TaxTMI 
TaxTMI 
2010 (1) TMI 665
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....year 1998-99, corresponding to assessment year 1999-2000. 2. A brief statement of facts essential for the disposal of the appeal may be indicated which are indeed not in dispute. The appellant was a public sector undertaking of the Government of Bihar, and had since been wound up at the instance of the State Government. The appellant had submitted its return for the period in question showing losses. It did not deposit the advance tax in terms of section 207 of the Act. In view of the losses incurred for the period in question, the provisions of section 115JA of the Act were automatically attracted and were applied in the appellant's case. In other words, in view of the deeming provisions of section 115JA of the Act, the appellant's book profit as per the provisions of law contained therein were determined which led to the conclusion that it was nevertheless in losses, thereby meaning that it had deemed book-profit. The appellant, therefore, took the stand before the learned Assessing Officer that in view of the losses as per normal computation and determination of the book profit in terms of section 115JA of the Act, there was no liability to deposit advance tax. The contention....
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....ny effort to read the same in a different manner will only encourage the companies to defraud the revenue. She further submits that the distinction sought to be made by learned counsel for the appellant by comparing the Finance Act, 1998 and that of 2000 is without substance for the reason that the latter deals with section 115JB of the Act, an aspect of the matter duly noticed by the learned Tribunal. In her submission, the discussion in paragraphs 4 to 6 of the impugned judgment correctly interprets the law and should not be interfered with. She relies on the following reported judgments: (i) Division Bench's judgment of Gauhati High Court in Assam Bengal Carriers Ltd. v. CIT [1999] 239 ITR 862; (ii) Division Bench's judgment of Madhya Pradesh High Court in Itarsi Oils & Flours (P.) Ltd. v. CIT [2001] 119 Taxman 112; (iii) Division Bench's judgment of Bombay High Court in CIT v. Kotak Mahindra Finance Ltd. [2003] 130 taxman 730; (iv) Judgment of a learned Single Judge of Punjab and Haryana High Court in Punjab Small Industries & Export Corpn. Ltd. v. IAC [2005] 143 Taxman 123 (Punj. & Har.) (v) Jud....
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....ermissible in law. 7. The next aspect of the matter is that the advance tax has to be deposited while the financial year is in progress, whereas section 115JA of the Act comes into operation after the financial year closes and the balance-sheet is prepared. It is only after preparation of the balance-sheet after conclusion of the financial year that the position would emerge whether or not the company had made profits, or had incurred losses, whereafter the question of applicability of section 115-JA of the Act would arise. In such a situation, the question would naturally arise with respect to the first category of cases discussed above, namely, after the book profit is determined and it is found that the Company had earned profit in which case it was liable to deposit advance tax. In such a situation, what would be the position in law if the advance tax was not deposited in accordance with law? 8. Our task is rendered easier by the authoritative pronouncement of the Supreme Court in Nawab Khan Abbas Khan v. State of Gujarat, in AIR 1974 SC 1471. That was a case where the appellant was liable to obey a lawful order of externment from the State of Gujarat, which he had chosen....
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....ote of caution, and did not express its final opinion with respect to problems in public law. On a thoughtful consideration of the matter, we are inclined to apply the principle of law enunciated the judgment to the present case. Article 265 of the Constitution of India also comes to the aid of the appellant. 9. Applying this principle of law to the facts and circumstances of the present case, it would mean that the appellant chose not to deposit the advance tax at its own peril which was to abide the determination of book profit in terms of section 115JA of the Act. Had determination of book profit led to the conclusion that the appellant company had deemed book profit during the period in question, then it would have been liable for non-deposit of advance income-tax and it would have been visited with the consequences contemplated by the Act, and the Tribunal would have been justified in its direction for deposit of advance tax with interest. In view of the admitted position in the present case that the appellant had really incurred losses during the period in question, it was never liable to deposit advance Income-tax. The appellant took the risk of non-deposit of advance tax....
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.... decision which it had been unsuccessfully sought to impugn. Counsel surprised your Lordships by saying that this impression was widespread in the profession. My Lords, if that were so, as my noble and learned friend Lord Diplock remarked during the argument, the sooner this erroneous impression is emphatically corrected by your Lordships the better. There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. Your Lordships House is only able, in any given year, to hear and determine a limited number of cases and it is important for the evolution of the law as a whole that those cases should be carefully chosen. Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the rel....
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....: AIR 1989 S.C. 674] the Supreme Court declared the law by stating that it cannot be said that the mere rejection of special leave petition could, by itself, be construed as the imprimatur of the Supreme Court on the correctness of the decision sought to be appealed against." "7. In the decision of the Supreme Court reported in (1989)4 S.C.C. 187: 1989 S.C.C. (L & S) 569 (Supreme Court Employees'Welfare Ass. v. Union of India) and (1996) 7 S.C.C. 1: (1996) S.C.C. (L & S) 362 (Yogendra Narayan Chowdhury v. Union of India) it has been held that a non-speaking order of dismissal of a special leave petition cannot lead to the assumption that it had necessarily decided by implication the correctness of the decision under challenge." "8. The Supreme Court in its latest judgment reported in (2000)6 S.C.C. 359 (Kunhayammed v. State of Kerala ) has reviewed the law on the issue in question has reiterated that refusal to grant leave to appeal does not mean that the order impugned is necessarily correct on merits, and has agreed/upheld the line of reasoning assigned in the aforesaid judgments. For a complete statement of the law on the point, I must reproduce hereinbelow paragraph 22 of....