Appeal details
Counselvise Citation
[2017] 127 COUNSELVISE.COM (IT) 7773 (ITAT-AMRITSAR)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
1 year(s) 6 month(s) 20 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
12-10-2017
Appeal Filed By
Department
Order Result
Dismissed
Bench Allotted
DB
Next Hearing Date
21-06-2017
Assessment Year
2009-2010
Appeal Filed On
22-03-2016
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. T. S. KAPOOR, ACCOUNTANT MEMBER AND SH. N. K. CHOUDHRY, JUDICIAL MEMBER I.T.A NO. 170/(ASR)/2016 ASSESSMENT YEAR: 2009-10 PAN: AAEFH1877G INCOME TAX OFFICER, WARD-5 (2), AMRITSAR. VS. M/S. HERITAGE PROJECT, 1-GF, NEHRU SHOPPING COMPLEX, AMRITSAR. (APPELLANT) (RESPONDENT) APPELLANT BY : SH. RAHUL DHAWAN (D. R.) RESPONDENT BY: SH. PADAM BAHL (C. A.) DATE OF HEARING: 17.08.2017 DATE OF PRONOUNCEMENT: 12.10.201 7 ORDER PER T. S. KAPOOR (AM): THIS IS AN APPEAL FILED BY REVENUE AGAINST THE ORDE R OF LD. CIT(A), AMRITSAR DATED 16.12.2015 FOR ASST. YEAR: 2009-10. 2. THE GROUNDS OF APPEAL TAKEN BY REVENUE ARE REPRO DUCED BELOW: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE & AS PER LAW, THE LD. CIT(A) ERRED BY NOT ACKNOWLEDGING THE FACT THAT THE ASSESSING OFFICER CAN TAKE A REMEDIAL ACTION TO RECTIFY ANY M ISTAKE THAT IS APPARENT FROM RECORD OR ANY PREVIOUS ORDER BY PASSI NG AN ORDER U/S 154 OF THE ACT. THE LD. CIT(A)-2 RELIED ON THE DECI SION OF HON'BLE SUPREME COURT IN THE CASE OF RANCHI CLUB LTD., AND DECISION OF HON'BLE DELHI & RAJASTHAN HIGH COURT. HOWEVER, THE ABOVE JUDGMENT ARE SILENT ON THE FACT THAT THE ASSESSING OFFICER CAN TAKE A REMEDIAL ACTION TO RECTIFY ANY MISTAKE THAT IS APPA RENT FROM RECORD OR ANY PREVIOUS ORDER BY PASSING AN ORDER U/S 154 O F THE ACT AS IS DONE IN THIS CASE. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE THAT THE DECISION OF LD. CIT(A)-2 IS MERELY BASED ON THE FACT THAT ORDER TO CHARGE INTEREST IS TO CONTAIN A SPECIFIC DIRECTION GIVING REFERENCE TO THE SECTION UNDER WHICH INTEREST IS TO BE CHARGED AND WHERE SUCH AN O RDER IS SILENT ON ITA NO. 170(ASR)/2016 ASSESSMENT YEAR: 2009-10 2 WHETHER INTEREST IS LEVIABLE, THE NOTICE OF DEMAND U/S 156 CANNOT GO BEYOND THE ORDER & DEMAND INTEREST. 3. APPELLANT CRAVES LEAVE TO AMEND OR ADD ANY OR MO RE GROUNDS OF APPEAL 3. AT THE OUTSET, THE LD. DR SUBMITTED THAT THE AS SESSEE WAS REQUIRED TO PAY INTEREST U/S 234A OF THE ACT WHICH IS A STATUTORY PROVISION AND WHICH THE ASSESSEE HAD NOT PAID AND T HEREFORE ASSESSING OFFICER VIDE RECTIFICATION ORDER U/S 154 PASSED AN ORDER TO PAY INTEREST U/S 234A OF THE ACT. IT WAS SUBMITTED THAT LD. CIT( A) HAS WRONGLY DELETED THE DEMAND OF INTEREST BY HOLDING THAT THE SAID OMI SSION WAS NOT RECTIFIABLE U/S 154 OF THE ACT. IT WAS ARGUED THAT CHARGING OF INTEREST IS A STATUTORY PROVISION AND OMISSION OF APPLYING STATUT ORY PROVISION IS A RECTIFIABLE MISTAKE U/S 154 OF THE ACT AND RELIANCE WAS PLACED ON THE ORDER OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. STEEL STRIPS LTD. 200 TAXMAN 0368. 