ITO, SRIGANGANAGAR V. Shri Amar Chand Board, SRIGANGANAGAR

ITA 425/JODH/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 62076 (ITAT-JODHPUR)
• Duration Of Justice: 3 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 25-07-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 06-07-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R KOKANI
• Keywords: Condonation of delay
• Section: 143(3); 147; 148; 154

Judgement Text

1 IN THE INCOME TAX APPELLATE TRIBUNAL JODHPUR BENCH JODHPUR BEFORE SHRI R.K.GUPTA, JUDICIL MEMBER AND SHRI N.K.SAINI, ACCOUNTANT MEMBER ITA NO. 425/JU/2009 ASSESSMENT YEAR: 2001-02 THE ITO, VS SHRI AMAR CHAND BOARD, WARD-1, SRI GANGANAGAR SRI GANGANAGAR PAN NO. AKRKPB0437F & C.O.NO. 61/JU/2009 (IN ITA NO. 425/JU/2009) ASSESSMENT YEAR: 2001-02 SHRI AMAR CHAND BOARD, VS THE ITO, WARD-1, SRI GANGANAGAR SRI GANGANAGAR PAN NO. AKRKPB0437F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI G.R. KOKANI RESPONDENT BY : SHRI SURESH OJHA DATE OF HEARING : 25.07.2012 DATE OF PRONOUNCEMENT : 25.07.2012 ORDER PER N.K.SAINI, A.M. THE APPEAL BY THE DEPARTMENT AND CROSS OBJECTION BY THE ASSESSEE ARE DIRECTED AGAINST THE ORDER DATED 28.3.2008 OF CIT(A ), BIKANER. FIRST, WE WILL DEAL WITH THE CROSS OBJECTION OF THE ASSESSEE AND C .O. NO.61/JU/2009. 2 2. IN THIS CROSS OBJECTION, THE ASSESSEE RAISED THE FOLLOWING GROUNDS:- 1. THAT THE APPEAL IS BARRED BY LIMITATION, THEREFORE, NOT MAINTAINABLE. 2. THAT THE CIT(A) RIGHTLY ALLOWED THE DIRECTION IN RESPECT OF CHARGING OF INTEREST. 3. DURING THE COURSE OF HEARING, LD COUNSEL FOR THE ASSESSEE STATED AT BAR THAT HE HAS THE INSTRUCTIONS NOT TO PRESS THIS CROS S OBJECTION. ACCORDINGLY, THIS CROSS OBJECTION IS DISMISSED AS NOT PRESSED. 4. IN THE DEPARTMENTAL APPEAL I.E. ITA NO.425/JU/20 09, THE ONLY GROUND RAISED READS AS UNDER:- ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE THE LD CIT(A) HAS ERRED IN DIRECTING TO RECALCULATE INT EREST U/S 234A FOR 20 MONTHS INSTEAD OF 58 MONTHS AS CHARGED BY THE ASSESSING OFFICER, ON THE BASIS OF CONSEQUENTIAL EFFECT OF THE APPEAL ORDER. 5. THE FACTS OF THE CASE IN BRIEF ARE THAT THE ASSE SSEE IN RESPONSE TO NOTICE U/S 148 OF THE INCOME-TAX ACT, 1961 [HEREINAFTER RE FERRED TO AS THE ACT IN SHORT] HAS FURNISHED HIS RETURN OF INCOME FIRST TI ME ON 1.5.2006 AND THE REGULAR ASSESSMENT WAS COMPLETED U/S 143(3) / 147 O F THE ACT AT AN INCOME OF RS. 15,10,000/- ON 1.12.2006. THEREAFTER, THE ASSE SSING OFFICER NOTED THAT THE LIABILITY TO FILE RETURN OF INCOME ON OR BEFORE 31.7.2001 U/S 139(1) OF THE ACT BUT THE SAME WAS FILED