The Commissioner Of Income Tax v. M/S. Natural Gems Ltd

(-1-) hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 778 OF 2007 INCOME TAX APPEAL NO. 778 OF 2007 The Commissioner of Income Tax ... Appellant The Commissioner of Income Tax ... Appellant Versus M/s. Natural Gems Ltd. ... Respondent Mr. Suresh Kumar for the Appellant. Mr. J.D. Mistri, Amicus Currie present. CORAM: F.I.REBELLO&R.S.MOHITE, JJ.DATED: 24TH MARCH, 2009 CORAM: F.I. R.S.MOHITE, JJ. DATED: 24TH MARCH, 2009 P.C.: P.C.: . We had requested Mr. Mestri to appear as amicus currie for the Respondent as none had appeared on behalf of Respondent assesee. . By this appeal, the revenue has approached this court on the following questions : "(a) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal’s order dated 25.08.2006, is correct in law, directing the Assessment Officer to delete the amount of Rs.7,54,960/- charged as interest under sections 234B & C on the Minimum Alternate Tax of Rs.24,74,024/- levied under Section 115JB on the Book Profit of Rs.2,91,025/-, (-2-) holding that the matter is covered in favour of the assessee by the decision of Hon’ble Supreme Court in the case of M/s. Kwality Biscuits Ltd. as reported in 284 ITR Page 434, which confirms the Order of Karnataka High Court in the same case as reported in 243 ITR Page No. 519?" (b) Whether on the facts and in the circumstances of the case the Hon’ble Tribunal was right in law, in disregarding sub section (5) of section 115JB of I.T. Act which specifically provides for applicability of all other provisions of the Act, including Section 210 with respect to payment of advance tax and section 234B & C which provides for charging of interest in case of non-compliance of section 210?" 2. The learned counsel for the revenue draws our attention to the judgment of this court in CIT Vs. Kotak Mahindra (2004) 265 ITR 0119. It is also brought to our attention that unlike sections 115, section 115JA (4) and section 115JB (5) have made provisions for applicability of other provisions of the Act in the matter of computation of payment of advance tax. In Kotak Mahindra (supra), a learned Bench of this court was considering whether the (-3-) provisions pertaining to interest under section 234B and 234C would be applicable to the company covered by section 115J of the Income Tax Act. The learned Bench answered the issue in favour of the assessee as in that case there was shortfall in the payment of the advance tax paid and after regular computation as worked out in terms of section 115J. 3. The issue had come up for consideration before this court in Income Tax Appeal No. 238 of 2006 in Snowcem Vs.CIT decided by unreported order dated 5.1.2009. while hearing the appeal our attention was invited to the judgment of this court in Kotak Mahindra. Our attention however had also been invited to the judgment of Karnataka High Court in Quality Biscuits (2000) 243 ITR 519 where the Karnataka High Court had taken a different view from the view taken by this court. The Judgment of the Karnataka High Court was taken in appeal before the Supreme Court by way of SLP. From the order produced before us we find that the appeals were heard meaning thereby the leave has been granted and appeals were dismissed. Placing reliance on the judgment of the Supreme Court in Kunhayammed Vs. State of Kerala, 2001 (129) ELT 11 (SC) we had held that the dismissal of the appeal by the Supreme Court in the case of Quality Biscuits (supra) would amount to confirmation of the law as held by the (-4-) Karnataka High Court and in view of that we had allowed the appeal preferred by the assessee. 4. The learned counsel however, sought to bring to our attention the judgment of the Supreme Court in the view taken by this court. The Judgment of the Karnataka High Court was taken in appeal before the Supreme Court by way of SLP. From the order produced before us we find that the appeals were heard meaning thereby the leave has been granted and appeals were dismissed. Placing reliance on the judgment of the Supreme Court in Kunhayammed Vs. State of Kerala, 2001 (129) ELT 11 (SC) we had held that the dismissal of the appeal by the Supreme Court in the case of Quality Biscuits (supra) would amount to confirmation of the law as held by the (-4-) Karnataka High Court and in view of that we had allowed the appeal preferred by the assessee. 4. The learned counsel however, sought to bring to our attention the judgment of the Supreme Court in CIT Vs. Xpro India Ltd. (2008) 300 ITR 0337. The question before the Supreme Court was as under; : "Whether on the facts and circumstances of the case, the Hon’ble High Court was right in allowing the credit for MAT, under Section 115JAA of the Income Tax Act 1961, before charging interest under Section 234B and 234C of the Income Tax Act." 5. The matter has been remanded back for consideration. It appears that the attention of the Supreme Court was not invited to the dismissal of the appeals in Quality Biscuits. 6. Considering the judgment in Snowcem, in our opinion,there is no merit in the questions as framed and accordingly the appeal dismissed. 7. We place on record the valuable assistance rendered by the learned amicus currie. (-5-) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.) (R.S.MOHITE, J.) (F.I.REBELLO, J.)