2012 (7) TMI 407

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....f the Income-tax Act, 1961. 2. The brief facts of the case are that the assessee company is a 50:50% joint venture of NTPC and SAIL. It owns captive thermal power plant located at Bhilai Steel Plant. It has filed its return of income on 29.10.2005 decalring nil income. The case of the assessee was selected for scrutiny assessment and a notice under section 143(2) of the Income-tax Act, 1961 was issued on 5th October, 2006. The notice was served upon the assessee. On scrutiny of the accounts, it revealed to the Assessing Officer that there is an increase in share capital by Rs. 80 crores. He directed the assessee to furnish the details of the share capital. The assessee informed the Assessing Officer vide letter dated 12.10.2007 that a....

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....n. He pointed out that the income of the assessee has ultimately been determined under sec. 115JB and no addition or adjustment has been made by the Assessing Officer in the computation of book profit meant for section 115JB of the Act. He drew our attention towards page 2 of the assessment order where learned Assessing Officer has observed as under: "Computation of Tax Liability as per Section 115JB of the Act. Book Profit 72679806 Total Tax Payable u/s. 115JB of the Act 5699005 Assessee at nil. As the tax payable under normal provisions of the Act is less than the tax payable under special provisions of the Act, the tax payable is determined on the book profit. Penalty proceedings u/s. 271(1)(c) of the Act are separately....

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....1(1)(c) has observed that if an assessee has declared loss in its return of income and that loss has been reduced in the assessment order for being carried forward then the differential amount of loss would represent concealed income of the assessee and penalty could be imposable. He pointed out in such case also there cannot be any tax sought to be evaded because ultimate income is a loss but the assessee will claim benefit of carry forward of such loss which will be adjusted against future income. In the present case also, the assessee would ultimately claim MAT credits. 7. We have heard the rival contentions and gone through the record carefully We find that Hon'ble High Court has considered the judgment of Hon'ble Supreme Court also ....