Miss Jyoti Anant Pandit, Sangli V. The ACIT, Cir - 1, Sangli

ITA 1690/PUN/2005

• Counselvise Citation: 169024514 RSA 2005
• Duration Of Justice: 6 year(s) 7 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-06-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 13-06-2012
• Assessment Year: 1992-1993
• Appeal Filed On: 07-11-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: Y K BHASKAR
• Keywords: Rectification of order; Revised return
• Section: 143(3); 244A; 234B; 147; 148; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH B , PUNE BEFORE SHRI G.S. PANNU ACCOUNTANT MEMBER AND SHRI R.S. PADVEKAR, JUDICIAL MEMBER ITA NO. 1690/PN/2005 (ASSTT. YEAR : 1992-93) M ISS. JYOTI ANANT PANDIT ... APPELLANT C/O. M/S. A.G. PANDIT & CO. 858, SARAF KATTA SANGLI 416416 PAN : NOT AVAILABLE V. THE ASSTT. COMMISSIONER OF INCOME TAX RESPONDENT CIRCLE-1, SANGLI APPELLANT BY : SHRI. M.K. KULKARNI RESPONDENT BY : SHRI. Y. K. BHASKAR DATE OF HEARING : 14-6-2012 DATE OF PRONOUNCEMENT : -6-12 ORDER PER R.S. PADVEKAR, JM IN THIS APPEAL, THE ASSESSEE HAS CHALLENGED THE IM PUGNED ORDER OF THE LD CIT(A), KOLHAPUR DATED 30-8-2005 FOR THE A.Y . 1992-93. THE ASSESSEE HAS TAKEN FOLLOWING GROUNDS IN THE APPEAL : ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE , THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS), KOLHA PUR RANGE, KOLHAPUR HAS 1. ERRED IN CONFIRMING THE RECTIFICATION ORDER PASSED U/S.154/155 OF THE INCOME TAX ACT 1961, SINCE LEVY OF INTEREST U/S. 234-B WAS HIGHLY DEBATABLE ISSUE AND HENCE COULD NOT BE CHARGED THROUGH RECTIFICATION UNDER SE CTION 154/155 OF THE ACT. 2. ERRED IN CONFIRMING THE INTEREST U/S. 234-B. NO INT EREST IS PAYABLE U/S. 234-B(1) WITH REFERENCE TO ORIGINAL RE TURN FILE. 3. ERRED IN CONFIRMING THE CALCULATION OF INTEREST U/S .234-B THE INTEREST IS CHARGED FROM 1 ST DAY OF APRIL 1992. 2. THE FACTS PERTAINING TO THE ISSUE IN CONTROVERSY , REVEAL FROM THE RECORD AS UNDER. THE ASSESSEE IS INDIVIDUAL AND F ILED RETURN OF INCOME ITA . NO.1690//PN/2005 MS.JYOTI ANANT PANDIT A.Y. 1992-93 PAGE OF 6 2 FOR THE A.Y. 1992-93 ON 15.9.1992, DECLARING INCOM E OF RS. 62,970/-. SUBSEQUENTLY, ASSESSEE FILED THE REVISED RETURN ON 4.10.1996 DECLARING TOTAL INCOME AT RS.3,20,340/-. THE REVISED RETURN WAS ACCEPTED BY PROCESSING THE SAME U/S. 143(1)(A) OF THE ACT ON 9. 