ORIENT OVERSEAS CONTAINER LINE LTD, MUMBAI V. DCIT (IT) 3(2)(2), MUMBAI

ITA 4811/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 2390 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2014-2015
• Appeal Filed On: 07-07-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: N PADMANABHAN
• Assessee Lawyers: SHRADDHA SWARUP
• Keywords: Opportunity of being heard
• Section: 143(3); 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE SHRI SAKTIJIT DEY, JUDICIAL MEMBER AND SHRI RAJESH KUMAR , ACCOUNTANT MEMBER ITA NO. 4811 /MUM./2017 ( ASSESSMENT YEAR : 20 14 15 ) ORIENT OVERSEAS CONTAINER LINE LTD. ICC CHAMBERS, SAKI VIHAR ROAD OPP. SANTOGEN SILK MILLS POWAI, MUMBAI 400 072 PAN AAACO5679E . APPELLANT V/S DY. COMMISSIONER OF INCOME TAX (I.T) CIRCLE 3( 2 )(2), MUMBAI . RESPONDENT ASSESSEE BY : MS. SHRADDHA SWARUP REVENUE BY : SHRI N. PADMANABHAN DATE OF HEARING 31 . 1 0.2018 DATE OF ORDER 09.11.2018 O R D E R PER SAKTIJIT DEY, J.M. A FORESAID APPEAL BY THE ASSESSEE IS DIRECTED AGAINST ASSESSMENT ORDER PASSED UNDER SECTION 143(3) R/W 144C(13) OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT ) PERTAINING TO THE ASSESSMENT YEAR 2014 15, IN PURSUANCE TO THE DIRECTIONS OF THE DISPUTE RESOLUTION PANEL (DRP). 2 . GROUND NO.1, IS IN RELATION TO SHORT GRANT OF CREDIT OF ADVANCE TAX. 2 ORIENT OVERSEAS CONTAINER LINE LTD. 3 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , IN THE RETURN OF INCOME FILED FOR THE IMPUGNED ASSESSMENT YEAR, THE ASSESSEE HAS CLAIMED CREDIT FOR ADVANCE TAX PAID OF ` 33,70,59,363. SHE SUBMITTED , WHILE COMPUTING THE TOTAL INCOME AND THE TAX LIABILITY IN THE FINAL ASSESSMENT ORDER, THE ASSESSING OFFI CER HAS GRANTED CREDIT FOR ADVANCE TAX AMOUNTING TO ` 33,60,13,160. THUS, THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE ASSESSING OFFICER HAS GIVEN SHORT CREDIT OF ADVANCE TAX OF ` 10,46,203. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THOUGH , THE ASSESSEE HAS FILED AN APPLICATION FOR RECTIFICATION UNDER SECTION 154 OF THE ACT BEFORE THE ASSESSING OFFICER ON 11 TH JULY 2017, HOWEVER, NO ORDER HAS BEEN PASSED. THE LEARNED AUTHORISED REPRESENTATIVE, THEREFORE, SOUGHT A DIRECTION TO THE ASSESSING OF FICER TO GRANT CREDIT FOR THE ACTUAL ADVANCE TAX PAID BY THE ASSESSEE. 4 . THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED , ASSESSEES CLAIM OF SHORT CREDIT OF ADVANCE TAX MAY BE VERIFIED BY THE ASSESSING OFFICER. 5 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM THE FACTS ON RECORD, THE ASSESSEE HAS CLAIMED FOR CREDIT OF ADVANCE TAX PAID OF ` 33,7 0, 59,363 , IN THE RETURN OF INCOME FILED FOR THE IMPUGNED ASSESSMENT YEAR. WHEREAS, THE 3 ORIENT OVERSEAS CONTAINER LINE LTD. ASSESSING OFFICER WHILE PASSING THE FINAL ASSESSMENT ORDER, HAS ALLOWED CREDIT FOR ADVANCE TAX AMOUNTING TO ` 33,60,13,160. THEREFORE, ACCORDING TO THE ASSESSEE, THERE IS A SHORT CREDIT FOR ADVANCE TAX PAID AMOUNTING TO ` 10,46,203. NOTABLY, THOUGH , THE ASSESSEE HAS FILED AN APPLICATION UNDER SECTION 154 OF THE ACT BEFORE THE ASSESSING OFFICER ON 11 TH JULY 2017, POINTING OUT THE ERROR IN GRANTING CREDIT FOR ADVANCE TAX, HOWEVER, AS SUBMITTED BY THE LEARNED AUTHORISED REPRESENTATIVE , THE SAID APPLICATION IS STILL PENDING BEFORE THE ASSESSI