Case Law Details
IN THE ITAT MUMBAI BENCH ‘I’
ICICI Lombard General Insurance Co. Ltd.
Versus
Assistant Commissioner of Income-tax
IT APPEAL NO. 2398 (MUM.) OF 2009
[ASSESSMENT YEAR 2003-04]
OCTOBER 10, 2012
ORDER
Vijay Pal Rao, Judicial Member – This appeal by the assessee is directed against the order dated 12.1.2009 of the Commissioner of Income Tax (Appeals) for the Assessment Year 2003-04.
2. The only ground raised by the assessee in this appeal is as under:
“On the facts and circumstances of the case and the law, the Commissioner of Income Tax (Appeals) erred in confirming the disallowance in respect of the deduction for gains on sale of investment amounting to Rs. 3,49,46,887/- on the ground that profits from insurance business are to be taken to be balance of the profits as disclosed by annual accounts, subject to the adjustments provided in clause 5(a) to (c) and it is not open to the appellant to reduce these profits from its computation of income non obstinate cl. B of Rule 5 of the First Schedule.”
3. The assessee is engaged in the general insurance business. In the computation of income, the assessee has reduced the gain on sale of investment amounting to Rs. 3,49 crores while calculating the profit or loss of business or profession. On a query from the Assessing Officer, the assessee has contended that the gains on sale of investment amounting to Rs. 3.49 crores is exempt from tax in view of circular No. 528, dated 16.12.1998 issued by CBDT. It was further submitted that as per section 44 of the Act, the profits and gains for insurance business shall be computed in accordance with the rules contained in the first schedule to the Act and the profit from the insurance business shall be taken to be the balance of the profits as disclosed by annual account, which are required under the Insurance Act, 1938 to be furnished to the Insurance Authorities, subject to the adjustments provided in clause 5(a) to (c) . Clause 5(b) which provided for adjustment, inter alia, for profit or loss on the realization of investments, has been deleted by the Finance Act, 1988 and as per explanatory notes; the aforesaid amendment was made to enable the general insurance companies to play a more active role in capital markets for the benefit of the policy holders. Thus, the assessee contended that the amendment is made to provide for exemption of the profits earned by the general insurance companies on the realization of the investment and as a corollary losses incurred on realization of investment would not be allowed as deduction in computing profits chargeable to tax.
3.1 The Assessing Officer, however, did not accept the contention of the assessee and held that provisions of sec. 44 A did not provide for any profit/gain on sale of investment to be reduced while computing the profits and gain of any business of insurance. The Assessing Officer was of the view that circular 525 does not seek to override the provisions of sec. 44 and Rule 5 of the First Schedule.
3.2 On appeal, the Commissioner of Income Tax (Appeals) has confirmed the disallowance made by the Assessing Officer on this account.
4. Before us, the ld AR of the assessee has submitted that this issue has been considered and decided by this Tribunal in a series of decisions wherein it has been held that profit on sale of investments prior to Assessment Year 2011 is not taxable in the hands of the general insurance companies. The ld AR has pointed out that the Tribunal has repeatedly taken note that the deletion of Sub. Rule (b) of Rule 5 of first schedule was with specific purpose of granting exemption on the profit on sale of investments and that is why the legislature has now bought in a prospective amendment from Assessment Year 2011-12, whereby inserted Rule 5(b)(i) of first schedule of the I T Act. By virtue of this amendment, the profit on sale of investments in the case of the insurance companies will be taxable w.e.f AY 2011-12. The ld AR has relied upon the following decisions:
| Name of The Case | Assessment year | ||
| Bajaj Allianz General Insurance v. ACIT | Pune ITAT | Shri Pramod Kumar & Shri Mukul Shrewat | 2003-04 |
| GIC v. ACIT | Mum ITAT | Shri Pramod Kumar & Smt. Asha Vijayaraghavan | 2002-03 to 2004-05 |
| Reliance General Insurance Co. Limited | Mum ITAT | Shri A.L Gehlot and Smt. P. Madhavi Devi | 2001-02, 2002-03 and 2005-06 |
| Reliance General Insurance Co. Limited | Mum ITAT | Shri R.S Syal & Smt. Asha Vijayaraghavan | 2003-04, 2004-05 and 2006-07 |
| HDFC Ergo General Insurance Co. Ltd | Mum ITAT | Shri D Manmohan & Shri Rajendra Singh | 2004-05 |
| Tata AIG General Insurance Co. Limited | MUM ITAT | Shri R V Easwar & Shri A L Gehlot | 2003-04 |
4.1 The ld AR has further pointed out that the circular no.528 dt 16.12.1988 of the CBDT issued as a explanatory note on the Finance Act 1988 whereby the sub rule (b) of Rule 5 of first schedule has been deleted and it has been explained to enable the general insurance companies and its subsidiaries to play a more active role in capital markets for the benefit of policy holders. This rule has been amended for exemption of the profits earned by them on the sale of investments.
