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COMMISSIONER OF INCOME TAX Vs. M/S PRAKASH TUBES LIMITED
September, 02nd 2013

ITA No. 52/2000 Page 1 of 5
$~Part II-B (R-23)
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ INCOME TAX APPEAL NO. 52/2000
Date of decision: 21st August, 2013
COMMISSIONER OF INCOME TAX
..... Appellant
Through Mr. Abhishek Maratha, Sr. Standing
Counsel.


Versus
M/S PRAKASH TUBES LIMITED
..... Respondent
Through Mr. Prakash Kumar, Advocate.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJIV KHANNA, J. (ORAL):
This appeal by the Revenue under Section 260A of the Income
Tax Act, 1961(Act, for short) relates to Assessment Year 1989-90.
The following substantial question of law was admitted for hearing
vide order dated 30th November, 2000:-


“Whether the Tribunal has correctly interpreted
the provisions of Section 115-J so far as mode ITA No. 52/2000 Page 2 of 5
of computation of income is concerned?”


2. The respondent-assessee is a limited company and for the year
under consideration it has filed its return declaring income of
Rs.91,25,683/- under Section 115-J of the Act. The assessee, however,
had claimed that it was entitled to carry forward its loses including
investment allowance of Rs.2,19,04,511/- as its taxable income was
being assessed on the basis of book profits under Section 115-J and not
under the normal provisions.


3. The Assessing Officer did not agree, observing that the
computation of income under Section 115-J of the Act does not effect
the determination of the amount to be carried forward to the
subsequent year under the normal provisions. The Assessing Officer
also made other additions while assessing the taxable income under the
normal provisions.


4. Commissioner of Income Tax (Appeals) agreed with the
Assessing Officer on the question of carry forward of loses, including
investment allowance. He, however, allowed some relief to the
respondent-assessee on additions made under the normal provisions.
5. Aggrieved, the respondent-assessee preferred an appeal before
the tribunal. No appeal was preferred by the appellant-Revenue
against the order passed by the CIT(Appeals).


6. Income Tax Appellate Tribunal by the impugned order dated ITA No. 52/2000 Page 3 of 5
16th August, 1999 followed its earlier order for the preceding year
1988-89, which in effect means that the appeal filed by the respondentassessee was allowed. In other words, the stand of the respondentassessee that they were entitled to carry forward of unabsorbed losses,
including investment allowance was accepted in view of the fact that
income taxable had been computed on book profits under Section 115-
J and not under the normal provisions.


7. The aforesaid view of the tribunal is not in consonance with the
authoritative pronouncement of the Supreme Court in Karnataka
Small Scale Industries Development Corporation Limited versus
Commissioner of Income Tax, 2002 (258) ITR 770 (SC) wherein the
contours of Section 115-J and the normal provisions have been
explained. It has been held that Section 115-J (1) commences with the
non-obstante clause and provides for two stage assessment. The first
stage requires computation of income under the normal provisions and
the second stage requires computation of book profits as per provisions
of Section 115-J. In case the income computed under the normal
provisions is less than 30% of the book profits, then the assessee’s
deemed total income chargeable to tax for the relevant previous year
would be equal to 30% of the book profits. At the first stage, profits
are computed under the normal provisions and deductions allowable
under the Act have to be taken into consideration. The

 
 
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