Shri Umed S.Bohra, Ahmedabad V. The Income tax Officer,Ward-13(4), Ahmedabad

ITA 1820/AHD/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 72834 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 4 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: SMC
• Next Hearing Date: 09-12-2013
• Assessment Year: 1996-1997
• Appeal Filed On: 17-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DK MISHR A
• Assessee Lawyers: DIVYAKANT PARIKH
• Section: 154; 143(3); 234B

Judgement Text

, , , , SMC, IN THE INCOME TAX APPELLATE TRIBUNAL AT AHMEDABAD, SMC BENCH . .. . . .. . , !' # ' !' # ' !' # ' !' # ' BEFORE SHRI G.C. GUPTA, VICE-PRESIDENT ITA NO.1820/AHD/2012 [ASSTT.YEAR : 1996-1997] UMED S. BOTHRA C/O. RED ROSE RESTAURANT NR. H.L. COMMERCE COLLEGE NAVRANGPURA, AHMEDABAD 380 009. PAN : AFAPB 3626 A /VS. ITO, WARD-13(4) AHMEDABAD. ( (( (%& %& %& %& / APPELLANT) ( (( ('(%& '(%& '(%& '(%& / RESPONDENT) )* + , #/ ASSESSEE BY : SHRI DIVYAKANT PARIKH . + , #/ REVENUE BY : SHRI D.K. MISHRA, SR.DR / + *01/ DATE OF HEARING : 9 TH DECEMBER, 2013 234 + *01/ DATE OF PRONOUNCEMENT : 10-01-2014 #5 / O R D E R THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1996-1997 IS DIRECTED AGAINST THE ORDER OF THE CIT(A)-XXI, AHMED ABAD DATED 16.07.2012. 2. THE GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UND ER: 1) THE LD.CIT(A) AND ITO HAVE ERRED IN LAW AND ON FACTS IN REJECTING ASSESSEES APPLICATION U/S.154 20-01-2012 IN SO FAR AS IN DETERMINATION OF INTEREST U/S.234B TO BE DETERMINED @ RS.17,246/- ITA NO1820/AHD/2012 AGAINST REVISED BY ITO @ RS.179832/- AND CONFIRMED BY HON CIT(A). 2. THE LD.ITO AND CIT(A) HAVE ERRED IN NOT HOLDING THAT THE ACTION IN ENHANCING INTEREST U/S.234B VIDE ORDER DT D.25.11.2011 IS BEYOND THE TIME LIMIT OF FOUR YEARS. (AS ORIGINAL O RDER WAS DT.312.03.2006) AS PRAYED IN APPLICATION U/S.154 BY THE APPELLANT. 3. THE LD.CIT(A) AND ITO HAVE ERRED IN LAW IN NOT P ASSING SPEAKING ORDER ON THE SUBJECT OF DETERMINATION OF I NTEREST U/S.234B. 4. IT IS THEREFORE PRAYED THAT THE INTEREST PAYABLE U/S.234B BE DETERMINED @17,246/- INSTEAD OF RS.17,79,832/- 3. THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED T HAT IN THE ORIGINAL ASSESSMENT FRAMED ON 31.3.2006 INTEREST UNDER SECTI ON 234B WAS DETERMINED AT ` 17,246/- AND THE SAME WAS REVISED BY THE AO AT ` 1,79,832/- ILLEGALLY. HE SUBMITTED THAT THE ORIGIN AL ASSESSMENT WAS FRAMED IN THIS CASE AT INCOME OF ` 3,19,080/- VIDE ORDER DATED 31.3.2006 AND AFTER LITIGATION AND GIVING APPEAL EFFECT TO TH E ORDER OF THE TRIBUNAL THE ASSESSMENT