4.2 On the other hand, the ld DR has submitted that the assessment of the insurance companies has to be framed as per the provisions of sec. 44 and in accordance with the First Schedule of the Insurance Act. Even after the amendment whereby the sub Rule (b) of Rule 5 of First Schedule was removed the total income of the assessee has to be computed as per the existing provisions. He has submitted that section 44 r.w. the First Schedule to the I T Act provides the scheme of computation of income of insurance companies and according to Rule 5 of the said Schedule, the income of non-life insurance business is taken as profit before tax and appropriations as per the profit and loss account of the company, prepared in accordance with the regulations made by the Insurance Regulatory Development Authority (IRDA), subject to certain adjustments. The ld DR has further contended that when the assessee itself has included the profit on sale of investments in the profits & loss account, which were prepared in accordance with the regulations made by IRDA and copies of which are required under the Insurance Act 1938 to be furnished to the Controller of Insurance, then no adjustment can be made in the said profits as shown by the assessee in the P&L account.
4.3 The ld DR has further contended that the amendment in the Act has been made in consonance with the amendment in the Insurance Act whereby General Insurance Companies are required to include certain income in the P&L account prepared as per the regulations framed by IRDA and as per the provisions of Insurance Act, copies of the accounts are required to be furnished to the Controller of Insurance.
4.4 The ld DR has further contended that the amendment by the Finance Act 1988 was made whereby sub. rule (b) of Rule 5 of First Schedule has been deleted due to the reasons because corresponding amendment was also made in the Insurance Act whereby the Insurance Companies has to decide to include the income on sale of investments in the P&L account prepared in compliance with the Insurance Act and therefore, once the profit on sale of investment is included in the P&L account prepared as per the Insurance Act and copy of which is required to be furnished to the Controller of Insurance, then no adjustment is required to be made as per the provisions of sec. 44 r.w. First Schedule of Income Tax Act. Thus, the ld DR has submitted that as per rule 5 of First Schedule, the profit and gain of general insurance shall be taken to be the balance of the profit disclosed by annual account and no further adjustment is permitted. Once the assessee has included the profit on sale of investments in the annual account prepared as per the regulations made by IRDA and copies of which are to be furnished to the Controller of Insurance, then for computation of income u/s 44 of the I T Act by applying Rule 5 of First Schedule, the amount of profit on sale of investment will be included in the total income of the assessee. The ld DR has further submitted that as per the Circular no.525 dt 16.12.1988, the amendment has been brought with the object to enable the general insurance company and its subsidiaries and not for other private Insurance companies like the assessee. Therefore, the said circular cannot be applied in the case of the assessee. He has relied upon the orders of the authorities below.
5. We have considered the rival submissions as well as the relevant material on record. There is a special provision for computation of income chargeable under the head “profits and gain” inter-alia in the business of Insurance under section 44 of the I T Act and the same shall be computed in accordance with the Rule containing in first schedule of the Act. The profits and gains of business of insurance other than the life insurance shall be computed as per Rule 5 of First Schedule as under:
“5. The profits and gains of any business of insurance other than life insurance shall be taken to be the profit before tax and appropriations as disclosed in the profit and loss account prepared in accordance with the provisions of the Insurance Act, 1938 (4 of 1938) or the rules made thereunder or the provisions of the Insurance Regulatory and Development Authority Act, 1999 (4 of 1999) or the regulations made thereunder, subject to the following adjustments;
a. Subject to the other provisions of this rule, any expenditure or allowance including any amount debited to the profit and loss account either by way of a provision for any tax, dividend, reserve or any other provision as may be prescribed which is not admissible under the provisions of sections 30 to 43B in computing the profits and gains of a business shall be added back;
b. (i) any gain or loss on realisation of investments shall be added or deducted, as the case may be, if such gain or loss is not credited or debited to the profit and loss account;
(ii) any provision for diminution in the value of investment debited to the profit and loss account, shall be added back;
c. such amount carried over to a reserve for unexpired risks as may be prescribed in this behalf shall be allowed as a deduction.”
