BHUVANESHWAR MOHAN HAMIR CHAND JAIN, MUMBAI V. ITO WD-26(1) (2) , MUMBAI

ITA 2042/MUM/2021

• Counselvise Citation: [2022] 105 COUNSELVISE.COM (IT) 2998 (ITAT-MUMBAI)
• Duration Of Justice: 6 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-05-2022
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 2013-2014
• Appeal Filed On: 02-11-2021
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: LOVE KUMAR
• Keywords: Principle of natural justice; Revised return
• Section: 271(1)(c); 154; 143(3); 234B; 143(1); 250

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI PRAMOD KUMAR, VICE PRESIDENT & SHRI PAVAN KUMAR GADALE, JUDICIAL MEMBER ITA No. 2042/Mum/2021 (A.Y: 2013-14) Bhuvneshwar Mohan Hamir Chand Jain 202, Abhinandan Swami Co-op HSG Sec 21, Swami Vallabhdas Road, Sion (W), Mumbai – 400022 Vs. ITO – Ward 26(1)(2) 6 th Floor, Kautilya Bhavan, KBC, Bandra (E), Mumbai – 400051. PAN/GIR No. : AAHPJ7718H Appellant .. Respondent Appellant by : Shri Ajay R. Singh, Adv. Respondent by : Shri Love Kumar, Sr. DR Date of Hearing 28.04.2022 Date of Pronouncement 05.05.2022 आदेश / O R D E R PER PAVAN KUMAR GADALE JM: This appeal is filed by the assessee against the order of the National Faceless Appeal Centre, (NFSC), Delhi passed u/s 271(1)(c) and 250 of the Act. The assessee has raised the following grounds of appeal: Principal of Natural Justice Violated: 1. The id CIT(A) erred in passing the impugned order dated 20/09/2021 exparte without considering/ dealing ITA No. 2042/Mum/2021 Bhuvneshwar Mohan Hamir Chand Jain, Mumbai. - 2 - with the assessee's application for adjournment filed on 14/09/2021 wherein it was intimated that assessee had tested Covid positive and copy of medical report was also attached. 2. The Id. CIT(A) failed to look in to the records that notice dt: 09/09/2021 fixing the hearing on 16/09/2021 was duly replied by the assessee on 14/09/2021 seeking adjournment on medical grounds, therefore the order passed exparte is bad in law. II. Interest charged u/s. 234B of Rs 60,98,217/-: 1. The id CIT(A) erred in upholding the order of Assessing Officer passed u/s. 154 of the Act levying interest u/s. 234B of the Act of Rs. 60,98,217/- without appreciating the facts that the tax demand was paid prior to passing of rectification order u/s. 154 dated 4/2/2020 , therefore levy of interest up to the date of passing order u/s. 154 of the Act is bad in law. 2. The AO erred in charging interest u/s. 234B of the Act from 1st day of A. Y till passing the order u/s 154 dated 14.02.2020 on the total amount determined without taking into consideration the payments made in the intervening period. 3. The assessee craves leave to add, amend, alter or delete any or all the above grounds of appeal. 2. The brief facts of the case that the assessee has filed the return of income for the A.Y 2013-14 on 27.01.2014 with total income of Rs. 14,08,570/-. Subsequently, the assessee has filed the revised return of income for the A.Y 2013-14 on 16.09.2014 with the ITA No. 2042/Mum/2021 Bhuvneshwar Mohan Hamir Chand Jain, Mumbai. - 3 - same income withdrawing the deduction claimed u/s 54 of the Act and the return of income was processed u/s 143(1) of the Act and the case was selected for scrutiny under the CASS and the A.O has passed the order u/s 143(3) of the Act on 18.03.2016 assessed the total income of Rs. 4,58,97,110//-. Subsequently the assessee has filed the rectification petition in respect of the claims and said rectification petition in respect of 234B and the rectification order was passed on 14.02.2020, where the total income was revised to Rs. 4,81,09,193/-. 3. Aggrieved by the rectification petition the assessee has filed an appeal before the CIT(A). Whereas the CIT(A) has dismissed the appeal of and confirmed the calculations made u/s 234B of the. Aggrieved by the order the assessee has filed an appeal before the Hon’ble Tribunal. 4. At the time of hearing the Ld. AR of the assessee submitted that the CIT(A) erred in confirming the levy of interest u/s 234B in the rectification petition without considering the fact that prior passing the rectification order u/s 154, therefore the levy of ITA No. 2042/Mum/2021 Bhuvneshwar Mohan Hamir Chand Jain, Mumbai. - 4 - interest u/s 234B is bad in law and substantiated with the chart and judicial decisions. 5. Contra, the Ld. DR supported the orders of the CIT(A). 6. We heard the rival contentions and perused the material on record. The sole crux of the disputed issue that the Ld. AR has substantiated that the interest calculation u/s 234B is excessive as the AO has charged the interest u/s 154, though the tax demand was prior to the passing of rectification petition but the AO has levied the interest u/s 234B of the Act after the date of 154 order. Therefore the AO has erred in charging interest from first day of assessment year which the passing of rectification order u/s 154 and the ld. AR also substantiated with the chart referring the dates on which the payments have been made and further submitted that an opportunity to provide for substantiate before the lower authorities, the Ld. DR has no specific objection. Considering the overall facts, circumstances and details we are of the opinion that the matter has to be reworked accordingly we restore the entire disputed issue to the file of the AO for limited purpose along with evidences in the course ITA No. 2042/Mum/2021 Bhuvneshwar Mohan Hamir Chand Jain, Mumbai. - 5 - of hearing to verify, examine and pass the order on merits and allow the grounds of appeal of the assessee for statistical purposes. 6. In the result, the appeal filed by the assessee is allowed for statistical purposes. Order pronounced in the open court on 05.05.2022 Sd/- Sd/- (PRAMOD KUMAR) (PAVAN KUMAR GADALE) VICE PRESIDENT JUDICIAL MEMBER Mumbai, Dated 05.05.2022 KRK, PS Copy of the Order forwarded to : 1. The Appellant 2. The Respondent. 3. The CIT(A) 4. Concerned CIT 5. DR, ITAT, Mumbai 6. Guard file. आदेशान ु सार/ BY ORDER, //True Copy// 1. ( Asst. Registrar) ITAT, Mumbai