2009 (4) TMI 87

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....ection 143(3) r.w.147 of the I.T. Act on 31.1.2005 on the basis of computation book profit under Section 115JB Rs.77,57,105. The original assessment for the assessment year 2002-03 was completed under Section 143(3) on 31.1.2005 determining the book profit under Section 115JB at Rs.81,23,508/- While completing the assessment the Assessing Officer had allowed deductions under Section 80HHC of Rs.9,19,200/- on the book profit under Section 115JB for the assessment year 2001-02 and Rs.18,71,525/- on the book profit under Section 115JB for the assessment year 2002-03. On perusal of the records relating to the above assessment years, the Commissioner of Income Tax found that when the taxable income was nil after setting off depreciation for the ....

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....ed by the order of the Commissioner of Income-tax , the assessee filed appeals before the Income-tax Appellate Tribunal and the Tribunal allowed the appeals in favour of the assessee by following the decision of the Special Bench of Mumbai Tribunal in the case of DCIT VS. SYNCOME FORMULATIONS (I) LTD (2007)(106 ITD 193) and the decision of the Supreme court in the case of MALABAR INDUSTRIES CO. LTD VS. COMMISSIONER OF INCOME TAX (243 ITR 83). Aggrieved by the same, the revenue has filed this appeal by formulating the following question of law: "Whether on the facts and in the circumstances of the case, the Income Tax Appellate Tribunal was right in cancelling the order of the Commissioner of Income Tax under section 263 on the ground tha....

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....er to come to the conclusion the Tribunal has also taken note of sub-section (4) of section 115JA and referred to the dictum laid down by the Supreme Court in the case of Apollo Tyres Ltd., vs. CIT (2002) 255 ITR 273 wherein it was held that the Assessing Officer while computing the book profits of a company under Section 115J of the Income Tax Act, 1961, has only the power to examine whether such books of account are certified by the authorities under the Companies Act as having been properly maintained in accordance with the Companies Act. The Assessing Officer thereafter has the limited power of making increases and reductions as provided for in the Explanation Section 115J. The Assessing Officer does not have the jurisdiction to go behi....