40[R1]  CHAPTER XII-B

Special provisions relating to certain companies

 

Special provisions relating to certain companies.

115J.    (1)       Notwithstanding anything contained in any other provi­sion of this Act, where in the case of an assessee being a company 41[R2] [(other than a company engaged in the business of gener­ation or distribution of electricity)], the total income, as computed under this Act in respect of any previous year relevant to the assessment year  commencing on or after the 1st day of April, 1988 42[R3] [but before the 1st day of April, 1991] (hereafter in this section referred to as the relevant previous year), is less than thirty per cent of its book profit, the total income of such assessee chargeable to tax for the relevant previous year shall be deemed to be an amount equal to thirty per cent of such book profit.

 

43[R4] [(1A)    Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956 (1 of 1956).]

 

Explanation.—For the purposes of this section, “book profit” means the net profit as shown in the profit and loss account for the relevant previous year  44[R5] [prepared under sub-section (1A)], as increased by—

 

(a)        the amount of income-tax paid or payable, and the provision therefor; or

           

(b)        the amounts carried to any reserves 45[R6] [(other than the reserves specified in section 80HHD 46[R7] [or sub-section (1) of section 33AC])], by whatever name called; or

           

(c)        the amount or amounts set aside to provisions made for meeting liabilities, other than ascertained liabilities; or

           

(d)        the amount by way of provision for losses of subsidiary companies; or

           

(e)        the amount or amounts of dividends paid or proposed; or

           

(f)        the amount or amounts of expenditure relatable to any income to which any of the provisions of Chapter III 47[R8] [applies; or]

               

48[R9] [(g)     the amount withdrawn from the reserve account under section 80HHD, where it has been utilised for any purpose other than those referred to in sub-section (4) of that section; or

           

(h)        the amount credited to the reserve account under section 80HHD, to the extent that amount has not been utilised within the period specified in sub-section (4) of that section;]

           

49[R10] [(ha)  the amount deemed to be the profits under sub-section (3) of section 33AC;]

 

50[R11] [if any amount referred to in clauses (a) to (f) is debited or, as the case may be, the amount referred to in clauses (g) and (h) is not credited] to the profit and loss account, and as reduced by,—

           

(i)         the amount withdrawn from reserves 51[R12] [(other than the reserves specified in section 80HHD)] or provisions, if any such amount is credited to the 52[R13] [profit and loss account :

   

Provided that, where this section is applicable to an assessee in any previous year (including the relevant previous year), the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1988 shall not be reduced from the book profit unless the book profit of such year has been increased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation; or]

 

(ii)        the amount of income to which any of the provisions of Chapter III applies, if any such amount is credited to the profit and loss account; or

           

53[R14] [(iii)   the amounts [as arrived at after increasing the net profit by the amounts referred to in clauses (a) to (f) and reducing the net profit by the amounts referred to in clauses (i) and (ii)] attributable to the business, the profits from which are eligible for deduction under section 80HHC or section 80HHD; so, however, that such amounts are computed in the manner specified in sub-section (3) or sub-section (3A) of section 80HHC or sub-section (3) of section 80HHD, as the case may be; or]

           

54[R15] [(iv)]  the amount of the loss or the amount of depreciation which would be required to be set off against the profit of the relevant previous year as if the provisions of clause (b) of the first proviso to sub-section (1) of section 205 of the Companies Act, 1956 (1 of 1956), are applicable.

 

(2) Nothing contained in sub-section (1) shall affect the deter­mination of the amounts in relation to the relevant previous year54a[R16]  to be carried forward to the subsequent year or years under the provisions of sub-section (2) of section 32 or sub-section (3) of section 32A or clause (ii) of sub-section (1) of section 72 or section 73 or section 74 or sub-section (3) of section 74A or sub-section (3) of section 80J.]

 

55[R17] [Deemed income relating to certain companies.

115JA. (1)       Notwithstanding anything contained in any other provisions of this Act, where in the case of an assessee, being a company, the total income, as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 56[R18] [but before the 1st day of April, 2001] (hereafter in this section referred to as the relevant previous year) is less than thirty per cent of its book profit, the total income of such assessee chargeable to tax for the relevant previous year shall be deemed to be an amount equal to thirty per cent of such book profit.

