ACIT-2(1), MUMBAI V. BOMBAY DYEING & MFG. CO.LTD., MUMBAI

ITA 4503/MUM/2011

• Counselvise Citation: 450319914 RSA 2011
• Duration Of Justice: 1 year(s) 1 month(s) 21 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 17-07-2012
• Assessment Year: misc
• Appeal Filed On: 03-06-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: P C MAURYA
• Assessee Lawyers: MRUDUL D INAMDAR
• Section: 234B

Judgement Text

PAGE 1 OF 4 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH B, MUMBAI BEFORE SHRI R. S. SYAL, ACCOUNTANT MEMBER & SHRI VIVEK VARMA, JUDICIAL MEMBER I.T.A.NO. 4503/MUM/2011 ASSESSMENT YEAR : 1988-89 ACIT - 2(1), AAYAKAR BHAVAN, R. NO.575, 5 TH FLOOR, M.K. RD., MUMBAI-400 020 VS. M/S. THE BOMBAY DYEING & MFG. CO. LTD. NEVILLE HOUSE, J. N. HEREDIA MARG, BALLARD ESTATE, MUMBAI-400 001 PAN NO: AAACT 2328 K (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI P. C. MAURYA RESPONDENT BY : SHRI MRUDUL D. INAMDAR DATE OF HEARING:. 17.07.2012 DATE OF PRONOUNCEMENT: 25-07-2012. O R D E R PER VIVEK VARMA, J.M. : THIS IS AN APPEAL FILED BY THE DEPARTMENT AGAINST THE ORDER OF CIT(A)-4, MUMBAI, DATED 07.03.2011, WHEREIN THE CIT (A) HAS DELETED THE INTEREST LEVIED U/S 215 OF THE ACT. 2. THIS IS THE SECOND ROUND OF APPEAL, WHEREIN EARL IER THE CO-ORDINATE BENCH OF THE ITAT HAS DIRECTED THE ASSESSING OFFICE R TO RE ADJUDICATE THE LEVY OF INTEREST IN THE LIGHT OF HON'BLE BOMBAY HIG H COURT DECISION IN THE CASE OF PATEL ALUMINIUM PVT. LTD. VS K.M. TAWADIA, ITO, REPORTED IN 165 M/S. BOMBAY DYEING & MFG. CO. LTD. I.T.A. NO.4503/MUM/2011 PAGE 2 OF 4 ITR 99. QUOTING THE JUDGMENT IT WAS OBSERVED BY THE CO-ORDINATE BENCH THAT, WHEN NO ADVANCE TAX IS FOUND TO BE PAYABLE THERE I S NOT REQUIREMENT TO FILE A STATEMENT OF ADVANCE TAX U/S 209A(1). SIN CE THE ASSESSEE IS NOT OBLIGED TO FILE A STATEMENT OF ADVANCE TAX, NO INTE REST IS PAYABLE U/S 215 . THE SET ASIDE PROCEEDINGS ONCE AGAIN TOOK THE APPEL LATE ROUTE, AND IN THE PRESENT PROCEEDINGS, ONCE AGAIN THE CIT(A) HAS FOLL OWED THE EARLIER ORDER OF THE CIT(A). IN THE EARLIER PROCEEDINGS, THE THEN CIT(A) HAD DELETED THE LEVY OF INTEREST, CHARGED UNDER SECTION 215, IN A C ASE, WHERE INCOME IS ASSESSED U/S 115J OF THE INCOME TAX ACT. IN THE EAR LIER ITATS ORDER ALSO IT WAS MENTIONED THAT NO INTEREST COULD BE EXIGIBLE, I F THE ASSESSMENT IS FRAMED U/S 115J OF THE ACT UNDER MAT PROVISIONS. 3. BEFORE US, THE AR MENTIONED THAT THE ISSUE NOW I S COVERED BY THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS KWALITY BISCUITS LTD. REPORTED IN 284 ITR 434 WHEREIN IT HAS BEEN HELD AS UNDER : FROM THE DECISION OF THE KARNATATAKA HIGH COURT TO THE EFFECT, INTER ALIA, THAT INTEREST IS NOT LEVIABLE U NDER SECTIONS 234B AND 234C OF THE INCOME-TAX ACT, 1961, IN THE C ASE OF AN ASSESSMENT OF A COMPANY ON THE BASIS OF BOOK PRO FITS UNDER SECTION 115J. SINCE THE ENTIRE EXERCISE OF CO MPUTING INCOME UNDER SECTION 115J CAN ONLY BE DONE AT THE E ND OF THE FINANCIAL YEAR, AND THE PROVISIONS OF SECTIONS 207, 208, 209 AND 210 CANNOT BE MADE APPLICABLE UNTIL AND UNL ESS THE ACCOUNTS ARE AUDITED AND THE BALANCE-SHEET PREPARED (SEE [2000] 243 ITR 519), THE DEPARTMENT PREFERRED APPEA LS TO THE SUPREME COURT AND THE SUPREME COURT DISMISSED T HE APPEALS. M/S. BOMBAY DYEING & MFG. CO. LTD. I.T.A. NO.4503/MUM/2011 PAGE 3 OF 4 THE AR, THEREFORE SUBMITTED THAT SINCE THE ISSUE IS NOW SETTLED BY THE HONBLE APEX COURT, THE DECISION OF THE CIT(A) MUST BE SUSTAINED. 4. WE HAVE TAKEN THE ISSUE IN CONSIDERATION AND NOTED THE DECISION OF THE HONBLE SUPREME COURT, IT MAY BE NOTED THAT THI S IS A CASE WHERE THE DECISION HAS BEEN RENDERED UNDER THE PROVISIONS OF SECTIONS 234B AND 234C OF THE INCOME TAX ACT, WHICH ARE CORRESPONDING TO SECTIONS 215 AND 217 OF THE INCOME TAX ACT, WHICH ARE APPLICABLE TO THE ASSESSEE. 5. RESPECTFULLY, FOLLOWING THE DECISION OF THE HON' BLE SUPREME COURT IN THE CASE OF KWALITY BISCUITS (SUPRA) AND THE DECISION OF HONBLE BOMBAY HIGH COURT, IN THE CASE OF PATEL ALUMINIUM (SUPRA) , FOLLOWED BY THE CIT(A), WE DO NOT FIND ANY REASON TO DISTURB THE FINDINGS O F THE CIT(A) IN DELETING THE INTEREST. 6. IN THE RESULT, THE APPEAL FILED BY THE REVENUE I S DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 25 TH JULY, 2012. SD/- SD/- ( R. S. SYA L ) (VIVEK VARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI: 25/7/ 2012. ROSHANI M/S. BOMBAY DYEING & MFG. CO. LTD. I.T.A. NO.4503/MUM/2011 PAGE 4 OF 4 COPY TO- 1) APPELLANT 2) RESPONDENT 3) CITA MUMBAI. 4) CIT CITY MUMBAI 5) DR BENCH MUMBAI TRUE COPY BY ORDER DY/ ASST.REGISTRAR,ITAT MUMBAI.