DCIT, Circle - 11, Kolkata, Kolkata V. M/s. Samay Construction Pvt. Ltd., Kolkata

ITA 85/KOL/2012

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4894 (ITAT-KOLKATA)
• Duration Of Justice: 4 year(s) 2 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-03-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2008-2009
• Appeal Filed On: 16-01-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SITAL PRASAD ROY JCITSRDR
• Assessee Lawyers: SANJAY BHTTACHARYA
• Keywords: Principle of natural justice; Right to appeal; Revised return
• Section: 143(3); 115JB; 80IB; 145

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA BENCH B KOLKATA BEFORE SHRI N.V.VASUSDEVAN, JUDICIAL MEMBER AND SHRI WASEEM AHMED, ACCOUNTANT MEMBER ITA NO. 85 / KOL / 2012 ASSESSMENT YEAR :2008-09 DCIT, CIRCLE-11, P-7, CHOWRINGHEE SQUARE, KOLKATA-700 069 V/S . M/S SAMAY CONSTRUCTION PVT. LTD., C/O MODEL NURSURY, 5/1, TILJOLA ROAD, PARK CIRCUS, KOLKATA 700 046 [ PAN NO.AAHCS 8487 R ] /APPELLANT .. / RESPONDENT /BY APPELLANT SHRI SITAL PRASAD ROY, JCIT-SR-DR /BY RESPONDENT SHRI SANJAY BHTTACHARYA, FCA /DATE OF HEARING 01-02-2016 /DATE OF PRONOUNCEMENT 23-03-2016 / O R D E R PER WASEEM AHMED, ACCOUNTANT MEMBER:- THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF COMMISSIONER OF INCOME TAX (APPEALS)-XII, KOLKATA IN APPEAL NO.345/ XII/W-11(2)/2010-11 DATED 30.10.2011. ASSESSMENT WAS FRAMED BY ITO WARD -11(2), KOLKATA U/S 143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REF ERRED TO AS THE ACT) VIDE HIS ORDER DATED 29.12.2010 FOR ASSESSMENT YEAR 2008 -09. GROUNDS RAISED BY REVENUE IS AS UNDER:- 1) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS CORRECT IN LAW BY REDUCING THE ASSESSEES DECLAR ED PROFIT AMOUNTING TO RS.3,95,88,640/- TO NIL. 2) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD. CIT(A) IS CORRECT IN LAW IN HOLDING THAT THE PROFITS DECLARED BY THE ASSESSEE IN ITS RETURN FOR THE A.Y 2008-09 BE APPORTIONED AND MADE CHARGEA BLE TO TAX IN THE AYS ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 2 2005-06, 2006-07 AND 2007-08 AT RS.24,96,993/-, RS. 1,13,94,494/- AND RS.2,56,97,153/- RESPECTIVELY. 3) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS CORRECT IN LAW IN ALLOWING THE ASSESSEE TO CLAIM DEDUCTION U/S 80IB DURING THE PROCEEDINGS TAKEN UP BY THE AO FOR THE AYRS 200 5-06, 2006-07 AND 2007- 08 4) WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD. CIT(A) IS CORRECT IN HOLDING THAT THERE WAS NO INCOME CHA RGEABLE TO TAX FOR THE YEAR UNDER CONSIDERATION WITH THE DIRECTION OF RECOMPUTA TION OF BOOK