Gupta Metallic & Power Limited, Nagpur V. The Assistant Commissioner of Income Tax,Central Circle-2(3), Nagpur

ITA 1/NAG/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 1955 (ITAT-NAGPUR)
• Duration Of Justice: 1 year(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-01-2013
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 06-01-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S R KIRTANE
• Keywords: Depreciation
• Section: 143(3); 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL NAGPUR E-BENCH, NAGPUR (THROUGH VIDEO CONFERENCE AT MUMBAI) . . , . / , . . BEFORE SHRI R.K. GUPTA, JUDICIAL MEMBER /AND SHRI RAJENDRA, ACCOUNTANT MEMBER . / ITA NO.1/NAG/2012 / ASSESSMENT YEAR 2005-06 GUPTA METALLIC & POWER LIMITED, C/O. M/S. LOYA BAGRI & CO., CHARTERED ACCOUNTANTS, GANDHIBAG, NAGPUR 440 002. PAN: AABCG 9051 D VS. ASST. COMMISSIONER OF INCOME TAX, CC-2(3), NAGPUR. ( / APPELLANT ) ( / RESPONDENT ) / APPELLANT BY : SHRI RAJESH LOYA ! / RESPONDENT BY : SHRI S.R. KIRTANE ' ! #$% / DATE OF HEARING : 23-01-2013 &' ! #$% / DATE OF PRONOUNCEMENT : 23-01-2013 () / O R D E R PER RAJENDRA, AM THE APPELLANT HAS FILED THIS APPEAL AGAINST THE ORD ER DT. 23-10-2011 OF THE CIT(A)-I, NAGPUR RAISING FOLLOWING GROUNDS OF APP EAL: (1) THAT THE ORDER OF THE LEARNED ASSESSING OFFICER IS BAD IN LAW AND ON FACTS AND THE LEARNED CIT(A) ERRED IN CONFIRMING THE ORDER OF THE AO. (2) THAT THE ASSESSING OFFICER ERRED IN LAW AND ON FACT S IN NOT CONSIDERING THE SELF ASSESSMENT TAX FOR DETERMINATION OF INTEREST U/S.23 4A AND 234B OF THE INCOME TAX ACT AND THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTIO N OF THE ASSESSING OFFICER. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THE LEARNED AUT HORITIES ERRED IN NOT APPRECIATING THAT THE INTEREST IS COMPENSATORY IN NATURE. (3) THAT THE ASSESSING OFFICER ERRED IN LAW AND ON FACTS IN CHARGING INTEREST U/S.234C AND THE LEARNED CIT(A) ERRED IN UPHOLDING THE ACTIO N OF THE AO. ITA NO.1/NAG/2012 GUPTA METALLIC & POWER LTD 2 (4) THAT THE INTEREST CHARGED U/S.234A, 234B AND 2 34C IS IMPROPER AND UNJUSTIFIED. (5) THAT FOR ANY OTHER GROUND WITH KIND PERMISSION OF YOUR HONORS AT THE TIME OF HEARING OF APPEAL. 2. THE ASSESSEE-COMPANY ENGAGED IN THE BUSINESS OF SPO NGE IRON AND COAL STEEL, FILED ITS RETURN OF INCOME ON 30-03-2007 DECLARING TOTAL INCOME OF RS. 1.70 CRORES. ASSESSMENT WAS FINALISED ON 28-12-2007 BY THE ASSES SING OFFICER (AO) U/S. 143(3) OF THE INCOME TAX ACT, 1961 (ACT) DETERMINING TOTAL IN COME AT RS. 2.43 CRORES. AFTER ALLOWING THE DEPRECIATION, TOTAL TAXABLE INCOME WAS DETERMINED AT RS. 2.11 CRORES. WHILE PASSING THE ASSESSMENT ORDER, AO HELD THAT IN TEREST U/S. 234A AND 234B SHOULD BE LEVIED. ASSESSEE FILED AN APPLICATION U/ S. 154 OF THE ACT BEFORE THE AO FOR CORRECTING THE MISTAKES APPARENT FROM THE RECORD WI TH REGARD TO THE INTEREST LEVIED U/S. 234A, 234B & 234C OF THE ACT. AS PER THE AO, HEARI NG FOR RECTIFYING THE MISTAKES AS PER THE PROVISIONS OF SEC. 154 OF THE ACT WAS FIXED ON 17-10-2007 BUT ON THAT DATE, NOBODY APPEARED ON BEHALF OF THE ASSESSEE NOR ANY A PPLICATION FOR ADJOURNMENT WAS SUBMITTED. HE HELD THAT ASSESSEE-COMPANY HAD NOT E XPLAINED AS HOW THE CALCULATION MADE U/S. 234A, 234B & 234C WAS NOT CORRECT, THE IN TEREST WAS CALCULATED AS PER THE PROVISIONS OF SEC. 140A OF THE ACT. HE REJECTED TH E APPLICATION FILED BY THE ASSESSEE FOR RECTIFICATION. 3. ASSESSEE PREFERRED AN APPEAL BEFORE THE FIRST AP PELLATE AUTHORITY (FAA). AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE AND THE CASE LAWS RELIED UPON, THE AUTHORISED REPRESENTATIVE (AR) OF THE ASSESSEE I.E. , I. PRANOY ROY [222 CTR 6 (SC)]; NITIN MURLI RAJEJA [105 ITD 414 (MUM)] & MRS. SHILA JAISINGH [13 SOT 617 (MUM), HELD THAT FACTS OF THE ASSESSEES CASE WERE ENTIREL Y DISTINGUISHABLE, THAT PAYMENT OF TAX BEYOND DUE DATES FILING OF RETURN WAS IN NATURE OF ADHOC PAYMENT AND COULD NOT BE CONSIDERED AS SELF-ASSESSMENT TAX. FAA UPHOLDING T HE ORDER OF THE AO, DISMISSED THE APPEAL FILED BY THE APPELLANT-COMPANY. 4. BEFORE US, AR SUBMITTED THAT TAX ON INCOME OF RS. 1.69 CRORES WORKED OUT AT RS. 62.28 LAKHS, THAT TAX WAS DEDUCTED AT SOURCE WA S RS. 1.7 LAKHS, THAT ADVANCE TAX PAID AMOUNTED TO RS. 13.10 LAKHS, THAT SELF ASS ESSMENT TAX AMOUNTING TO RS. 33.55 LAKHS WAS DEPOSITED ON 31-03-2006, THAT SELF ASSESSMENT TAX PAYABLE ON 26-03-2007 WAS RS. 3 LAKHS ONLY, THAT INTEREST U/S . 234A, 234B & 234C WAS CHARGED AT RS. 5.16 LAKHS, 4.68 LAKHS AND 2.94 LAKHS RESPEC TIVELY, THAT A RECTIFICATION APPLICATION WAS FILED BEFORE THE AO REQUESTING HIM TO TAKE INTO CONSIDERATION THE SELF- ASSESSMENT TAX OF RS. 33.55 LAKHS PAID ON 31-03-200 6. COUNSEL OF THE ASSESSEE HAD APPEARED BEFORE THE AO DURING RECTIFICATION PROCEED INGS, THAT HE HAD FILED THE XEROX COPIES OF JUDGMENT RELATED WITH THE ISSUE-IN-QUESTI ON. DEPARTMENTAL REPRESENTATIVE (DR) RELIED UPON THE ORDERS OF THE AO AND FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED TH E MATERIAL PUT BEFORE US. WE FIND THAT ASSESSEE HAS PAID TAX IN THE FORM OF T DS, ADVANCE TAX AND SELF ASSESSMENT TAX ETC., ON VARIOUS DATES. WHILE DECI DING THE APPLICATION FILED U/S. 154 OF THE ACT, AO SHOULD HAVE RE-CALCULATED THE INTERE ST PAID/PAYABLE BY THE ASSESSEE. BY PASSING ONE LINE ORDER, HE HAS REJECTED THE SUBMISS IONS OF THE ASSESSEE-COMPANY. WE ARE NOT SURE AS WHETHER THE AR OF THE ASSESSEE HAD APPEARED BEFORE THE AO ON 17-10-2007 OR NOT BECAUSE AO AND THE ASSESSEE-COMPA NY HAVE MADE TOTALLY OPPOSITE CLAIM WITH REGARD TO THE PRESENCE OF THE AR IN THE 154 PROCEEDINGS. HOWEVER, WE ARE ITA NO.1/NAG/2012 GUPTA METALLIC & POWER LTD 3 OF THE OPINION THAT IN THE INTEREST OF JUSTICE, MAT TER SHOULD BE RESTORED BACK TO THE FILE OF THE AO. HE IS DIRECTED TO RE-CALCULATE THE INTE REST, IF ANY PAYABLE BY THE ASSESSEE- COMPANY, AFTER TAKING INTO CONSIDERATION THE TAX PA ID BY IT FOR THE (ASSESSMENT YEAR) AY UNDER CONSIDERATION. ASSESSEE IS DIRECTED TO EX TEND NECESSARY CO-OPERATION TO THE AO FOR RE-CALCULATING THE EXACT AMOUNT OF INTEREST PAYABLE, IF ANY. AS A RESULT, APPEAL FILED BY THE ASSESSEE STANDS PA RTLY ALLOWED. + ,- . +# / (01 ! ' ) . ,23 ! # 45. ORDER PRONOUNCED BY E-BENCH AT MUMBAI ON THIS 23 RD DAY OF JANUARY, 2013 ,7' 0-# ' - 789 / 23 $ 2013 ' () &':# ; . SD/- SD/- ( . . / R.K. GUPTA ) ( / RAJENDRA ) (- / JUDICIAL MEMBER % (- / ACCOUNTANT MEMBER ,7' MUMBAI, ;( DATE: 23 RD JANUARY, 2013 TNMM COPY TO: 1. APPELLANT 2. RESPONDENT 3. THE CONCERNED CIT (A) 4. THE CONCERNED CIT 5. DR, ITAT, NAGPUR 6. GUARD FILE :# # //TRUE COPY// BY ORDER, ASST. REGISTRAR, ITAT