DCIT- CC- 4(1), MUMBAI V. JYOTI H. MEHTA, MUMBAI

ITA 3119/MUM/2018

• Counselvise Citation: [2019] 112 COUNSELVISE.COM (IT) 2122 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 5 month(s) 26 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-11-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 1992-1993
• Appeal Filed On: 11-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL
• Keywords: Set aside
• Section: 143(3); 234B; 144; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL F, BENCH MUM BAI BEFORE SHRI. VIKAS AWASTHY, JUDICIAL MEMBE R & SHRI G. MANJUNATHA, ACCOUNTANT MEMBE R ITA NO.3119/MUM/2018 ( ASSESSMENT YEAR: 1992-93 ) DCIT,CC-4(1), MUMBAI ROOM NO.1916, 19 TH FLOOR AIR INDIA BUILDING NARIMAN POINT MUMBAI-400 021 VS. SMT. JYOTI H MEHTA 32, MADHULI, D.A.B.ROAD WORLI, MUMBAI-400 026 PAN/GIR NO.ABNPH8233B ( APPELLANT ) .. ( RESPONDENT ) REVENUE BY DR.P.DANIEL ASSESSEE BY DHARMESH SHAH DATE OF HEARING 0 6 /11 /2019 DATE OF PRONOUNCEME NT 06 /1 1 /2019 / O R D E R PER G.MANJUNATHA (A.M) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAIN ST, THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)52, MUM BAI, DATED 02/02/2018 AND IT PERTAINS TO ASSESSMENT YEAR 1992- 93. 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS O F APPEAL:- 1. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CLT(A) ERRED IN LAW IN RESTRICTING THE MEANING O F REGULAR ASSESSMENT WITHOUT APPRECIATING THE FACT THAT ASSESSMENT ORDER DATED 28.03.2016 WAS PASSED U/S 143(3) RWS 254 OF THE ACT.' 2. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT INTEREST U/S 234A & 234B IS TO BE COMPUTED TILL THE DATE OF ORIGINAL ASSESSMENT AND N OT TILL THE DATE OF FRESH ASSESSMENT WITHOUT APPRECIATING THAT PROVISIONS OF SECTION 234A & 234B ITA NO.3119/MUM/2018 JYOTI H MEHTA 2 PROVIDES INTEREST COMPUTATION TILL THE DATE OF REGU LAR ASSESSMENT U/S 143(3) UNDER WHICH THE FRESH ASSESSMENT ORDER WAS P ASSED.' 3. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CLT(A) ERRED IN HOLDING THAT INTEREST U/S 220(2) IS TO BE COMPUTED FROM THE DATE OF FRESH ASSESSMENT ORDER WITHOUT APPRECIA TING THE FACT THAT THE ISSUES OF ADDITION MADE IN ORIGINAL ASSESSMENT ORDE R AND FRESH ASSESSMENT ORDER ARE SAME, HENCE, ASSESSEE WAS IN D EFAULT FROM THE DATE OF ORIGINAL ASSESSMENT ORDER AND NO NEW MATERI AL EVIDENCE HAS BEEN FURNISHED BY ASSESSES IN FRESH ASSESSMENT PROC EEDINGS SO AS TO CHALLENGE ITS DEFAULT.' 4. 'ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD.CIT(A) ERRED IN HOLDING THAT FOR INTEREST U/S 22 0[2) THE DATE OF FRESH ASSESSMENT ORDER IS TO BE CONSIDERED, HOWEVER, FOR INTEREST U/S 234A & 234B, THE FRESH ASSESSMENT WOULD NOT BE CONSIDERED AS REGULAR ASSESSMENT, THEREBY, BRINGING COMPLETE ANOMALY AND ARBITRARINESS IN ITS ORDER' THE APPELLANT, THEREFORE, PRAYS THAT ON THE GROUNDS STATED ABOVE, THE ORDER OF THE CLT(A)-52, MUMBAI, MAYBE SET ASIDE AND THAT OF THE ASSESSING OFFICER RESTORED. