER CLAUSE (II),(IV),(V),&(VI) OF THE EXPLANATION. DEDUCTION U/S 80IB OR FOR THAT MATTER ANY OTHER SECTION UNDER CHAPTER VI-A OF THE ACT IS NOT ALLOWED ADJUSTMENT. WITH THE ADJUSTMENTS TO THE PRO FITS SO SPECIFICALLY PROVIDED FOR, ADJUSTMENTS BY WAY OF A GENERAL CLAUSE, AS CONTENDED BY THE LD. COUNSEL FOR THE ASSESSEE, CANN OT BE READ INTO THE SECTION. THE SAME WOULD ONLY RESULT IN MAKING T HE PROVISION OTIOSE AND INEFFECTIVE SINCE MAT IS SOUGHT TO BE LE VIED ONLY IN RESPECT OF COMPANIES WHICH BY AVAILING VARIOUS CONC ESSIONS GIVEN IN CHAPTER VI A OF THE ACT, WHICH INCLUDES SECTION 80 IB, ARE LIABLE TO SHOW EITHER NIL TAXABLE INCOME OR MUCH REDUCED TAXA BLE INCOME. 32. MOREOVER THE DEDUCTION UNDER SECTION 80IB(10) O F THE ACT IS PROVIDED AGAINST THE GROSS TOTAL INCOME OF AN ASS ESSEE, WHILE SECTION 115JB OF THE ACT LEVIES TAXES ON THE BOOK PROFITS. BOTH THE SECTIONS CLEARLY OPERATE IN DIFFERENT SPHERES. THE REFORE SUB-SECTION (5) OF SECTION 115JB OF THE ACT, CANNOT BE INTERPRE TED SO AS TO PROVIDE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FROM THE BOOK PROFITS OF THE ASSESSEE. THE HONBLE HIGH COURT OF UTTARAKHAND RULED OUT THE ALLOWABILITY OF DEDUCTION U/S 80IC FOR THE PURPOSES OF PAYING TAX U/S 115JB OF THE ACT, IN THE CASE OF SIDCUL INDUSTRIAL ASSOCIATI ON VS STATE OF UTTARAKHAND & OTHERS REPORTED IN 241 CTR 156 HOLDIN G AS UNDER: 17. SEC. 80-IC DEALS WITH A MATTER TOTALLY ALIEN TO S. 115JB AND, ACCORDINGLY, THERE CANNOT BE ANY QUESTION THAT BOTH CANNOT BE READ HARMONIOUSLY. SEC. 80-IC ALLOWS DEDU CTION. SEC. 115JB SAYS THAT IF ALLOWING SUCH DEDUCTION, IN COME-TAX PAYABLE IS LESS THAN WHAT HAS BEEN MENTIONED IN S. 115JB, THE ASSESSEE, IF IT IS A COMPANY, WILL BE LIABLE TO PAY INCOME-TAX TO BE ASCERTAINED IN THE MANNER AND TO THE EXTENT PRES CRIBED IN S. 115JB. SINCE THESE TWO SECTIONS DEAL WITH TWO DIFFE RENT SITUATIONS, THEY PLAY THEIR ROLE IN TWO DIFFERENT S ITUATIONS AND, ACCORDINGLY, SHOULD BE READ TO ASCERTAIN THE PURPOS E THEREOF AS ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 24 OF 31 DEPICTED BY THE CLEAR WORDS MENTIONED THEREIN. WHER EAS S. 80- IC GRANTS DEDUCTION TO ALL ASSESSEES AND, ACCORDING LY, A COMPANY IS ALSO ENTITLED TO SUCH DEDUCTION, S. 115J B APPLIES ONLY TO A COMPANY AND COMES INTO PLAY ONLY WHEN, AF TER SUCH DEDUCTION, INCOME-TAX PAYABLE BY IT IS LESS THAN WH AT HAS BEEN MENTIONED THEREIN AND THEREUPON FASTENS A TOTALLY N EW INCOME- TAX LIABILITY TO THE EXTENT MENTIONED THEREIN. 