PROFIT U/S. 115JB. 2. GROUNDS NO. 1 TO 3 ARE COMMON IN THIS APPEAL OF REVENUE, HENCE, WE CLUB THEM TOGETHER TO PASS A CONSOLIDATE ORDER. FAC TS OF THE CASE ARE THAT ASSESSEE IN THE PRESENT CASE IS A PRIVATE LIMITED C OMPANY AND ENGAGED IN THE BUSINESS OF DEVELOPMENT OF HOUSING COMPLEXES AT DIFFERENT SITES UNDER THE JURISDICTION OF JAMSHEDPUR SINCE THE FINANCIAL YEAR 2004-05. DURING THE YEAR UNDER CONSIDERATION, ASSESSEE HAS DECLARED PROFIT A T NIL AFTER CLAIMING THE DEDUCTION UNDER SECTION 80IB(10) OF THE ACT FOR AN AMOUNT OF RS. 3,95,94,294/-. HOWEVER, THE AO DISALLOWED THE DEDUC TION CLAIMED BY THE ASSESSEE UNDER SECTION 80IB(10) OF THE ACT AS THE A SSESSEE FAILED TO FULFILL THE CONDITION UNDER SECTION 80AC OF THE ACT FOR FILING THE INCOME TAX RETURN BEFORE THE DUE DATE AS SPECIFIED UNDER SECTION 139(1) OF T HE ACT. IN THE INSTANT CASE, THE ASSESSEE FILED THE ITR ON DATED 04.02.2009 FOR THE ASSESSMENT YEAR 2008-09 WHICH IS AFTER THE DUE DATE AS SPECIFIED UN DER SECTION 139(1) OF THE ACT. 3. AGGRIEVED, ASSESSEE PREFERRED AN APPEAL BEFORE L D. CIT(A). BEFORE LD. CIT(A) ASSESSEE SUBMITTED THAT ASSESSEE WAS FOLLOWI NG PERCENTAGE COMPLETION METHOD FOR THE ACCOUNTING OF ITS REAL ES TATE PROJECT ACTIVITY IN TERMS OF ACCOUNTING STANDARD 7 (AS-7) TILL 31-3-2007. HOW EVER THE ASSESSEE AT HIS OWN FOUND THAT THE AS-7 IS APPLIED TO THE ENTITIES ENGAGED IN THE CONSTRUCTION ACTIVITY AND ITS ACTIVITIES ARE OF DEVELOPING OF PR OJECTS. SO THE ASSESSEE CHANGED ITS ACCOUNTING POLICY AND STARTED FOLLOWING THE AS-9 I.E. REVENUE RECOGNITION W.E.F. FINANCIAL YEAR 2007-08 PROSPECTI VELY. THE ASSESSEE FURTHER ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 3 SUBMITTED THAT THE DEDUCTION OF PROFIT CLAIMED BY T HE ASSESSEE FOR THE ASSESSMENT YEAR 2008-09 FOR RS. 3,95,94,294/- WAS A CTUALLY THE PROFIT PERTAINING TO THE AYS 2005-06, 2006-07 AND 2007-08. THE PROFIT DECLARED BEFORE THE DEDUCTION UNDER SECTION 80IB OF THE ACT IS NOTIONAL PROFIT FOR THE YEAR UNDER CONSIDERATION. THE RETURN FILED BY THE A SSESSEE WAS BELATED RETURN UNDER SECTION 139(4), SO THE ASSESSEE COULD NOT GET THE OPPORTUNITY TO RECTIFY THE MISTAKE BY FILING REVISED RETURN. THE ASSESSEE AT THE TIME OF ASSESSMENT PROCEEDINGS U/S 143(3) OF THE ACT TRIED TO EXPLAIN THAT THE INCOME PERTAINS TO THE EARLIER ASSESSMENT YEARS BUT THE AO REJECTED TH E PLEA OF THE ASSESSEE. 