5.1 The bare reading of the amended provisions of Rule 5 of First Schedule makes it clear that the profits and gains shall be taken to be the profit before the tax and appropriately disclosed in the P&L Account prepared in accordance with the Insurance Act, 1938 or the Rule made thereunder or the provisions of IRDA Act. There is no dispute that the assessee before us has included the profit on sale of investments in the profit and gain as declared in the accounts prepared in accordance with the provisions of Insurance Act 1938. It is also not the case of the assessee that the profits/gains on sale of investments is not required to be included in the P&L Account prepared in accordance with the provisions of Insurance Act. Therefore, once the profit on sale of investment is required to be included in the P& L account in accordance with the provisions of Insurance Act, then as per the Rule 5 of First Schedule of the I T Act, no adjustment is required to be made on account of the amount of profits on sale of investment already included in the P&L Account. Thus, we find force and substance in the contention of the ld DR that once the assessee has included the gain on sale of investments in the P&L account prepared as per the provisions of the Insurance Act, 1938, then the said amount cannot be reduced while computing the income as per provisions of sec. 44 r.w First Schedule of the I T Act.
5.2 However, in the series of decisions of the Tribunal a view has been taken that the amendment vide Finance Act 1988 w.e.f 1.4.89, the sub rule (b) of Rule 5 of First Schedule was omitted with the purpose to grand exemption to the insurance companies with regard to the profit on sale of investments. The Tribunal has taken note of the fact that in the corollary, it has been provided in the circular no.528 dated 16.12.1988 that the loss incurred by the general insurance companies on realization of investment shall not be allowed as deduction in computing the profit chargeable to tax.
5.3 In the latest decision this Tribunal in the case of Tata AIG General Insurance Co Ltd v. Asstt. CIT [ITA No. 2597/Mum./2009, dated 22-10-2010], after considering the earlier decisions of the Tribunal has held in paras 18 to 20 as under:
“18. We have carefully considered the rival contentions. There is no dispute that under the guidelines issued by the IRDA (Auditors Report) Regulations of 2002, for preparation of financial statements, the profit on sale of investments is to be credited to the Profit and Loss Account of the insurance company. There is also no dispute that the assessee has credited the Profit and Loss Account with such profit the question is whether such profit can be excluded and exemption can be claimed. Rule 5(b), as it stood before being omitted from 01 .04.1989, was as follows:-
‘any amount either written off or reserved in the accounts to meet depredation of or loss on the realization of investments shall be allowed as a deduction, and any sums taken credit for in the accounts on account of appreciation of or gains on the realization of investments shall be treated as part of the profits and gains;
Provided that the Assessing Officer is satisfied about the reasonableness of the amount written off or reserved in the accounts, as the case may be, to meet depredation of or loss on the realization of investment.
The argument on behalf of the assessee primarily is that when the rules for preparation of the final accounts provide that the profit on sale of investments, should be shown in the credit side of the Profit and Loss Account, then there was no question of rule 5(b) being applicable and that was the reason why the said rule was omitted with effect from 01.04.1989 and the effect of the omission is that where the Profit and Loss Account already includes the profit on sale of investments, the same shall stand excluded. The effect of the omission of the rule was considered by the Puns Bench of the Tribunal in its order dated 31 August 2009, in the case of Bajaj Allianz General Insurance Company, in ITA No: 1447/PN12007 and CO No:521PN12007 (assessment year 2003-04). A copy of the said order has been filed before us. The Tribunal has also considered the Circular No.528 dated 16.12.1988. After analyzing the impact of the omission of rule 5(b) and the Circular, the Tribunal held as under. –
‘8. A conclusion can be drawn on the basis of the above elaborate discussion that the deletion of sub rule (b) from Rule 5of the First Schedule was with a specific purpose. This Schedule not only prescribes the method of computation of income of Insurance Business in part (A) but also prescribe the method of computation of other Insurance Business in Part (B). Rule 5 is within Part (B) and earlier it has prescribed the method of taxation of profit on sale of investments which was later on scraped. Even by applying a reverse logic we must arrive at the same conclusion that had the impugned income’ was earlier taxable under one specific clause but even on its deletion no clause was Introduced or replaced to prescribe the method of taxation of such income;. Therefore the Revenue Department has no right to tax such an income in the absence of any enabling provision. Naturally, such a deletion cannot be treated a superfluous action but this change had to give a definite judicial meaning. We have to ascribe a logical conclusion to the said deletion of sub rule (b) from Rule 5 and the natural meaning is that after the deletion the income described therein is out of the purview of computation of Insurance Business from the First schedule therefore consequently cannot be taxed u/s 44 of IT Act. After expressing this view we hereby dismiss the cross objection V of the revenue”‘.
