B.Subba Rao, Visakhapatnam V. THE ACIT, Visakhapatnam

ITA 520/VIZ/2014

• Counselvise Citation: [2016] 130 COUNSELVISE.COM (IT) 9728 (ITAT-VISAKHAPATNAM)
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-11-2016
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: DB
• Assessment Year: 2006-2007
• Appeal Filed On: 22-09-2014
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: M K SETHI
• Keywords: Rectification of order; Assessment record
• Section: 143(3); 153A; 147; 148; 132; 144; 90; 154; 15; 139

Judgement Text

ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 1 , , IN THE INCOME TAX APPELLATE TRIBUNAL, VISAKHAPATNAM BENCH, VISAKHAPATNAM . , . , $ BEFORE SHRI V. DURGA RAO, JUDICIAL MEMBER & SHRI G. MANJUNATHA, ACCOUNTANT MEMBER ./I.T.A.NOS.518, 519 & 520/VIZAG/2014 ( / ASSESSMENT YEARS: 2004-05, 2005-06 & 2006-07) B. SUBBA RAO, VISAKHAPATNAM VS. ACIT, CENTRAL CIRCLE - 2, VISAKHAPATNAM [PAN: ASSPB4332L ] ( % / APPELLANT) ( &'% / RESPONDENT) / APPELLANT BY : SHRI G.V.N. HARI, AR / RESPONDENT BY : SHRI M.K. SETHI, DR / DATE OF HEARING : 26.10.2016 / DATE OF PRONOUNCEMENT : 08.11.2016 / O R D E R PER G. MANJUNATHA, ACCOUNTANT MEMBER: THESE THREE APPEALS FILED BY THE ASSESSEE ARE DIRE CTED AGAINST COMMON ORDER OF THE COMMISSIONER OF INCOMETAX (APP EALS)-I, HYDERABAD DATED 28-08-2014 FOR THE A.Y. 2004-05, 20 05-06 AND 2006- 07. SINCE, THE FACTS ARE IDENTICAL AND ISSUE IS COM MON, THEY ARE HEARD ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 2 TOGETHER AND DISPOSED OFF, BY THIS COMMON ORDER FOR THE SAKE OF CONVENIENCE. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E AN INDIVIDUAL DERIVED INCOME FROM PENSION AND INCOME FROM OTHER S OURCES WAS COVERED UNDER SEARCH AND SEIZER OPERATION UNDER SEC . 132, IN THE GROUP CASES OF M/S SRAVAN SHIPPING SERVICES PRIVATE LIMIT ED ON 25-11-2009. CONSEQUENT TO SEARCH, A NOTICE U/S 153A OF THE IT A CT, 1961 WAS ISSUED, REQUIRING HIM TO FILE RETURN OF INCOME FOR THE A.Y. 2004-05 TO 2006-07. IN RESPONSE TO NOTICE, THE ASSESSEE FILED HIS RETUR N OF INCOME FOR THE A.Y. 2004-05 T0 2006-07 ON 31-10-2010 DECLARING TOT AL INCOME OF RS. 60,530/-, RS. 1,84,730/- AND RS. 4,09,030/- RESPECT IVELY. THE ASSESSMENTS FOR THE A.Y. 2004-05 TO 2006-07 WERE CO MPLETED U/S 143(3) R.W.S. 153A AND DETERMINED TOTAL INCOME OF R S. 4,62,530/-, RS. 4,82,216/- AND RS. 41,88,405/- RESPECTIVELY. 