3.1 THE ASSESSEE WITHOUT PREJUDICE TO ABOVE HAS ALT ERNATIVELY ARGUED THAT SEC. 80-IB OF THE ACT DOES NOT CONTEMPLATE A SITUAT ION WHERE PROFIT ARISES ON TRANSFER OF RESIDENTIAL UNITS BEFORE THE HOUSING PR OJECT IS FULLY COMPLETED. THERE IS NO PROVISION IN SEC. 155 OR 80IB OR IN CHAPTER VI-A OF THE ACT DEALING WITH THE MATTERS OF DEDUCTIONS FOR AMENDMENT OF ASSESSME NT ORDER IF AN ELIGIBLE BUSINESS TRANSFERS RESIDENTIAL UNITS AND BOOKS PROF IT IN A YEAR PRIOR TO THE YEAR IN WHICH THE HOUSING PROJECT IS COMPLETED WHEREAS A T THE TIME OF PASSING THE ASSESSMENT ORDER DEDUCTION U/S. 80IB IS RIGHTLY DEN IED DUE TO THE FACT THAT THE PROJECT IS NOT YET FULLY COMPLETED AND COMPLETION C ERTIFICATE IS NOT AVAILABLE ALTHOUGH THE PROJECT IS DULY COMPLETED AND COMPLETI ON CERTIFICATE IS OBTAINED AT A LATER DATE WITHIN THE SPECIFIED PERIOD OF FIVE YE ARS. OBVIOUSLY THE VERY PURPOSE OF SEC. 80IB IS DEFEATED IF THESE PROFITS D O NOT QUALIFY FOR DEDUCTION. THEREFORE, IT CAN BE SAID THAT SEC. 80IB ENVISAGES A SITUATION WHERE PROFIT IS CONSIDERED TO BE ARISING ONLY AFTER THE PROJECT IS COMPLETED. PLEASE NOTE THAT DEPARTMENT INSTRUCTION NO. 4/2009 HAS BEEN INTRODUC ED ON 30.06.2009 MUCH AFTER THE ACCOUNTS WERE FINALIZED AND INCOME TAX RE TURN FOR THE AY 2008-09 WAS SUBMITTED. AS PER THE SAID DEPARTMENTAL INSTRUC TION WHERE PROFIT IS BOOKED ON YEAR-TO-YEAR BASIS ON PARTIAL COMPLETION OF THE PROJECT, DEDUCTION IS GRANTED BUT TO BE WITHDRAWN IF FOUND LATER THAT THE PROJECT IS NOT COMPLETED WITHIN THE SPECIFIED PERIOD. AS PER SEC. 145 OF THE ACT, INCOM E CHARGEABLE UNDER THE ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 4 HEAD PROFITS & GAINS OF BUSINESS SHALL BE SUBJECT TO ACCOUNTING STANDARDS NOTIFIED BY THE CENTRAL GOVERNMENT FROM TIME TO TIM E. RELIEF SOUGHT THROUGH THIS APPEAL 1. PROFIT DECLARED IN THE PROFIT & LOSS ACCOUNT BE CONSIDERED AS NOTIONAL PROFIT OR BOOK PROFIT SUBJECT TO TAX U/S 115JB OF THE INCO ME TAX ACT 1961 IN THE ASSESSMENT YEAR 2008-09 2. PROFIT DECLARED IN THE ASSESSMENT YEAR 2008-09 O N PRESUMPTIVE SALE OF FLATS IS BROUGHT TO TAX IN THE ASSESSMENT YEAR 2011 -12 IN WHICH THE DEVELOPMENT OR CONSIDERATION OF THE PROJECT IS COMP LETED OR ALTERNATIVELY SPREAD OUT OVER THE YEARS PERIOD FROM AYS 2005-06 T O 2007-08 PROPORTIONATELY DURING WHICH CONSTRUCTION WORK WAS CARRIED OUT BY THE VALUE OF WORK DONE. 3. CORRESPONDING DEDUCTION U/S 80-IB OF THE PROFIT BE CONSIDERED IN THE AM YEAR 2011-12 OR ALTERNATIVELY IN AYS 2005-06, 2006- 07 & 2007-08 WHEN THE PROFIT IS LIABLE TO BE ASSESSED AS INCOME. CONSIDERING THE ABOVE SUBMISSIONS OF LD. CIT(A) DEL ETED THE ADDITION MADE BY THE AO BY OBSERVING AS UNDER:- AFTER GOING THROUGH THE FACTS OF THE CASE AND CIT ATION I AM CONVINCED THAT THE INCOME OF RS.3,95,88,640/- REPORTED IN