ACIT CEN CIR 11, MUMBAI V. KHANDELWAL LABORATORIES P. LTD, MUMBAI

ITA 414/MUM/2011

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 79310 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 5 month(s) 18 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-07-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: I
• Next Hearing Date: 03-10-2013
• Assessment Year: 2005-2006
• Appeal Filed On: 14-01-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A C TEJPAL
• Section: 143(3); 243B; 234B; 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH C, MUMBAI BEFORE N.K. BILLAIYA, ACCOUNTANT MEMBER AND DR. S.T.M. PAVALAN, JUDICIAL MEMBER ITA NO. 413, 414, 415/MUM/2011 ASSESSMENT YEAR: 2004-05, 2005-06, 2006-07 ACIT CEN CIR, -11 ROOM NO. 804, 8 TH FLOOR OLD CGO ANNEXE BLDG. MUMBAI-20 VS. M/S. KHANDELWAL LABORATORIES PVT. LTD. 79/87 DATTARAM LAD PATH, KALACHOWKI, NR. HAKOBA MILLS COMPOUND, MUMBAI-33 PAN:AAACK 4225 E (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NISHIT GANDHI REVENUE BY : A.C. TEJPAL DATE OF HEARING : 02.07.2014 DATE OF PRONOUNCEMENT : 02.07.2014 O R D E R PER DR. STM PAVALAN, JM: THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AG AINST THE ORDER OF THE LD.CIT(A)-37, MUMBAI DATED 4.11.2010 FOR THE ASSESS MENT YEARS 2004-05, 2005-06 AND 2006-07. SINCE THE COMMON ISSUE IS INVOLVED IN ALL THE APPEALS THE SAME ARE HEARD TOGETHER AND DISPOSED OF BY THIS COMMON ORDER . 2. THE COMMON ISSUE ARISING OUT OF ALL THE APPEALS IS PERTAINING TO THE DECISION OF THE LD.CIT(A) DIRECTING THE AO TO DELETE THE INT EREST LEVIED BY THE AO U/S 243B AND 243C OF THE INCOME TAX ACT. 3. BRIEFLY STATED, THE ASSESSMENT FOR ASSESSMENT YE ARS 2004-05, 2005-06 AND 2006-07 WERE COMPLETED BY THE AO U/S 143(3) READ WI TH SECTION 153C OF THE INCOME TAX ACT. THE ASSESSEE, VIDE LETTER DATED 24.02.2010 HAD CLAIMED THAT INTEREST U/SS 234B, AND 234C IS NOT TO BE CHARGED ON MAT COMPUTE D U/S 115JB OF THE ACT IN VIEW OF THE BOMBAY HIGH COURT DECISION IN THE CASE OF SNOWCEM INDIA LTD. VS. DCIT REPORTED IN 313 ITR 170 AND REQUESTED FOR THE RECTIFICATION OF THE ORDER U /S 154 OF ITA NO. 413, 414, 415/MUM/2011 M/S. KHANDELWAL LABORATORIES PVT. LTD. ASSESSMENT YEAR: 2004-05, 2005-06, 2006-07 2 THE ACT. HOWEVER, THE SAID PLEA WAS REJECTED BY THE AO AS HE DID NOT FIND ANY MISTAKE IN CALCULATION OF THE INTEREST U/SS 234 AND 234C OF THE ACT. ON APPEAL AGAINST THE SAID REJECTION, THE ASSESSEE FILED THE APPEAL BEFORE THE LD.CIT(A) AND LD.CIT(A) DIRECTED THE AO TO DELETE THE INTEREST LE VIED U/S 234B AND 234C OF THE ACT. AGGRIEVED BY THE IMPUGNED ORDER, THE REVENUE IS IN APPEAL BEFORE US. 4. HAVING HEARD BOTH THE SIDES AND PERUSED THE MATE RIAL ON RECORD IT IS PERTINENT TO MENTION THAT THE FIRST APPELLATE AUTHORITY, IE., THE LD.CIT(A) HAS PASSED THE IMPUGNED ORDER DIRECTING THE AO TO DELETE THE INTER EST AGAINST THE REJECTION OF THE ASSESSEES PLEA MADE U/S 154 OF THE ACT. BASED ON T HE DECISION AVAILABLE AT THAT TIME, THE LD.CIT(A) HAS DIRECTED THE AO TO ACCEDE T HE REQUEST OF THE ASSESSE FOR RECTIFYING THE MISTAKE IN THE ASSESSMENT ORDER. IT IS RELEVANT TO STATE THAT IN THE PRESENT APPEAL FILED BY THE REVENUE BEFORE US, IT I S THE CONTENTION OF THE REVENUE THAT THE DELETION OF INTEREST LEVIED U/S 234B AND 2 34C IS NOT JUSTIFIABLE IN VIEW OF THE DECISION OF THE HONBLE APEX COURT IN THE CASE OF JCIT VS. ROLTA INDIA LTD . AFTER CONSIDERING THE FACT THAT THE IMPUGNED ORDER OF THE LD.CIT(A) DIRECTING THE AO TO RECTIFY THE MISTAKE IN THE ASSESSMENT ORDER IS PASS ED AFTER TAKING THE RELEVANT LAW PREVALENT AT THE TIME OF RECTIFICATION APPLICATION FILED BY THE ASSESSEE. IN VIEW OF THAT MATTER, WE ARE OF THE CONSIDERED VIEW THAT THE GRIE VANCE OF THE REVENUE AGAINST THE SAID ORDER BASED ON THE RULING OF THE APEX COURT WH ICH WAS NOT AVAILABLE AT THE POINT OF TIME WHEN THE RECTIFICATION HAS BEEN SOUGHT BY T HE ASSESSEE, IS NOT JUSTIFIED. THEREFORE, THE ORDER OF THE LD.CIT(A) IS UPHELD. HO WEVER, THIS DOES PRECLUDE THE AO TO ADOPT THE OTHER RECOURSES/MEASURES LEGALLY AVAIL ABLE TO HIM UNDER THE PROVISIONS OF THE INCOME TAX ACT. 5. IN THE RESULT, THE APPEALS FILED BY THE REVENUE ARE DISMISSED IN THE ABOVE TERMS . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 2 ND DAY OF JULY, 2014. SD/- SD/- (N.K. BILLAIYA) (DR. S.T.M.PAVALAN) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 02.07.2014. *SRIVASTAVA ITA NO. 413, 414, 415/MUM/2011 M/S. KHANDELWAL LABORATORIES PVT. LTD. ASSESSMENT YEAR: 2004-05, 2005-06, 2006-07 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.