Samalpatti Power Company Private Limited, CHENNAI V. ACIT, CHENNAI

ITA 170/CHNY/2015

• Counselvise Citation: 17021714 RSA 2015
• Duration Of Justice: 3 month(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-05-2015
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2003-2004
• Appeal Filed On: 22-01-2015
• Court: TRIBUNAL
• Department Lawyers: DR S MOHRANA
• Assessee Lawyers: N V BALAJI
• Keywords: Retrospective amendment
• Section: 234B

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL , A B ENCH, CHENNAI . . . , . , % BEFORE SHRI N.R.S. GANESAN, JUDICIAL MEMBER AND SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO. 170/MDS/2015 ( / ASSESSMENT YEAR: 2003-04) SAMALPATTI POWER COMPANY PVT. LTD., SHREYAS VIRAT, 1 ST FLOOR, 14, 3 RD CROSS ROAD, R.A.PURAM, CHENNAI. -600 028. VS THE ASSISTANT COMMISSIONER OF INCOME-TAX, COMPANY CIRCLE-VI(1) CHENNAI-600 034. PAN: AADCS1893D ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : MR. N.V.BALAJI, ADVOCATE /RESPONDENT BY : DR .S.MOHRANA, CIT DR /DATE OF HEARING : 22 ND APRIL, 2015 /DATE OF PRONOUNCEMENT : 1 ST MAY, 2015 / O R D E R PER N.R.S. GANESAN, JM: THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)- VI, CHENNAI DATED 31.10.2014 AND PERTAINS TO ASSESSME NT YEAR 2003-04. THE ONLY ISSUE ARISES IN THIS APPEAL FOR CONSIDERATION IS AGAINST LEVY OF INTEREST UNDER SEC TION 234B OF THE ACT. 2. SHRI N.V.BALAJI, COUNSEL FOR THE ASSESSEE SUBMIT TED THAT ASSESSING OFFICER LEVIED INTEREST UNDER SECTION 234 B OF THE ACT ON THE BASIS OF RETROSPECTIVE AMENDMENT INTRODU CED BY FINANCE ACT, 2009 TO SECTION 115JB(2) OF THE ACT. A CCORDING 2 ITA NO.170/MDS/2015 TO THE LEARNED COUNSEL, INTEREST CANNOT BE LEVIED B Y VIRTUE OF RETROSPECTIVE AMENDMENT MADE BY THE ACT. LEARNED CO UNSEL PLACED RELIANCE ON THE DECISION OF HYDERABAD BENCH OF THIS TRIBUNAL IN THE CASE OF MADURAI POWER CORPORATION P VT. LTD., CHENNAI VS. ACIT IN ITA NOS.480 TO 483/H/2012 DATED 14.08.2013. THEREFORE, ACCORDING TO LEARNED COUNSEL COMMISSIONER OF INCOME TAX (APPEALS) OUGHT TO HAVE DELETED THE INTEREST LEVIED BY THE ASSESSING OFFICE R. 3. ON THE CONTRARY, DR.S.MOHRANA, LEARNED DEPARTMEN TAL REPRESENTATIVE SUBMITTED THAT LEVY OF INTEREST IS MANDATORY, THEREFORE ASSESSING OFFICER HAS RIGHTLY LEVIED INTE REST UNDER SECTION 234B OF THE ACT. MOREOVER, INTEREST WAS CHA RGED ON ACCOUNT OF ADDITION MADE IN THE ORDER OF ASSESSMENT AND NOT ON ACCOUNT OF RETROSPECTIVE AMENDMENT MADE UNDER TH E PROVISIONS OF THE ACT. THEREFORE, COMMISSIONER OF I NCOME TAX (APPEALS) HAS RIGHTLY CONFIRMED THE INTEREST LE VIED BY THE ASSESSING OFFICER. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS ON EIT HER SIDE AND PERUSED THE RELEVANT MATERIAL ON RECORD. T HE COMMISSIONER OF INCOME TAX (APPEALS) FOUND THAT NO INTEREST 3 ITA NO.170/MDS/2015 CAN BE LEVIED ON THE ADDITIONS MADE BY THE ASSESSIN G OFFICER ON ACCOUNT OF RETROSPECTIVE AMENDMENT MADE IN THE I NCOME- TAX ACT. IT IS ALSO SETTLED LAW THAT TAX / INTEREST COULD BE LEVIED PROSPECTIVELY AND NOT RETROSPECTIVELY. HOWEVER, THE DEPARTMENT CLAIMS THAT INTEREST WAS LEVIED NOT ON T HE BASIS OF RETROSPECTIVE AMENDMENT MADE UNDER THE PROVISIONS O F THE ACT BUT ON THE BASIS OF ADDITIONS MADE TO THE TOTAL INCOME. THEREFORE, IT NEEDS TO BE VERIFIED WHETHER INTEREST UNDER SECTION 234B WAS LEVIED IN VIEW OF THE AMENDMENT MA DE TO SECTION 115JB(2) OF THE ACT OR IN VIEW OF THE ADDIT ION MADE TO THE TOTAL INCOME OF THE ASSESSEE. IN VIEW OF THE A BOVE, ASSESSING OFFICER HAS TO VERIFY FACTUAL SITUATION A CCORDINGLY. THE ORDERS OF LOWER AUTHORITIES IN RESPECT OF LEVY OF INTEREST UNDER SECTION 234B ARE SET ASIDE AND THE ISSUE IS REMITTED BACK TO THE FILE OF THE ASSESSING OFFICER TO VERIFY WHETHER INTEREST WAS LEVIED ON ACCOUNT OF ADDITION MADE TO THE TOTAL INCOME OR ON ACCOUNT OF RETROSPECTIVE AMENDMENT MAD E BY FINANCE ACT UNDER SECTION 115JB(2) OF THE ACT. IT IS MADE CLEAR THAT NO INTEREST SHALL BE LEVIED ON THE BASIS OF RETROSPECTIVE AMENDMENT MADE BY FINANCE ACT. THE ASSESSING OFFICER SHALL RECONSIDER THE ISSUE WITH R EGARD TO LEVY OF INTEREST AS INDICATE ABOVE AND THEREAFTER D ECIDE THE 4 ITA NO.170/MDS/2015 SAME IN ACCORDANCE WITH LAW, AFTER GIVING REASONABL E OPPORTUNITY OF HEARING TO THE ASSESSEE. 5. IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST DAY OF MAY, 2015. SD/- SD/- (A.MOHAN ALANKAMONY) (N.R.S.GANESAN) (. ) ( . . . ) +/ ACCOUNTANT MEMBER - + /JUDICIAL MEMBER - /CHENNAI, / /DATED 1 ST MAY, 2015 SOMU 01 21 / COPY TO: 1. APPELLANT 2. RESPONDENT 3. 3 () /CIT(A) 4. 3 /CIT 5. 1 5 /DR 6. /GF .