THE PROFIT & LOSS ACCOUNT AS WELL AS IN THE INCOME TAX RETURN OF THE ASSESSMENT YEAR 2008-0 9 CANNOT BE BROUGHT TO TAX IN THAT ASSESSMENT YEAR. AT THE SAME TIME, I DO NOT AGREE WITH THE APPELLANT TO POSTPONE THE REPORTED PROFIT TO ASSESS MENT YEAR 2011-12 I.E. THE YEAR IN WHICH THE HOUSING PROJECT IS COMPLETED. I, ON THE OTHER HAND, FIND CONSIDERABLE MERIT IN THE ALTERNATIVE ARGUMENT OF T HE APPELLANT FOR ALLOCATING THE REPORTED PROFIT OVER THE PERIOD OF THREE YEARS IN WHICH THE RELATED WORK HAS BEEN DONE ACCORDING TO COST INCURRED IN THE RESPECT IVE YEAR. WHATEVER BE THE STRATEGY OR UNDERSTANDING OF THE ASSESSEE IN REPORT ING INCOME IN THE PROFIT & LOSS ACCOUNT OR IN THE RETURN OF INCOME OF A PARTIC ULAR YEAR, THE ASSESSING OFFICER IS DUTY BOUND TO DETERMINE THE INCOME CHARG EABLE TO TAX FOR THAT YEAR CORRECTLY. INCOME ESCAPED FROM ASSESSMENT IN ONE YE AR CANNOT BE ASSESSED IN A LATER YEAR. THE ASSESSING OFFICER CANNOT TAKE ADVANTAGE OF ANY INADVERTENT ERROR OR OMISSION OR COMMISSION COMMITT ED BY THE ASSESSEE IN THE RETURN. OF INCOME OR IN DRAWING THE ANNUAL ACCOUNTS . ACCORDINGLY I HOLD THAT ALTHOUGH THE PROFIT & LOSS ACCOUNT AND THE INCOME T AX RETURN OF THE ASSESSMENT YEAR 2008-09 CONTAIN A DECLARED PROFIT O F RS.3,95,88,640/-, THE SAID AMOUNT IS NOT CHARGEABLE TO TAX IN THE ASSESSM ENT YEAR 2008-09. I HAVE EXAMINED THE CHART SHOWING COST OF WORK INCURRED WI TH REFERENCE TO THE ANNUAL ACCOUNTS OF THE PRECEDING YEARS AND ACCORDINGLY HOL D THAT THE DECLARED PROFIT BE APPORTIONED AND MADE CHARGEABLE TO TAX IN THE AS SESSMENT YEARS 2005- 06, 2006-07 AND 2007-08 AT RS.24,96,993/-, RS.113,9 4,494/- AND RS.2,56,97,153/- RESPECTIVELY BEING THE PRIOR PERIO D ITEMS AS A RESULT OF ERRORS OR OMISSIONS INS PREPARATION OF FINANCIAL STATEMENT S OF RESPECTIVE PREVIOUS YEARS. I, THEREFORE, DIRECT THE ASSESSING OFFICER T O RE-COMPUTE THE INCOME OF THE ASSESSMENT YEAR 2008-09 BASED ON THE ALLOCATION STATED ABOVE. SECTION 80AC OF THE ACT HAS COME INTO FORCE W.E.F. ASSESSME NT YEAR 2006-07. THE ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 5 APPELLANT HAS NOT DISPUTED THE DISALLOWANCE OF CLAI M U/S. 80-IB DUE TO APPLICATION OF SECTION 80AC FOR NOT FILING THE RETU RN IN TIME AND HENCE NO CLAIM OF DEDUCTION U/S. 80-IB WILL BE ALLOWED IN RESPECT OF THE INCOME ASSESSABLE FOR THE ASSESSMENT YEAR 2008-09. HOWEVER, THE AO IS GIV ING LIBERTY TO TAKE APPROPRIATE ACTION IN ASSESSMENT YEARS 2005-06, 200 6-07 AND 2007-08 IN ACCORDANCE WITH IT ACT, 1961 FOR THE INCOME OF RS.2 4,96,993/- RS.1,13,94,494/- AND RS.2,56,97,153/- RESPECTIVELY