11.1996 AND INTIMATION WAS PASSED. SUBSEQUENTLY, A.O. INITIATE D THE ASSESSMENT PROCEEDINGS U/S. 147 AND PASSED THE ASSESSMENT ORDE R U/S. 143(3) R.W.S. 147 OF THE I.T. ACT ON 18.12.1998 AND TOTAL INCOME WAS ASSESSED AT RS.3,96,970/-. THE ASSESSEE CHALLENGED THE ASSESSM ENT ORDER BEFORE THE FIRST APPELLATE AUTHORITY I.E. LD. CIT(A), KOLHAPUR , WHO GAVE RELIEF TO THE ASSESSEE BY REDUCING THE ASSESSED INCOME TO RS. 3,6 9,779/-. THE A.O PASSED THE ORDER GIVING EFFECT TO THE ORDER OF CIT( A) AND SIMULTANEOUSLY LEVIED THE INTEREST U/S. 234-B OF RS. 92,200/-. IN THE RE-ASSESSMENT, INTEREST WAS CHARGED U/S. 234-B FROM THE FIRST DATE OF THE ASSESSMENT ORDER TILL THE DATE OF REGULAR ASSESSMENT U/S. 147. ASSESSEE CHALLENGED RE-ASSESSMENT ORDER BEFORE THE CIT(A) ON THE LEVY O F INTEREST BY TAKING CONTENTION THAT NO INTEREST CAN BE CHARGED U/S. 234 -B WHEN THERE WAS NO CLEAR DIRECTION BY THE A.O IN THE ASSESSMENT ORDER. THE LD CIT(A) HELD THAT CHARGING OF THE INTEREST WAS MANDATORY. IN TH E ORDER GIVING EFFECT TO THE APPELLATE ORDER, HOWEVER, INTEREST U/S. 234-B W AS NOT CHARGED. THE A.O. THEN ISSUED A RECTIFICATION ORDER CHARGING INT EREST AMOUNTING TO RS.2,55,960/- U/S. 234-B PASSING SAME UNDER SEC. 1 55 OF THE ACT. ASSESSEE CHALLENGED THE RECTIFICATION ORDER BEFORE THE LD CIT(A) TAKING THE PLEA THAT AT THE FIRST INSTANCE, NO INTEREST CA N BE CHARGED IN THE ABSENCE OF CLEAR DIRECTION BY THE A.O IN THE ORDER AND SECONDLY, THE CHARGING OF INTEREST U/S. 234B WAS A DEBATABLE ISSU E AND NO REMEDY IS AVAILABLE TO THE A.O U/S. 155 OF THE ACT. THE LD CI T(A) WAS OF THE OPINION THAT IN VIEW OF SUB-SECTION (3) TO SEC. 234-B, WHEN AS THE RESULT OF RE- ASSESSMENT THE AMOUNT ON WHICH THE INTEREST PAYABLE IS INCREASED, THE ASSESSEE SHALL BE LIABLE TO PAY THE INTEREST FROM T HE DAY FOLLOWING THE ITA . NO.1690//PN/2005 MS.JYOTI ANANT PANDIT A.Y. 1992-93 PAGE OF 6 3 DATE OF DETERMINATION OF THE TOTAL INCOME U/S. 143( 1) OR WHERE THE REGULAR ASSESSMENT IS MADE, FOLLOWING THE DATE OF S UCH REGULAR ASSESSMENT TILL THE DATE OF THE RE-ASSESSMENT ORDER . HE REFERRED TO THE DECISION IN THE CASE OF ACIT VS. GUJARAT BITUMAN LT D., 82 ITD 614 (AHD.) AND HELD THAT THE ASSESSMENT MADE U/S. 147 WAS THE FIRST ASSESSMENT AND IN VIEW OF EXPLANATION-2 TO SEC. 234-B(1), IT I S A REGULAR ASSESSMENT AND THEREFORE, THE INTEREST U/S. 234B IS CLEARLY C HARGEABLE. THE LD CIT(A), KOLHAPUR CONFIRMED THE ORDER OF THE A.O LEV YING INTEREST U/S. 234B OF THE ACT. 3. WE HAVE HEARD THE RIVAL SUBMISSIONS OF THE PARTI ES AND PERUSED THE RECORD. AS PER THE FACTS ON RECORD, IT IS ONE OF T HE 1000 CASES WHICH WERE EXPOSED IN THE MONEY LAUNDERING SCAM OF BANK OF BAR ODA, SANGLI BRANCH, SANGLI. THE ASSESSEE FILED THE ORIGINAL RETURN U/S . 