ON L.5.2006 I.E. AFTER D ELAY OF 57 MONTHS, THEREFORE, THE ASSESSEE WAS LIABLE TO PAY INTEREST U/S 234A FROM 1.8.2001 TO 30.4.2006 BUT BY MISTAKE THE INTEREST WAS CHARGED F ROM 29.4.2006 3 IMMEDIATELY AFTER THE EXPIRY OF TIME ALLOWED BY TH E NOTICE U/S 148 OF THE ACT. THE ASSESSING OFFICER ISSUED NOTICE U/S 154 OF THE ACT DATED 11.1.2007 AND ASKED THE ASSESSEE TO FILE HIS OBJECTION, IF ANY, T O THE PROPOSED RECTIFICATION OF THE MISTAKE. IN RESPONSE, THE ASSESSEE SUBMITTED A S UNDER:- WITH REFERENCE TO YOUR NOTICE NO. NIL DATED 11.1.2 007 ISSUED U/S 154 FOR CHARGING THE INTEREST CHARGED U/ S 234A. IN THIS REGARD THE ASSESSEE HAS TO STATE THAT THE ASSESSEE HAS NO OBJECTION ON THE CHARGING OF CORREC T INTEREST U/S 234A. THE INTEREST U/S 234A CAN BE LE VIED ONLY FOR THE PERIOD OF DELAY WHICH IS ATTRIBUTABLE TO THE ASSESSEE. IN THE CASE OF THE ASSESSEE THE INTERES T IS CHARGEABLE FOR THE STARTING FROM 1.8.2001 TO 31.3.2 002. THE NOTICE U/S 148 WAS SERVED ON THE ASSESSEE ON 29.3.2006 AND SO THE RETURN WAS DUE ON 29.4.2006 BU T 29 TH AND 30 TH WERE SATURDAY AND SUNDAY AND SO THE RETURN WAS FILED ON 1.5.2006. IN THIS WAY THE INTE REST IS CHARGEABLE ONLY FOR 20 MONTHS. IN SUPPORT OF THE CONTENTION I WOULD LIKE TO BRING TO YOUR KIND NOTIC E THE FINDING GIVEN BY THE HON'BLE BOMBAY HIGH COURT IN THE CASE OF PRITI PITHAWALA VS ITO (2003) 129 TAXMAN 79 (BOMBAY)(MAG.) IN WHICH THE HONORABLE COURT HAVE H ELD THAT A BELATED RETURN CANNOT BE SUBMITTED AFTER THE EXPIRY OF ONE YEAR FORM THE END OF THE ASSESSMENT YEAR. I F AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 4 THEN THE ASSESSEE CANNOT BE MADE LIABLE TO PAY INTE REST OF THE PERIOD DURING WHICH IT WAS NOT POSSIBLE ON T HE PART OF THE ASSESSEE TO FILE RETURN I.E AFTER ONE Y EAR FROM THE END OF THE ASSESSMENT YEAR, TILL ISSUANCE OF NO TICE US/ 148 . 6. THE ASSESSING OFFICER DID NOT FIND MERIT IN THE ABOVE SUBMISSIONS OF THE ASSESSEE BY OBSERVING THAT THE ASSESSEE HAD PLA CED RELIANCE ON THE DECISION OF THE HON'BLE BOMBAY HIGH COURT AND SINC E THERE WAS NO DECISION OF THE JURISDICTIONAL HON'BLE HIGH COURT THAT THE INTEREST WAS CHARGEABLE FROM 1.8.2001 TO 30.4.2006 AND THE MISTAKE WAS APPA RENT FROM THE FACE OF RECORD, HENCE, RECTIFIED U/S 154 OF THE INCOME TAX ACT. 7. THE ASSESSEE CARRIED THE MATTER TO THE LD CIT(A) AND SUBMITTED THAT THE INTEREST COULD HAVE BEEN CHARGED FOR THE PERIOD STA RTING FORM 1.8.2001 TO 31.3.2003 AND THAT NOTICE U/S 148 OF THE ACT WAS SE RVED ON THE ASSESSEE ON 29.3.2006, THEREFORE, THE RETURN WAS DUE ON 29.4.20 06 BUT 29 TH AND 30 TH WERE SATURDAY