18. IT IS TRUE THAT WHEN S. 115JB WAS INSERTED, THERE WAS NO CONTEMPLATION THAT, IN FUTURE, S. 80-IC WOULD BE IN SERTED. THEREFORE, AT THE TIME WHEN S. 115JB WAS INSERTED, IT WAS NOT INTENDED TO CONTROL S. 80-IC. HOWEVER, A LOOK AT S. 115JB WOULD MAKE IT AMPLY CLEAR THAT, FROM THE DAY ONE, S. 115J B CONTROLLED INCOME-TAX PAYABLE ON THE TOTAL INCOME AS COMPUTED UNDER THE ACT AND, IN THE MATTER OF COMPUTING INCOME-TAX ON T HE TOTAL INCOME, AFTER INSERTION OF S. 80-IC, ALL ASSESSEES, INCLUDING A COMPANY, BECAME ENTITLED TO DEDUCTIONS PRESCRIBED I N S. 80-IC. THEREFORE, EVEN AFTER INSERTION OF S. 80-IC, WHEN T HE TOTAL INCOME, AS COMPUTED AFTER TAKING INTO CONSIDERATION ALL DEDUCTIONS, INCLUDING THE DEDUCTIONS AVAILABLE UNDE R S. 80-IC OF THE ACT, IS LESS THAN WHAT HAS BEEN MENTIONED IN S. 115JB, IT WOULD BE THE OBLIGATION OF THE ASSESSEE COMPANY TO PAY SUCH TAX AS MENTIONED IN S. 115JB. 19. HAD THE LEGISLATURE EXEMPTED AN ASSESSEE FROM PAYI NG INCOME-TAX, THE MATTER WOULD HAVE BEEN DIFFERENT. B UT THAT HAS NOT BEEN DONE. THE LEGISLATURE ALLOWED A DEDUCTION. IF, AFTER SUCH DEDUCTION, INCOME-TAX PAYABLE IS LESS THAN WHA T HAS BEEN MENTIONED IN S. 115JB, BY REASON OF THE PLAIN WORDS USED IN S. 115JB, AN ASSESSEE, BEING A COMPANY, IS LIABL E TO PAY SUCH TAX AS MENTIONED IN S. 115JB. IN THE CIRCUMSTA NCES, I AM OF THE VIEW THAT IF BY VIRTUE OF S. 80-IC, NO INCOM E-TAX IS PAYABLE BY AN ASSESSEE, BEING A COMPANY, IT WOULD B E LIABLE TO PAY INCOME-TAX TO THE EXTENT AS MENTIONED IN S. 115 JB AND THAT WAS AND STILL IS THE VERY OBJECT OF INSERTING S. 115JB IN THE ACT. FURTHER THE HONBLE HIGH COURT OF KARNATAKA ALSO RE ITERATED THE ABOVE PROPOSITION WITH RESPECT TO ALLOWABILITY OF DEDUCTION U/S 80IB FOR THE PURPOSES OF PAYING TAX UNDER MAT I N THE CASE OF SAKHLA POLYMERS (P) LTD. VS INCOME TAX OFFI CER REPORTED IN 257 CTR 185 HOLDING AS UNDER:- SECTION 115JB IS IN THE NATURE OF A SPECIAL PROVIS ION, A CHARGING PROVISION, AND CREATING LIABILITY IN RESPE CT OF AN ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 25 OF 31 ASSESSEE WHICH IS A COMPANY AND WHOSE TAXES AS DETE RMINED ON THE RETURNS FILED IN THE NORMAL MANNER FALLS SHO RT OF THE STIPULATED AMOUNT AND A CHARGE IS CREATED FOR MAKIN G THE DIFFERENCE I.E. THE OBJECT OF THE LEGISLATION IS TO ENSURE A MINIMUM TAX OF 7 PERCENT ON THE BOOK PROFIT AS ASC ERTAINED UNDER SECTION 115JB IS LEVIED AND COLLECTED FROM TH E COMPANIES WHOSE PAYMENT OF TAX ALWAYS WITHOUT THE APPLICATION OF THIS PROVISION FALLS SHORT OF THIS A MOUNT OF TAX. 27. THOUGH SRI SHANKAR, LEARNED