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS PART OF LATE. HARSHAD MEHTA GROUP AND IS A NOTIFIED PERSON UNDER THE SPECIAL COURT ACT, 1992. IN THIS CASE, THE SET ASID E ASSESSMENT WAS COMPLETED U/S 254 R.W.S. 143(3) OF THE ACT, 1961 ON 22.03.2016 AND ASSESSED TOTAL INCOME AT RS.255,50,97,320/- AND THE TAX PAYABLE AT RS.224,05,90,899/-. SUBSEQUENTLY, THE ASSESSEE HAS FILED RECTIFICATION APPLICATION U/S 154 OF THE I.T.ACT, 1 961, AGAINST THE ASSESSMENT ORDER AND OBJECTED FOR CHARGING INTEREST U/S 220(2) OF THE I.T.ACT, 1961 FROM THE DUE DATE AS MENTIONED IN THE DEMAND NOTICE ACCOMPANYING THE ORIGINAL ASSESSMENT ORDER P ASSED BY THE AO. THE AO DID NOT AGREE WITH THE CONTENTIONS OF TH E ASSESSEE AND REJECT THE RECTIFICATION APPLICATION AND RE-COMPUTE D INTEREST U/S 220(2) OF THE I.T.ACT 1961. WHILE ADJUDICATING REC TIFICATION APPLICATION, THE LD. AO NOTED THAT ON ONE HAND THE ASSESSEE STATES THAT INTEREST U/S 220(2) IS TO BE CHARGED FROM THE DUE DATE, AS PER FRESH ASSESSMENT ORDER PASSED BY THE AO, ON THE OTH ER HAND, ITA NO.3119/MUM/2018 JYOTI H MEHTA 3 ARGUED THAT INTEREST U/S 234A AND 234B IS TO BE CHA RGED TILL THE DATE OF THE ORIGINAL ASSESSMENT ORDER, WHICH IS CONTRADI CTORY, AS WELL AS ARBITRATORY. THEREFORE, HE COMPUTED INTEREST U/S 23 4A AND 234B UP TO THE DATE OF FRESH ASSESSMENT ORDER PASSED BY THE AO U/S 254 R.W.S. 143(3) OF THE ACT, AND ALSO CHARGED INTEREST U/S 220(2) FROM THE DUE DATE AS PER THE FRESH ASSESSMENT ORDER. 4. AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESEE P REFERRED AN APPEAL BEFORE THE LD.CIT(A). BEFORE THE LD.CIT(A), THE ASSESSEE HAS REITERATED HER ARGUMENTS MADE BEFORE THE AO IN LIGHT OF CERTAIN JUDICIAL PRECEDENTS AND ARGUED THAT THIS ISSUE IS C OVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF ITAT IN ASSESSEES OWN GROUP CASES. THE LD.CIT(A) FOR THE DETAILED REASONS RECOR DED IN HIS APPELLATE ORDER, ALLOWED RELIEF TO THE ASSESSEE AND DIRECTED THE AO TO COMPUTE INTEREST U/S 2334A AND 234B UP TO THE D ATE OF ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3)/144 OF THE I.T.A CT, 1961 AND ALSO CHARGED INTEREST U/S 220(2) OF THE I.T.ACT, 19 61 FROM THE DUE DATE AS PER FRESH ASSESSMENT ORDER PASSED U/S 254 R .W.S. 143(3) OF THE I.T.ACT, 1961. AGGRIEVED BY THE LD.CIT(A) ORDER , REVENUE IS IN APPEAL BEFORE US. 5. THE ONLY ISSUE THAT CAME UP FOR OUR CONSIDERATIO N FROM GROUND NO. 1 AND 2 OF REVENUE APPEAL IS CHARGING INTEREST U/S 234A AND 234B OF THE I.T.ACT, 1961. THE LD. AR FOR THE ASSES EE, AT THE TIME OF HEARING SUBMITTED THAT THIS ISSUE IS SQUARELY COVER ED IN FAVOUR OF THE ASSESEE BY THE DECISION OF ITAT, IN ASSESSEES OWN CASE FOR AY 1992-93 IN ITA NO. 4204 AND 4310/MUM/2017, WHERE UN DER IDENTICAL SET OF FACTS, THE TRIBUNAL BY FOLLOWING THE DECISIO N OF LATE HARSHAD MEHTA IN ITA NO. 5702 AND 6028/MUM/2017 DIRECTED TH E AO TO ITA NO.3119/MUM/2018 JYOTI H MEHTA 4 CHARGE INTEREST U/S 234A AND 234B UP TO THE DATE OF ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3)/144 OF THE I.T.A CT, 1961. 