WAS FRAMED UNDER SECTION 143(3) R.W. S. 254 OF THE ACT VIDE ASSESSMENT ORDER DATED 25.11.2011 AT THE SAME FIGURE OF INCOME OF ` 3,19,080/-. HE SUBMITTED THAT IN ACCORDANCE WITH T HE SCHEME OF THE ACT, THE INTEREST U/S.234B SHOULD BE CHARGED ONLY UPTO T HE DATE OF ORIGINAL ASSESSMENT. HE SUBMITTED THAT THERE IS NO CALCULAT ION MISTAKE IN DETERMINATION OF INTEREST UNDER SECTION 234B AT ` 17,246/- AT THE TIME OF ORIGINAL ASSESSMENT DATED 31.3.2006. THE LEARNED DR HAS OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL OF THE ASSESSEE. HE REFERRED TO RELEVANT PORTIONS OF THE ASSESSMENT ORDER AND THE A PPELLATE ORDER AND IN PARTICULAR PARA-4 THEREOF, WHEREIN THE CIT(A) HAS D ECIDED THE ISSUE AGAINST THE ASSESSEE HOLDING THAT THE ORDER DATED 2 5.11.2011 IS NOT TIME BARRED. HE RELIED ON THE ORDERS OF THE AO AND THE CIT(A). ITA NO1820/AHD/2012 4. I HAVE CONSIDERED SUBMISSIONS OF THE LEARNED REP RESENTATIVES AND SYNOPSIS SUBMITTED BY THE ASSESSEE ALONG WITH VARIO US DOCUMENTS IN THE COMPILATION FILED BEFORE THE TRIBUNAL. I FIND THAT IN THE FIRST ROUND OF ASSESSMENT, THE ASSESSEE WAS ASSESSED AT INCOME OF ` 3,19,080/- VIDE ASSESSMENT ORDER DATED 31.3.2006. AFTER ALLOWING A PPEAL EFFECT TO THE ORDER OF THE TRIBUNAL, THE ASSESSMENT WAS FRAMED AT THE SAME FIGURE OF ` 3,19,080/- VIDE ASSESSMENT FRAMED UNDER SECTION 143 (3) R.W.S. 254 OF THE ACT ORDER DATED 25.11.2011. IN ACCORDANCE WITH THE SCHEME OF THE ACT, THE INTEREST UNDER SECTION 234B IS CHARGEABLE UPTO THE REGULAR ASSESSMENT AND THAT WAS CORRECTLY DETERMINED AT ` 17,246/- BY THE DEPARTMENT. THERE IS NO CHANGE IN THE FIGURE OF ASSESSED INCOME AFTER THE ASSESSMENT WAS FRAMED IN ORDER UNDER SECTION 143(3) R.W.S. 254 OF THE ACT. THEREFORE, THERE IS NO BASIS FOR DETERMINING THE FIGURE OF INT EREST CHARGED UNDER SECTION 234B OF THE ACT AT ` 1,79,832/- BY THE DEPARTMENT. EVEN IF THERE WAS A MISTAKE IN CALCULATION OF INTEREST PAYABLE U/ S.234B IN THE ASSESSMENT ORDER DATED 31.3.2006, THE SAME HAS TO B E RECTIFIED BY THE REVENUE WITHIN A PERIOD OF FOUR YEARS FROM THE DATE OF ORIGINAL ASSESSMENT I.E. 31.3.2006, AS SPECIFIED IN SECTION 154 OF THE ACT. NO SUCH CASE HAS BEEN MADE OUT BY THE DEPARTMENT. IN THESE FACTS OF THE CASE, I HOLD THAT THE ISSUE RAISED IN THE GROUNDS OF THE AP PEAL OF THE ASSESSEE HAS TO BE DECIDED IN FAVOUR OF THE ASSESSEE, AND ACCORD INGLY, THE GROUNDS OF THE ASSESSEE ARE ALLOWED. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN OPEN COURT ON THE DATE MENTIONE D HEREINABOVE. SD/- ( . .. . . .. . /G.C. GUPTA) !' !' !' !' /VICE-PRESIDENT