3. SUBSEQUENTLY, NOTICE U/S 154 OF THE IT ACT, 1961 WAS ISSUED AND SERVED ON THE ASSESSEE AND PROPOSED TO RECTIFY THE ASSESSMENT ORDERS. THE A.O. PROPOSED TO RECTIFY THE ASSESSMENTS FOR TH E REASON THAT ON EXAMINATION OF ASSESSMENT RECORDS, IT WAS NOTICED T HAT THERE IS A MISTAKE APPARENT ON THE RECORD, IN AS MUCH INTEREST U/S 234A WAS SHORT LEVIED BY APPLYING INCORRECT PROVISIONS OF SEC. 234 A, WHICH NEEDS TO BE RECTIFIED U/S 154 OF THE ACT. IN RESPONSE TO NOTICE , THE ASSESSEE VIDE HIS ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 3 WRITTEN SUBMISSION CHALLENGED THE RECTIFICATION PRO CEEDINGS ON THE GROUND THAT THE ISSUE OF LEVY OF INTEREST IS A DEBA TABLE ISSUE INVOLVES PROLONGED DISCUSSION, AS SUCH IT CANNOT BE RECTIFIE D U/S 154 OF THE ACT. AS REGARDS LEVY OF INTEREST, IT WAS SUBMITTED THAT AS PER THE PROVISIONS OF SEC. 234A(3), THE DELAY IN FILING RETURN WORKS OUT TO 5 MONTHS AS THE NOTICE WAS SERVED ON 17-10-2010 WITH 30 DAYS TIME F OR FILING RETURN AND HE HAD FILED RETURN ON 31-12-2010, ACCORDINGLY INTE REST U/S 234A WAS RIGHTLY CHARGED AND THERE IS NO MISTAKES IN THE ASS ESSMENT ORDER WHICH REQUIRES RECTIFICATION U/S 154 OF THE IT ACT, 1961. THE A.O. AFTER CONSIDERING EXPLANATION OF THE ASSESSEE, OVERRULED THE OBJECTIONS AND RECOMPUTED INTEREST U/S 234A(1) OF THE ACT. THE ASS ESSEE HAD CHALLENGED THE RECTIFICATION ORDER BEFORE THE CIT(A ), BUT COULD NOT SUCCEED. THE CIT(A) UPHELD THE FINDINGS OF THE ASSE SSING OFFICER AND DISMISSED APPEAL OF THE ASSESSEE. AGGRIEVED BY THE CIT(A) ORDER, THE ASSESSEE IS IN APPEAL BEFORE US. 4. THE LD. A.R. FOR THE ASSESSEE, SUBMITTED THAT TH E LD. CIT(A) WAS ERRED IN HOLDING THAT THE ADJUSTMENT MADE BY THE AS SESSING OFFICER TOWARDS INTEREST U/S 234A FALLS WITHIN THE SCOPE OF SEC. 154 OF THE IT ACT, 1961. THE CIT(A) OUGHT TO HAVE APPRECIATED THE FACTS THAT PERIOD FOR WHICH INTEREST CAN BE CHARGED U/S 234A IS NOT F REE FROM DOUBT AND IS A HIGHLY DEBATABLE ISSUE WHICH INVOLVES PROLONGED D ISCUSSION AND ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 4 DELIBERATION, WHICH CANNOT BE RECTIFIED U/S 154 OF THE ACT. AS REGARDS COMPUTATION OF INTEREST, THE LD. A.R. REFERRING TO THE PROVISIONS OF SEC. 139, 153A AND 234A ARGUED THAT THE PROVISIONS OF SE C. 153A IS SEPARATE CODE ITSELF DISTINCT FROM ALL OTHER PROVISIONS OF T HE ACT, WHICH IS ABUNDANTLY CLEAR BECAUSE OF THE NON-ABSTANTE CLAUSE USED IN THE SECTION. THE A.R. FURTHER ARGUED THAT WHERE A NOTIC E IS ISSUED U/S 153A TO THE ASSESSEE, REQUIRING FILING RETURN OF INCOME SPECIFYING THE DUE DATE IN THE NOTICE, BECAUSE OF THE WORD USED IN THE SEC. THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WAS A RETURN REQUIRED TO BE FILED U/S 139, THE DUE DATE R EFERRED TO IN SEC.139 OF THE ACT GETS SHIFTED TO THE DATE PRESCRIBED IN T HE NOTICE U/S 153A OF THE ACT. THUS, BECAUSE OF CLEAR WORDS USED IN THE P ROVISIONS OF SEC. 153A, WHERE A DUE DATE IS SPECIFIED IN THE NOTICE U /S 153A, THE DUE DATE OF FILING RETURN AS PROVIDED U/S 131(1) GETS SHIFTE D TO THE DATE SPECIFIED IN THE NOTICE UNDER SEC. 153A OF THE ACT. TO THIS E FFECT RELIED UPON THE DECISION OF ITAT, CHENNAI B BENCH IN THE CASE OF DR. V JAYAKUMAR IN ITA NO. 520 TO 525/MDS/2010 DATED 04-0 2-2011 . 