4. THE LD. AR ON THE OTHER HAND ARGUED THAT IN THE ORIGINAL ASSESSMENT ORDER PASSED BY ASSESSING OFFICER, THERE WAS NO SPECIFIC DIRECTION OF ASSESSING OFFICER TO CHARGE INTEREST U /S 234A OF THE ACT AND HON'BLE SUPREME COURT OF INDIA IN THE CASE OF CIT V S. RANCHI CLUB LTD. HAS HELD THAT IN THE ABSENCE OF ANY SPECIFIC MENTIO N OF CHARGING OF INTEREST IN THE ASSESSMENT ORDER U/S 234A AND 234B NO INTEREST WOULD BE RECOVERED FROM THE ASSESSEE MERELY BY WAY OF A D EMAND NOTICE. IT WAS FURTHER SUBMITTED THAT HON'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KISHAN LAL (HUF) HAS AGAIN HELD THAT IN THE ABSENCE OF NO DIRECTION IN THE ASSESSMENT ORDER FOR CHARGE OF INTEREST U/S 234 A AND 234B, NO ITA NO. 170(ASR)/2016 ASSESSMENT YEAR: 2009-10 3 INTEREST CAN BE RECOVERED. IT WAS SUBMITTED THAT TH E CASE LAW RELIED ON BY LD. DR IS ON DIFFERENT FACTS AS IN THAT CASE, THE H ON'BLE PUNJAB & HARYANA HIGH COURT HAD HELD THAT OMISSION TO TAKE I NTO ACCOUNT A STATUTORY PROVISION WAS RECTIFIABLE U/S 154 OF THE ACT WHEREAS IN THE PRESENT CASE, THE ISSUE IS AS TO WHETHER NON CHARGI NG OF INTEREST CAN BE RECTIFIED WHICH WAS NOT IN THE ORIGINAL ASSESSMENT ORDER. 5. WE HAVE HEARD THE RIVAL PARTIES AND HAVE GONE TH OUGH THE MATERIAL PLACED ON RECORD. WE FIND THAT ASSESSEE FILED A RET URN OF INCOME DECLARING A LOSS OF RS.2,84,909/- THE RETURN OF INCOME WAS FI LED ON 31.03.2010 WHICH WAS REQUIRED TO BE FILED ON 30.09.2009. THE A SSESSING OFFICER VIDE ASSESSMENT ORDER DATED 23.12.2012 COMPLETED THE ASS ESSMENT AFTER MAKING CERTAIN ADDITIONS AND IN THE BODY OF ASSESSM ENT ORDER CHARGED INTEREST U/S 234B. HOWEVER, HE DID NOT MAKE ANY DIR ECTION TO CHARGE ANY INTEREST U/S 234A OF THE ACT LATER ON HE PASSED AN ORDER U/S 154 ON 10.05.2013 AND CREATED AN ADDITIONAL DEMAND OF RS.2 ,14,9,438/- BEING INTEREST FOR SIX MONTHS WHICH THE ASSESSEE WAS LIAB LE TO BE CHARGED U/S 234A OF THE ACT. THE LD. CIT(A) HAS DELETED THE DEM AND FOR INTEREST BY FOLLOWING THE DECISION OF HON'BLE SUPREME COURT IN THE CASE OF CIT VS. RANCHI CLUB LTD. IN 247 ITR 0209. THE HON'BLE SUPRE ME COURT ORDER IN THE CASE OF RANCHI CLUB LTD. HAS DISMISSED THE APPE AL OF REVENUE AGAINST THE PATNA HIGH COURT. THE CONCLUSION OF HON'BLE SUPREME COURT IN THE CAS E OF CIT VS. RANCHI CLUB LTD. IS THAT IN THE ABSENCE OF ANY SPEC IFIC MENTION OF THE ITA NO. 170(ASR)/2016 ASSESSMENT YEAR: 2009-10 4 ASSESSING OFFICER IN THE ASSESSMENT ORDER FOR CHARG ING OF INTEREST U/S 234A AND 234B, NO INTEREST WOULD BE RECOVERED FROM THE ASSESSEE MERELY BY WAY OF A DEMAND NOTICE. WE FURTHER FIND THAT HON 'BLE DELHI HIGH COURT IN THE CASE OF CIT VS. KISHAN LAL (HUF) HAS A GAIN FOLLOWED THE ORDER OF HON'BLE SUPREME COURT AND HAS HELD THAT IN THE ABSENCE OF ANY DIRECTION IN THE ASSESSMENT ORDER FOR CHARGING INTE REST U/S 234A AND 234B INTEREST CANNOT BE RECOVERED. FOR THE SAKE OF COMPLETENESS, THE FINDINGS OF THE LD. CIT(A) ARE REPRODUCED BELOW: I HAVE CONSIDERED THE RECTIFICATION ORDER AND THE WRITTEN SUBMISSIONS OF THE APPELLANT. THE COPY OF THE ASSESSMENT ORDER U/S 143(3) OF THE ACT DATED 23-12-2011 IN THE CASE OF T HE