AO cannot make adjustment to book profits certified by auditors to be computed as per prescribed accounting norms

Brief of the case:

• The Assessing Officer does not have the power to tinker with such accounts prepared as per Schedule VI and certified by the Auditors except for the adjustments permissible by Explanation to Sec 115JB to arrive at book profits.

• Thus, AO cannot dispute the routing of principal amount waiver through General Reserve as the same has been accepted by the auditor.

Facts of the case:

• The case of the assessee was reopened u/s 147 to add the waiver of principal amount of loan Rs. 3,52,78,700/- to book profits which were directly credited to ‘General Reserves’.
• The loan so waived off was taken from Vijaya Bank for the purpose of meeting long term capital requirements and to be utilized for business expansion.
• The CIT (Appeals) decided the case in favour of assessee by holding that once the profit and loss account has been prepared under Part-I & Part-II of Schedule-VI of the Companies Act; duly certified by the Auditors; placed before the shareholders and adopted/approved by the AGM, then the Assessing Officer cannot make any adjustments to the company’s book profit except to the extent provided in Explanation 1.
  

Contention of Revenue:

• The assessee should have credited the waiver of loan liability in the profit and loss account and Accordingly because for the computation of accounting liability cessation of every type of liability is accounting profit.

• The credit made to General Reserve was only to avoid tax on book profits.
  

Contention of Assessee:

• The term loan was taken for ‘capital expansion plan’. When the loan was waived off, the principal amount has been credited to ‘General Reserve’, because the waiver is on account of capital receipt.
• Such treatment has been accepted by the Auditors and duly approved by the Board.
• Therefore, the AO cannot dispute the profit amount certified by the auditors to be worked out as per the Part II & III of Schedule VI of the Companies Act,1956.
• Assessee also relied on the judgement of Hon’ble Supreme Court in the case of Apollo Tyres Ltd.
  

Held by ITAT Mumbai

• The point of dispute in the present case is that whether the Assessing Officer could make adjustment to the book profits for an amount of Rs. 3,52,78,000/-, on account of waiver of principal amount of loan, which has been credited by the assessee directly to ‘General Reserve’ account.
• As per Sec 115 JB of the Act book profit are to be computed on the basis of profit and loss account prepared in accordance with the provision of Part-II and Part-III of Schedule-VI of the Companies Act and can be adjusted only for certain items provided in Explanation to Sec 115JB.
• The Assessing Officer does not have the power to tamper with such accounts prepared as per Schedule VI and certified by the Auditors.
• Further, the AO has not produced any material to prove that as to how the Part II & III of Schedule VI has not been followed or there is deviation from prescribed accounting standard that waiver of loan taken for utilizing capital expansion is to be routed only through profit and loss account and cannot be credited to the General Reserve.
• The findings of CIT (A) is in line with the landmark judgement of Hon’ble Supreme Court in the case of Apollo Tyres Ltd.
• In result the appeal of revenue is dismissed.