5. THE LD. A.R. FOR THE ASSESSEE FURTHER SUBMITTED THAT THE PROVISIONS OF SEC. 234A PROVIDES FOR TWO POSSIBLE SITUATIONS. ONE IS A CASE WHERE RETURN IS FILED BEYOND DUE DATE AND ANOTHER WHERE N O RETURN IS FILED. IN THE CASES, WHERE RETURN IS FILED, THE INTEREST IS C HARGED FROM THE DUE ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 5 DATE OF FURNISHING RETURN U/S 139 TO DATE OF FILING RETURN. IN THE SECOND SITUATION, WHERE NO RETURN OF INCOME IS FILED, FROM THE DUE DATE OF FURNISHING RETURN U/S 139 TO THE DATE OF ASSESSMENT U/S 144 OF THE ACT. THOUGH, EXPLANATION 3, EXPLAINS THE POSITION OF LAW TO THE EFFECT THAT WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESS MENT IS MADE FOR THE FIRST TIME U/S 147 OR 153A, THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PURPOSE OF THIS SECTIO N, IT IS FOR THE LIMITED PURPOSE OF COMPUTING THE AMOUNT ON WHICH INTEREST I S CHARGEABLE, BUT NOT FOR THE PURPOSE OF DETERMINATION OF PERIOD OF I NTEREST CHARGEABLE, THEREFORE IT IS NOT CORRECT TO CHARGE INTEREST FROM THE DUE DATE SPECIFIED U/S 139 OF THE ACT. 6. THE LD. D.R., ON THE OTHER HAND STRONGLY SUPPORT ED ORDER OF THE CIT(A). THE D.R. FURTHER SUBMITTED THAT EVEN THOUGH , NO AMBIGUITY IN THE PROVISIONS OF SEC. 234A FOR CHARGING INTEREST, THE A.O. HAS FAILED TO APPLY SPECIFIC PROVISIONS OF SEC. 234A TO CHARGE IN TEREST WHICH IS A MISTAKE APPARENT ON RECORD NEEDS TO BE RECTIFIED UN DER SEC. 154 OF THE ACT. AS REGARDS PERIOD OF INTEREST, THE A.O. HAD RI GHTLY APPLIED THE PROVISIONS OF SEC. 234A(1) TO COMPUTE THE INTEREST AND HIS ORDER SHOULD BE UPHELD. 7. WE HAVE HEARD BOTH THE PARTIES, PERUSED MATERIALS ON RECORD AND GONE THROUGH THE ORDERS OF AUTHORITIES BELOW. THE F ACTUAL MATRIX OF THE ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 6 CASE IS THAT THE ASSESSEE HAS FILED HIS RETURN FOR THE FIRST TIME IN RESPONSE TO NOTICE U/S 153A OF THE ACT. IN THE ASSE SSMENT PROCEEDINGS U/S 143(3) R.W.S. 153A, THE A.O. LEVIED INTEREST FR OM THE DATE SPECIFIED IN THE NOTICE U/S 153A TO THE DATE OF FILING RETURN OF INCOME. SUBSEQUENTLY, THE A.O. PASSED RECTIFICATION ORDER U /S 154 AND LEVIED INTEREST U/S 234A(1) FROM THE DUE DATE SPECIFIED U/ S 139 TO THE DATE OF FILING RETURN U/S 153A OF THE ACT. THE ASSESSEE OBJ ECTED FOR LEVY OF INTEREST ON THE GROUND THAT