6. WE HAVE HEARD BOTH PARTIES AND PERUSED MATERIALS AVAILABLE ON RECORD ALONG WITH CASE LAWS CITED BY THE LD. AR FOR THE ASSESSEE. WE FIND THAT THIS ISSUE IS SQUARELY COVERED IN FAVO UR OF THE ASSESEE BY THE DECISION OF ITAT, IN ASSESSEE OWN CASE FOR A Y 1992-93 IN ITA NO. 4204 AND 4310/MUM/2017, WHERE UNDER IDENTICAL S ET OF FACTS, THE TRIBUNAL BY FOLLOWING THE DECISION OF LATE HARS HAD MEHTA IN ITA NO. 5702 AND 6028/MUM/2017 DIRECTED THE AO TO CHARG E INTEREST U/S 234A AND 234B UP TO THE DATE OF ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3)/144 OF THE I.T.ACT, 1961. WE, FURTHER NO TED THAT THE TRIBUNAL, IN THE CASE OF LATE HARSHAD S MEHTA HAS CONSIDERED THE ISSUE, IN LIGHT OF PROVISIONS OF SECTION 234A AND 2 34B AND 234C OF THE I.T.ACT, 1961 AND ALSO BY FOLLOWING THE DECISIO N OF HONBLE SUPREME COURT, IN THE CASE OF MODY INDUSTRIES LIMIT ED VS CIT (1995) 216 ITR 759 (SC), HAD CAME TO THE CONCLUSION THAT I NTEREST CHARGEABLE U/S 234A AND 234B SHALL BE COMPUTED UP T O THE DATE OF REGULAR ASSESSMENT AND FURTHER, HELD THAT REGULAR A SSESSMENT MEANS, THE ASSESSMENT MADE U/S 143(3) OR SECTION 14 4 OF THE I.T.ACT 1961. SIMILARLY, INSOFAR AS CHARGING INTERE ST U/S 220(2) OF THE I.T.ACT, 1961. THE TRIBUNAL BY FOLLOWING THE DECISI ON OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF CIT VS CHIKA OVER SEAS LTD. (2012) 314 ITR 529 HELD THAT INTEREST CHARGEABLE U/ S 220(2) OF THE I.T.ACT, 1961, SHALL BE COMPUTED FROM THE DUE DATE OF FRESH ASSESSMENT ORDER PASSED U/S 254 R.W.S. 143(3), BUT NOT FROM THE DUE DATE OF ORIGINAL ASSESSMENT ORDER PASSED U/S 143(3) OR 144 OF THE I.T.ACT, 1961. IN THIS CASE, FACTS ARE IDENTICAL TO THE FACTS CONSIDERED BY THE ITAT IN ASSESSEES OWN CASE FOR A.Y 1992-93. FURTHER, THE ITA NO.3119/MUM/2018 JYOTI H MEHTA 5 REVENUE HAS FAILED TO BRING ON RECORD ANY CONTRARY DECISIONS BEFORE US TO DEVIATE FROM THE DECISION TAKEN BY THE ITAT I N ASSESSEES OWN CASE FOR EARLIER YEARS. 7. IN THIS VIEW OF THE MATTER AND CONSISTENT WITH V IEW TAKEN BY CO- ORDINATE BENCH IN ASSESSEE OWN CASE FOR AY 1992-93, WE ARE OF THE CONSIDERED VIEW THAT THERE IS NO ERROR IN FINDINGS OF THE LD.CIT(A), WHILE DELETING THE ADDITIONS MADE BY THE AO TOWARD S COMPUTATION OF INTEREST U/S 234 A AND 234B AND U/S 220(2) OF THE I.T.ACT 1961 AND HENCE, WE ARE INCLINED TO UPHOLD THE FINDINGS OF TH E LD.CIT(A) AND DISMISS THE APPEAL FILED BY THE REVENUE. 8. IN THE RESULT, APPEAL FILED BY THE REVENUE IS DI SMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 06 /11/ 2019 SD/- ( VIKAS AWASTHY) SD/- (G. MANJUNATHA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED 06/11/2019 THIRUMALESH SR.PS COPY OF THE ORDER FORWARDED TO : BY ORDER, (ASSTT. REGISTRAR) ITAT, MUMBAI 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY//