ACIT, Ludhiana V. M/s Perfect Forging, Ludhiana

ITA 332/CHANDI/2008

• Counselvise Citation: [2013] 140 COUNSELVISE.COM (IT) 68579 (ITAT-CHANDIGARH)
• Duration Of Justice: 5 year(s) 7 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 28-11-2013
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2004-2005
• Appeal Filed On: 17-04-2008
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 80HHC; 234B; 80IB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE SHRI T.R.SOOD ACCOUNTANT MEMBER AND MS. SUSHMA CHOWLA, JUDICIAL MEMBER ITA NO.332/CHD/2008 ASSESSMENT YEAR : 2004-05 THE A.C.I.T., VS M/S PERFECT FORGING, CIRCLE V, OPP. DHANDARI KALAN RAILWAY STATION, LUDHIANA. LUDHIANA. PAN : AABFP3268J (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AKHILESH GUPTA RESPONDENT BY : SHRI SUDHIR SEHGAL DATE OF HEARING : 26.11.2013 DATE OF PRONOUNCEMENT : 28.11.2013 O R D E R PER SUSHMA CHOWLA, JM THE APPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER OF THE CIT(APPEALS)-II, LUDHIANA DATED 13.02.2008 RELATING TO ASSESSMENT YEAR 2004-05 AGAINST THE ORDER PASSED UNDER SECTION 143( 3) OF THE INCOME- TAX ACT, 1961 ( 'THE ACT' FOR SHORT). 2. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS OF APPEAL : 1. THE LD. COMMISSIONER OF INCOME TAX (A)-II, LUDHIANA HAS ERRED ON FACTS AND IN LAW BY ALLOWING THE DEDUCTION U/S 80IB OF THE I.T. ACT BY FOLLOWING THE ORDER OF HIS PREDECESSOR FOR THE ASST T. YEAR 2002-03 IN ASSESSEE'S OWN CASE WHICH IS PENDING FOR ADJUDICATI ON BEFORE HON'BLE ITAT. 2. THE LD. COMMISSIONER OF INCOME TAX (A)-II, LUDHIANA HAS ERRED IN LAW, IN DELETING THE INTEREST CHARGED UNDER SECTION 234-B BY RELYING UPON THE JUDGMENT OF HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE CIT VS. HARYANA STATE CO-OPERATIVE SUPPLY AND MARKE TING FEDERATION LTD., REPORTED IN (2007) 34 REP. 441, THE FACTS OF WHICH ARE DISTINGUISHABLE TO THE CASE OF THE ASSESSEE. 2 3. THE LD. AR FOR THE ASSESSEE FAIRLY ADMITTED THAT TH E FIRST GROUND OF APPEAL IS COVERED AGAINST THE ASSESSEE IN HIS OW N CASE FOR ASSESSMENT YEAR 2002-03 AND THE SECOND GROUND OF AP PEAL IS COVERED AGAINST THE ASSESSEE IN THE CASE OF SOVEREIGN EXPOR TS ITA NO. 333/CHD/2008 A.Y. 2004-05 ORDER DATED 11.07.2008. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE RECORD. THE GROUND NO. 1 RAISED BY THE ASSESSEE IS AGAINST THE ALLOWANCE OF DEDUCTION UNDER SECTION 80IB OF THE ACT. WE FIND TH AT THE SAID CLAIM OF DEDUCTION UNDER SECTION 80IB OF THE ACT IN ASSES SEE'S OWN CASE AROSE BEFORE THE TRIBUNAL IN ITA NOS. 454 & 534/CHD /2006 A.Y. 2002-03 AND 2003-04 AND THE TRIBUNAL AFTER CONSIDER ING THE TOTALITY OF THE ISSUE, HAS HELD THE ASSESSEE NOT ELIGIBLE FOR D EDUCTION UNDER SECTION 80IB OF THE ACT. THE RELEVANT OBSERVATIONS ARE VIDE PARA 8 & 9 OF THE ORDER DATED 19.06.2008. 