2019 (7) TMI 185

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....2018 for the assessment year 2009-10. 2. The Revenue has filed this appeal by raising the following substantial questions of law : "i. Whether the Appellate Tribunal is correct in law in directing the inclusion of surcharge and cess in MAT credit under Section 115JAA of the Income Tax Act ? And ii. Whether the Appellate Tribunal is correct in placing reliance on the decision of the Hon'ble Supreme Court in the case of CIT Vs. K.Srinivasan [reported in (1972) 83 ITR 346], which was rendered in context to Section 2 of the Act whereas Section 115JAA of the Act was inserted subsequently with retrospective effect from 01.4.1997 ?" 3. We have heard Mr.T.R.Senthilkumar, learned Senior Standing Counsel assisted by Mrs.K.G.Usha Rani, learn....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....on surcharge and cess. 6. Before the CIT(A), the assessee contended that the tax liability discharged during the assessment year 2009-10 was based on Section 115JB of the Act, as the tax calculated under the MAT provisions was higher than the tax calculated as per normal provisions of income tax and that this resulted in a MAT credit to the extent the tax liability under the MAT provisions higher than the tax liability under normal tax provisions to be carried forward for adjustment during the subsequent assessment years. It was further contended that while calculating the MAT credit, the Assessing Officer considered only the tax amount without considering the surcharge and cess under normal tax provisions and MAT provisions and that this ....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....fere with the order passed by the CIT(A). 10. The Revenue is before us contending that surcharge and cess should not be included and that the decision in the case of K.Srinivasan would not be applicable to the facts of this case. Thus, the argument advanced before us is that both the CIT(A) as well as the Tribunal ought not to have followed the decision in the case of K.Srinivasan, which was rendered in the context of Section 2 of the Act whereas Section 11JAA of the Act was inserted subsequently with retrospective effect from 01.4.1997. 11. Section 2(43) of the Act defines 'tax' in relation to the assessment year commencing on the 1st day of April, 1965 and any subsequent assessment year to mean income-tax chargeable under the pr....

X X   X X   Extracts   X X   X X

Full Text of the Document

X X   X X   Extracts   X X   X X

....titution. It was pointed out that the word 'surcharge' has been used to either increase the rates of income tax and super tax or to increase these taxes. It was also pointed out that according to Article 271, notwithstanding anything in Articles 269 and 270, the Parliament may, at any time, increase any of the duties or taxes referred to in those Articles by a surcharge for the purpose of the Union and the whole proceeds of any such surcharge shall form part of the Consolidated Fund of India. The Hon'ble Supreme Court took note of the distinction made by the High Court in the case and held that the distinction made by the High Court that the surcharges are levied only under the Finance Act and income tax under the Act may not ho....