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Judgment
In both appeals common questions of law and facts are involved, hence, they are decided by this common judgment.
By way of these appeals, the appellant has challenged the judgment and order of the Tribunal whereby the Tribunal has dismissed the appeal of the
assessee.
Counsel for the appellant has framed the following substantial questions of law:-
In DBITA No. 107/2018
“(i) Whether the appellate Tribunal is right in law and on facts in confirming the order passed by the ld. Commissioner of Income Tax (Appeals)
sustaining the charge of interest amounting to Rs. 4,36,630/- by the ld. AO u/s 234B of the Act of 1961?
(ii) Whether the ld. ITAT is right under law whileholding the provisions of Sec. 115JC at par with the provisions of Sec. 115JA and 115JB in respect
of liability of payment of advance tax prescribed u/s 208 charging of interest u/s 234B of the Income Tax Act, 1961 in case of non-payment of
Advance Tax which cannot be computed without adjustment of total income as provided under Sub-section (2) of Sec. 115JC and the application of
the provisions of said section only when a report is obtained in the prescribed form from an accountant certifying that the adjusted income and the
AMT have been computed in accordance with the provisions of Chapter XIIBA?
(iii) Whether the ld. ITAT was justified under lawwhile sustaining the findings of ld. CIT(A) for confirming the charge of interest u/s 234B of the
Income Tax Act, 1961 in case of AssesseeAppellant who is a person other than a company and paid Alternate Minimum Tax (AMT) u/s 115JC
before filing of the return of income duly audited and alongwith the report of accountant as prescribed under the said provision? iv) Whether the ld.
ITAT was justified under law while ignoring the provision of law that tax credit for AMT paid by a person u/s 115JC is not refundable and no interest
is payable on tax credit allowed and the tax credit is carried forward and set off in the tax liability of the following years, while the excess advance tax
paid by an assessee is refundable with interest after passing of the assessment order by the AO?â€
In DBITA No. 106/2018
“(i) Whether the appellate Tribunal is right in law and on facts in confirming the order passed by the ld. Commissioner of Income Tax (Appeals)
sustaining the charge of interest amounting to Rs. 20,14,476/- by the ld. AO u/s 234A & 234B of the Act of 1961?
ii) Whether the ld. ITAT is right under law whileholding the provisions of Sec. 115JC at par with the provisions of Sec. 115JA and 115JB in respect of
liability of payment of advance tax prescribed u/s 208 charging of interest u/s 234B of the Income Tax Act, 1961 in case of non-payment of Advance
Tax which cannot be computed without adjustment of total income as provided under Sub-section (2) of Sec. 115JC and the application of the
provisions of said section only when a report is obtained in the prescribed form from an accountant certifying that the adjusted income and the AMT
have been computed in accordance with the provisions of Chapter XIIBA?
(iii) Whether the ld. ITAT was justified under lawwhile sustaining the findings of ld. CIT(A) for confirming the charge of interest u/s 234B of the
Income Tax Act, 1961 in case of AssesseeAppellant who is a person other than a company and paid Alternate Minimum Tax (AMT) u/s 115JC
before filing of the return of income duly audited and alongwith the report of accountant as prescribed under the said provision?
(iv) Whether the ld. ITAT was justified under lawwhile ignoring the provision of law that tax credit for AMT paid by a person u/s 115JC is not
refundable and no interest is payable on tax credit allowed and the tax credit is carried forward and set off in the tax liability of the following years,
while the excess advance tax paid by an assessee is refundable with interest after passing of the assessment order by the AO?â€
The case of the appellant is that the appellant was assessed under Section 115JC. Counsel for the appellant contended that Section 115JB & 115JC
are not parimateria and the Tribunal has seriously committed an error in considering the issue and misconceivly applied the decision of Supreme Court
CIT vs. Rolta India Ltd.; 330 ITR 470 and the decision of Karnataka High Court in Kwality Biscuits Ltd. vs. CIT; 243 ITR 519.
Counsel for the appellant has taken us to the provisions of Section 115JB & 115JC and also Finance Act, 2013 so also explanation to 115JB and
contended that explanation which was subsequently inserted was not there when the decision was rendered in Rolta India Ltd. (supra) by the
Supreme Court.
