AI Drafter 
TaxTMI 
TaxTMI 
2018 (8) TMI 1363
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....ssee did not make any claim denying its liability of being assessed on book profit by filing return or revised return, it was not open for the Ld. CIT(A) to entertain a new claim and allow the same in the appellate proceeding. The Ld. DR further submitted that as per gazette notification No. 1249 dated 12.11.2012 issued by Govt. of India, the assessee corporation had prepared its annual financial accounts as per revised Schedule VI and, therefore, also the provision of sec. 115JB of the Act were squarely applicable. The Ld. DR also drew our attention to sec. 2(17) and sec. 2(26) of the Act, according to which, the status of the assessee for tax purpose was a "Company" and in that view of the matter, he submitted that provisions of section 115JB of the Act were applicable to the assessee. The Ld. DR, therefore, strongly urged that the Ld. CIT(A)'s order should be reversed and the order of the AO be restored. Per contra, the Ld. AR supported the order of the Ld. CIT(A) and brought to our notice that the issue of applicability of sec. 115JB of the Act to the assessee corporation was considered and decided by the coordinate bench of this Tribunal in assessee's own case for AY 2008-09 a....
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.... clearly clarified that the said section is applicable to every assessee being a company to which proviso to sub-section (2) of section 211 of Companies Act, 1956 is applicable. We, however, find that assessee corporation though assessed in the status of a company was not a company within the meaning of Companies Act, 1956 and, therefore, the proviso to sec. 211(2) of the Companies Act, 1956 was not applicable. As a consequence, we find merit in the submission of the Ld. AR that the deeming provision of section 115JB of the Act as were in force during the relevant year were not applicable to the assessee corporation. Taking note of this factual position, this Tribunal in assessee's own case for AYs 2008-09 and 2009-10 held as follows: "3.6. The Notes to Clauses to Finance Act, 2012 on the subject of Minimum Alternate Tax (MAT) is reproduced below:- i. Under the existing provisions of section 115JB of the Act, a company is liable to pay MAT of eighteen and one half per cent of its book profit in case of tax on its total income computed under the provisions of the Act is less than MAT liability. Book profit for this purpose is computed by making certain adjustments ....
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....ssessee is not a company within the meaning of Companies Act, 1956 , section 211(2) and proviso thereon is not applicable and ITA Nos. 1622/Kol/2011 & 451/Kol/2013-A-AM M/s. Damodar Valley Corporation 13 therefore consequently we hold that the provisions of section 115JB of the Act are also not applicable. 3.16. In view of the aforesaid provisions of the Act, our findings given thereon with respect to the facts and various judicial precedents relied upon hereinabove and further in view of the fact that no contrary decisions being brought to our knowledge on the same issue, we accordingly hold that - the assessee is a statutory corporation not registered under the Companies Act, 1956 and hence the provisions of section 115JB of the act are not applicable to the assessee corporation ; - the amendment brought in section 115JB of the Act read with Explanation 3 thereon by the Finance Act 2012 is applicable only with effect from Asst Year 2013-14 onwards in line with the Notes to Clauses of Finance Act 2012 ; and - a statutory claim could be made by way of a letter before an appellate authority even without filing a revised return if the facts with re....
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....uld not be made as per provision of Rule 8D of the Rules. The AO, however, by referring to the decision of the Hon'ble Calcutta High Court in the case of Dhanuka & Sons Vs. CIT (339 ITR 319) rejected the assessee's contention and computed the disallowance inconformity with Rule 8D of the I T. Rules, 1962. Accordingly, the AO disallowed Rs. 31,49,02,210/- out of interest paid under Rule 8D(2)(ii) of the Rules and Rs. 5,52,69,466/- under Rule 8D(2)(iii) of the Rules. After deducting the suo moto disallowance of Rs. 14,99,502/- the additional disallowance made was Rs. 36,86,72,174/- which was deleted in appeal by Ld. CIT(A). Aggrieved, the revenue is before us. 9. We have heard rival submissions and gone through the facts and circumstances of the case. We note that the Ld. DR strongly relied on the findings of the AO. Per contra, the Ld. AR brought to our attention that investment which had yielded tax free income were also held by the assessee in AYs. 2008-09 and 2009-10 as well. In this matter also the AO made disallowance u/s. 14A out of interest and administrative expenses inconformity with Rule 8D which was deleted by this Tribunal vide its order dated 31.01.2016 for both the ....
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....free bonds or investments in shares of Companies jointly promoted by the assessee for strategic business purposes. After examining the assessee's Balance-sheet the Tribunal noted that the assessee had sufficient own funds to the extent of Rs. 16270,34,38,S28/ - whereas investment of the assessee in tax-free bonds & shares was only to the extent of Rs. 1466.15 crores. On these facts therefore the ITAT held that provisions of Rule 80(2)(ii) could not be invoked in the assessee's case. Accordingly the disallowance made under Rule 80(2)(ii) was held to be un unsustainable. 6. In the A.Y. 2013-14, composition of investment continued to remain same as in A.Y. 2008- 09. I also find that in its order the ITAT had taken note of the fact that in the assessment order for A.Y. 2010-11 the AO himself had accepted the assessee's basis of offering disallowance u/s 14A and no resort was made to Rule 80 in that year. In the circumstances, I find that the factual matrix of the assessee's case in A.Y. 2013-14 was similar to A.Ys. 2008- 09 & 2009-10 when the disallowance under Rule 80(2)(ii) was deleted by the ITAT. It is further noted that as compared with the average investm....