Samalpatti Power Company (P) Limited vs The Assistant Commissioner of Income Tax

K. Raviraja Pandian, J.—The appeal is at the instance of the assessee against the order 8.8.2008 of the Income Tax Appellate Tribunal,

Madras ''C'' Bench in I.T.A. No. 2321/Mds/2007 relating to the assessment year 2003-2004.

Though three questions of law have been formulated in this appeal, the learned Counsel appearing for the assessee submits before this Court

that he is not pressing the two questions of law and they need not be taken up for consideration. The third question of law is as follows:

Whether the Tribunal was right in law in rejecting the appellant''s submission especially when the appellant''s stand has been vindicated by the

Supreme Court recently in the case of CIT v. HCL Comnet Systems & Service Limited, wherein it held that a provision made for bad and

doubtful debts is only a provision for the diminution in the value of the asset and is not a provision for liability even if a debt is not recoverable, as

no liability could be fastened upon the assessee?

The appellant is a company engaged in the generation of power. It supplies the entire electricity generated to the Tamil Nadu Electricity Board

under a fifteen years power purchase agreement dated 22.5.1998. The appellant filed its return of income for the assessment year declaring a loss

of Rs. 1,85,36,409/- under the normal provisions of the Income Tax Act and Book Profit under 115JB at Rs. 32,47,57,789/-.

The issue in dispute in this appeal is the treatment of a rebate and provision for receivable and provision for impairment in value of land as

unascertained liabilities and adding the same to the book profits computed u/s 115JB. This issue has been now finally settled by the Supreme Court

in favour of the assessee in the case of Commissioner of Income Tax-IV, Delhi Vs. HCL Comnet Systems and Services Ltd., , wherein the

Supreme Court held thus:

While resorting to the provisions of Section 115JA of the Income Tax Act, 1961, on the basis that the total income of the company as computed

under the Act is less than 30 per cent of its book profits, the Assessing Officer has to accept the authenticity of the accounts maintained by the

company in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, 1956, which are certified by the auditors

and passed by the company in general meeting. The Assessing Officer has only the power of examining whether the books of account are duly

certified and whether such books have been properly maintained in accordance with the Companies Act. The Assessing Officer does not have the

jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation to Section 115JA. The

Explanation has provided six items, viz., items (a) to (f), which if debited to the profit and loss account can be added back to the net profit for

computing the book profit. The provision for bad and doubtful debts can be added back to the net profit only if item (c) of the Explanation is

attracted. Item (c) deals with amounts set aside for meeting liabilities other than ascertained liabilities. The assessee''s case can fall within the ambit

of item (c) only if the amount (i) is set aside as a provision, (ii) the provision is made for meeting a liability, and (iii) the provision should be for other

than an ascertained liability, i.e., it should be for an unascertained liability.

Item (c) of the Explanation to Section 115JA is not attracted to the provision for bad and doubtful debts. The provision for bad and doubtful debt

is made to cover up probable diminution in the value of the assets, i.e., a debt which is an amount receivable by the assessee. Such a provision

cannot be said to be a provision for a liability, because even if the debt is not recoverable no liability can be fastened on the assessee. Any

provision made towards irrecoverability of a debt cannot be said to be a provision for liability.

As the question of law has been now answered in favour of the assessee by the Apex Court in the above said judgement, the question of law in

this appeal has to be answered in negative and in favour of the assessee by following the above referred decision of the Supreme Court reported in

305 ITR 409.The appeal is therefore allowed to that extent.