APPELLANT WAS PERUSED. IT IS REVEALED THAT NO ORDER WAS GIVEN BY THE AO TO CHARGE INTEREST U/S 234A IN THE BODY OF THE ASSESSMENT ORDE R, THE AO FOUND SUBSEQUENTLY THAT INTEREST U/S 234A FOR LATE FILING THE RETURN WAS NOT CHARGED AND THAT THE ASSESSEE WAS LIABLE TO BE CHAR GED INTEREST U/S 234A FOR 6 MONTHS. CONSIDERING THE SAME TO BE A MISTAKE APPARENT FROM RECORD, THE AO RECTIFIED THE ASSESSMENT ORDER AND CHARGED I NTEREST AT RS 21,49,438/- U/S 154 OF THE ACT VIDE ORDER DATED 10- 05-2013. THE DECISION OF HONBLE SUPREME COURT IN THE CASE O F CIT VS RANCHI CLUB REPORTED IN 247 ITR 209 (SC) IS SQUARELY APPLI CABLE IN THE PRESENT CASE OF THE APPELLANT. THE HONBLE DELHI HIGH COURT AND RAJASTHAN HIGH COURT HAVE FOLLOWED THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF RANCHI CLUB LTD. (2001) 247 ITR 209 IN THE FOLLOWIN G CASES EVEN AFTER THE JUDGMENT IN THE CASE OF ANJUMAN M. H. GHASWALA (200 1) 252 ITR 1 (SC). (I) CIT VS INSILCO LTD (2003) 261 ITR 220 (DEL) (II) CIT VS INCHCAPE INDIA (P) LTD (2003) 179 ITR 212 (D EL) (III) CIT VS AUTOLITE (INDIA) PVT. LTD. (2002) 256 ITR 3 03 (RAJ) (IV) CIT VS KISHAN LAI, HUF (2003) 133 TAXMAN 102 (DEL) IN THE ABOVE CASES IT WAS HELD THAT THE ORDER TO CH ARGE INTEREST IS TO CONTAIN A SPECIFIC DIRECTION GIVING REFERENCE TO TH E SECTION UNDER WHICH INTEREST IS TO BE CHARGED AND WHERE SUCH AN ORDER I S SILENT ON WHETHER THE INTEREST IS LEVIABLE, THE NOTICE OF DEMAND U/S 156 CANNOT GO BEYOND THE ORDER AND DEMAND INTEREST. ITA NO. 170(ASR)/2016 ASSESSMENT YEAR: 2009-10 5 THEREFORE THERE WAS NO MISTAKE APPARENT FROM RECORD IN THE ASSESSMENT ORDER U/S 143(3) DATED 23-12-2011, AS NO ORDER WAS GIVEN BY THE AO THEREIN TO CHARGE INTEREST U/ S 234A OF THE ACT. THEREFORE FOLLOWING THE DECISION OF HONBLE SUPREME COURT IN CASE OF RA NCHI CLUB LTD(SUPRA), AND DECISIONS OF HONBLE DELHI 85 RAJASTHAN HIGH CO URT AS ABOVE THE INTEREST CHARGED U/S 234A OF THE ACT AT RS 21,49,43 8/- VIDE ORDER U/S 154 OF THE ACT DATED 10-05-2013 IS THEREBY DELETED. THE HON'BLE COURT HAS HELD THAT IF THERE IS NO DIR ECTION IN THE ORIGINAL ASSESSMENT ORDER, NO RECTIFICATION CAN BE MADE AS THERE IS NO MISTAKE APPARENT FROM RECORD. THE CASE LAW RELIED O N BY LD. DR IS ON A DIFFERENT ASPECT WHERE THE HON'BLE COURT HAS SAID T HAT OMISSION OF APPLICATION OF STATUTORY PROVISION IS A MISTAKE REC TIFIABLE U/S 154 OF THE ACT WHEREAS IN THE PRESENT CASE THE ISSUE IS AS TO WHETHER INTEREST NOT CHARGED IN THE ORIGINAL ASSESSMENT CAN BE RECTIFIED OR NOT AND THE CASE LAW OF HON'BLE SUPREME COURT AND OTHER CASE LAWS AR E DIRECTLY ON THE ISSUE. THEREFORE WE FIND NO INFIRMITY IN THE ABOVE ORDER OF CIT(A). 6. IN VIEW OF THE ABOVE, THE APPEAL FILED BY REVENU E IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 12.10.2017 SD/- SD/- (N. K. CHOUDHRY) (T. S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 12.10.2017. /GP/SR. PS . COPY OF THE ORDER FORWARDED TO: (1) THE ASSESSEE: (2) THE (3) THE CIT(A), (4) THE CIT, ITA NO. 170(ASR)/2016 ASSESSMENT YEAR: 2009-10 6 (5) THE SR DR, I.T.A.T., TRUE COPY BY ORDER