139 DECLARING TOTAL INCOME OF RS. 62,970/-. AFTER MONEY LAUNDERING SCA M WAS EXPOSED IN THE INVESTIGATION OF THE CBI, A.O. ISSUED NOTICE U /S. 148 TO THE ASSESSEE AS SHE WAS ONE OF THE BENEFICIARIES,. THE ORIGINAL RETURN FILED BY THE ASSESSEE WAS OTHERWISE PROCESSED AND ACCEPTED U/S. 143(1)(A) OF THE ACT. IN THE ORIGINAL RETURN, THERE WAS NO LIABILIT Y ON THE ASSESSEE TO PAY THE ADVANCE TAX AS PER THE PROVISIONS OF SECTIONS 2 08 AND 209. WHEN A.O ISSUED NOTICE U/S. 148, ASSESSEE FILED RETURN O F INCOME ON 4.10.1996 DECLARING INCOME OF RS.3,20,340/-. THERE WAS NO RE GULAR ASSESSMENT SO FAR AS THE ASSESSEE IS CONCERNED U/S. 143(3) OF THE ACT. ONCE THE ASSESSEE HAS A TAXABLE INCOME, IN OUR OPINION, THER E WAS LIABILITY TO PAY THE ADVANCE TAX U/S. 208 R/W SEC. 209 OF THE ACT. THE ARGUMENT OF THE LD COUNSEL IS THAT IN VIEW OF SUB-SECTION (3) TO SE C. 234-B, AS IN THE ORIGINAL RETURN DECLARED BY THE ASSESSEE, THERE WA S NO LIABILITY TO PAY THE ADVANCE TAX AND SO FAR AS ASSESSMENT PROCEEDING S U/S. 147 IS CONCERNED, THERE SHOULD BE INCREASE IN THE INTEREST PAYABLE BY THE ITA . NO.1690//PN/2005 MS.JYOTI ANANT PANDIT A.Y. 1992-93 PAGE OF 6 4 ASSESSEE AS PER PROVISIONS OF SUB-SECTION (1) TO SE C. 234B AND AS PER INCOME DECLARED IN THE ORIGINAL RETURN OF INCOME T HERE WAS NO LIABILITY FOR ADVANCE TAX AND EVEN IN THE INTIMATION ACCEPTING TH E ASSESSEES RETURN U/S. 143(1)(A) NO INTEREST WAS CHARGED, HENCE, IN T HE RE-ASSESSMENT PROCEEDINGS NO INTEREST CAN BE LEVIED. ALTERNATIV ELY, HE PLEADED THAT LEVY OF THE INTEREST U/S. 234B IS A DEBATABLE ISSUE AND NO RECTIFICATION CAN BE MADE U/S. 155 OF THE ACT. 4. SO FAR AS THE FIRST CONTENTION OF THE ASSESSEE THAT IN THE ORIGINAL RETURN THERE WAS NO LIABILITY TO ADVANCE TAX, THE S AME HAS TO BE REJECTED. ASSESSEE FILED RETURN OF INCOME IN RESPONSE TO NOTI CE U/S. 148 IN WHICH SHE DECLARED ADDITIONAL INCOME AND TOTAL INCOME BEC OME SUBJECTED TO ADVANCE TAX. IN VIEW OF THE PROVISIONS TO SEC. 148 , THE RETURN FILED BY THE ASSESSEE IN RESPONSE TO NOTICE U/S. 148 IS TO B E TREATED AS A RETURN FILED U/S. 139(1) FOR ALL THE PURPOSES OF THE ACT. MOREOVER, IF THE ASSESSEE ADMITS THE ADDITIONAL INCOME WHICH IS DECLARED IN T HE RETURN FILED IN RESPONSE TO NOTICE ISSUED U/S. 148, THEN THERE IS A LIABILITY ON THE ASSESSEE TO PAY THE ADVANCE TAX IF THE TAX PAYABLE AS PER THE AMOUNT DECLARED IN THE RETURN OF INCOME IS MORE THAN RS. 1 0,000/-. IN THE PRESENT CASE, ADMITTEDLY, THE INCOME