ACIT CIR-3, Jamshepur V. M/s Shyamal Kumar khan, East Singhbhum

ITA 177/RAN/2016

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9989 (ITAT-RANCHI)
• Duration Of Justice: 6 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 14-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2009-2010
• Appeal Filed On: 06-06-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: S.K.MITRA
• Keywords: Question of law
• Section: 32; 147; 131; 68; 246; 69; 145; 27; 148; 54; 37; 6; 56; 263; 63; 132; 12; 28; 144; 10; 90; 154; 2; 11; 15; 271(1)(b); 139; 92; 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.177 /RAN/2016 ASSESSMENT YEAR : 2009 - 2010 ACIT, CIRCLE - 3, JAMSHEDPUR VS. SHRI SHYMAL KUMAR KHAN, C/O. M/S. SUN SHINE SOAP PRODUTS, CHAKULIA, EAST SNGHBHUM PAN/GIR NO. ADLPK 7723 N (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI NITIN AGARWAL AR REVENUE BY : SHRI S.K.MITRA , DR DATE OF HEARING : 14 /12/ 2016 DATE OF PRONOUNCEMENT : 14 /12/ 2016 O R D E R THIS IS AN APPEAL FILED BY THE REVENUE AGA INST THE ORDER OF CIT(A) - JAMSHEDPUR DATED 30.3.2016 , FOR THE ASSESSMENT YEAR 2009 - 2010 . 2. THE ONLY GRIEVANCE IN THIS APPEAL IS THAT THE LD CIT(A) IS ERRED IN DELETING THE INTEREST CHARGED U/S.234B OF THE ACT . RELYING ON THE DECIS ION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA, T.A. NO.38 OF 2010 REPORTED IN 2013( (1) TMI 140. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS ARE THAT THE ASSESSEE FILED THE RETURN 2 ITA NO.177/RAN/2016 ASSESSMENT YEAR :2009 - 2010 OF INC OME AT RS.8,39,214 / - . IN THE ASSESSMENT MADE U/S.143(3) OF TH E ACT VIDE ORDER DATED 29.12.2011 , THE ASSESSING OFFIC ER ASSESSED THE INCOM E OF THE ASSESSEE AT RS.18,46,808 / - . AS THE ASSESSEE HAD NOT PAID ADVANCE TAX ON TH E ASSESSED INCOME OF RS.18,46,808 / - , THE ASSESSING OFFICER CHARGED INTEREST U/S.234B OF THE ACT ON THE TAX DETERMINED IN THE ASSESSMENT MADE U/S.143(3) OF THE ACT. 4. AGGRIEVED BY THE CHARGING OF INTEREST U/S.234B OF THE ACT BY THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD CIT(A). THE LD CIT(A) DIRECTED THE ASSESSING OFFICER TO MODIFY THE INTEREST CALCULATION U/S.234B OF THE ACT FOLLOW ING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA), WHERE IT HAS BEEN HELD THAT INTEREST UNDER SECTION 234B CAN BE CHARGED ONLY ON THE INCOME DECLARED IN THE RETURN AND NOT ON ASSESSED INCOME. 5. THE ONLY SUBMIS SION OF LD D.R. IS THAT THE REVENUE HAS NOT ACCEPTED THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) AND HAS FILED SLP THEREAGAINST BEFORE THE HON'BLE SUPREME COURT. THEREFORE, THIS APPEAL HAS BEEN FILED BEFORE THE TRIBUNAL IN KEEPING THE ISSUE ALIVE. 6. IN THE REJOINDER, THE LD A.R. OF THE ASSESSEE SUBMITTED THAT THE DEPARTMENT HAD PREFERRED A CIVIL REVIEW PETITION BEFORE THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF ITO VS. AJAY PRAKASH VERMA IN CIVIL REVIEW NO. 66/2013 RELYING ON THE DECISION OF HON'BLE PUNJAB & HARYANA 3 ITA NO.177/RAN/2016 ASSESSMENT YEAR :2009 - 2010 HIGH COURT IN THE CASE OF RAJKUMAR SINGHAL VS UNION OF INDIA (2002) 255 ITR 561 (P&H), WHEREIN, IT WAS HELD THAT THE INTEREST CAN BE LEVIED ON THE ASSESSED INCOME AS PER SECTION 234B IN VIEW O F THE AMENDMENT CARRIED OUT IN THE ACT AND AFTER CONSIDERING THE SAME, THE HON'BLE JHARKAHAND HIGH COURT VIDE ITS ORDER DATED 01/09/2015 DISMISSED THE REVIEW PETITION . 