1. This appeal is preferred by the revenue challenging the order passed by the Tribunal which held though the income is computed under Section 115JA the provision of Section 115J or 115JA are not materially different. Sub-section (4) of Section 115JA no doubt mentions that other provisions of the Act are also applicable. However, the same were applicable when income was computed under Section 115J itself: Though the income is computed under Section 115JA. interest under Section 234B and 234C are not chargeable and accordingly the appeal of the revenue was dismissed. Aggrieved by the said order, the revenue has preferred this appeal.
2. This appeal was admitted on 21.2.2006 to consider the following substantial questions of law:
1. Whether the Tribunal was correct in holding that interest under section 234B and 234C of the Act cannot he levied against the assesse as the computation of income has been made under Section 115JA of the Act?
2. Whether the Tribunal was correct in taking into consideration irrelevant circumstances like "bonifides of the assesses". "Whether the default was committed, deliberately", in failing to pay advance tax under Section 208 of the Act when Section 234B interest is levied automatically as there is no discretion.
3. learned counsel appearing for both the parties submit the said question now has been decided by the Apex Court in the case of JOINT COMMISSIONER OF INCOME, TAX vs. ROLTA INDIA LIMITED [2011] 330 ITR 470 (SC). The Apex Court has held as under: -
“7. in our view, section 113J/115JA are special provisions. Section 207 envisages that tax-shall be payable in advance during any financial year on current income in accordance with the scheme provided in Section 208 to 219 (both inclusive) in respect of the total income of the assessee that would be chargeable to tax for the assessment year immediately following that financial year. Section 215(5) of the Act defined what is "assessed tax", i.e., tax determined on the basis of regular assessment so far as such tax relates to income subject to advance tax. The evaluation of the current income and the determination of the assessed income had to be made in terms o] the statutory scheme comprising section 115J/U5JA of the Act. Hence, levying of interest was inescapable. The assessee was bound to pay advance tax under the said scheme of the Act. Section 115J/1I'BJA of the Act were special provisions which provided that where in the case of an assessee. the total income as computed under the Act in respect of any previous year relevant to the assessment year is less Utah 30 per cent, of the book profit, the total income of the assessee shall be deemed to be an amount equal to 30 percent, of such book profit. The object is to tax zero-tax companies.
8. Section 115J was inserted by the Finance Act. 1987 with effect from April 1. 1988. This section was in force from April 1. 1988 to March 31. 1991. After April 1. 1991. Section 115JA was inserted by the Finance Act of 1996 with effect from April 1. 1997. After insertion of Section 115JA. Section 115JB was inserted by the Finance Act. 2000 with effect from April 1. 2001. It is clear from reading sections 115JA and 115JB that the question whether a company which is liable to pay tax under either provision does not assume importance because specific provision(s) is made in the section saying that all other provisions of the Act shall apply to the MAT company (section 115JA14) and section 115JB(5)). Similarly, amendments have been made in the relevant Finance Act providing for payment of advance tax under Sections 115JA and 115, IB. So for as interest leviable under Section 234B is concerned, the section is clear that U applies to all companies. The pre requisite condition for applicability of Section 234B is that the assessee is liable to pay tax under Section 208 and the expression "assessed tax" is defined to mean the tax on the total income determined under Section 143(1) or under Section 143(3) as reduced by the amount of tax deducted or collected at source. Thus, there is no exclusion of Section 115J, 115JA in the levy of interest under section 234B. The expression "assessed tax" is defined to mean the tax assessed on regular assessment which means the tax determined on the application of Section 115Jf 115JA in the regular assessment".
4. In view of the aforesaid judgment of the Apex Court, the judgment rendered by the Tribunal is unsustainable. Hence, we pass the following order:-
(a) Appeal is allowed.
(b) The substantial questions of law framed are answered in favour of the revenue and against the assessee.