2018 (12) TMI 1653

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.... for our decision.    I 2. The contentions of the Ld. counsel follow the written submission dated 12.03.2018 filed by the applicant before the Tribunal. Therefore, we refer below the said written submission.  It is stated that during the course of hearing on 23.05.2017, reliance was placed on the order of the Tribunal in the case of Goldgerg Finance (P) Ltd. v. ACIT in ITA No. 7496/Mum/2013 for AY 2009-10 dated 19.01.2017, wherein it was held that amendment to Explanation 1 to S. 115JB of the Act vide Finance Act, 2015 is retrospective in nature. It is stated that the issue and facts involved in the assessee's case are identical to the above case and the Tribunal, after considering the issue in detail has decided the matt....

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....rg Finance (P) Ltd. v. ACIT (53 taxmann.com 40) for AY 2008-09 and subsequently from para 7.2 onwards, it has gone on to discuss the amendment inserted in Explanation 1 to S. 115JB of the Act vide Finance Act, 2015. It is stated that that the order of the Tribunal in the case of Goldgerg Finance (P) Ltd. v. ACIT (53 taxmann.com 40) for AY 2008-09 has not considered the said amendment, since the same was not on the statute book when the order was pronounced.  It is also submitted that in para 7.5, 7.6 and 7.7 of the order, the Tribunal has referred to certain decisions which were not discussed during the course of hearing and the assessee was not granted an opportunity of being heard on this issue, which constitutes a mistake apparent....

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....P.) Ltd. (supra) for AY 2008-09, it is held by the Tribunal vide order dated 05.09.2014 that "where assessee had credited its share of income in AOPs in its profit & loss account and the book profit was worked out after taking into account such share of income and said profit & loss account had been approved by Board of Directors of the assessee-company, there was no reason to exclude said profit while computing book profit u/s 115JB of the Act".   In the case of M/s Goldgerg Finance (P.) Ltd. (supra) for AY 200910, the Tribunal vide order dated 19.01.2017 held that the clause (iic) inserted in Explanation 1 to section 115JB by the Finance Act, 2015 is remedial and curative in nature and hence is to be held retrospectively.&nbsp....