AND SUNDAY AND SO THE RETURN WAS FILED ON 1.5.2006. IN THIS WAY, INTEREST WAS CHARGEABLE ONLY FOR 20 MONTHS. RELIAN CE WAS PLACED ON THE JUDGMENT OF THE HON'BLE BOMBAY HIGH COURT IN THE C ASE OF PRITI PITHAWALA VS ITO (2003) 129 TAXMAN 79 (BOMBAY) WHEREIN THE HO N'BLE COURT HAD HELD THAT A BELATED RETURN CANNOT BE SUBMITTED AFTER THE EXPIRY OF ONE YEAR FROM THE END OF THE ASSESSMENT YEAR. IF AN ASSESSMENT IS M ADE FOR THE FIRST TIME U/S 147 OF THE ACT, THEN THE APPELLANT CANNOT BE MADE L IABLE TO PAY INTEREST FOR THE PERIOD DURING WHICH IT WAS NOT POSSIBLE ON THE PART OF THE APPELLANT TO FILE 5 RETURN I.E. AFTER ONE YEAR FROM THE END OF THE ASSE SSMENT YEAR TILL ISSUANCE OF NOTICE U/S 148 OF THE ACT. 8. THE LD CIT(A) BY FOLLOWING THE RATIO LAID DOWN I N THE AFORESAID REFERRED TO THE CASE OF PRITI PITHAWALA VS ITO (SU PRA) DIRECTED THE ASSESSING OFFICER TO RECALCULATE INTEREST U/S 234A OF THE ACT FOR TWENTY MONTHS. NOW THE DEPARTMENT IS IN APPEAL. 9. THE LD. DR STRONGLY SUPPORTED THE ORDER OF THE A SSESSING OFFICER. IN HIS RIVAL SUBMISSIONS, THE LD COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSIONS MADE BEFORE THE AUTHORITIES BELOW AND STRONGLY SUPP ORTED THE IMPUGNED ORDER PASSED BY THE LD CIT(A). HE FURTHER SUBMITTED THAT THE APPEAL FILED BY THE DEPARTMENT IS NOT MAINTAINABLE BECAUSE IT IS BELATE D AND NO APPLICATION FOR CONDONATION OF DELAY HAS BEEN MOVED BY THE DEPARTME NT. 10. AFTER CONSIDERING THE SUBMISSIONS OF BOTH THE P ARTIES AND MATERIAL AVAILABLE ON RECORD, IT IS NOTICED THAT THE LD CIT( A) DIRECTED THE ASSESSING OFFICER TO RECALCULATE THE INTEREST U/S 234A OF THE INCOME TAX ACT IN ACCORDANCE WITH RATIO LAID DOWN BY THE HON'BLE BOMB AY HIGH COURT IN THE CASE OF PRITI PITHAWALA VS ITO (SUPRA), NO OTHER C ONTRARY JUDGMENT OF THE HON'BLE JURISDICTIONAL HIGH COURT OR ANY OTHER COUR T WAS BROUGHT TO OUR NOTICE, WE THEREFORE, DO NOT SEE ANY VALID GROUND T O INTERFERE WITH THE IMPUGNED ORDER PASSED BY THE LD CIT(A). ACCORDING LY, THE SAME IS UPHELD. IN THE PRESENT CASE, IT IS ALSO NOTED THAT THE APPE AL FILED BY THE DEPARTMENT IS BELATED BY 435 DAYS AND NO APPLICATION FOR CONDONAT ION OF DELAY IS MOVED BY 6 THE DEPARTMENT. THEREFORE, THE APPEAL DESERVES TO B E DISMISSED ON LIMITATION ALSO. 11. IN THE RESULT, THE APPEAL OF THE DEPARTMENT AS WELL AS CROSS OBJECTION OF THE ASSESSEE ARE DISMISSED. (ORDER PRONOUNCED IN THE OPEN COURT ON THIS 25.07.2 012 ) SD/- SD/- (R.K.GUPTA) (N.K.SAINI) JUDICIAL MEMBER ACCOUNTANT MEMER DATED : 25 TH JULY, 2012 RKK COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR