The Commissioner Of Income Tax – 3, Mumbai v. Bajaj Hindustan Limited

IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO.6221 OF 2010 The Commissioner of Income Tax – 3, Mumbai..Appellant. Versus Bajaj Hindustan Limited..Respondent. Mr.Vimal Gupta, Senior Advocate with Ms.Padma Divakar for the appellant.Ms.Vasanti B. Patel for the respondent. P.C. : CORAM : J.P. Devadhar &M.S. Sanklecha, JJ. DATE : 30[th] October 2012 1.Following questions of law are raised by the Revenue in this appeal. “(1)Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in confirming the order of the learned CIT (A) in directing the Assessing Officer to treat realization through additional fres sugar quota under Sampat Incentive Scheme 1993, as capital receipt ? (2)Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in confirming the order of the learned CIT (A) in directing the Assessing Officer to reduce the amount withdrawn from the revaluation reserve, while computing the book profit under Section 115 JA of the Income Tax Act ? (3)Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in confirming the order of the learned CIT (A) in directing the Assessing Officer to treat the provision for interest payable on excess price realised on sale of levy sugar and sugarcane rate difference as an ascertained liability ? (4)Whether, on the facts and in the circumstances of the case, the Tribunal was justified in law in confirming the order of the learned CIT (A) in directing the Assessing Officer to grant interest under Section 244A, on Self Assessment Tax paid by the assessee ?” 2.Counsel for the parties state that questions (1) and (3) are covered against the Revenue by the decision of this Court in the case of Commissioner of Income-tax V/s. Bajaj Hindustan Limited, being Income Tax Appeal No.198 of 2009 decided on 15[th] April 2009. Hence, questions (1) and (3) cannot be entertained. 3.As regards question (2) is concerned, the Income Tax Appellate has allowed the claim of the assessee (see para-5) by following its decision in the assessee's own case for assessment years 2000-2001 and 2001-2002, wherein it is held that the revaluation reserve created prior to 1996 have to be excluded while computing the book profit under Section 115-JA of the Income Tax Act, 1961. There is nothing on record to suggest that the Revenue has filed any appeal against the order of the Income Tax Appellate Tribunal relating to assessment years 2000-2001 and 2001-2002. Moreover, in view of the clear language used in Section 115JA of the Act, no fault can be found with the decision of the Income Tax Appellate Tribunal in excluding the revaluation reserve created prior to 1[st] April 1996. Accordingly, 4.As regards question (4) is concerned, the Income Tax Appellate Tribunal has allowed the claim of the assessee by following the decision of the Madras High Court in the case of Commissioner of Income Tax V/s. Cholamandalam Investment and Finance Company Limited reported in (2007) 294 ITR 438 (Mad). The Apex Court in the case of Commissioner of Income Tax V/s. HEG Limited reported in (2010) 324 ITR 331 (S.C.) has affirmed the decision of the Madras High Court on the aforesaid issue. In this view of the matter, question (4) raised by the Revenue cannot be entertained. 5.The appeal is accordingly dismissed with no order as to costs. (M.S. Sanklecha, J.) (J.P. Devadhar, J.)