TaxTMI 
TaxTMI 
TaxTMI 
2019 (6) TMI 536
X X X X Extracts X X X X
X X X X Extracts X X X X
....he assessee-company is engaged in the business of engineering, construction of dams and tunnels. The assessee-company filed its return of income on 31.10.2002 declaring income at Rs. 9,67,11,788/-. Subsequently, the assessee filed revised return on 04.03.2003 declaring total income at Rs. 49,70,380/- and claimed long term capital gain deduction of Rs. 9,67,11,788/- u/s 80IA(4). The return of income was selected for scrutiny. The assessing officer passed assessment order on 29.03.2005. In the assessment order the Assessing Officer (AO) disallowed the long term capital gain claimed u/s 80IA(4) and assessed total income of Rs. 13,18,34,320/-. The assessee filed appeal before First Appellate Authority, wherein the assessee was allowed deduction u/s 80IA(4) vide order dated 27.04.2006. Against the order of ld. CIT (A) dated 27.04.2006 in allowing deduction u/s 80IA(4), the revenue filed appeal before the Tribunal. In the appeal of revenue the assessee filed its cross objection. The appeal of the revenue was dismissed by Tribunal. During the first appellate stage the assessee also raised additional ground of appeal in its cross objection stating that the assessee's share of income of Joi....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ited to the profit and loss account, then the same shall be reduced while computing the book no profit. The Ld. AR submits that an amendment is curative in nature and should be applied retrospective. The provision is inserted is only for rationalizing the provision of computation of book profit which evident from the explanatory Note to Finance Act, 2015 dated 27.11.2015. In support of his submission, the Ld. AR of the assessee relied upon the decision of Tribunal in Goldgerg Finance Pvt. Ltd. v. ACIT (ITA No. 7496/Mum/2013) dated 19.01.2017. 7. On the other hand, the Ld. DR for the Revenue supported the order of AO/CIT(A). The Ld. DR further submits that the matter has not been examined by the Assessing Officer/CIT(A). In accordance with the provision contended in clause (iic) inserted under Explanation-1 to section 115JB. Therefore, the matter may be restored to the Assessing Officer for examined the issue afresh. 8. We have considered the submission of the ld representatives of the parties and have gone through the orders of the authorities below. The limited question for our consideration is whether in case of Member of AOP, when no income is payable on the share of member of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....natory notes to the Finance Act 2015 in the following manner:- "Rationalising the provisions of section 115JB The existing provisions contained in section 115JB of the Act provide that in the case of a company, if the tax payable on the total income as computed under the Act in respect of any previous year relevant to the assessment year commencing on or after 1st day of April, 2012, is less than eighteen and one-half percent of its book profit, such book profit shall be deemed to be the total income of the assessee and the tax payable for the relevant previous year shall be eighteen and one-half percent of book profit. This tax is termed as minimum alternate tax (MAT). Explanation below subsection (2) of section 115JB provides that the expression "book profit" means net profit as shown in the profit and loss account prepared in accordance with the provisions of the Companies Act, or in accordance with the provisions of the Act governing a company as increased or reduced by certain adjustments, as specified in the section. Section 86 of the Act provides that no income-tax is payable on the share of a member of an AOP, in the income of the AOP in certain circumstances. Howev....
X X X X Extracts X X X X
X X X X Extracts X X X X
....T. If a provision has been brought to extend the benefit to certain class of assessees which was earlier applicable to other class of assessees on a similar circumstances and is remedial in nature, then, the same has to be reckoned as retrospective. It is quite a trite proposition that explanatory Act which is curative in nature or any remedial statute is brought in the statute either to remedy unintended consequence or to provide benefit which is applicable to particular class of assessee and is extended to other class of assessee, then, on reasonable interpretation it should be declared as retrospective in operation. In our opinion, if an amendment in law has been brought by the legislature in the statute which is curative in nature, to avoid unintended consequence and to provide similar benefit to other class of assessee, then, it has to be treated as retrospective in nature even though it has not been stated specifically by the amending Act. This proposition find strong support from the judgments of the Hon'ble Supreme Court in the case of Allied Motors (P) Ltd. Etc. v. CIT, 224 ITR 677 and in the case of CIT v. Alom Extrusions Ltd. 319 ITR 306. The Hon'ble Apex Court while int....
X X X X Extracts X X X X
X X X X Extracts X X X X
....asonable interpretation, it could be read retrospective in operation, particularly to give effect to the section as a whole. Accordingly, this Court in Allied Motors (P) Ltd. Etc. (supra), held that the first proviso was curative in nature, hence, retrospective in operation w.e.f. 1st April, 1988. It is important to note once again that, by Finance Act 2003 not only the second proviso is deleted but even the first proviso is sought to be amended by bringing about an uniformity in tax, duty, cess and fee on the one hand vis-a-vis contributions to welfare funds of employee(s) on the other. This is one more reason why we hold that the Finance Act, 2003, is retrospective in operation. Moreover, the judgment in Allied Motors (P) Ltd. Etc. (supra) is delivered by a Bench of three learned Judges, which is binding on us. Accordingly, we hold that Finance Act, 2003, will operate retrospectively w.e.f. 1st April, 1988 (when the first proviso stood inserted). Lastly, we may point out the hardship and the invidious discrimination which would be caused to the assessee(s) if the contention of the Department is to be accepted that Finance Act, 2003, to the above extent, operated prospectively. Ta....