 

(2)        Every assessee, being a company, shall, for the purposes of this section prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI57[R19]  to the Companies Act, 1956 (1 of 1956) :

 

Provided that while preparing profit and loss account, the depre­ciation shall be calculated on the same method and rates which have been adopted for calculating the depreciation for the pur­pose of preparing the profit and loss account laid before the company at its annual general meeting in accordance with the provisions of section 210 of the Companies Act, 1956 (1 of 1956) :

 

Provided further that where a company has adopted or adopts the financial year under the Companies Act, 1956 (1 of 1956), which is different from the previous year under the Act, the method and rates for calculation of depreciation shall correspond to the method and rates which have been adopted for calculating the depreciation for such financial year or part of such financial year falling within the relevant previous year.

 

Explanation.—For the purposes of this section, “book profit” means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (2), as increased by—

 

(a)        the amount of income-tax paid or payable, and the provision therefor; or

           

(b)        the amounts carried to any reserves by whatever name called; or

           

(c)        the amount or amounts set aside to provisions made for meeting liabilities, other than ascertained liabilities; or

           

(d)        the amount by way of provision for losses of subsidiary companies; or

           

(e)        the amount or amounts of dividends paid or proposed; or

           

(f)        the amount or amounts of expenditure relatable to any income to which any of the provisions of Chapter III applies; if any amount referred to in clauses (a) to (f) is debited to the profit and loss account, and as reduced by,—

 

(i)         the amount withdrawn from any reserves or provisions if any such amount is credited to the profit and loss account :

 

Provided that, where this section is applicable to an assessee in any previous year (including the relevant previous year), the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 58[R20] [but ending before the 1st day of April, 2001] shall not be reduced from the book profit unless the book profit of such year has been in­creased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation; or

 

(ii)        the amount of income to which any of the provisions of Chapter III applies, if any such amount is credited to the profit and loss account; or

  

59[[R21] (iii)  the amount of loss brought forward or unabsorbed depreciation, whichever is less as per books of account.

 

Explanation.—For the purposes of this clause,—

       

(a)        the loss shall not include depreciation;

 

(b)        the provisions of this clause shall not apply if the amount of loss brought forward or unabsorbed depreciation is nil; or]

 

(iv)       the amount of profits derived by an industrial undertaking from the business of generation or generation and distribution of power; or

           

(v)        the amount of profits derived by an industrial under­taking located in an industrially backward State or district as referred to in 60[R22] [sub-section (4) and sub-section (5) of section 80-IB], for the assessment years such industrial undertaking is eligible to claim a deduction of hundred per cent of the 61[R23] [profits and gains under sub-section (4) or sub-section (5) of section 80-IB]; or

           

(vi)       the amount of profits derived by an industrial under­taking from the business of developing, maintaining and operating any infrastructure facility 62[R24] [as defined in the  Explanation  to sub-section (4) of section 80-IA and subject to fulfilling the conditions laid down in that sub-section]; or

           

(vii)      the amount of profits of sick industrial company for the assessment year commencing from the assessment year relevant to the previous year in which the said company has become a sick industrial com-pany under sub-section (1) of section 17 of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and ending with the assessment year during which the entire net worth of such company becomes equal to or exceeds the accumulated losses.

 

Explanation.—For the purposes of this clause, “net worth” shall have the meaning assigned to it in clause (ga)63[R25]  of sub-section (1) of section 3 of the Sick Industrial Companies (Special Provi­sions) Act, 1985 (1 of 1986); 64[R26] [or]

 

64[R27] [(viii) the amount of profits eligible for deduction under section 80HHC, computed under clause (a), (b) or (c) of sub-section (3) or sub-section (3A), as the case may be, of that section, and subject to the conditions specified in sub-sections (4) and (4A) of that section;

           

(ix)       the amount of profits eligible for deduction under section 80HHE, computed under sub-section (3) of that section.]

 

(3)        Nothing contained in sub-section (1) shall affect the deter­mination of the amounts in relation to the relevant previous year to be carried forward to the subsequent year or years under the provisions of sub-section (2) of section 32 or sub-section (3) of section 32A or clause (ii) of sub-section (1) of section 72 or section 73 or section 74 or sub-section (3) of section 74A.