IT IS A DEBATABLE ISSUE WHICH CANNOT BE DEALT UNDER SEC. 154 OF THE ACT. 8. IN THIS BACKGROUND, WE, SHALL FIRST TAKE UP LEGA L ISSUE RAISED BY THE ASSESSEE. THE ASSESSEE CLAIMS THAT THE PERIOD FOR W HICH INTEREST CAN BE CHARGED U/S 234A IS NOT FREE FROM DOUBT AND IS A HI GHLY DEBATABLE ISSUE WHICH INVOLVES PROLONGED DISCUSSION AND DELIBERATIO N, WHICH CANNOT BE RECTIFIED U/S 154 OF THE ACT. WE DO NOT FIND ANY ME RITS IN THE ARGUMENTS OF THE ASSESSEE FOR THE REASON THAT THE METHOD OF C OMPUTATION OF INTEREST U/S 234A IS SPECIFICALLY PROVIDED IN THE A CT. THERE IS NO AMBIGUITY IN THE PROVISIONS IN AS MUCH IT IS VERY C LEAR IN TERMS OF SECTION 234A(1) AND 234A(3). SEC. 234A(1) DEALS WITH A SITU ATION WHERE RETURN IS NOT FILED U/S 139(1) OR 139(4) AND 234A(3) DEALS WITH A SITUATION WHERE RETURN IS FILED AFTER DETERMINATION OF INCOME U/S 143(1) OR COMPUTATION OF INCOME U/S 143(3) OR 147. THE A.O. A PPLIED THE ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 7 PROVISIONS OF SECTION 234A(3), WHICH IS NOT APPLICA BLE TO THIS CASE. THEREFORE, NON APPLICATION OF A PARTICULAR PROVISIO N IS UNDISPUTEDLY A MISTAKE APPARENT FROM RECORD, WHICH NEEDS TO BE REC TIFIED U/S 154 OF THE ACT. THEREFORE, WE ARE OF THE VIEW THAT THE A.O. HA S RIGHTLY INVOKED PROVISIONS OF SEC. 154, TO RECTIFY THE LEVY OF INTE REST U/S 234A. THE CIT(A) AFTER CONSIDERING RELEVANT FACTS, RIGHTLY UP HELD THE ORDER OF A.O. AND HIS ORDER DOES NOT REQUIRE ANY INTERFERENCE. HE NCE, WE INCLINED TO UPHELD CIT(A) ORDER AND REJECT THE GROUND RAISED BY THE ASSESSEE. 9. NOW, LET US EXAMINE THE ISSUE OF LEVY OF INTERES T U/S 234A AND PERIOD FOR WHICH SUCH INTEREST TO BE CHARGED. ACCOR DING TO THE ASSESSEE, THE PROVISIONS OF SECTION 234A(1) APPLIES, HOWEVER, THE MOMENT RETURN FILED IN RESPONSE TO NOTICE U/S 153A, THE DUE DATE SPECIFIED U/S 139 GET SHIFTS TO THE DATE SPECIFIED IN THE NOTICE ISSUED U /S 153A OF THE ACT. THE A.R. REFERRING TO THE PROVISIONS OF SEC. 139, 153A AND 234A, ARGUED THAT THE PROVISIONS OF SEC. 153A IS A SEPARATE CODE ITSE LF DISTINCT FROM ALL OTHER PROVISIONS OF THE ACT, WHICH IS ABUNDANTLY CL EAR BECAUSE OF THE NON-ABSTANTE CLAUSE USED IN THE SECTION. THE A.R. F URTHER ARGUED THAT WHERE A NOTICE IS ISSUED U/S 153A TO THE ASSESSEE, REQUIRING FILING RETURN OF INCOME SPECIFYING THE DUE DATE IN THE NOTICE, BE CAUSE OF THE WORD USED IN THE SECTION THE PROVISIONS OF THIS ACT SHA LL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WAS A RETURN RE QUIRED TO BE FILED U/S ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 8 139, THE DUE DATE OF FILING RETURN AS PROVIDED U/S 139(1) GETS SHIFTED TO THE DATE