COUNSEL FOR THE APP ELLANT HAS CALLED IN AID NOT ONLY THE BUDGET SPEECH BUT ALSO T HE CIRCULAR ISSUED BY THE BOARD AND THE PRINCIPLES OF PROMISSOR Y ESTOPPEL AND LEGITIMATE EXPECTATION ETC., WE ARE AFRAID NONE OF THESE PRINCIPLES ARE ATTRACTED FOR THE SIMPLE REASON THAT A BUDGET SPEECH BEING ONLY AN INTRODUCTORY TO THE BILL IN TH E PARLIAMENT AND THAT IN ITSELF IS NOT AN END. 28. THOUGH MANY DECISIONS ARE ROPED IN FOR INTERPRE TING THIS, WE FIND THERE IS NO SCOPE FOR INTERPRETATION IN THE PRESENT SITUATION, AS THE PROVISION OF THE STATUTE SHOULD B E GIVEN EFFECT TO, AS IT OCCURS AND IF THERE IS ONLY ANY AMBIGUITY IN UNDERSTANDING THE STATUTE THEN ONLY THE TOOL OF INT ERPRETATION SHOULD BE CALLED IN AID. WE DO NOT FIND ANY COMPETI NG OR DEROGATORY PROVISION IN SECTION 115JB VIS-A-VIS SEC TION 80-IB OF THE ACT IS CONCERNED. 29. SECTION 80-IB OPERATES IN A PARTICULAR SPHERE A ND SECTION 115JB IS OPERATIVE IN A TOTALLY DIFFERENT SPHERE. I T IS NOT THE CASE OF THE APPELLANT-ASSESSEE THAT SECTION 80- IB IS NOT OPERATED OR GIVEN EFFECT TO. GRIEVANCE OF THE ASSES SEE IS THAT BECAUSE OF THE OPERATION OF SECTION 115-JB, THE BEN EFIT OF SECTION 80-IB IS TAKEN AWAY. SECTION 115JB OCCURRING IN A TAXING STATUTE IS IN T HE NATURE OF A CHARGING SECTION AND THAT TOO A SPECIAL CHARGING SE CTION, EXEMPTION OR CONCESSION OR ANOTHER BENEFIT SOUGHT S HOULD COME FROM WITHIN THE PROVISIONS OF SECTION 115JB ITSELF, WHICH OCCURS IN CHAPTER XII-B OF THE ACT. SECTION 80-IB IS A PRO VISION WHICH OCCURS IN CHAPTER VI-A OF THE ACT AND A CHAPTER WHI CH CONTAINS CERTAIN INCENTIVES AND CONCESSIONS GIVEN TO AN ASSE SSEE ON FULFILLING THE REQUIREMENT SPECIFIED IN EACH SECTIO N MENTIONED THEREIN. 30. SECTION 80-IB IN THE FIRST INSTANCE IS NOT AN E XEMPTION PROVISION AND IT IS ONLY A PROVISION PROVIDING CERT AIN CONCESSIONS OR BENEFIT TO AN ASSESSEE AND IT DOES F ACTOR WHILE ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 26 OF 31 COMPUTING THE TOTAL TAXABLE INCOME OF THE ASSESSEE, AS CHARGED UNDER SECTION 4 OF THE ACT. 31. WHILE THIS IS NOT IN ANY WAY DENIED TO AN ASSES SEE, SECTION 115JB IS A SPECIAL CHARGING SECTION FOR REGULATING TAX LIABILITY OF COMPANIES IN GENERAL AND MADE APPLICABLE IN PART ICULAR AND IS CONFINED TO THE ASSESSEE COMPANIES WHOSE TAX LIA BILITY, WHEN COMPUTED IN THE NORMAL MANNER FALLS SHORT OF T HE LIABILITY AS COMPUTED UNDER THIS PROVISION. THEREFORE, WE ARE OF THE VIEW THAT THERE IS ABSOLUTELY NO QUESTION OF SECTIO N 80-IB HAVING ANY BEARING OR EFFECT OR CONTROL OVER THE