 

(4)        Save as otherwise provided in this section, all other provi­sions of this Act shall apply to every assessee, being a company, mentioned in this section.]

 

65[R28] [Tax credit in respect of tax paid on deemed income relating to certain companies.

115JAA.(1)     Where any amount of tax is paid under sub-section (1) of section  115JA by an assessee being a company for any assessment year, then, credit in respect of tax so paid shall be allowed to him in accordance with the provisions of this section.

 

(2)        The tax credit to be allowed under sub-section (1) shall be the difference of the  tax paid for any assessment year under sub-section (1) of section 115JA and the amount of tax payable by the assessee on his total income computed in accordance with the other provisions of this Act :

 

Provided that no interest shall be payable on the tax credit allowed under sub-section (1).

 

(3)        The amount of tax credit determined under sub-section (2) shall be carried forward and set off in accordance with the provisions of sub-section (4) and sub-section (5) but such carry forward shall not be allowed beyond the fifth assessment year immediately succeeding the assessment year in which tax credit becomes allowable under sub-section (1).

 

(4) The tax credit shall be allowed set-off in a year when tax becomes payable on the total income computed in accordance with the provisions of this Act other than section 115JA 66[R29] [or section 115JB, as the case may be].

 

(5)        Set off in respect of brought forward tax credit shall  be allowed for any assessment year to the extent of the difference between the tax on his total income and the tax which would have been payable under the provisions of sub-section (1) of section 115JA 66[R30] [or section 115JB, as the case may be] for that assessment year.

 

(6)        Where as a result of an order under sub-section (1) or sub-section (3) of section 143, section 144, section 147, section 154, section 155, sub-section (4) of section 245D, section 250, section 254, section 260, section 262, section 263 or section 264, the amount of tax payable under this Act is reduced or increased, as the case may be, the amount of tax credit allowed under this section shall also be increased or reduced accordingly.]

 

66a[R31] [Special provision for payment of tax by certain companies.67[R32] 

115JB. (1)             Notwithstanding anything contained in any other provi­sion of this Act, where in the case of an assessee, being a company, the income-tax, payable on the total income as computed under this Act in respect of any previous year relevant to the assessment year commencing on or after the 1st day of April, 2001, is less than seven and one-half per cent of its book prof­it, 68[R33] [such book profit shall be deemed to be the total income of the assessee and the tax payable by the assessee on such total income shall be the amount of income-tax at the rate of seven and one-half per cent].

 

(2)        Every assessee, being a company, shall, for the purposes of this section, prepare its profit and loss account for the rele­vant previous year in accordance with the provisions of Parts II and III of Schedule VI69[R34]  to the Companies Act, 1956 (1 of 1956) :

 

Provided that while preparing the annual accounts including profit and loss account,—

 

(i)         the accounting policies;

           

(ii)        the accounting standards adopted for preparing such accounts including profit and loss account;

           

(iii)       the method and rates adopted for calculating the depreciation, shall be the same as have been adopted for the purpose of prepar­ing such accounts including profit and loss account and laid before the company at its annual general meeting in accordance with the provisions of section 210 of the Companies Act, 1956 (1 of 1956) :

 

Provided further that where the company has adopted or adopts the financial year under the Companies Act, 1956 (1 of 1956), which is different from the previous year under this Act,—

 

(i)         the accounting policies;

           

(ii)        the accounting standards adopted for preparing such accounts including profit and loss account;

           

(iii)       the method and rates adopted for calculating the depreciation, shall correspond to the accounting policies, accounting standards and the method and rates for calculating the depreciation which have been adopted for preparing such accounts including profit and loss account for such financial year or part of such finan­cial year falling within the relevant previous year.