AND A SIMILAR LIBERTY IS GRANTED TO ASSESSEE TO MAKE ANY LEGAL CLAIM REGARDI NG ADMISSIBILITY OF DEDUCTION UNDER SEC. 80IB DURING THE PROCEEDINGS TA KEN UP BY THE AO IN AYS 2005-06, 2006-07 & 2007-08 AS PER LAW. THE APPELLAN T, HOWEVER, WILL BE LIABLE TO PAY TAX U/S. 115JB ON THE DECLARED INCOME OF RS.3,95,88,640/- IN THE ASSESSMENT YEAR 2008-09. BEING AGGRIEVED BY THIS ORDER OF LD. CIT(A) REVENUE CAME IN APPEAL BEFORE US. SHRI SITAL PRASAD ROY, LD. DEPARTMENTAL REPRESENTAT IVE APPEARING ON BEHALF OF REVENUE AND SHRI SANJAY BHATTACHARYA, LD. AUTHOR IZED REPRESENTATIVE APPEARING ON BEHALF OF ASSESSEE. 4. THE LD. DR RELIED ON THE ORDER OF AO WHEREAS LD AR RELIED ON THE ORDER OF LD. CIT(A). WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. THE LD. AR HAS FILED A PAPER B OOK WHICH IS RUNNING FROM PAGE 1 TO 55. FROM THE AFORESAID DISCUSSION WE UNDE RSTAND THAT THE ASSESSEE DECLARED THE NOTIONAL PROFIT FOLLOWING THE PERCENTA GE COMPLETED CONSTRUCTION METHOD. THE COMMENCEMENT OF THE CONSTRUCTION FOR TH E IMPUGN PROJECT BEGAN FROM THE FINANCIAL YEAR 2004-05 AND COMPLETED IN TH E FINANCIAL YEAR 2006-07. FROM THE FACTS OF THE CASE, WE FIND THAT THE ASSESS EE HAS INCURRED THE ENTIRE COST ON THE CONSTRUCTION FOR THE IMPUGN PROJECT IN THE FINANCIAL YEAR 2006-07 BUT FAILED TO DECLARE THE PROFIT IN THAT YEAR IN CO NSONANCE WITH THE PERCENTAGE COMPLETION METHOD. WE FURTHER FIND THAT THE PROFIT, HOWEVER, WAS DECLARED IN THE RETURN OF INCOME FOR THE ASSESSMENT YEAR 2008-0 9 AND THE ASSESSEE ACCORDINGLY CLAIMED THE DEDUCTION OF THE PROFIT UND ER SECTION 80IB OF THE ACT. HOWEVER, THE AO DISALLOWED THE SAME ON TECHNICAL GR OUND I.E. NON-FILING OF ITR WITHIN THE DUE DATE AS SPECIFIED UNDER SECTION 139(1) OF THE ACT. HOWEVER THE LD. CIT(A) RIGHTLY HELD THAT THE PROFIT DECLARE D IN THE ASSESSMENT YEAR 2008- 09 ACTUALLY BELONGS TO THE ASSESSMENT YEARS 2005-06 , 2006-07 AND 2007-08 ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 6 AS THE ASSESSEE FOR THOSE YEARS WAS FOLLOWING THE P ERCENTAGE COMPLETION METHOD IN ACCORDANCE WITH THE ACCOUNTING STANDARD 7 ISSUED BY THE ICAI OF INDIA. THE LD. AR BEFORE US SUBMITTED A CHART SHOWI NG THE PROFIT SHOWN AS PER THE WRONG CALCULATION OF PROFIT IN TERMS OF AS 7 AN D THE CORRECT PROFIT THAT WOULD BEEN SHOWN IN TERMS OF AS 7 WHICH IS PART OF THE OR DER AS PER ANNEXURE 1 OF THIS ORDER. WE ALSO UNDERSTAND THAT THE AO CANNOT T AKE THE BENEFIT WITH REGARD TO THE INADVERTENT MISTAKE COMMITTED BY THE ASSESSEE IN FILING THE RETURN OF ITS INCOME. THE AO SHOULD NOT ACT AGAINST THE PRINCIPAL OF NATURAL JUSTICE. THE ASSESSEE QUOTED AND RELIED IN THE DEPA RTMENTAL CIRCULAR NO. 14(XL-35) DATED 11-4-1955 REGARDING THE ADMINISTRATIVE INSTR UCTIONS ISSUED FOR THE GUIDANCE OF THE INCOME TAX OFFICERS ON THE MATT ERS PERTAINING TO THE ASSESSMENTS. THE ASSESSEE HAS RELIED ON THE FOLLOWI NG DECISIONS IN SUPPORT OF HIS CLAIM. THE LAW IS WELL SETTLED THAT TAX AUTHORI TIES ENTRUSTED WITH THE POWER TO MAKE ASSESSMENT OF TAX DISCHARGE QUASI JUDICIAL FUNCTIONS AND THEY ARE BOUND TO OBSERVE PRINCIPLES OF NATURAL JUSTICE IN R EACHING THEIR CONCLUSIONS STATE OF KERALA V. K.T. SHADULI YUSUFF (1977) 39 STC 478, 481 (SC). THE, DEMANDS OF NATURAL JUSTICE ARE NOT MET EVEN IF THE VERY PERSON PROCEEDED AGAINST HAS FURNISHED THE INFORMATION ON WHICH THE ACTION IS BASED, IF IT IS FURNISHED IN A CASUAL WAY OR FOR SOME OTHER PURPOSE S.L.KAPOOR V. JAGMOHAN AIR (1981) 136, 145 (SC). PRINCIPLES OF NATURAL JUS TICE DEMAND THAT THERE SHOULD BE A FAIR DETERMINATION OF A QUESTION BY QUA SI-JUDICIAL AUTHORITIES. ARBITRARINESS WILL CERTAINLY NOT ENSURE FAIRNESS. I F GIVING A MERE OPPORTUNITY TO SHOW CAUSE AND TO EXPLAIN WOULD SATISFY THE PRINCIP LES OF NATURAL JUSTICE, THE NOTICE TO SHOW CAUSE BECOMES AN EMPTY FORMALITY SIG NIFYING NOTHING, FOR, AFTER ISSUING THE NOTICE TO SHOW CAUSE, THE AUTHORITY CAN DECIDE ACCORDING TO HIS WHIM AND FANCY. THE JUDICIAL PROCESS DOES NOT END B Y MAKING KNOW TO THE PERSON THE PROPOSAL AGAINST HIM AND GIVING HIM A CH ANCE TO EXPLAIN. IT EXTENDS FURTHER TO A JUDICIAL CONSIDERATION OF HIS REPRESENTATIONS AND THE MATERIALS AND A FAIR DETERMINATION OF THE QUESTION INVOLVED IN THE CASE OF M.APPUKUTTY V. STO (1966) 17 STC 380 (KER). IN THE CASE OF CBDT V. SMT. KAMALA BAI SRIKRISHNA SONI (2010) 323 ITR 664 (KAR) IT WAS HELD THAT WHERE ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 7 THE ASSESSEE HAD FILED A BELATED WEALTH TAX RETURN INCLUDING ASSETS WHICH WERE NOT CHARGEABLE TO TAX AND COULD NOT FILE A REVISED RETURN BECAUSE IT WAS EITHER TIME-BARRED OR WAS NOT PERMISSIBLE IN THE VIEW THAT A BELATED RETURN COULD NOT BE REVISED, IF THE ASSESSMENT HAS BEEN TAKEN FOR SC RUTINY, THE AO IS BOUND TO PASS AN ORDER SO THAT ASSESSEES CLAIM WAS BOUND TO BE CONSIDERED ONE WAY OR THE OTHER WITH THE RIGHT OF APPEAL, IF THE ORDER IS ADVERSE. THE DECISION OF THE HON'BLE HIGH COURT WAS THE SUBJECT-MATTER FOR SPECI AL LEAVE, WHICH WAS DECLINED BY THE HON'BLE SUPREME COURT IN THE CASE O F CBDT V. KAMALA BAI SRIKRISHNA SONI (2010) 322 ITR (ST) 16. FURTHER, IN THE CASE OF CIT V. SIMON CARVES LTD. (1976) 105 ITR 212 (SC) THE HON'BLE SUPREME