DECLARED BY T HE ASSESSEE IN THE RETURN FILED IN RESPONSE TO NOTICE U/S. 148, THE TA X LIABILITY WAS MORE THAN RS. 10,000/-. MOREOVER, THERE WAS NO REGULAR ASSES SMENT IN THE CASE OF ASSESSEE U/S. 143(3) IN RESPECT OF THE ORIGINAL RET URN OF INCOME AND HENCE, IN VIEW OF EXPL. BELOW SUB-SEC. (1) TO SEC. 234B, IF FOR THE FIRST TIME THE ASSESSMENT IS MADE U/S. 147, THEN THE SAME IS TO BE TREATED AS A REGULAR ASSESSMENT. ASSESSEE CAN NOT TAKE THE PL EA THAT IT WAS A RE- ASSESSMENT WHEN IN FACT IT WAS, HOWEVER, A REGULAR ASSESSMENT ONLY AS PER EXPLANATION-2 TO BELOW SUB-SECTION (1) OF SEC. 234B. UNDER THIS SITUATION IN OUR OPINION, THE ASSESSEE WAS LIABLE T O PAY THE ADVANCE TAX ITA . NO.1690//PN/2005 MS.JYOTI ANANT PANDIT A.Y. 1992-93 PAGE OF 6 5 FOR A.Y. 1992-93. SO FAR AS THE PLEA OF THE ISSUE OF THE DEBATE IS CONCERNED, THE SAME HAS ALSO TO BE REJECTED. WHILE GIVING EFFECT TO THE ORDER OF THE LD CIT(A), KOLHAPUR, THE A.O. DID NOT LEVY THE INTEREST, BUT SUBSEQUENTLY RECTIFIED THE SAID ORDER U/S. 155 AND LEVIED THE INTEREST. ONCE THE ASSESSEE HAS LIABILITY TO PAY THE ADVANCE TAX U/S. 208 AND STATUTORY PROVISIONS ARE CLEAR, THE SAME CANNOT BE TREATED AS A DEBATABLE ISSUE. 5. THE LD COUNSEL FOR THE ASSESSEE PLACED HEAVY REL IANCE ON THE DECISION OF DATAMACTICS LTD. VS. ACIT, 299 ITR (AT) 286 (MUMB AI). IN THE SAID CASE, THE ASSESSEE PAID TDS OF RS. 4,48,873/- AND ADVANCE TAX OF RS. 59,00,000/-. THE TOTAL TAX PAYABLE BY THE ASSESSEE IN ACCORDANCE WITH THE INTIMATION U/S. 143(1)(A) WAS RS.8,39,528/-. HENCE, THE ASSESSEE WAS ISSUED HUGE REFUND OF RS.68,06,075/- INCLUDING THE INTEREST UNDER SEC 244A OF THE ACT AN D IN THE SAID CASE, THE ASSESSEE HAD PAID THE ADVANCE TAX MORE THAN THE TAX FINALLY DETERMINED AND IN THAT BACKGROUND OF THE FACTS, IT WAS HELD THAT THE ASSES SEE WAS NOT LIABLE TO PAY THE INTEREST U/S. 234B. IN OUR OPINION, THE DECISION R ELIED ON BY THE LD COUNSEL IS NOT HELPFUL TO SUPPORT HIS PLEA. WE, THEREFORE, UPHOLD THE ORDER OF THE LD CIT(A). 6. IN RESULT, ASSESSEES APPEAL IS DISMISSED. THE ORDER IS PRONOUNCED IN THE OPEN COURT ON 26TH JUNE 2012. SD/- SD/- ( G.S. PANNU ) ACCOUNTANT MEMBER ( R.S. PADVEKAR ) JUDICIAL MEMBER PUNE, DATED THE 26TH JUNE, 2012 US ITA . NO.1690//PN/2005 MS.JYOTI ANANT PANDIT A.Y. 1992-93 PAGE OF 6 6 COPY OF THE ORDER IS FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT, KOLHAPUR 4. THE CIT(A)- KOLHAPUR 4. THE D.R. B BENCH, PUNE 5. GUARD FILE BY ORDER SENIOR PRIVATE SECRETARY INCOME TAX APPELLATE TRIBUNAL PUNE VC