DDIT, CHENNAI V. Ansaldo Energy SPA, CHENNAI

ITA 1066/CHNY/2013

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68615 (ITAT-CHENNAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-08-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 31-07-2013
• Assessment Year: 1999-2000
• Appeal Filed On: 20-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANIRUDH RAI
• Section: 143(3); 234B; 147; 154; 15

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI N.S. SAINI, ACCOUNTANT MEMBER AND SHRI VIKAS AWASTHY, JUDICIAL MEMBER] I.T.A.NO.1066/MDS/2013 ASSESSMENT YEAR : 1999-2000 THE DEPUTY DIRECTOR OF INCOME-TAX (INTERNATIONAL TAXATION-1) CHENNAI VS M/S ANSALDO ENERGY SPA C/O M/S BATLIBOI & COMPANY TPL HOUSE, CENOTAPH ROAD TEYNAMPET CHENNAI 600 002 [PAN AACCA 4151 H] (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ANIRUDH RAI, CIT/DR RESPONDENT BY : SHRI NISHANT THAKKAR, ADVOCATE DATE OF HEARING : 31-07-2013 DATE OF PRONOUNCEMENT : 06-08-2013 O R D E R PER N.S. SAINI, ACCOUNTANT MEMBER THIS IS AN APPEAL FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. CIT(A)-IV, CHENNAI, DATED 24.1.2013 BY TAKING T HE FOLLOWING GROUNDS OF APPEAL: 1. THE ORDER OF THE LEARNED CIT (A) IS CONTRARY T O LAW AND FACTS AND CIRCUMSTANCES OF THE CASE. 2.1 THE CIT(A) ERRED IN DIRECTING THE ASSESSING OF FICER TO FOLLOW THE ORDER OF THE ITAT FOR THE A.Y 2000-01 IN I.T.A. NO. 1378/MDS/2010 DATED 11.03.2011 AND RECOMPUTED THE I NTEREST LEVIABLE U/S 234B. I.T.A.NO. 1066/13 :- 2 -: 2.2 IT IS SUBMITTED THAT THE DECISION OF THE ITAT IN THE ASSESSEES OWN CASE FOR THE A.Y 2000-01 IN I.T.A.NO . 1378/MDS/2010 DATED 11.03.2011 HAS NOT BEEN ACCEPTE D BY THE DEPARTMENT AND AN APPEAL BEFORE THE HIGH COURT IS P ENDING. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE ADDUCED AT THE TIME OF HEARING, IT IS PRAYED THAT THE ORDER OF THE LEAR NED CIT (A) MAY BE SET ASIDE AND THAT OF THE ASSESSING OFFICER REST ORED. 2. THE SOLE ISSUE INVOLVED IN THIS APPEAL OF THE REVEN UE IS THAT THE LD. CIT(A) ERRED IN DIRECTING THE ASSESSING OFF ICER TO FOLLOW THE ORDER OF THE TRIBUNAL IN ASSESSEES OWN CASE FOR A SSESSMENT YEAR 2000-01 AND RECOMPUTE THE INTEREST LEVIABLE U/S 23 4B OF THE ACT. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSING OFFICER PASSED ORDER U/S 154 OF THE ACT ON 31.3.2011 AND R ECOMPUTED THE INTEREST LEVIABLE U/S 234B OF THE ACT. ACCORDING TO THE ASSESSING OFFICER, AS PER PROVISIONS OF SECTION 234B(1), THE PERIOD OF CALCULATION OF INTEREST SHOULD START FROM 1 ST APRIL OF THE CORRESPONDING FINANCIAL YEAR AND END ON THE DATE OF REGULAR ASSESSMENT IN THE EVENT A REGULAR ASSESSMENT IS MADE. THE ASSESSING OFFICER FURTHER OBSERVED THAT ACCORDING TO EXPLANATION 2 TO SECTION 234B(1) AN AS SESSMENT MADE FOR THE FIRST TIME U/S 147 OF THE ACT IS ALSO A REGUL AR ASSESSMENT. HE OBSERVED THAT IN THE INSTANT CASE THE RE-ASSESSMENT WAS COMPLETED U/S 143(3) R.W.S 147 OF THE ACT FOR THE FIRST TIME ON 27.2.2004 AND THE MODE OF CALCULATION PRESCRIBED FOR BRINGING INTO TA X ADDITIONAL AMOUNT OF INCOME AS STIPULATED IN SECTION 234B(3) OF THE A CT WAS NOT APPLICABLE FOR RE-ASSESSMENT MADE FOR THE FIRST TIM E. ACCORDING TO HIM, I.T.A.NO. 1066/13 :- 3 -: THE METHODOLOGY OF CALCULATION AS INTERPRETED BY TH E ASSESSEE WAS NOT APPLICABLE FOR CASES WHERE ASSESSMENT U/S 147 IS C OMPLETED FOR THE FIRST TIME. INSTEAD INTEREST HAS TO BE CALCULATED KEEPING IN MIND SECTION 234(1) AND 234(4) OF THE ACT. IN ADDITION, CONSEQUENTIAL EXCESS INTEREST ON REFUND ISSUED HAS TO BE RECTIFI ED. SINCE THE ABOVE ERROR WAS APPARENT FROM THE PLAIN READING OF THE AC T, NECESSARY MODIFICATION IN THIS REGARD WAS CARRIED OUT IN RECT IFICATION PROCEEDINGS. ACCORDINGLY, HE HELD THAT INTEREST U/S 234B ALREAD Y CALCULATED IN THE REVISION ORDER WAS TO BE FURTHER INCREASED BY INTER EST WITH EFFECT FROM 1.4.1999. ACCORDINGLY, THE ASSESSING OFFICER LEVIE D INTEREST U/S 234B OF THE ACT OF ` 1,11,85,416/-. 4. BEING AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THE LD. CIT(A). 5. BEFORE THE LD. CIT(A) THE ASSESSEE SUBMITTED THAT SIMILAR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSMENT YEA R 2000-01 IN THE CASE OF THE ASSESSEE IN I.T.A.NO. 1378/MDS/2010, O RDER DATED 11.3.2011, AND ALLOWED THE APPEAL IN FAVOUR OF THE ASSESSEE AND SINCE THE FACTS IN THE PRESENT YEAR OF APPEAL ARE T HE SAME, THE SAID ORDER OF THE TRIBUNAL SHOULD BE FOLLOWED IN THIS YE AR OF APPEAL. 6. THE LD. CIT(A), AFTER CONSIDERING THE SUBMISSIONS O F THE ASSESSEE, HAS HELD AS UNDER: I.T.A.NO. 1066/13 :- 4 -: I HAVE CONSIDERED THE ABOVE SUBMISSIONS OF THE A SSESSEE. THE ORDER OF THE ITAT, WHICH THE ASSESSEE IS REFE RRING TO, PERTAINS TO THE A.Y 2000-01. THIS ORDER WAS PASSED ON 11.03.2011. THE ASSESSING OFFICER, WHILE PASSING T HE PRESENT ORDER U/S 154 ON 31.03.2011, OBSERVED THAT THE ORD ER OF THE ITAT FOR A.Y 2000-01 DATED 11.03.2011 WAS NOT RECEI VED BY HIM AS ON 31.03.2011 AND HENCE, HE HAD TO COMPUTE AND L EVY THE INTEREST U/S 234B AS PER THE EARLIER ORDERS. HOWEVER, THE ASSESSING OFFICER ACTED UPON THE ORDE R