NG OFFICER. IN DUE CONSIDERATION OF THE AFORESAID FACTS, WE DIRECT THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM OF PAYMENT OF ADVANCE TAX AND GRANT ACTUAL CREDIT FOR THE TAX PAID BY THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 6 . IN GROUND NO.2, THE ASSESSEE HAS CHALLENGED LEVY OF INTEREST AMOUNTING TO ` 5,11,89,170 UNDER SECTION 234B OF THE ACT. 7 . THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , AFTER THE DIRECTIONS OF THE DRP, ACTUALLY A REFUND OF ` 5,22,35,370 IS DUE TO THE ASSESSEE . MOREOVER, SHE SUBMITTED , ADVANCE TAX PAID BY THE ASSESSEE BEING MORE THAN 90% OF TAX LIABILITY (AFTER DEDUCTING TDS), NO INTEREST UNDER SECTION 234B OF THE ACT CAN BE CHARGED. THE LEARNED AUTHORISED REPRESENTATIVE SUBMITTED , THE AFORESAID MISTAKE RELATIN G TO LEVY OF INTEREST UNDER SECTION 234B OF THE ACT HAS ALSO BEEN RAISED BY THE 4 ORIENT OVERSEAS CONTAINER LINE LTD. ASSESSEE IN THE APPLICATION FILED UNDER SECTION 154 OF THE ACT. THUS, SHE SOUGHT A DIRECTION TO THE ASSESSING OFFICER FOR CONSIDERING ASSESSEES CLAIM. 8 . THE LEARNED DEPARTMENTA L REPRESENTATIVE SUBMITTED , THE ASSESSING OFFICER MAY BE DIRECTED TO EXAMINE ASSESSEES CLAIM. 9 . WE HAVE CONSIDERED RIVAL SUBMISSIONS AND PERUSED MATERIALS ON RECORD. AS COULD BE SEEN FROM THE DRAFT ASSESSMENT ORDER, THE ONLY VARIATION MADE TO THE TOTAL INC OME RETURNED BY THE ASSESSEE WAS ON ACCOUNT OF ADDITION OF ` 4,37,64,577, TOWARDS SERVICE TAX COLLECTED. HOWEVER, WHILE CONSIDERING THE OBJECTIONS OF THE ASSESSEE, THE DRP HAS DELETED THE ADDITION MADE BY THE ASSESSING OFFICER. THEREFORE, IN EFFECT, BY VIR TUE OF THE ORDER OF THE DRP, THE INCOME RETURNED BY THE ASSESSEE WAS ACCEPTED. THAT BEING THE CASE, PRIMA FACIE, THERE APPEARS TO BE NO OCCASION FOR LEVY OF INTEREST UNDER SECTION 234B OF THE ACT , IF ASSESSEES CLAIM OF PAYMENT OF ADVANCE TAX IS FOUND TO B E CORRECT . IT IS ALSO SUBMITTED BY THE ASSESSEE THAT, IN FACT, A REFUND OF ` 5,22,35,371, IS DUE TO THE ASSESSEE AFTER DELETION OF ADDITION MADE IN THE DRAFT ASSESSMENT ORDER. FURTHER, IT IS NOTICED THAT IN THE RECTIFICATION APPLICATION FILED UNDER SECTION 154 OF THE ACT BEFORE THE ASSESSING OFFICER ON 11 TH JULY 2017, THE ASSESSEE HAS ALSO RAISED THE ISSUE OF MISTAKE COMMITTEE BY THE ASSESSING OFFICER IN CHARGING 5 ORIENT OVERSEAS CONTAINER LINE LTD. INTEREST UNDER SECTION 234B OF THE ACT. HOWEVER, AS SUBMITTED BY THE LEARNED AUTHORISED REPRESE NTATIVE , THE SAID RECTIFICATION APPLICATION IS STILL PENDING. IN VIEW OF THE AFORESAID, WE DIRECT THE ASSESSING OFFICER TO VERIFY ASSESSEES CLAIM THAT INTEREST UNDER SECTION 234B OF THE ACT IS NOT CHARGEABLE FOR THE IMPUGNED ASSESSMENT YEAR AND DECIDE THE ISSUE AFTER DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. THIS GROUND IS ALLOWED FOR STATISTICAL PURPOSES. 10 . IN THE RESULT, ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 09.11.2018 SD/ - RAJESH KUMAR ACCOUNTANT MEMBER SD/ - SAKTIJIT DEY JUDICIAL MEMBER MUMBAI, DATED: 09.11.2018 COPY OF THE ORDER FORWARDED TO : ( 1 ) THE ASSESSEE; ( 2 ) THE REVENUE; ( 3 ) THE CIT(A); ( 4 ) THE CIT, MUMBAI CITY CONCERNED; ( 5 ) THE DR, ITAT, MUMBAI; ( 6 ) GUARD FILE . TRUE COPY BY ORDER PRADEEP J. CHOWDHURY SR. PRIVATE SECRETARY ( SR. PRIVATE SECRETARY )