 

Explanation.—For the purposes of this section, “book profit” means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (2), as increased by—

 

(a)        the amount of income-tax paid or payable, and the provision therefor; or

           

(b)        the amounts carried to any reserves, by whatever name called 70[R35] [, other than a reserve specified under section 33AC]; or

           

(c)        the amount or amounts set aside to provisions made for meeting liabilities, other than ascertained liabilities; or

           

(d)        the amount by way of provision for losses of subsidiary companies; or

           

(e)        the amount or amounts of dividends paid or proposed ; or

           

(f)        the amount or amounts of expenditure relatable to any income to which section 10 or section 10A or section 10B or section 11 or section 12 apply, if any amount referred to in clauses (a) to (f) is debited to the profit and loss account, and as reduced by—

 

71[R36] [(i)     the amount withdrawn from any reserve or provision (excluding a reserve created before the 1st day of April, 1997 otherwise than by way of a debit to the profit and loss account), if any such amount is credited to the profit and loss account:

 

Provided that where this section is applicable to an assessee in any previous year, the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 1997 shall not be reduced from the book profit unless the book profit of such year has been increased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation or Explanation below the second proviso to section 115JA, as the case may be; or]

 

(ii)        the amount of income to which any of the provisions of section 10 or section 10A or section 10B or section 11 or section 12 apply, if any such amount is credited to the profit and loss account; or

           

72[R37] [(iii)   the amount of loss brought forward or unabsorbed depreciation, whichever is less as per books of account.

 

Explanation.—For the purposes of this clause,—

       

(a)        the loss shall not include depreciation;

 

(b)        the provisions of this clause shall not apply if the amount of loss brought forward or unabsorbed depreciation is nil; or]

 

(iv)       the amount of profits eligible for deduction under section 80HHC, computed under clause (a) or clause (b) or clause (c) of sub-section (3) or sub-section (3A), as the case may be, of that section, and subject to the conditions specified in that section; or

 

(v)        the amount of profits eligible for deduction under section 80HHE computed under sub-section (3) or sub-section (3A), as the case may be, of that section, and subject to the condi­tions specified in that section; or

           

(vi)       the amount of profits eligible for deduction under section 80HHF computed under sub-section (3) of that section, and subject to the conditions specified in that section; or

           

(vii)      the amount of profits of sick industrial company for the assessment year commencing on and from the assessment year relevant to the previous year in which the said company has become a sick industrial company under sub-section (1) of section 1773[R38]  of the Sick Industrial Companies (Special Provisions) Act, 1985 (1 of 1986) and ending with the assessment year during which the entire net worth of such company becomes equal to or exceeds the accumu­lated losses.

 

Explanation.—For the purposes of this clause, “net worth” shall have the meaning assigned to it in clause (ga) of sub-section (1) of section 374[R39]  of the Sick Industrial Companies (Special Provi­sions) Act, 1985 (1 of 1986).

 

(3)        Nothing contained in sub-section (1) shall affect the deter­mination of the amounts in relation to the relevant previous year to be carried forward to the subsequent year or years under the provisions of sub-section (2) of section 32 or sub-section (3) of section 32A or clause (ii) of sub-section (1) of section 72 or section 73 or section 74 or sub-section (3) of section 74A.

 

(4)        Every company to which this section applies, shall furnish a report in the prescribed form75[R40]  from an accountant as defined in the Explanation below sub-section (2) of section 288, certifying that the book profit has been computed in accordance with the provisions of this section along with the return of income filed under sub-section (1) of section 139 or along with the return of income furnished in response to a notice under clause (i) of sub-section (1) of section 142.

 

(5)        Save as otherwise provided in this section, all other provi­sions of this Act shall apply to every assessee, being a company, mentioned in this section.]

 

 [R1]Inserted by the Finance Act, 1987, w.e.f. 1-4-1988.

 [R2]Inserted by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R3]Inserted by the Finance Act, 1990, w.e.f. 1-4-1990.

 [R4]Inserted by the Finance Act, 1989, w.e.f. 1-4-1989

 [R5]Substituted for “prepared in accordance with the provisions of Parts II and III of the Sixth Schedule to the Companies Act, 1956 (1 of 1956)” by the Finance Act, 1989, w.e.f. 1-4-1989.

 [R6]Inserted by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R7]Inserted by the Direct Tax Laws (Second Amendment) Act, 1989, w.e.f. 1-4-1990.