SPECIFIED IN THE NOTICE UNDER SEC. 153A OF THE ACT, THEREFORE INTEREST IS CHARGEABLE FROM THE DUE DATE GIVEN IN T HE NOTICE U/S 153A TO THE DATE OF FILING RETURN OF INCOME U/S 153A. 10. BEFORE, WE GO IN TO THE FACTS OF THE CASE, LET US UNDERSTAND THE PROVISIONS OF SEC. 153A(1)(A), 234A(1) ALONG WITH E XPLANATION 1 TO EXPLANATION 3 AND 234A(3) OF THE ACT. SECTION 153A(1)(A) -- NOTWITHSTANDING ANYTHING CONTAINED IN SECTION 139, SECTION 147, SECTION 148, SECTION 149, SECTION 151 AND SECTION 153, IN T HE CASE OF A PERSON WHERE A SEARCH IS INITIATED UNDER SECTION 132 OR BO OKS OF ACCOUNT, OTHER DOCUMENTS OR ANY ASSETS ARE REQUISITIONED UNDER SEC TION 132A AFTER THE 31 ST DAY OF MAY, 2003, THE ASSESSING OFFICER SHALL (A) ISSUE NOTICE TO SUCH PERSON REQUIRING HIM TO FURNIS H WITHIN SUCH PERIOD, AS MAY BE SPECIFIED IN THE NOTICE, THE RETURN OF IN COME IN RESPECT OF EACH ASSESSMENT YEAR FALLING WITHIN SIX ASSESSMENT YEARS REFERRED TO IN CLAUSE (B), IN THE PRESCRIBED FORM AND VERIFIED IN THE PRESCRIBED MANNER AND SETTING FORTH SUCH OTHER PARTICULARS AS MAY BE PRESCRIBED AND THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN WERE A RETURN REQUIRED TO BE FURN ISHED UNDER SECTION 139. SECTION 234A(1) -- WHERE THE RETURN OF INCOME FOR ANY ASSESSMENT YEAR UNDER SUB-SECTION (1) OR SUB-SECTION (4) OF SECTION 139, OR IN RESPON SE TO A NOTICE UNDER SUB- SECTION (1) OF SECTION 142, IS FURNISHED AFTER THE DUE DATE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMP LE INTEREST AT THE RATE OF [ONE] PERCENT FOR EVERY MONTH OR PART OF A MONTH CO MPRISED IN THE PERIOD COMMENCING ON THE DATE IMMEDIATELY FOLLOWING THE DU E DATE, AND,-- (A) WHERE THE RETURN IS FURNISHED AFTER THE DUE DATE, E NDING ON THE DATE OF FURNISHING OF THE RETURN; OR (B) WHERE NO RETURN HAS BEEN FURNISHED, ENDING ON THE D ATE OF COMPLETION OF THE ASSESSMENT UNDER SECTION 144, [ON THE AMOUNT OF THE TAX ON THE TOTAL INCOME AS DE TERMINED UNDER SUB- SECTION (1) OF SECTION 143, AND WHERE A REGULAR ASS ESSMENT IS MADE, ON THE AMOUNT OF THE TAX ON THE TOTAL INCOME DETERMINE D UNDER REGULAR ASSESSMENT, AS REDUCED BY THE AMOUNT, -- (I) ADVANCE TAX, IF ANY, PAID; (II) ANY TAX DEDUCTED OR COLLECTED AT SOURCE; ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 9 (III) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90 ON ACCOU NT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; (IV) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90A ON ACCO UNT OF TAX PAID IN A SPECIFIED TERRITORY OUTSIDE INDIA REFERRE D TO IN THAT SECTION; (V) ANY DEDUCTION, FROM THE INDIAN INCOME-TAX PAYABLE, ALLOWED UNDER SECTION 91, ON ACCOUNT OF