19: The aforesaid order of the Pune Bench, which was in the case of a company carrying on general insurance business, was followed by the Mumbai Bench Of the Tribunal in its order dated 17.09.2010, in the case :of HDFC ERGO General Insurance Company Ltd., in ITA No: 338/Mum./2009 (assessment year 2004-05) as also in its Order dated 30.04.2010, in the case of Reliance General Insurance Co. Ltd., in :ITA No. 781/Mum12007 (and other appeals). Copies of these orders have also been filed before us. In these orders it has been held that the profit on sale of investment in the case of an assessee carrying on general insurance business cannot be brought to tax after the omission of rule 5(b) and as per the Circular cited above. Since the controversy before us is identical, respectfully following the orders Of the Puns and Mumbal Benches of the Tribunal cited above, we direct the Assessing Officer to exclude the profit of Z47,45,699/- on the sale of investments from the assessment.
20. The learned CIT DR, however, argued that the effect of the omission of rule 5(b) is just the opposite of what the assessee has contended. According to him, after 01.04.1989 the exemption was taken away. He submitted further that the profit on sale of the investment has already been included in the Profit and Loss Account and there is no authority to take it out even under rule 5(b) as it existed before 01.04.1989. According to him, there was no scope for applying the rules of interpretation when the statutory provisions are clear. Since the matter is concluded by the orders of the Tribunal cited supra, where all these aspects have been considered, we are unable to take a different view of the matter. Thus Ground No.4 is allowed.”
5.4 Since the Tribunal has been taking a consistent view on this issue in a series of decisions as relied upon by the ld AR of the assessee; therefore, to maintain the rule of consistency and uniformity on this aspect, we deicide this issue in favour of the assessee and against the revenue.
6. The assessee has also raised an additional ground vide letter dated as under:
“[1] On the facts and circumstances of the case and in law, the Assessing Officer has erred in computing income of the Appellant under section 115JB of the Act.
[2] The Assessing Officer ought to have appreciated that provisions of section 115JB of the Act are not applicable to the Appellant as the Appellant prepares its accounts as per the Insurance Regulatory And Development Authority (IRDA) (Preparation of Financial Statements and Auditor’s Report of Insurance Companies) Regulation, 2002 and not as per provisions of Part II and Ill of Schedule VI of the Companies Act, 1956.”
7. We have heard the ld AR of the assessee as well as the ld DR on the point of admissibility of additional ground and considered the relevant material on record. Since the additional ground raised by the assessee is on the issue of applicability of the provisions of sec. 115JB with respect to the Insurance Companies, which is purely a legal issue and therefore, no new facts are required to be examined or investigated for adjudication of the additional ground raised by the assessee. Accordingly, in view of the decision of the Hon’ble Supreme Court in the case of National Thermal Power Co. Ltd. v. CIT [1998] 229 ITR 383, we admit the additional ground raised by the assessee for adjudication on merit.
8. The Assessing Officer has pointed out that the total income as per the provisions of I T Act at loss of Rs. 2,81,60,340/- which is obviously less than 7.5% of book profit computed by the Assessing Officer u/s 115JB. Accordingly, the total income of the assessee for the year under consideration was assessed by the Assessing Officer as per the provisions of sec. 115JB at Rs. 3,97,05,832/- and taxed accordingly.
