Itta/8/2014 Of Panyam Cements And Mineral Industries Limited v. Additional Commissioner Of Income Tax

THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No. 8 of 2014 DATED:29.1.2014 Between:Panyam Cement & Mineral Industries Ltd.,Kurnool. … AppellantAnd The Additional Commissioner of Income Tax,Kurnool. ….Respondent THE HON’BLE THE CHIEF JUSTICE SRI KALYAN JYOTISENGUPTA AND THE HON’BLE SRI JUSTICE SANJAY KUMAR I.T.T.A. No.8 of 2014 Judgment:(per the Hon’ble the Chief Justice Sri Kalyan JyotiSengupta) This appeal is sought to be preferred against the judgmentand order of the learned Tribunal dated 25.9.2013 in relation to theassessment year 2009-2010 and is sought to be admitted on thefollowing suggested question of law. 1. Whether on the facts and circumstances of the case, the Tribunal islegally correct in denying the claim under Section 115JB(2)(vii) andexplanation thereto when there is an order under Section 17(1) of SickIndustrial Companies (Special Provisions) Act, 1985 ?legally correct in denying the claim under Section 115JB(2)(vii) andexplanation thereto when there is an order under Section 17(1) of SickIndustrial Companies (Special Provisions) Act, 1985 ? 2. Whether on the facts and circumstances of the case, the Tribunal islegally correct in holding that the order passed by the BIFR underSection 17(1) is not valid because BIFR has not proceeded further dueto limitation to condone the delay in filing reference under Section 15 ofSick Industrial Companies (Special Provisions) Act, 1985 ?legally correct in holding that the order passed by the BIFR underSection 17(1) is not valid because BIFR has not proceeded further dueto limitation to condone the delay in filing reference under Section 15 ofSick Industrial Companies (Special Provisions) Act, 1985 ? It appears, the learned Tribunal has rejected the plea of theassessee that benefit under Section 115 JB of the Income TaxAct. 1961 (for short ‘the Act’) should be applied in the facts andcircumstances of the case. The learned Tribunal, in our view, has correctly rejectedthat plea as pre-conditions for giving benefit under Clause (vii) ofSection 115JB of the Act are not satisfied. We are of the view pre-conditions are that company must have been declared as sickindustry under Section 17(1) of the Sick Industrial Companies(Special Provisions) Act, 1985 (for short ‘the SICA Act’) and itmust have earned profit during the period of sick year and suchprofit must be equivalent to or exceed the accumulated losses.The aforesaid provision has been provided by the Legislatureintending to grant fiscal relief to the Sick Industry. Therefore, theabove provision has to be construed very strictly and in terms ofthe statute. The Tribunal, on fact, found that there has been noorder under Section 17 of the SICA Act and this fact finding hasnot been challenged. Moreover, on a perusal of the recordsplaced before us, we find that application for making enquiry underSection 15 has been dismissed long time back. Thus, the learnedTribunal has reached a correct finding. We, therefore, do not findany element of law for decision of this Court. The appeal is accordingly dismissed. No costs. __________________ K.J. SENGUPTA, CJ _________________ SANJAY KUMAR, J