5. FOLLOWING THE SAME PARITY OF REASONING AND IN VIEW OF THE ADMISSION OF THE LD. AR FOR THE ASSESSEE, THE FINDI NGS OF THE CIT(APPEALS) IN THIS REGARD ARE REVERSED AND THE GR OUND OF APPEAL NO.1 RAISED BY THE REVENUE IS THUS, ALLOWED. 6. THE ISSUE IN GROUND NO. 2 RAISED BY THE REVENUE IS AGAINST THE CHARGING OF INTEREST UNDER SECTION 234B OF THE ACT. THE CIT(APPEALS) IN THE CASE OF THE ASSESSEE HAD HELD THAT THE LIABI LITY OF INTEREST UNDER SECTION 234B OF THE ACT CAN NOT BE FASTENED UPON TH E ASSESSEE FOR THE YEAR UNDER CONSIDERATION. HOWEVER, THE SAID ISSUE STANDS COVERED BY THE RATIO LAID DOWN IN M/S SOVEREIGN EXPORTS (SUPRA ) WHEREIN THE TRIBUNAL VIDE ORDER DATED 11.07.2008 IN PARA NO. 5 HAD HELD AS UNDER : 5. WE HAVE GIVEN CAREFUL CONSIDERATION TO THE RIVA L CONTENTIONS IN OUR CONSIDERED VIEW, THERE IS MERIT IN THE CONTENTION ADVANCED 3 ON BEHALF OF THE REVENUE. THE DECISION OF THE PUNJ AB & HARYANA HIGH COURT IN THE CASE OF HARYANA STATE .COOPERATIV E SUPPLY & MARKETING FEDERATION LTD. (SUPRA) IS APP LICABLE IN SUCH CASES WHERE THE ASSESSEE IS FOUND NOT TO BE LIABLE TO PAY ADVANCE TAX DURING THE FINANCIAL YEAR RELEVANT T O ASSESSMENT YEAR CONCERNED ON THE BASIS OF LAW AS PREVALENT AT THE R ELEVANT POINT OF TIME. THE COMMISSIONER OF INCOME-TAX(A) HAS REFERRE D TO THE AMENDMENT MADE IN SECTION 80HHC AFTER 31.3.2004 WHI CH COULD NOT HAVE BEEN VISUALIZED BY THE ASSESSEE. WE HAVE NO Q UARREL WITH THE FINDING OF THE COMMISSIONER OF INCOME-TAX(A) IN THI S REGARD. SO HOWEVER, THE COMMISSIONER OF INCOME-TAX(A) HAS NOT CONSIDERED AS TO WHETHER EVEN WITHOUT THE AMENDMENT OF SECTION 80HHC THE ASSESSEE WAS REQUIRED TO PAY ADVANCE TAX AND, IF SO, AS TO W HETHER THERE HAS BEEN DEFAULT IN THE PAYMENT OF ADVANCE TAX WITHIN T HE MEANING OF SECTION 234B ONCE THE ASSESSEE IS FOUND TO HAV E DEFAULTED IN, THE PAYMENT OF ADVANCE TAX ON THE BASIS OF LAW AS WAS PREVALENT IN THE RELEVANT FINANCIAL YEAR, SECTION 234B WO ULD BE ATTRACTED. ONCE SECTION 234B IS ATTRACTED, THERE IS NO S COPE FOR EXCLUDING ANY AMOUNT OF TAX FROM THE ASSESSED TAX AS PROVIDED U/S 234B FOR THE PURPOSE OF COMPUTATION OF INTEREST CHARGEABLE UNDE R THAT SECTION. 7. FOLLOWING THE SAME PARITY OF REASONING, WE REVER SE THE FINDINGS OF THE CIT(APPEALS) IN THIS REGARD AND DIRECT THE A SSESSING OFFICER TO CHARGE INTEREST UNDER SECTION 234B OF THE ACT. THE GROUND OF APPEAL NO. 2 RAISED BY THE REVENUE IS THUS, ALLOWED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 28 TH NOVEMBER,2013. SD/- SD/- ( T.R.SOOD) (SUSHMA CHO WLA) ACCOUNTANT MEMBER JUD ICIAL MEMBER DATED: 28 TH NOVEMBER,2013 POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR ITAT,CHD.