8.1 Before us, the ld AR has submitted that the provisions of sec. 115JB are not applicable in the case of the Insurance Companies because the profit and loss account of the Insurance Companies are not required to be prepared as per the part II of Schedule VI of Companies Act, which is a basic requirement for computation of book profit u/s 115JB. The ld AR has referred section 211 of Companies Act 1956 and submitted that as per the proviso to sub. Sec. 2 of section 211 of the Companies Act, 1956, the provisions of section 2 which requires the company to prepare the profit & loss account as per Part II of Schedule VI are not applicable to the Insurance or Banking or any companies engaged in the generation or supply of electricity or to any other class of company for which a form of profit and loss account has been specified in or under the Act governing such class of company.
8.2 The ld AR has pointed out that the Insurance Companies require to prepare their accounts as per the Insurance Act and not as per the Companies Act. She has referred sub. sec. 5 of Sec. 211 of the Companies Act and submitted that in the case of Insurance Company Balance Sheet and P&L Account shall not be treated as not disclosing a true and fair view of the state of affairs of the company, merely by reason of the fact that they do not disclose any matter, which are not required to be disclosed by the Insurance Act 1938.
8.3 The ld AR has relied upon the decision of the Hyderabad Bench of the Tribunal in the case of State Bank of Hyderabad v. Dy. CIT [ITA 578/Hyd/2010 vide order dated 7th Sept 2012] and submitted an identical issue has been considered and decided by the Tribunal by holding that the provisions of section 115JB will not be applicable to the cases of the Banking Companies.
8.4 Similarly, in the case of Reliance Energy Ltd v. Asstt. CIT, the Tribunal vide its order dated 24th Jan 2008 in ITA No. 218/Mum/05 has taken a view that the provisions of sec. 115JB are not applicable when the accounts are not required to be prepared as per the Part II of Schedule VI of the Companies Act.
8.4.1 The ld AR has further pointed out that now an amendment has been brought in statute by the Finance Act 2012 whereby sub. sec. 2 has been substituted w.e.f 1.4.2013; therefore, prior to 1.4.2013, the provisions of sec. 115JB cannot be applied in the case of Companies which are not required to prepare accounts as per the provisions of part II of Schedule VI of the Companies Act, 1956.
8.5 On the other hand, the ld DR has submitted that as per section 115JB, every company is required to prepare its accounts as per Schedule VI of the Companies Act, 1956. However, as per the provisions of the Companies Act, 1956, certain companies, e.g. insurance, banking or electricity company, are allowed to prepare their P&L account in accordance with the provisions specified in their regulatory Acts. In order to align the provisions of Income-tax Act with the Companies Act, 1956, it is proposed to amend section 115JB to provide that the companies which are not required under section 211 of the Companies Act to prepare their profit and loss account in accordance with the Schedule VI of the Companies Act, 1956, profit and loss account prepared in accordance with the provisions of their regulatory Acts shall be taken as a basis for computing the book profit under section 115JB.
8.6 The ld DR has further referred the Finance Bill 2012 and submitted that as per the Finance Bill, it is proposed to amend the aforesaid sub-section so as to provide that every assessee, (a) being a company, other than a company to which the proviso to sub-section (2) of section 211 of the Companies Act, 1956 is applicable, shall, for the purposes of the aforesaid section, prepare its profits and loss account for the relevant previous year in accordance with the provisions of Part II of Schedule VI to the Companies Act, 1956; or (b) being a company, to which the proviso to sub-section (2) of section 211 of the Companies Act, 1956 is applicable, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of the Act governing such company.
8.7 Thus, the ld DR has submitted that even as per the pre-amend provisions of sec. 115JB, the accounts prepared in accordance with the Regulatory Act can be taken for the purpose of computation of book profit u/s 115JB.
9. We have considered the rival submissions as well as the relevant material on record. There is no quarrel on the point that the assessee, being an Insurance Company is not required to prepare its accounts as per Part II & III of Schedule VI of the Companies Act 1956. Sub-section (2) of sec 211 are required every P&L accounts of the Companies shall be prepared as per the requirement of Part II of Schedule VI. However, the proviso to sub-section (2) of section 211 of the Companies Act creates an exemption of applicability of sub-section (2) inter-alia in respect of Insurance companies or banking companies or any other companies engaged in generation and supply of electricity for which a form of profit and loss account has been specified in or under the Act governing such class of company. Even if an Insurance Company does not disclose any matter in the Balance Sheet and P&L account because the same is not required to be disclosed by the Insurance Act shall not be treated non disclosure of a true and fair view of the state of affairs of the company as the said condition has been relaxed by sub-section (5) of sec 211 of the Companies Act.
