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2017 (8) TMI 523
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....A) erred in concluding that mere issuance of intimation under section 143(1) amounts to completion of assessment proceedings and therefore the revised return of income filed for AY 2004-05 subsequent to the intimation is invalid. Further the learned CIT(A) has misinterpreted the judicial precedent of ACIT v Rajesh Jhaveri Stock Brokers (P) Ltd [2007 291 ITR 500 (SC)]. 4. On the facts and in the circumstances of the case and in law, the learned CIT(A) erred in applying the provisions of section 115JB of the Act to the Appellant which is in the business of general insurance. 5. Notwithstanding to Ground No. 4, the learned CIT(A) failed to appreciate the fact that in the absence of any specific guidance in the Act on the manner of set-off of unabsorbed loss/unabsorbed depreciation, the assessee may adopt any such method which is logical and does not violate any provisions of the Act. 6. Notwithstanding to Ground No. 4, on the facts and in the circumstances of the case and in law, the learned CIT(A) erred in making an addition of Rs. 27,12,326 being expenditure relatable to any income to which section 10 [other than section 10(38)] or section 11 or section 12 applies, while co....
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....er the provisions of Section 139(5). The AO did not agree with the contention of the assessee as in his view the assessee has filede its revised return after the assessment has been completed under section 143(1). When the matter went before the CIT(A), the CIT(A) confirmed the order of the AO. 5. Now the question before us is whether the return filed by the assessee under section 139(5) after processing of the return under section 143(1) is a valid return or not so that the assessee can be entitled for the benefit of excess set off of losses and carry forward of the same as per the revised return filed by the assessee. 6. We heard the rival submissions and gone through the orders of the tax authorities below. We noted that similar issue has come before the Hon'ble Punjab and Haryana High Court in the case of Tarsem Kumar vs. Income Tax Officer 256 CTR 116 in which the Hon'ble High Court while dealing with the said position held as under: - "7. In the present case, the assessee had been forwarded with the intimation regarding processing of return under Section 143(1)(a) of the Act on 8.12.2005. The question for consideration would be whether an intimation under Section ....
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....cable. By such application only recovery indicated to be payable in the intimation becamepermissible. And nothing more can be inferred from the deeming provision. Therefore, there being no assessment under section 143(1)(a), the question of change of opinion, as contended, does not arise. 8. The aforesaid judgment was was followed by the Division Bench of this Court in CWP No. 17854 of 2007 (Baljit Singh v. Commissioner of Income Tax-II and another) decided on 3.12.2007 (Annexure P-21). 9. Once that is so, there was no regular assessment framed in the present case. Therefore, the assessee for assessment year 2005-06 could file the revised return after complying with the provisions of Section 139(5) of the Act up to 31.3.2007. The revised return filed on 26.09.2006 was thus validly filed within limitation. Consequently, the claim of the petitionerassessee for the refund of the additional tax deposited amounting to Rs. 3,61,188/- is valid and justified. 10. Learned counsel for the petitioner has further relied upon a Division Bench judgment of this Court in Roadmaster Industries of India Pvt. Ltd. v. Commissioner of Income Tax and another, (2009) 329 ITR 69 to canvass that t....
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....ted 04.12.2015 took the view that provisions of Section 115JB do not apply in the case of the assessee. Reliance was also placed on the decision of the Hon'ble Delhi High Court in the case of CIT vs. The Bank of Tokyo Misubishi UFJ Ltd. in ITA 604/2015 in which case also the Hon'ble Delhi High Court vide order dated 08.04.2016 in para 20 taken the same view. 9. The learned D.R., on the other hand, relied on the order of the AO as well as Explanation 3 of section 115JB which was inserted under section 115JB by the Finance Act, 2012. 10. The learned A.R. in counter drawn our attention towards the decision of the Delhi Bench of this Tribunal in the case of The Bank of Tokyo Mitsubishi UFJ Ltd. vs. ADIT 152 ITD 796 in which this Tribunal has discussed Explanation 3 as inserted by the Finance Act, 2012 w.e.f. 01.04.2013 and on that basis it was contended that the Tribunal had taken a view that the amendment which brings substantial change in the computation provision cannot be held to be retrospective. It was further pointed out that this decision of the Tribunal has been confirmed in para 12 by the Hon'ble Delhi High Court in ITA 604/2015 vide order dated 08.04.2016. 11.....
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.... 115JB of the Act are not applicable to insurance companies because the profit and loss accounts of the insurance companies are not required to prepare as per Part II and III of schedule VI to Companies Act, 21956) to prepare such accounts as per Schedule VI to Companies Act, 1956 which is the basic requirement for computation of book profit under section 1153B. On the other hand the Ld. DR has submitted that as per the pre-amendment provisions, the accounts prepared in accordance with the Insurance Act can be taken for the purpose of section 115JB. 40. We have carefully considered the rival submissions. In ICICI Lombard General Insurance Co Ltd. Vs ACIT, (2012) 27 taxman.com. 326(Mum) the coordinate Bench, following the order of Hyderabad Bench of ITAT passed in State Bank of Hyderabad vs DCIT, ITA No 578/Hyd/2010 and order of Mumbai Tribunal in Kung Thai Bank vs 3CIT (133 TT3 435) has decided the identical issue in favour of the assessee holding as under "Following the decisions of the coordinate bench of this Tribunal we hold that when the insurance companies, banking companies and electricity generation and distribution companies are treated in the same class as per the p....
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....ccount of impossibility of computation as the accounts were not prepared in accordance with part II, schedule VI to the Companies Act. Now by incorporating Explanation 3, the Companies governed by Special Acts which come within the ambit of company u/s 2(17) are covered by the provisions of section 115JB. Therefore, this amendment brings substantial change in the taxability of companies governed by the special acts and, therefore, cannot be held to be retrospective. In this regard we also find strength from the ratio laid down by the Hon'ble Supreme Court in its decision dated 16.9.2014 in the case of CIT vs. Vatika Township Pvt. Ltd. In Civil Appeals arising out of SLP (C) No. 1362 of 2009 and others. The five judges Bench of the Hon'ble Supreme Court strikes down division Bench ruling on retrospective applicability of proviso to section 113 of the Income Tax Act holding the proviso to operate prospectively. Laying down perusal principles governing retrospectively, the Hon'ble Supreme Court has been pleased to rule that unless contrary intention appears, a legislation is presumed not to be intended to have retrospective operation, current law ought to govern current activi....