Sh. Amrit Sagar Mittal, Hoshiarpur V. The Addl. C.I.T., Hoshiarpur

ITA 431/ASR/2010

• Counselvise Citation: 43120914 RSA 2010
• Duration Of Justice: 3 year(s) 4 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-03-2014
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 24-02-2014
• Assessment Year: 2007-2008
• Appeal Filed On: 10-11-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: AMRIK CHAND
• Assessee Lawyers: VINAY MALHOTRA
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH; AMRITSAR. BEFORE SH. H.S. SIDHU, JUDICIAL MEMBER AND SH. B.P.JAIN, ACCOUNTANT MEMBER I.T.A. NO.431(ASR)/2010 ASSESSMENT YEAR:2007-08 PAN :AASPM1102D SH. AMRIT SAGAR MITTAL, VS. ADDL. COMMR. OF INCOME TAX, C/O SONALIKA AGRO INDS. HOSHIARPUR RANGE, HOSHIA RPUR. HOSHIARPUR. (APPELLANT) (RESPONDENT) APPELLANT BY:SH.VINAY MALHOTRA, CA RESPONDENT BY:SH.AMRIK CHAND, DR DATE OF HEARING: 24/02/2014 DATE OF PRONOUNCEMENT:20/03/2014 ORDER PER BENCH ; THIS APPEAL OF THE ASSESSEE ARISES FROM THE ORDER OF THE CIT(A), JALANDHAR DATED 30.09.2010 FOR THE ASSESSMENT YEA R 2007-08. THE ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(A) HAS ERRED BOTH LEGALLY AND ON THE FACTS OF THE CASE FOR NOT DELETING THE INTEREST U/S 234C & G IVING DIRECTIONS FOR NOT CONSIDERING THE PROPOSED INVESTM ENT U/S 54EC FOR THE COMPUTATION OF ADVANCE TAX ON THE CAPI TAL GAIN AS PER THE PROVISIONS OF THE INCOME TAX ACT.THE ORDER OF THE LD. CIT(A) IS AGAINST THE PROVISIONS OF THE INCOME TAX ACT AND ITA NO.431(ASR)/2010 2 WITHOUT CONSIDERING THE FACTS OF THE CASE AND DESE RVES TO BE QUASHED. 2. THAT THE APPELLANT REQUEST FOR LEAVE TO ADD OR A LTER THE GROUNDS OF APPEAL BEFORE THE APPEAL IS HEARD AND DISPOSED O FF. 3. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E HAS PAID THE INTEREST UNDER SECTION 234C SHORT BY RS.3,24,953/- AND THE A SSESSEE FILED THE RECTIFICATION APPLICATION U/S 154/155 OF THE INCOME TAX ACT, 1961 BEFORE THE A.O., WHICH WAS REJECTED. 4. BEFORE THE LD. CIT(A), THE ASSESSEE MADE THE SUB MISSIONS AND AFTER CONSIDERING THE SAME, THE LD. CIT(A) VIDE PARA 3 & 3.1 OF HIS ORDER REJECTED THE APPEAL OF THE ASSESSEE. 5. THE LD. COUNSEL FOR THE ASSESSEE, MR. VINAY MAHO TRA, CA RELIED UPON THE SUBMISSIONS MADE BEFORE THE LD. CIT(A). 6. THE LD. DR, MR. AMRIK CHAND, ON THE OTHER HAND, RELIED UPON THE ORDERS OF BOTH THE AUTHORITIES BELOW. 7. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE FACTS OF THE CASE. WE CONCUR WITH THE VIEWS OF THE LD. CIT(A) THAT THE AO HAS REJECTED THE ASSESSEES APPLICATION U/S 154 FOR RECOMPUTING THE INTEREST CHARGED U/S 234C OF THE ACT IN THE INTIMATION DATED 31.1.2008 ISSUED BY THE AO. AS PER THE ASSESSEE, SINCE THE ENTIRE TAX ON CAPITAL GAINS WAS PAID BEFORE THE END OF THE RELEVANT PREVIOUS YEAR, NO INTEREST U/S 234C IN RES PECT OF DELAY IN PAYMENT OF ITA NO.431(ASR)/2010 3 TAX ON THE CAPITAL GAIN WAS CHARGEABLE. THE AO REJE CTED THE APPLICATION ON THE GROUND THAT THE CAPITAL GAINS INCOME WAS DULY C ONSIDERED BY THE ASSESSEE IN THE RETURN AND THAT THERE WAS SHORT FALL IN THE ADVANCE TAX AFTER CONSIDERING THE CAPITAL GAINS INCOME. IN THE APPEAL AGAINST THE ASSESSMENT ORDER U/S 143(3) IN THE ASSESSEES CASE FOR A.Y. 2007-08 IN A PPEAL NO.394/09- 10/CIT(A)/JAL DECIDED VIDE ORDER OF EVEN DATE, THE ASSESSEE HAS GIVEN THE DETAILS OF CAPITAL GAINS INCOME UPTO 15.9.2006, UPT O 15.12.2006 AND UPTO 31.3.2007. IT