6. AFTER CONSIDERING THE SUBMISSION OF LD D.R. I FIND THAT NO MISTAKE IN THE ORDER OF TH E LD CIT(A) COULD BE POINTED OUT BY LD D.R. IT IS ADMITTED BY LD D.R. THAT THE SLP FILED BEFORE THE HON'BLE SUPREME COURT IS STILL PENDING FOR DISPOSAL. HENCE, AS ON DATE THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IS VALID AND BINDING. I FIND THA T THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) HELD AS UNDER: - 23. LEARNED COUNSEL FOR THE APPELLANT SUBMITTED THAT IT HAS BEEN ORDERED BY THE A.O. THAT INTEREST BE CHARGED AS PER RULE. INTEREST CAN BE LEVIED UNDER SECTIONS 234A & 234B OF THE ACT. IT IS SUBMITTED THAT IN VIEW OF THE JUDGMENT OF FULL BENCH OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI VS. CIT REPORTED IN (2001) 114 TAXMAN 404 (PAT) (FB), THE INTEREST CANNOT BE LEVIED OVER THE AS SESSED INCOME AND IT CAN BE LEVIED ONLY ON THE INCOME DECLARED IN THE RETURN. THE REVENUE PREFERRED S.L.P. BEFORE THE HON'BLE SUPREME COURT AGAINST THE SAID JUDGMENT OF THE FULL BENCH OF PATNA HIGH COURT WHICH WAS DISMISSED BY THE HON'BLE SUPREME COURT ON MERITS VIDE ORDER DATED 01/08/2000 BY SAYING THAT THERE IS NO MERIT IN THE APPEAL. 24. LEARNED COUNSEL FOR THE REVENUE COULD NOT DISPUTE THIS LEGAL POSITION. THEREFORE, SO FAR AS QUESTION OF LAW INVOLVED IN THIS APPEAL THAT WHETHER THE INTEREST COULD H AVE BEEN LEVIED AGAINST THE ASSESSED INCOME OF THE ASSESSEE UNDER SECTION 234A & 234B IS CONCERNED, IN VIEW OF THE FULL BENCH JUDGMENT OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI, THE REVENUE CAN LEVY THE INTEREST ONLY ON T HE TOTAL INCOME DECLARED IN THE RETURNS AND NOT ON THE INCOME ASSESSED AND DETERMINED BY 4 ITA NO.177/RAN/2016 ASSESSMENT YEAR :2009 - 2010 THE A.O. TO THAT EXTENT. THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE ACCORDINGLY MODIFIED AND INTEREST SHALL BE CHARGEABLE IN THE LIGHT OF THE FULL BENCH JUDGMENT REFERRED ABOVE. 7 . FURTHER, I ALSO FIND THAT THE REVENUE FILED THE REVIEW PETITION BEFORE THE HON'BLE JHARKHAND HIGH COURT BEING CIVIL REVIEW NO. 66/2013 IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) AND THE SAME WAS ALSO DISMISSED ON 01/09/2015. THEREFOR E, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRO N OUNCED IN THE OPEN COURT ON 14 /12/2016 IN THE PRESENCE OF PARTIES. S D / - (N.S SAINI) A CCOUNTANT MEMBER RANCHI ; DATED 14 /12 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PS, ITAT, CAMP AT RANCHI 1. THE APPELLANT : ACIT, CIRCLE - 3, JAMSHEDPUR 2. THE RESPONDENT: SHRI SHYMAL KUMAR KHAN, C/O. M/S. SUN SHINE SOAP PRODUTS, CHAKULIA, EAST SNGHBHUM 3. THE CIT(A) JAMSHEDPUR 4. CIT , JAMSHEDPUR 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//