However, the Tribunal while considering the matter has specifically observed as under:-
“3. Before us, the ld. AR of the assessee has submitted that while filing the return of income the assessee made payment of alternative minimum
tax under the provisions of section 115JC however, while completing the assessment the AO charged interest u/s 234B for not paying the alternative
minimum tax as per scheme of advance tax u/s 208. The Ld. AR has contended that the provisions of advance tax u/s 208 is not applicable to the
facts of the case and in respect of the tax payment made u/s 115JC. He has further contended that the reliance of CIT(A) on the decision of
Hon’ble Supreme Court in case of JCIT vs. Rolta India Ltd 196 taxmann 594 as well as Hon’ble Karnataka High Court in case of Jindal
Thermal Power Co. Ltd. vs. DCIT 154 taxman 547 is misplaced as these decisions are not on section 115JC but these decisions were rendered with
reference to section 115JB which is in respect of MAT whereas section 115JC was introduced in the statute w.e.f. 01.04.2013 and proceeds for
payment of alternative minimum tax for the assessee other than corporate assessee. The ld. AR then contended that in case of corporate assessee the
books of accounts are required to be maintained as per the provisions of Companies Act whereas in case of other assessee when the books of
account are not required to maintain as per companies Act then, it is not possible to estimate the income in advance with a reasonable accuracy. The
ld. AR has thus contended that the provisions of Section 115JB cannot be compared with the provisions of section 115JC and therefore, the assessee
cannot be expected to pay the advance tax on the basis of books profits in terms of section 115JC. The ld. AR then contended that the alternative
minimum tax as per the provisions of section 115JC is payable an adjusted total income and as such income is deemed to be total income. There is
nothing under this provision requiring payment of advance tax u/s 208 of the Act. Thus, in the entire chapter there is no a single word referring to
payment of interest of any type leave aside section 234B. The ld. AR has further contended that deeming provisions create a legal fiction only for a
definite purpose and they are limited to that purpose only and should not be extended beyond that unless it is clearly and expressly provided.
Therefore, it is not permissible to impose the liability of supposition of law. In support of his contention he has relied upon the following decisions:- (i)
CIT vs. Elphinstone Sps & Wvg. Mills Co Ltd 40 ITR 142 (SC) (ii) Balkrishnan Memon (MK) vs. ACED 83 ITR 162 (SC) (iii) CIT vs. Amarchand
N Shroof 48 ITR 59 (SC) (iv) Executor & Trustees of Sir Cawasji Jehangir Vs. CIT 35 ITR 537 (Bom) To sum up his arguments, the ld. AR has
submitted that the provisions of section 115JC are introduced in the statute with the purpose to tax the other persons in addition to companies paying
zero tax. The purpose of this section is limited to pay tax as per this provision and cannot extend to other provisions of the Act. i.e. 208 or 234B.
There is vast different in the payment of advance tax and that of alternative minimum tax. The Advance tax is levied on current income and payment
is based on estimate where as AMT is based on book profit which can be arrived at only on finalization of accounts by the auditors. In such
circumstances AMT cannot be paid in advance tax and can be paid only after the end of the financial year that too on finalization of accounts.
Therefore, it is patently wrong to apply advance tax provisions on payment of AMT. He has further contended that in case advance tax is found in
excess of regular tax the same is refunded on completion of assessment u/s 143(1) or u/s 143(3). The excess payment of advance tax is not carried
forward to set off against tax liability of subsequent assessment years whereas in case of payment AMT the same is never refunded and as per the
provision of section 115JD(4) the payment of AMT shall be carried forward for credit upto subsequently 10th assessment years. Further, in case of
advance tax the Revenue is liable to pay interest u/s 244A(a) of the Act but no such refund is allowed on payment of AMT. Thus, the ld. AR has
submitted that the assessee cannot be held liable for advance tax section 208 on account of tax liability u/s 115JC and consequently no interest can be
levied u/s 234B on such tax liability.
On the other hand, the ld. DR has submitted that the issue is covered by the decision of Hon’ble Supreme Court in case of CIT vs. Rolta India
Ltd. 330 ITR 470 as well as decisions of Hon’ble Gujarat High Court in case of JCIT vs. Sumit Industries Ltd. 54 taxmann.com 345 and decision
of Hon’ble Punjab and Haryana High Court in case of CIT vs. Rana Sugars Ltd. 14 taxmann.com 191. The ld. DR has also relied upon the orders
of the ld. CIT(A) and submitted that the ld. CIT(A) has followed the decision of Hon’ble Supreme Court as well as Hon’ble High Court while
deciding this issue.â€
In view of concurrent findings, the appellant has retained the amount which is supposed to be paid under Section 115JC which has not been paid.
In that view of the matter, the proviso of Section 234B has been rightly invoked by the AO and confirmed by the CIT(A) and the Tribunal. No
substantial question of law arises.
Hence, the appeals stand dismissed.