M/s Sanee Infrastructure Pvt. Ltd., Bhopal V. The ACIT, 3(1), Bhopal

ITA 12/IND/2011

• Counselvise Citation: 1222714 RSA 2011
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-06-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: DB
• Next Hearing Date: 25-10-2011
• Assessment Year: 2007-2008
• Appeal Filed On: 03-03-2011
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Keywords: Retrospective amendment
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL , INDORE BENCH, INDORE BEFORE SHRI JOGINDER SINGH, J.M. AND SHRI R.C.SHARM A, A.M. PAN NO. : AAGCS8307M I.T.A.NO. 12/IND/2011 A.Y. : 2007 - 08 M/S.SANEE INFRASTRUCTURE PVT.LTD., ACIT, 3(1), D - 19, MACHNA COLONY, 6 NO. BUS STOP, VS BHOPAL BHOPAL APPELLANT RESPONDENT APPELLANT BY : SHRI ANIL KHABYA, C. A. RESPONDENT BY : S MT. MRIDULA BAJPAI, CIT DR DATE OF HEARING : 30 . 0 1 .201 3 DATE OF PRONOUNCEMENT : 25 . 0 2 .201 3 O R D E R PER R. C. SHARMA, A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CIT(A) DATED 26.12.2009 , FOR THE ASS ESSMENT YEAR 2007-08. -: 2: - 2 2. AT THE OUT-SET, IT IS BEING BROUGHT ON RECORD THAT THIS APPEAL WAS ORIGINALLY DISPOSED OF BY THE TRIBUNAL V IDE ITS ORDER DATED 8 TH JUNE, 2012. THEREAFTER, MISC. APPLICATION WAS FILE D BY THE ASSESSEE TO THE EFFECT THAT GROUND RAISED WI TH REGARD TO LEVY OF INTEREST U/S 234B WAS NOT DECIDED BY THE TR IBUNAL. THE TRIBUNAL PASSED ITS ORDER IN MISC. APPLICATION NO.9 5/IND/2012 DATED 10 TH SEPTEMBER, 2012, AND THE ORDER WAS RECALLED TO DECIDE A LIMITED ISSUE OF LEVY OF INTEREST CHARGED U/S 234B. 3. IT WAS ARGUED BY THE LD. AUTHORIZED REPRESENTATIVE THAT THERE WAS RETROSPECTIVE AMENDMENT BY THE FINAN CE ACT, 2009, WHEREIN DEDUCTION U/S 80IA(4) HAS BEEN DENIED IN RESPECT OF A CONTRACTOR. AS PER LD. AUTHORIZED REPR ESENTATIVE, SINCE DURING THE FINANCIAL YEAR 2006-07, THERE WAS NO LIABILITY TO PAY ADVANCE TAX, INTEREST U/S 234B CANNOT BE LE VIED. 4. ON THE OTHER HAND, THE LD. CIT DR CONTENDED THAT CHARGING OF INTEREST IS MANDATORY AND THAT THE ASSE SSING OFFICER WAS JUSTIFIED IN CHARGING INTEREST U/S 234B . 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW AN D FOUND FROM RECORD THAT THE ASSESSEE HAS FILED ITS RETURN AT AN INCOME -: 3: - 3 OF RS. 12,50,270/- AFTER CLAIMING OF DEDUCTION U/S 80IA AMOUNTING TO RS. 1,13,26,560/-. THE CLAIM OF DEDUCT ION U/S 80IA WAS SUBJECT TO VARIOUS CONDITIONS STIPULATED T HEREIN. THE ASSESSING OFFICER FOUND THAT THE ASSESSEE HAS NOT C OMPLIED WITH THE CONDITIONS LAID DOWN U/S 80IA, THEREFORE, THE DEDUCTION WAS DECLINED AND THE ORDER OF ASSESSING O FFICER WAS CONFIRMED BY THE LD.CIT(A). IN A FURTHER APPEAL BEF ORE THE TRIBUNAL VIDE ORDER DATED 8 TH JUNE, 2012, THE TRIBUNAL RESTORED THE MATTER BACK TO THE FILE OF ASSESSING O FFICER FOR DECIDING AS PER THE SPECIFIC DIRECTIONS GIVEN IN TH E SAID ORDER. THE CHARGING OF INTEREST U/S 234B IS CONSEQUENTIAL IN NATURE AND IS NOT PENAL, MERE FACT THAT SOME AMENDMENT WAS BROUGHT IN SECTION 80IA WITH RETROSPECTIVE EFFECT, WILL NOT CHANGE THE STATUTORY LIABILITY OF THE ASSESSEE FROM INTEREST W HICH IS LEVIABLE FOR DELAY IN PAYMENT OF TAX. AS PER CONSID ERED VIEW, THE INTEREST U/S 234B IS CONSEQUENTIAL IN NATURE, A S WE HAVE ALREADY RESTORED THE ISSUE ON MERIT TO THE FILE OF ASSESSING OFFICER, ACCORDINGLY, GROUND WITH REGARD TO INTERES T U/S 234B IS ALSO RESTORED BACK TO THE FILE OF THE ASSESSING OFFICER, AS IT IS CONSEQUENTIAL IN NATURE. -: 4: - 4 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DISPOS ED OF IN TERMS INDICATED HEREINABOVE. THIS ORDER HAS BEEN PRONOUNCED IN THE OPEN COURT ON 25 TH FEBRUARY, 2013. SD/ - SD/ - (JOGINDER SINGH) (R. C. SHARMA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 25 TH FEBRUARY , 2013. CPU* 151825