 [R8]Substituted for “applies” by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R9]Inserted by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R10]Inserted by the Direct Tax Laws (Second Amendment) Act, 1989, w.e.f. 1-4-1990

 [R11]Substituted for “if any such amount is debited” by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R12]Inserted by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R13]Substituted for “profit and loss account; or” by the Finance Act, 1989, w.r.e.f. 1-4-1988.

 [R14]Inserted by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R15]Relettered by the Direct Tax Laws (Amendment) Act, 1989, w.e.f. 1-4-1989.

 [R16]For the meaning of the term “previous year”

 [R17]Inserted by the Finance (No. 2) Act, 1996, w.e.f. 1-4-1997.

 [R18]                Inserted by the Finance Act, 2000, w.e.f. 1-4-2001.

 [R19]For text of Parts II and III of Schedule VI to the Companies Act, 1956, see Appendix One.

 [R20]Inserted by the Finance Act, 2000, w.e.f. 1-4-2001.

 [R21]Substituted by the Finance Act, 2002, w.r.e.f. 1-4-1997. Prior to its substitution, clause (iii) and the Explanation thereto read as under :

“(iii)  the amount of loss brought forward or unabsorbed depreciation, whichever is less as per books of account.

                                Explanation.—For the purposes of this clause, the loss shall not include depreciation; or”

 [R22]Substituted for “sub-clause (b) or sub-clause (c) of clause (iv) of sub-section (2) of section 80-IA” by the Finance Act, 1999, w.e.f. 1-4-2000.

 [R23]Substituted for “profits and gains under sub-section (5) of section 80-IA” by the Finance Act, 1999, w.e.f. 1-4-2000.

 [R24]                Substituted for “under sub-section (12) of section 80-IA, and subject to fulfilling the conditions laid down in sub-section (4A) of section 80-IA” by the Finance Act, 1999, w.e.f. 1-4-2000.

 [R25]For definition of “net worth”, see Appendix One.

 [R26]Inserted by the Finance Act, 1997, w.e.f. 1-4-1998.

 [R27]Inserted by the Finance Act, 1997, w.e.f. 1-4-1998.

 [R28]Inserted by the Finance Act, 1997, w.e.f. 1-4-1997.

 [R29]Inserted by the Finance Act, 2000, w.e.f. 1-4-2001

 [R30]Inserted by the Finance Act, 2000, w.e.f. 1-4-2001.

 [R31]Inserted by the Finance Act, 2000, w.e.f. 1-4-2001.

 [R32]See also Circular No. 13/2001, dated 9-11-2001.

 [R33]Substituted for “the tax payable for the relevant previous year shall be deemed to be seven and one-half per cent of such book profit” by the Finance Act, 2002, w.r.e.f. 1-4-2001

 [R34]For text of Parts II and III of Schedule VI to the Companies Act, 1956, see Appendix One.

 [R35]Inserted by the Finance Act, 2002, w.e.f. 1-4-2003.

 [R36]Substituted by the Finance Act, 2002, w.r.e.f. 1-4-2001. Prior to their substitution, clause (i) and the proviso read as under :

  “(i)   the amount withdrawn from any reserves or provisions, if any such amount is credited to the profit and loss account :

                                Provided that, where this section is applicable to an assessee in any previous year (including the relevant previous year), the amount withdrawn from reserves created or provisions made in a previous year relevant to the assessment year commencing on or after the 1st day of April, 2001 shall not be reduced from the book profit unless the book profit of such year has been in­creased by those reserves or provisions (out of which the said amount was withdrawn) under this Explanation; or”

 [R37]Substituted by the Finance Act, 2002, w.r.e.f. 1-4-2001. Prior to their substitution, clause (iii) and the Explana­tion read as under :

“(iii)  the amount of loss brought forward or unabsorbed deprecia­tion, whichever is less as per books of account.

                                Explanation.—For the purposes of this clause, the loss shall not include depreciation; or”

 [R38]For text of section 17 of the Sick Industrial Companies (Special Provisions) Act, 1985, see Appendix One.

 [R39]Clause (ga) of section 3(1) of the Sick Industrial Companies (Special Provisions) Act, 1985, defines “net worth”. For text of section 3(1)(ga), see Appendix One.

 [R40]See rule 40B and Form No. 29B.