IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.04.2009 Coram :- THE HONOURABLE MR.JUSTICE K.RAVIRAJA PANDIAN and THE HONOURABLE MR.JUSTICE M.M.SUNDRESH Tax Case (Appeal) No.164 of 2009 M/s.Samalpatti Power Company (P) Limited First Floor, "Shreyas" Flat No.14, 3rd Cross Road R.A.Puram Chennai – 600 028. Appellant Rep.by its Managing Director, K.Venkatarao. v. The Assistant Commissioner of Income-tax, Company Circle VI(1) Aayakar Bhavan, 7th Floor New Block, No.121, N.H.Road Chennai – 600 034. Respondent Tax Case Appeal filed under section 260A of the Income Tax Act against the order 8.8.2008 of the Income Tax Appellate Tribunal, Madras 'C' Bench in I.T.A.No.2321/Mds/2007 against the order dated 22.6.07 made in ITA 399/2005-2006 on the file of the Commissioner of Income Tax (Appeals)-V, Chennai and against the Assessment Order dated 30.11.2005 made in G.I.R/P.A.N.No.Sa-308/AADCS18930 for the Assessment year 2003-04 on the file of the Assistant Commissioner of Income Tax, Company Circle VI(1), Chennai-34. For Appellant : Mr.R.Venkatavaradan For Respondent: Mr.J.Narayanasamy JUDGMNET (Judgment of the Court was delivered by K.RAVIRAJA PANDIAN, J.) The appeal is at the instance of the assessee against the order 8.8.2008 of the Income Tax Appellate Tribunal, Madras 'C' Bench in I.T.A.No.2321/Mds/2007 relating to the assessment year 2003-2004. https://hcservices.ecourts.gov.in/hcservices/ 2. Though three questions of law have been formulated in this appeal, the learned counsel appearing for the assessee submits before this Court that he is not pressing the two questions of law and they need not be taken up for consideration. The third question of law is as follows: "Whether the Tribunal was right in law in rejecting the appellant's submission especially when the appellant's stand has been vindicated by the Supreme Court recently in the case of CIT Vs. HCL Comnet Systems &Service Limited, wherein it held that a provision made for bad and doubtful debts is only a provision for the diminution in the value of the asset and is not a provision for liability even if a debt is not recoverable, as no liability could be fastened upon the assessee? 3. The appellant is a company engaged in the generation of power. It supplies the entire electricity generated to the Tamil Nadu Electricity Board under a fifteen years power purchase agreement dated 22.5.1998. The appellant filed its return of income for the assessment year declaring a loss of Rs.1,85,36,409/- under the normal provisions of the Income Tax Act and Book Profit under 115JB at Rs.32,47,57,789/-. 4. The issue in dispute in this appeal is the treatment of a rebate and provision for receivable and provision for impairment in value of land as unascertained liabilities and adding the same to the book profits computed under Section 115JB. This issue has been now finally settled by the Supreme Court in favour of the assessee in the case of COMMISSIONER OF INCOME-TAX VS. HCL COMNET SYSTEMS AND SERVICES LTD., (2008) 305 ITR 409, wherein the Supreme Court held thus: "While resorting to the provisions of Section 115JA of the Income-tax Act, 1961, on the basis that the total income of the company as computed under the Act is less than 30 per cent of its book profits, the Assessing Officer has to accept the authenticity of the accounts maintained by the company in accordance with the provisions of Part II and Part III of Schedule VI to the Companies Act, 1956, which are certified by the auditors and passed by the company in general meeting. The Assessing Officer has only the power of examining whether the books of account are duly certified and whether such books have been properly maintained in accordance with the Companies Act. The Assessing Officer does not have the jurisdiction to go beyond the net profit shown in the profit and loss account except to the extent provided in the Explanation to Section 115JA. The Explanation has provided six items, viz., items (a) to (f), https://hcservices.ecourts.gov.in/hcservices/ which if debited to the profit and loss account can be added back to the net profit for computing the book profit. The provision for bad and doubtful debts can be added back to the net profit only if item (c) of the Explanation is attracted. Item (c) deals with amounts set aside for meeting liabilities other than ascertained liabilities. The assessee's case can fall within the ambit of item (c) only if the amount (i) is set aside as a provision, (ii) the provision is made for meeting a liability, and (iii) the provision should be for other than an ascertained liability, i.e., it should be for an unascertained liability. Item (c) of the Explanation to Section 115JA is not attracted to the provision for bad and doubtful debts. The provision for bad and doubtful debt is made to cover up probable diminution in the value of the assets, i.e., a debt which is an amount receivable by the assessee. Such a provision cannot be said to be a provision for a liability, because even if the debt is not recoverable no liability can be fastened on the assessee. Any provision made towards irrecoverability of a debt cannot be said to be a provision for liability." 5. As the question of law has been now answered in favour of the assessee by the Apex Court in the above said judgement, the question of law in this appeal has to be answered in negative and in favour of the assessee by following the above referred decision of the Supreme Court reported in 305 ITR 409.The appeal is therefore allowed to that extent. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. usk To 1. The Assistant Commissioner of Income Tax, Company Circle VI (1), Ayankar Bhavan, 7th Floor, 121, N.H.Road, Chennai-34. 2. The Commissioner of Income Tax (Appeals)-V, Chennai. https://hcservices.ecourts.gov.in/hcservices/ 3. The Assistant Registrar, Income Tax Appellate Tribunal, Besant Nagar, Chennai-90. + 1 CC To Mr.R.Venkatavaradan, Advocate SR NO.16219 + 1 CC To Mr.K.Subramaniam, Advocate SR NO.16036 TC (A)No.164 of 2009 KG {CO} TP/8.5.2009. https://hcservices.ecourts.gov.in/hcservices/