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4. It is averred in the petition that petitioner is engaged in the power generation and supply of electricity generated to the Grid and Jindal Vijaynagar Steel Limited. The business commenced during the previous year 1999-2000 (around January 2000) relevant assessment year 2000-01 and petitioner was not liable to pay tax on the total income either under the normal provisions of the Act or under Section 115JB of the Act as he did not earn sufficient profit. However, for the succeeding previous year 2000-01 relevant to assessment year 2001-02 petitioner had good profits and hence 7.5% of such book profits was deemed to be the tax payable in terms of Section 115JB of the Act which the petitioner paid on its own as self-assessment tax under Section 140A. It is averred in the petition that Minimum Alternate Tax (hereinafter called MAT) was introduced in Chapter XIIB of the Act providing for imposition of MAT in the absence of total income chargeable to tax. It is averred that Section 207 of the Act creates the charge for payment of advance tax on every assessee in accordance with the provisions of Sections 208 to 219. Such obligation arises with reference to total income of the assessee which is to be estimated and such estimated total income is described as 'current income'. Consequently, unless it is established that an assessee is likely to earn current income, he is not liable to pay advance tax. Chapter XIIB was inserted by the Finance Act, 1987 with effect from 1.4.1988 providing for levy of tax on Companies and such a tax was levied on book profits of the Company and not on the total income computed under the normal provisions of the Act. Initially as per Section 115J which was the only Section under the Chapter XIIB, tax on 30% of the book profit was levied if the same was found to be more than the total income computed under the Act and the assessee was required to pay income tax at the regular rates and Section 115J(1) provided that where the total income computed under the Act is found to be less than 40% of the book profit the total income of the assessee chargeable to the tax shall be deemed to be an amount equivalent to 30% of such. Thus the concept of 'deemed total income' emerged. The liability to pay MAT would arise only on the determination of book profits which by necessary implication could be determined only after the accounts are audited and the Division Bench of this Court in the case of Kwality Biscuits Ltd. v. CIT 243 ITR 519 held that the provisions of Chapter XVIIC dealing with advance tax would not apply to tax payable under Section 115J of the Act and therefore the interest under Section 234-B and 234-C of the Act are not leviable, if advance tax is not paid on the tax payable under Section 115J of the Act. It is further averred that Section 115J ceased to be effective from the assessment year 1991-92. The scheme of MAT, however, was revived effective from the assessment year 1997-98 by the Finance (No. 2) Act, 1996 by insertion of a new charging Section 115JA into Chapter XIIB of the Act and under the said provision where the total income computed under the provisions of the Act is found to he less than 30% of the book profit, the total income chargeable to tax shall be deemed to be an amount equivalent to 30% of the book profit and Section 115JA operated upto and including the assessment year 2000-01 when it gave way for another charging section seemingly comparable to Section 115JA. The new provision viz., Section 115JB was brought into the statute by the Finance Act, 2000 effective from assessment year 2001-02. It was materially different from its predecessor in one respect- in not seeking to deem any total income but providing for tax simpliciter and this provision as initially introduced pointedly departed from its predecessor that as against 30% of the book profit being deemed to be total income, it only provided that where the income tax payable by the assessee, which is a company, for any assessment year commencing from 2001-02, is less than 7 1/2% of such book profit, then the "tax payable for the relevant previous year shall be deemed to be 7 1/2% of such book profit". However, there is no deeming of book profit as total income as in the case of 115JA but just ordaining every company to pay 7 1/2 % book profit as income tax. Section 115JB was amended by the Finance Act, 2002 with retrospective effect from 1.4.2001 substituting for the words 'the tax payable for the relevant assessment year 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 7 1/2%' was included. It is averred that the main difference between the provision as introduced initially and later amended is that while the former provided for an obligation to pay tax at 7 1/2% of the book profit without deeming the book profit for two things viz., i) deeming the book profit to be total income; and ii) providing for tax at 7 1/2% of such book profit. It is further averred that Section 115JB doubtless being a charging section, the law as in force at 1.4.2001 relevant to assessment year 2001-02 only provided for payment of 7 1/2% of the book profit as tax and nothing more. It is further averred that advance tax is payable in the case of a company in June, September, December and March of the previous year in relation to the income of the assessment year. Thus, for the assessment year 2001-02, advance tax, if any, was payable in June, September and December 2000 and March 2001 and on the view that there was no obligation to pay in advance, tax arising under Chapter XIIB as confirmed by the Division Bench of this High Court, the petitioner did not pay any advance tax in relation to its book profit for the assessment year 2001-02. The petitioner was advised that in the absence of a fiction that the book profits being deemed to be the total income for the purpose of the Act, the charge for payment of advance tax under Section 207 of the Act is not attracted and therefore, the petitioner was not liable to pay MAT payable under Section 115JB as advance tax and the book profit was arrived at Rs. 42,79,20,950/- in relation to which the petitioner was liable to tax at 7 1/2% in terms of Section 115JB and petitioner paid the tax under Section 115JB including surcharge aggregating to Rs. 3,62,66,300/- as self-assessment tax under Section 140A and in the absence of any obligation to pay advance tax, the petitioner did not incur any liability to penal interest under Section 234-B and 234-C and the second respondent examined the return of income and issued an intimation dated 24.12.2002 under Section 143(1) of the Act taking the position that the petitioner was liable to interest under Sections 234-B and 234-C and the second respondent assumed the obligation to pay MAT in advance and therefore, proceeded to levy Rs. 43,87,341/- as interest under Section 234B and Rs. 27,25,364/- under Section 234C and petitioner is aggrieved by the action in levying interest with retrospective effect. It is further averred that retrospectivity given to the amendment be struck down or read down since it is only the amendment with retrospective effect which has foisted interest liability on the petitioner whereas on the basis of the law actually in force during the previous year, it was not liable to pay such interest and when the petitioner was not liable to pay such interest on the due dates for the payment of advance tax, the retrospective amendment appears to foist a liability to pay advance tax long after the expiry of the due dates and the non-payment could attract interest under Sections 234-B & C of the Act and petitioner is confronted with a situation where it is liable to pay interest because of the retrospective amendment though there was no default on the due dates for the payment of advance tax and such amendment is liable to be struck down on the grounds of impossibility of performance and compliance. Admittedly, no interest can be levied with retrospective effect and any such levy will be expropriatary and liable to be struck down on that account and wherefore the amendment be read down as of being prospective effect i.e. effective from 1.4.2002 and not affecting the past and amendment made by the Finance Act, 2002 should be made applicable to the previous year 2002-03 relevant to assessment year 2003-04 onwards and to that extent the provisions of the Finance Act, 2002 in so far as it gives retrospective effect for imposition of interest and penalty under Section 234-B and 234-C of the Act is unconstitutional and liable to be struck down as such and wherefore the petitioner has sought for a declaration in that behalf and has also sought for a declaration that the petitioner was not liable to pay interest under Section 234-B and 234-C of the Act prior to the assessment year 2003-04 for the previous year 2002-03.

6. I have heard the learned Counsel appearing for the parties.

7. The learned Senior counsel appearing for the petitioner submitted that the petitioner has already paid tax for the assessment years 2001-02 and 2002-03 and the challenge in the writ petitions is only regarding levy of interest under Section 234-B and 234-C of the Act for non-payment of advance tax. The learned Counsel submitted that there was no liability to pay tax in advance prior to the amendment introduced by Finance Act, 2002. What was payable was tax of 7 1/2% tax on such book profit and in the absence of any provision deeming the book profit as the total income, there was no liability to pay advance tax in view of the provisions of Section 207 of the Act which creates charge for payment of advance tax in respect of the total income of the assessee and wherefore the retrospective operation of the Finance Act, 2002 amending the provisions of Section 115JB of the Act in so far as it relates to demand pertaining to interest under Section 234-B and 234-C is unconstitutional as the same would cause irreparable loss to the petitioner and would also be unreasonable as the petitioner which was not liable to pay advance tax and thereunder no obligation to pay interest under Section 234-B and 234-C has now to be made to pay the interest under Section 234-B and 234-C of the Act which was not payable prior to the Amendment Act and wherefore the retrospective Amendment by Finance Act, 2002 is unreasonable and exapproprietary and impossible of performance and compliance. The learned Senior counsel submitted that Legislature has power to amend the Act retrospectively. However retrospective operation of the Act is liable to be set aside as unconstitutional or read down as prospective where the same would cause unreasonable hardship to the petitioner. The learned Counsel has relied upon the decisions in National Agricultural Co-operative Manufacturing Federation v. Union of India 2003 ITR 260 548 Shamanur Kallappa v. State of Karnataka 2004 136 ITR 132, Star India Private Limited v. Commissioner of Central Excise 2006 ITR 250 321 in support of his contention that Finance Act, 2002 in so far as it relates to retrospective operation with effect from 1.4.2001 and enables the respondents to impose tax under Section 234-B and 234-C of the Act is unconstitutional and is liable to be set aside as such.