COURT OBSERVED THAT THE TAXING AUTHORITIES EXERCISE QUASI-JUDICIAL POWERS AND IN DOING SO THEY MUST ACT IN A FAIR AND NOT A PARTISAN MANNER. ALTHO UGH IT IS PART OF THEIR DUTY TO ENSURE THAT NO TAX, WHICH IS LEGITIMATELY DUE FROM THE ASSESSEE SHOULD REMAIN UNRECOVERED, THEY MUST ALSO AT THE SAME TIME NOT AC T IN A MANNER AS MIGHT INDICATE THAT SCALES ARE WEIGHTED AGAINST THE ASSES SEE. IT IS IMPOSSIBLE TO SUBSCRIBE TO THE VIEW THAT UNLESS THOSE AUTHORITIES EXERCISE THE POWER IN A MANNER MOST BENEFICIAL TO THE REVENUE AND CONSEQUEN TLY MOST ADVERSE TO THE ASSESSEE, THEY SHOULD BE DEEMED TO HAVE EXERCISED I T IN A PROPER AND JUDICIOUS MANNER. IN VIEW OF ABOVE, WE ARE NOT I NCLINED TO INTERFERE IN THE ORDER OF THE LD. CIT(A), HENCE, GROUND RAISED BY RE VENUE IS DISMISSED. 5. THE ISSUE RAISED IN THIS GROUND NO. 4 OF REVENUE S APPEAL IS THAT LD. CIT(A) ERRED IN DIRECTING FOR RE-COMPUTING THE PROF IT UNDER SECTION 115JB OF THE ACT. 6. AT THE OUTSET WE OBSERVE THAT THE PROVISIONS OF THE MAT ARE ATTRACTED TO THE ASSESSEE COMPANY FOR THE YEAR UNDER CONSIDERATI ON. THE RELEVANT EXTRACT OF THE MAT PROVISIONS AS PER SECTION 115JB OF THE A CT READ AS UNDER:- 115JB. (1) NOTWITHSTANDING ANYTHING CONTAINED IN ANY OTHE R PROVISION OF THIS ACT, WHERE IN THE CASE OF AN ASSESSEE, BEIN G A COMPANY, THE INCOME-TAX PAYABLE ON THE TOTAL INCOME AS COMPUTED UNDER THIS ACT IN RESPECT OF ANY DAY OF APRIL, [2012], IS LESS THAN [ EIGHTEEN AND ONE-HALF ITA NO.85/KOL/2012 A.Y. 2008-0 9 DCIT CIR-11, KOL. V. M/S SAMAY CONSTRUCTION PV T. LTD. PAG E 8 PER CENT] OF ITS BOOK PROFIT, [SUCH BOOK PROFIT SHA LL 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 [EIGHTEEN AND ONE-HALF PER CENT]]. FROM THE ABOVE PROVISIONS, WE FIND THAT THE ASSESSE E IS LIABLE TO PAY THE TAX UNDER MAT IN SPITE OF THE FACT THAT WE HAVE GIVEN R ELIEF TO THE ASSESSEE UNDER THE NORMAL PROVISIONS OF ACT. ACCORDINGLY WE FIND N O INFIRMITY IN THE ORDER LD. CIT(A). THIS GROUND OF REVENUES APPEAL IS DISMISSE D. 7. IN THE RESULT, REVENUES APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT 23 /03/2016 SD/- SD/- (N.V.VASUDEVAN) (WASEEM AHMED) (JUDICIAL MEMBER) (ACCOUNTANT MEMBER) KOLKATA, *DKP !- 23 / 03 /201 6 / COPY OF ORDER FORWARDED TO:- 1. /APPELLANT-DICT, CIRCLE-11, P7 CHOWRINGHEE SQUARE, KOLKATA-69 2. /RESPONDENT-M/S SAMAY CONSTRUCTION PVT. LTD., C/O. MODEL NURSURY, 5/1 TILJOLA ROAD, P ARK CIRCUS, KOLKATA-46 3. ) *+ , , - / CONCERNED CIT KOLKATA 4. , , -- / CIT (A) KOLKATA 5. 012 33*+, , *+ , / DR, ITAT, KOLKATA 6. 267 89 / GUARD FILE. BY ORDER/ , , /TRUE COPY/ / , *+ ,