IS SEEN THAT THE ASSESSEE EARNED LONG TERM CAPITAL GAIN OF RS.28,19,04,900/- UPTO 15.9.2006 AGAINST WHICH A DE DUCTION OF RS. 25 CRORES PROPOSED TO BE TAKEN U/S 54EC HAS BEEN REDUCED TO A RRIVE AT THE NET LONG TERM CAPITAL GAIN OF RS.3,19,04,900/-. THIS HAS BEE N SET OFF AGAINST SHORT TERM CAPITAL LOSS OF RS.16,77,76,084/- TO ARRIVE A T NIL CAPITAL GAINS INCOME UPTO 15.9.2006. THE ASSESSEE HAS SOUGHT RELIEF U/S 234C ONLY FOR THE REASON THAT HE PROPOSED TO MAKE INVESTMENT U/S 54EC, BUT T HE LIMIT ON THE AMOUNT OF INVESTMENT U/S 54EC WAS REDUCED BY A SUBSEQUENT NOTIFICATION. CHARGING OF INTEREST U/S 234C AS PER PROVISION OF ACT IS MAN DATORY, AS HELD BY HONBLE APEX COURT IN THE CASE OF ANJUM M GHASWALA 252 ITR 1 (SC) AND SUFFICIENT CAUSE FOR NOT BEING ABLE TO DEPOSIT TH E REQUIRED TAX ON OR BEFORE THE DUE DATE FOR THE SAME CANNOT REDUCE THE AMOUNT OF INTEREST U/S 234C TO BE LEVIED BY THE AO OR BY THE APPELLATE AUTHORITIES . THE PERMISSIBLE AMOUNT ITA NO.431(ASR)/2010 4 OF INVESTMENT U/S 54EC DURING THE RELEVANT PREVIOUS YEAR WAS ONLY RS.50 LACS AND REBATE COULD BE ALLOWED TO THE ASSESSEE O NLY IN RESPECT OF THE INVESTMENT UPTO THIS EXTENT FOR COMPUTING THE CAPIT AL GAINS INCOME. THE AO CHARGED INTEREST U/S 234C OF THE ACT AMOUNTING TO R S.10,41,017/- IN THE INTIMATION U/S 143(1). THE ASSESSEE IS REQUIRED TO PAY ADVANCE TAX BEFORE THE DUE DATE OF SUCH PAYMENT IN RESPECT OF INCOME FROM CAPITAL GAINS WHICH HAS ARISEN BEFORE THE DUE DATE. IF THE CAPITAL GAIN HAS ARISEN BEFORE 15.9.2006, THE ASSESSEE CANNOT DEFER THE PAYMENT OF THE ADVANCE TA X ON THE CAPITAL GAIN TILL THE END OF THE YEAR, OR TILL THE DUE DATE OF LAST I NSTALLMENT OF THE ADVANCE TAX. THE FIRST PROVISO TO SECTION 234C(1), RELIED UPON B Y THE ASSESSEE STATES THAT INTEREST U/S 234C WILL NOT BE CHARGED IN RESPECT OF SHORT FALL ON ACCOUNT OF UNDER ESTIMATE OR FAILURE TO ESTIMATE THE AMOUNT OF CAPITAL GAINS WHERE THE ASSESSEE HAD PAID THE WHOLE OF THE AMOUNT OF TAX PA YABLE ON SUCH CAPITAL GAINS AS PAR OF THE REMAINING INSTALLMENTS OF AD VANCE TAX. THIS IMPLIES THAT WHERE CAPITAL GAINS INCOME HAD ACCRUED, THE AS SESSEE SHOULD PAY THE ADVANCE TAX IN THE INSTALLMENT OF ADVANCE TAX WHICH FALL DUE AFTER THE DAY WHEN THE CAPITAL GAIN ACCRUED TO THE ASSESSEE. THIS DOES NOT IMPLY, THAT THE ADVANCE TAX IN RESPECT OF INCOME FROM CAPITAL GAINS CAN BE PAID AT ANY TIME BEFORE THE END OF RELEVANT PREVIOUS YEAR EVEN IF TH E CAPITAL GAINS HAS ARISEN ITA NO.431(ASR)/2010 5 PRIOR TO DUE DATE OF PAYMENT OF ADVANCE TAX. THE A O AO WAS JUSTIFIED IN REJECTING THE ASSESSEES APPLICATION U/S 154 OF THE I.T. ACT. 8. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE F IND NO INFIRMITY IN THE ORDER OF THE LD. CIT(A), WHO HAS RIGHTLY CONFIRMED THE ACTION OF THE ASSESSING OFFICER. THUS, ALL THE GROUNDS OF THE ASS ESSEE ARE DISMISSED. 9. IN THE RESULT, THE APPEAL OF THE ASESSEE IN ITA NO.431(ASR)/2010 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 20TH MARCH, 2014. SD/- SD/- (H.S. SIDHU) (B.P. JAIN) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 20TH MARCH, 2014 /SKR/ COPY OF THE ORDER FORWARDED TO: 1. THE ASSESSEE:SH. AMRIT SAGAR MITTAL C/O M/S. SONALI KA AGRO IND. HOSHIARPUR. 2. THE ADDL. CIT, HOSHIARPUR. 3. THE CIT(A), JLR. 4. THE CIT, JLR. 5. THE SR DR, ITAT, AMRITSAR. TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL, AMRITSAR BENCH: AMRITSAR