PR OVISIONS OF SECTION 115JB OF THE ACT. IT IS TO BE NOTICED THAT SECTION 80-IB CONCESSION IS IN RESPECT OF THOSE ASSESSEES WHO QUA LIFY FOR THAT AND SECTION 115JB LEVY IS CONFINED TO COMPANIES AND SUCH COMPANIES WHICH ARE ROPED IN WITHIN THE SCOPE OF TH IS SECTION. IT IS BECAUSE OF THIS POSITION, WE ARE OF THE VIEW THAT THERE IS NO OCCASION FOR THE INTERPRETATION OR EXAMINATION OF T HE PRINCIPLES OF PROMISSORY ESTOPPEL OR DOCTRINE OF LEGITIMATE EX PECTATION. THE BENEFIT UNDER SECTION 80-IB IS NOT DENIED, IT WORKS AS IT IS. IT IS ONLY BECAUSE THE ASSESSEE HAPPENS TO BE A COMPANY T O WHICH THE PROVISIONS OF SECTION 115JB IS ALSO ATTRACTED, LEVY AS INDICATED THEREIN BECOMES OPERATIVE. THEREFORE, WE DO NOT FIND THE APPLICABILITY OF THE DECISIONS RELIED UPON BY T HE LEARNED COUNSEL FOR THE APPELLANT-ASSESSEE ON THIS ASPECT O F THE MATTER, IN THE PRESENT SITUATION. 32. IN SO FAR AS THE RELIANCE PLACED ON THE JUDGMEN T OF THIS COURT IN THE CASE OF M/S UNITED BREWERIES LTD [SUPRA] IS CONCERNED, WHILE THAT WAS WITH REFERENCE TO THE PRO VISIONS OF SECTION 115JA AND WE ARE NOW EXAMINING THE LIABILIT Y UNDER SECTION 115JB OF THE ACT. THE SCHEME OF CHARGING UN DER SECTION 115JB BEING TOTALLY DIFFERENT AND NOT WITH REFERENCE TO GENERAL RATE, BUT WITH REFERENCE TO A SPECIFIED RAT E AS INDICATED IN SECTION 115JB ITSELF I.E. 7 PERCENT OF DEEMED INCOME FOR THE PURPOSE OF SECTION 115JB, WE ARE AFRAID THE JUD GMENT WILL NOT ADVANCE THE CASE OF THE ASSESSEE IN THE PRESENT SITUATION. 33. A BUDGETARY SPEECH WHILE WILL HAVE SOME SIGNIFI CANCE FOR UNDERSTANDING A PROVISION IF THERE IS ANY AMBIGUITY , IN THE WAKE OF CLEAR LANGUAGE OF THE SECTION 115JB, IN THE FIRST INSTANCE THERE IS NO AMBIGUITY, IN THE SECOND INSTA NCE, THE AMBIGUITY SOUGHT TO BE INTRODUCED ON CERTAIN PREMIS E WHICH IS NOT APPARENT AND IS ONLY ON A LIMITED READING OF TH E BUDGET SPEECH, AT ANY RATE A BUDGET SPEECH IN ITSELF CANNO T REGULATE OR CONTROL THE STATUTORY PROVISION, MORE SO A CHARGING SECTION IN A REVENUE YIELDING STATUTE, WE ARE OF THE CLEAR OPINI ON THAT THE PROVISIONS OF SECTION 115JB SHOULD BE GIVEN FULL EF FECT TO ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 27 OF 31 WITHOUT BEING INFLUENCED OR GUIDED OR REGULATED BY THE BUDGET SPEECH OF THE FINANCE MINISTER. THE BOARD CIRCULAR BEING IN THE CONTEXT OF THE EARLIER PROVISIONS, BUT, NEVER THE L ESS MORE BY WAY OF EXTRACTION OF THE BUDGET SPEECH, THAT BY ITS ELF CANNOT HAVE ANY SPECIAL SIGNIFICANCE, AS THE BOARD CIRCULA R DOES NOT IN ANY WAY SEEKS TO CLARIFY THE LEVY AND RATE OF LEVY AS PROVIDED IN SECTION 115JB OF THE ACT. LEVY AND RATE OF TAX A LONE IS WHAT MATTERS FOR THE PURPOSE OF SECTION 115.JB OF THE AC T. 34. ARGUMENTS ARE ADVANCED BY SRI SHANKAR, LEARNED COUNSEL FOR APPELLANT-ASSESSEE BASED ON PRINCIPLE OF INTERP RETATION THAT SECTION 115JB SHOULD BE SO INTERPRETED OR UNDERSTOO D AS TO ENSURE THAT THE BENEFIT GIVEN TO THE APPELLANT-ASSE SSEE UNDER SECTION 80-IB OF THE ACT IS NOT TAKEN AWAY AND THE INTERPRETATION SUGGESTED BY SRI SHANKAR FAILS FOR M ORE THAN ONE REASON EVEN ON APPLYING THE PRINCIPLE OF INTERPRETA TION. THOUGH THERE IS NO NEED FOR INTERPRETING THE PROVISION AND EXAMINATION CAN ONLY BE M THE CONTEXT OF UNDERSTANDING THE SCOP E OF SECTION 115JB OF THE ACT, NEVERTHELESS, IF IT IS SO UGHT TO BE INTERPRETED AS CONTENDED BY SRI SHANKAR IN THE BACK DROP OF SECTION 80-IB OF THE ACT, THE PRINCIPLE OF HARMONIO US CONSTRUCTION OF A STATUTE WILL HAVE TO BE KEPT IN M IND. IT IS A WELL SETTLED PRINCIPLE THAT NO PROVISION OF AN ENAC TMENT SHOULD BE SO INTERPRETED OR UNDERSTOOD AS TO RENDER OTIOSE OR INEFFECTIVE ANY OTHER PROVISION OF THE SAME ENACTME NT. THEREFORE, SECTION 80-IB CANNOT BE INTERPRETED SO A S TO RENDER THE PROVISION OF SECTION 115JB OF THE ACT NUGATORY OR OTIOSE OR INEFFECTIVE OR DOES NOT ACHIEVE THE PURPOSE FOR WHI CH IT IS ENACTED. 35. SECTION 115JB, IN FACT, IN NO WAY EITHER DENIES THE BENEFIT GIVEN UNDER SECTION 80-IB OR REDUCES THE SAME. WHIL E THE APPELLANT-ASSESSEE CAN CLAIM THE BENEFIT UNDER SECT ION 80-IB OF THE ACT AND IT IS NOT DENIED PER SE TO THE APPELLANT-ASSESSEE, IN THE GIVEN CA.SE, THE PROVISIONS OF SECTION 115JB MA Y BE ATTRACTED OR MAY NOT BE ATTRACTED, DEPENDING UPON T HE NATURE OR LEGAL COMPOSITION OF THE ASSESSEE. 36. IN FACT, THE MINIMUM ALTERNATE TAX IS SOUGHT TO BE LEVIED EARLIER UNDER SECTION 115JA AND NOW UNDER SECTION 1 15JB OF THE ACT,, ONLY IN RESPECT OF SUCH COMPANIES WHICH, BY AVAILING VARIOUS CONCESSIONS GIVEN IN CHAPTER VI-A OF THE AC T, ARE ABLE TO SHOW EITHER A NIL TAXABLE INCOME OR MUCH REDUCED TAXABLE INCOME. CONCESSION GIVEN UNDER SECTION 80-IB IS ALS O ONE SUCH AND THEREFORE NO EXCEPTION CAN BE TAKEN. ONLY IN RE SPECT OF THE AVAILABILITY OF A CONCESSION UNDER SECTION 80-IB AN D TO MAKE IT IMMUNE FROM THE APPLICABILITY OF THE PROVISIONS OF SECTION ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 28 OF 31 115JB OF THE ACT. BOTH PROVISIONS OPERATE IN THEIR OWN RESPECTIVE SPHERES AND HAVE TO BE GIVEN EFFECT. 37. SECONDLY AND MORE IMPORTANTLY, NO PROVISION OF A STATUTE CAN BE SO INTERPRETED AS TO RENDER IT UNCONSTITUTIO NAL. IF THE ARGUMENT OF SRI SHANKAR, LEARNED COUNSEL FOR THE AP PELLANT, IS TO BE ACCEPTED, THEN IT WILL RESULT IN A DISCRIMINA TION AGAINST SUCH ASSESSEE-COMPANIES WHO HAVE TO PAY TAX UNDER S ECTION 115JB OF THE ACT, BUT HAVE NO CONCESSION AVAILABLE UNDER SECTION 80-IB, WHEREAS THE TAX LIABILITY OF THE PER SON UNDER SECTION 115JB OF THE ACT, WHO CAN CLAIM CONCESSION UNDER SECTION 80-IB OF THE ACT GETS REDUCED FOR THE PURPO SE OF SECTION 115JB OF THE ACT. IT IS, THEREFORE, TO AVOID SECTIO N 115JB BEING RENDERED DISCRIMINATORY AND UNCONSTITUTIONAL BEING VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA, THE CONTEN TION OF SRI SHANKAR FOR LEADING DOWN OR READING UP THE PROVISIO NS OF SECTION 115-JB OF THE ACT, PARTICULARLY BY ADDING T O DIFFERENT SITUATIONS MENTIONED IN THE EXPLANATION, TO BE EXPA NDED BY INCLUDING REFERENCE TO SECTION 80-IB OF THE ACT CAN NOT BE ACCEPTED. A STATUTORY PROVISION CANNOT BE SO READ D OWN TO RENDER IT UNCONSTITUTIONAL, BUT READING DOWN A STAT UTORY PROVISION IS TO MAKE IT CONSTITUTIONAL AND NOT OTHE RWISE. THEREFORE, THE ARGUMENTS FAIL. 33. IN VIEW OF THE ABOVE, WE DISMISS THE CONTENTION S OF THE LD. COUNSEL FOR THE ASSESSEE THAT DEDUCTION PROVIDED UN DER SECTION 80IB(10) OF THE ACT IS TO BE MADE FROM THE BOOK PRO FITS OF THE ASSESSEE FOR THE PURPOSE OF PAYMENT OF MAT. THE DEC ISION OF THE ITAT, MUMBAI BENCH, RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE IN THE CASE OF NEHA BUILDERS(SUPRA) IS OF NO ASSISTANCE TO THE ASSESSEE IN VIEW OF THE DECISIONS OF HIGH COUR TS TAKEN NOTE OF ABOVE BY US. NO OTHER CONTENTIONS WERE RAISED BY THE LD. COUNSEL FOR THE ASSESSEE BEFORE US AND, THEREFORE, WE HOLD THAT THE ASSESSEE WAS LIABLE TO PAY TAX ON ITS PROFITS AS PER PROVISIONS OF SECTION 115JB OF THE ACT. WE, THEREFORE, UPHOLD THE ORDER OF THE LD . CIT(A) AND DISMISS THE APPEAL FILED BY THE ASSESSEE. IN EFFECT, THE APPEAL OF THE ASSESSEE IN ITA NO.422 /CHD/2016 IS DISMISSED. ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 29 OF 31 SINCE IT WAS COMMON GROUND THAT THE ISSUE INVOLVED IN ALL THE APPEALS OF THE ASSESSEE WAS IDENTICAL, OUR DECISION RENDERED ABOVE IN ASSESSEES APPEAL IN ITA NO. 422/CHD/2016, WILL APPLY TO THE APPEALS OF THE ASSESSEE IN ITA NO 423,780/CH D/2016 AND ITA NO.781/CHD/2016, FOLLOWING WHICH WE DISMISS ALL THE APPEALS OF THE ASSESSEE. WE NOW TAKE UP THE APPEAL OF THE REVENUE IN ITA NO.765/CHD/2016. ITA 765/CHD/2016 ( A.Y. 2012-13) 