MAHARASHTRA CONSTRUCTION CO., ULHASNAGAR V. DCIT CIR 2, KALYAN

ITA 4056/MUM/2013

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 83666 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-09-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1998-1999
• Appeal Filed On: 21-05-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: VIVEK BAIRA
• Assessee Lawyers: DR P DANIEL
• Section: 28; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL B , BENCH MUMBAI , BEFORE : SHRI R.C.SHARMA , A M & SHRI AMIT SHUKLA , J M ITA NO. 4056 / MUM/20 1 3 ( ASSESSMENT YEAR : 1998 - 99 ) M/S MAHARASHTRA CONSTRUCTION CO., PADAM SAGAR, OPP. OLD TELEPHONE EXCHANGE, ULHASNAGAR - 421 003 VS. DCIT, CIR - 2, KALYAN, DISTRICT THANE PAN/GIR NO. : A APFM 1401 J ( APPELLANT ) .. ( RESPONDENT ) /ASSESSEE BY : DR. P. DANIEL /REVENUE BY : SHRI VIVEK BAIRA DATE OF HEARING : 1 ST SEPT. 201 4 DATE OF PRONOUNCEM ENT : 1 ST SEPT , 201 4 O R D E R PER R.C.SHARMA ( A .M.) : THIS IS AN APPEAL FILED BY ASSESSEE AGAINST THE ORDER CIT(A ) , DATED 11 - 2 - 2013 FOR ASSESSMENT YEAR 1998 - 99 , IN THE MATTER OF ORDER PASSED UNDER SECTION 154 OF THE ACT . 2 . IN THIS APPEAL, THE ASSESSEE IS AGGRIEVED FOR CHARGING OF INTEREST U/S. 234D. 3 . WE HAVE CONSIDERED RIVAL CONTENTIONS , PERUSED THE RECORD AND FOUND THAT THE ISSUE WITH REGARD TO CHARGING OF INTEREST U/S. 234D FOR ASSESSMENTS FINALIZED AND REFUNDS GRANTED PRIOR TO I NTRODUCTION OF SECTION 234D ON 1 - 6 - 2003, IS SQUARELY COVERED BY THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF DIT(IT) VS. DELTA AIR LINES INC., ITA NO. 4056 /1 3 2 (2013) 358 ITR 367 (BOM) , WHEREIN IT WAS HELD THAT SECTION 234D IS ATTRACTED ONLY WHEN TH E REFUND GRANTED TO THE ASSESSEE U/S143(1) OF THE ACT BECOMES REFUNDABLE TO THE REVENUE ON REGULAR ASSESSMENT. HOWEVER, REFUND NOT GRANTED TO ASSESSEE U/S.143(1) OR 143(3), BUT PURSUANT TO ORDER OF CIT(A), SECTION 234D WILL NOT BE APPLICABLE. SIMILARLY, TH E HON BLE SUPREME COURT IN THE CASE OF RELIANCE ENERGY LTD., (2013) 358 ITR 371 (SC) , HELD THAT WHEN ASSESSMENT FOR THE YEAR WAS COMPLETED PRIOR TO 1 ST JUNE, 2003, EXPLANATION 2 TO SECTION 234D, AS AMENDED BY THE FINANCIAL ACT, 2012 W.E.F 1 - 6 - 2003, IS NOT APPLICABLE FOR THE ASSESSMENT COMPLETED PRIOR TO 1 ST JUNE, 2003. IN THE INSTANT CASE, ORIGINAL ASSESSMENT WAS COMPLETED U/S.143(3) ON 28 - 3 - 2001, WHEREIN NO REFUND WAS GR AN TED. HOWEVER, REFUND WAS GR AN TED PURSUANT TO ORDER OF CIT(A), ACCORDINGLY PROVISIONS OF SECTION 234D IS NOT APPLICABLE. RESPECTFULLY, FOLLOWING THE DECISION OF THE HON BLE SUPREME COURT AND THE HON BLE HIGH COURT, CITED ABOVE, WE DO NOT FIND ANY MERIT IN THE ACTION OF THE LOWER AUTHORITIES FOR CHARGING INTEREST U/S. 234D. 4 . IN THE INSTANT CASE, WE ALSO FOUND THAT NO REFUND WAS GRANTED WHILE PROCESSING RETURN U/S. 143(1), NOR ON REGULAR ASSESSMENT U/S. 143(3). 5 . IN THE RESULT, APPEAL OF THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 01/09/ 201 4 . 01/09/ 2014 SD/ - SD/ - ( ) ( AMIT SHUKLA ) ( ) ( R.C.SHARMA ) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBA I ; DATED / /2014 /PKM , PS ITA NO. 4056 /1 3 3 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//