OF THE ITAT OF A.Y. 2000-01, DATED 11.03.2011 AND GAVE NEC ESSARY RELIEF TO THE ASSESSEE BY PASSING AN ORDER U/S 15 4 FOR A.Y 2000- 01 ON 25.07.2012. HENCE, THE ASSESSING OFFICER IS DIRECTED TO ADOPT THE SAME PRINCIPLE FOR THE A.Y 1999-2000 ALSO AND RE- COMPUTE THE INTEREST LEVIABLE U/S 234B AS PER THE DIRECTION OF THE ITAT, IF THE ASSESSING OFFICER FINDS THAT THE F ACTS ARE IDENTICAL. 7. BEFORE US, THE LD. CIT/DR RELIED ON THE ORDER OF TH E ASSESSING OFFICER WHEREAS THE LD. A.R OF THE ASSESS EE RELIED ON THE ORDER OF THE LD. CIT(A). 8. AFTER CONSIDERING THE RIVAL SUBMISSIONS AND PERUSIN G THE ORDERS OF THE LOWER AUTHORITIES AND MATERIALS ON R ECORD, WE FIND THAT IN THE INSTANT CASE THE ASSESSING OFFICER MODIFIED THE INTEREST CHARGEABLE U/S 234B OF THE ACT IN THE ORDER PASSED U/S 154 DA TED 30.3.2011 AMOUNTING TO ` 1,11,85,416/-. THE ASSESSEE SUBMITTED THAT SIMIL AR ISSUE WAS DECIDED BY THE TRIBUNAL IN ASSESSMENT YEA R 2000-01 IN THE APPEAL OF THE ASSESSEE IN THE ORDER PASSED ON 11.3 .2011 IN I.T.A.NO. 1378/MDS/2010 IN FAVOUR OF THE ASSESSEE AND AS THE FACTS ARE SIMILAR, THE SAID ORDER OF THE TRIBUNAL SHOULD BE FOLLOWED I N THE PRESENT YEAR OF APPEAL. THE LD. CIT(A), IN THE ABOVE QUOTED ORDER, HAS DIRECTED THE I.T.A.NO. 1066/13 :- 5 -: ASSESSING OFFICER TO ADOPT THE SAME PRINCIPLE FOR A SSESSMENT YEAR 2000-01 AND RE-COMPUTE THE INTEREST LEVIABLE U/S 2 34B OF THE ACT AS PER DIRECTIONS OF THE TRIBUNAL IF THE ASSESSING OFF ICER FINDS THAT THE FACTS ARE IDENTICAL. 9. IN THE GROUNDS OF APPEAL TAKEN BY THE REVENUE, THE REVENUE IS AGGRIEVED BY THE ORDER OF THE LD. CIT(A) ON THE GROUND THAT THE ORDER OF THE TRIBUNAL HAS NOT BECOME FINAL AS THE R EVENUE HAS PREFERRED APPEAL TO THE HON'BLE HIGH COURT AGAINST THE SAID ORDER OF THE TRIBUNAL. THE LD. CIT/DR COULD NOT BRING ANY M ATERIAL ON RECORD TO SHOW THAT EITHER THE OPERATION OF THE ORDER OF THE TRIBUNAL RELIED ON BY THE LD. CIT(A) HAS BEEN SUSPENDED BY THE HON'BLE H IGH COURT OR THE ORDER OF THE TRIBUNAL WAS VARIED IN APPEAL BY THE H ON'BLE HIGH COURT. IN THE ABOVE FACTS AND CIRCUMSTANCES, WE DO NOT FIN D ANY GOOD AND JUSTIFIABLE REASON TO INTERFERE WITH THE ORDER OF T HE LD. CIT(A) WHICH IS CONFIRMED AND THE GROUNDS OF APPEAL OF THE REVENUE ARE DISMISSED. 10. IN THE RESULT, THE APPEAL OF THE REVENUE IS DI SMISSED. ORDER PRONOUNCED ON TUESDAY, THE 06 TH OF AUGUST, 2013 AT CHENNAI. SD/- SD/- (VIKAS AWASTHY) JUDICIAL MEMBER (N.S.SAINI) ACCOUNTANT MEMBER DATED: 06 TH AUGUST, 2013 RD COPY TO: APPELLANT/RESPONDENT/CIT(A)/CIT/DR