34. THE PRESENT APPEAL HAS BEEN FILED BY THE REVENU E AGAINST THE ORDER DATED 18.03.2016 OF CIT (APPEALS)-5 LUDHIANA PERTAINING TO 2012-13 ASSESSMENT YEAR. 35. AT THE TIME OF HEARING, THE LD. AR HAS STATED T HAT TAX EFFECT INVOLVED IN THE PRESENT CASE IS LESS THAN RS. 20 LA CS. THE LD. DR ON GOING THROUGH THE MATERIAL AVAILABLE ON RECORD HAS ALSO FAIRLY ADMITTED THAT CBDT CIRCULAR NO. 3/2018 IS APPLICABL E TO THIS APPEAL, HENCE, THIS APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. 36. IT MAY BE NOTED THAT CBDT VIDE CIRCULAR NO. 3/2 018 DATED 11.07.2018 HAS REVISED THE MONETARY LIMIT UPTO RS.2 0 LACS FOR FILING APPEALS BY THE DEPARTMENT BEFORE THE TRIBUNAL AND F URTHER VIDE PARA 13 OF THE SAID CIRCULAR IT HAS BEEN CLARIFIED THAT SAID CIRCULAR IS APPLICABLE RETROSPECTIVELY TO THE PENDING APPEALS A LSO. THE HONBLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF PRINCIPA L CIT OF INCOME TAX VS. SURINDER KUMAR SINGHAL ITA NO 406-2016 (O&M ) VIDE ORDER DATED 30.1.2017 WHILE FURTHER RELYING UPON THE DECI SION OF THE ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 30 OF 31 HON'BLE SUPREME COURT IN THE CASE OF CIT VS. DHANAL EKSHMI BANK LTD. (2015) 373 ITR 526 (SC), HAS DISMISSED THE APP EAL OF THE REVENUE WITHOUT GOING INTO THE MERITS DUE TO LOW TA X EFFECT LEAVING THE QUESTION OF LAW OPEN. ACCORDINGLY, IN VIEW OF THE ABOVE, THE APPEAL OF THE REVENUE IS DISMISSED ON THE GROUNDS O F LOW TAX EFFECT IN TERMS OF THE AFORESAID CIRCULAR OF THE CBDT BY W HICH THE TAX AUTHORITIES ARE BOUND. THE APPEAL OF THE REVENUE, ACCORDINGLY, IS DISMISSED AS NOT PRESSED. 37. IT IS, HOWEVER, CLARIFIED THAT THE DISMISSAL OF THE ABOVE APPEAL SHALL NOT BE TAKEN TO BE AFFIRMATION OF THE ORDER O F THE CIT(A) ON MERITS. THE LEGAL ISSUE RAISED BY THE REVENUE IS BE ING LEFT OPEN TO BE ADJUDICATED IN AN APPROPRIATE CASE. IN EFFECT, THE APPEAL OF THE DEPARTMENT IN ITA NO.7 65/CHD/2016 IS DISMISSED. 38. IN THE RESULT, THE APPEALS OF THE ASSESSEE IN I TA NOS.422, 423,780/CHD/2016 AND ITA NO.781/CHD/2016 AND APPEAL OF THE REVENUE IN ITA NO.765/CHD/2016 ARE DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30/04/19 SD/- SD/- ( ) ( # $ % &' ) (SANJAY GARG) (ANNAPURNA GUPTA) / JUDICIAL MEMBER (/ ACCOUNTANT MEMBER DATED: 30 TH APRIL, 2019 ITA NOS.422,423,780,781 & 765 CHD/2018 PAGE 31 OF 31 ! ,- .- / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT 3. $ / / CIT 4. $ / ( )/ THE CIT(A) 5. -01 2 , & 2 , 34516 / DR, ITAT, CHANDIGARH 6. 15 / GUARD FILE $ / BY ORDER, / ASSISTANT REGISTRAR