9.1 It is to be noted that in order to align the provisions of the I T Act with the Companies Act , an amendment has been brought in to the statute by the Finance Act 2012 whereby sec 115JB has been amended w.e.f 2013 and therefore, prior to 1.4.2013, the amended provisions of sec. 115JB cannot be applied in case of Insurance, banking, electricity, generation and distribution companies and other class of companies, which are not required to prepare their accounts and particularly Balance Sheet and P&L account as per part II & III of Schedule VI of the Companies Act.
9.2 The Hyderabad Bench of the Tribunal in the cased of State Bank of Hyderabad (supra) has considered and decided a similar issue; though in the case of bank in paras 13 & 14 as under:
“13. The provisions of Sec.1153B will be applicable to all companies. However, it is contended that Sec.115JB will be applicable only where the assessee is required to show profit & loss account in accordance with schedule VI of companies act. As the banks are required to prepare balance sheet and profit & loss account in accordance with the Banking Regulation Act, provision of 115JB cannot be applied to the banks. In the case of Maharashtra State Electricity Board v. CIT (82 ITD 422) it was held that provisions of book profit cannot be applied to Electricity Companies. Banking Companies and companies engaged in generation and supply of electricity do not have to prepare their accounts in accordance with parts II and III of Sch. VI of the Companies Act by the virtue of proviso to sec 211(2) of the Companies Act. We find that by the Finance Act 2012, with effect from 1.4.2013, even companies to which Proviso to sec 211(2) applies (the banking Companies and companies engaged in generating and distribution of electricity), should prepare their P&L and balance Sheet in accordance with the provisions of the Act Governing such companies. This would mean that prior to AY 2013-14, provisions of sec 115JB will not apply to companies to which proviso to sec 211(2) of the companies Act, 1956 applies. The Assessee being a company to which proviso to sec 211(2) of the Companies Act 1956 applies, will not be liable to be taxed under sec 115JB.
14. The Mumbai Tribunal in the case of Krung Thai Bank v. JCIT (133 TTJ 435), to which one of us is a party has held that provisions of sec 115JB cannot be applied to the banking company.”
9.3 Similarly, in the case of Reliance Energy Ltd. (supra), the coordinate Bench of this Tribunal has held in paras 28 & 29 as under:
“28 As discussed above when it is not possible to prepare the accounts under the Companies Act for the purpose of computation u/s 115JB, therefore, the assessee cannot be forced to prepare the accounts when it is not possible. Therefore, we are in agreement with the contentions of the assessee in as much as the accounting policies followed in the electricity accounts if followed for the preparation of Companies Act account will not disclose true and fair view and will not be in accordance with part II and III of Schedule VI of the Companies Act. The ratio of the decisions of the Hon’ble Supreme Court and the ratio of the decision of the Tribunal discussed above are in support of the contentions of the assessee. We further found that the issue of applicability of sec. 115J came before the Tribunal for AY 88-89. Taking into consideration the preparation of accounts under the Electricity Act and other contentions the assessee including the decisions of the Supreme Court in the case of B.C. Srinivasa Setty (supra), the Tribunal has held that the provisions of sec. 115J are not attracted on the facts of the present case.
29. As discussed above, the assessee is following the accounting policies under the Electricity Supply act and prepared its accounts in view of those very policies. Following those very policies, the accounts in accordance with part II & III of Schedule VI of the Companies Act are not applicable at all. Once there is no possibility for preparing the accounts in accordance with the part II & II of Schedule VI of Companies Act then the provisions of sec. 115JB cannot be forced. Therefore, in view of the above facts and circumstances and respectfully following the above decisions of the Hon’ble Supreme Court and the decision of the Tribunal for AY 88-89, we hold that provisions of sec. 115JB are not applicable on the facts of the present case.”
10. Following the decisions of the coordinate Benches of this Tribunal, we hold that when the insurance companies, banking companies and electricity generation and distributions companies are treated in the same class as per the provisions of sec. 211 of the Companies Act in preparing their final accounts, then these companies cannot be treated differently for the purpose of sec. 115JB and accordingly, the provisions of sec. 115JB are not applicable in the case of the assessee.
11. In the result, the appeal filed by the assessee is allowed.