TAX PAID IN A COUNT RY OUTSIDE INDIAL; AND (VI) ANY TAX CREDIT ALLOWED TO BE SET OFF IN ACCORDANCE WITH THE PROVISIONS OF SECTION 115JAA [OR SECTION 115JD]. EXPLANATION 1 IN THIS SECTION, DUE DATE MEANS THE DATE SPECIFIE D IN SUB-SECTION (1) OF SECTION 139 AS APPLICABLE IN THE CASE OF THE ASSESSEE. [ EXPLANATION 2 IN THIS SUB-SECTION, TAX ON THE TOTAL INCOME AS DETERMINED UNDER SUB-SECTION (1) OF SECTION 143 SH ALL NOT INCLUDE THE ADDITIONAL INCOME-TAX, IF ANY, PAYABLE UNDER SECTIO N 143.] EXPLANATION 3 WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 [OR SECTION 153A], THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGUL AR ASSESSMENT FOR THE PURPOSE OF THIS SECTION. .. .. SECTION 234A(3) WHERE THE RETURN OF INCOME FOR ANY ASSESSMENT YE AR, REQUIRED BY A NOTICE UNDER SECTION 148 [OR SECTION 153A] ISSUED [AFTER THE DETERMINATION OF INCOME UNDER SUB-SECTION (1) OF SE CTION 143 OR] AFTER THE COMPLETION OF AN ASSESSMENT UNDER SUB-SECTION (3) O F SECTION 143 OR SECTION 144 OR SECTION 147, IS FURNISHED AFTER THE EXPIRY OF THE TIME ALLOWED UNDER SUCH NOTICE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CEN T FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DATE IMMEDIATELY FOLLOWING THE EXPIRY OF THE TIME ALLOWE D AS AFORESAID, AND, -- (A) WHERE THE RETURN IS FURNISHED AFTER THE EXPIRY OF T HE TIME AFORESAID, ENDING ON THE DATE OF FURNISHING THE RET URN; OR (B) WHERE NO RETURN HAS BEEN FURNISHED, ENDING ON THE D ATE OF COMPLETION OF THE REASSESSMENT OR RECOMPUTATION UND ER SECTION 147 [OR REASSESSMENT UNDER SECTION 153A], ON THE AMOUNT BY WHICH THE TAX ON THE TOTAL INCOME DETERMINED ON THE BASIS OF SUCH REASSESSMENT OR RE-COMPUTATION EXCEED S THE TAX ON THE TOTAL INCOME DETERMINED [UNDER SUB-SECTION (1) OF SECTION 143 OR] ON THE BASIS OF THE EARLIER ASSESSMENT AFORESAID. ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 10 11. A CAREFUL READING OF SECTION 153A OF THE ACT, M AKES IT CLEAR THAT THE RETURN FILED IN RESPONSE TO NOTICE U/S 153A SHA LL BE TREATED AS RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139. THEREFO RE IT IS AMPLY CLEAR THAT ONCE RETURN FILED IN RESPONSE TO NOTICE U/S 15 3A, THE PROVISIONS OF SECTION 139 AUTOMATICALLY STEPS IN, ACCORDINGLY, TH E DUE DATE SPECIFIED IN THE SAID SECTION COMES INTO OPERATION. IF THE ARGUM ENTS OF THE ASSESSEE THAT THE MOMENT NOTICE IS ISSUED U/S 153A, SPECIFYI NG DUE DATE OF FILING RETURN, THE DUE DATE REFERRED TO IN SECTION 139 GEN TS SHIFTED TO THE DATE PRESCRIBED IN 153A NOTICE IS ACCEPTED, THEN THE LEG ISLATURE WOULD HAVE SPECIFICALLY INCLUDED SECTION 234A IN SECTION 153A( 1) LIKE ANY OTHER PROVISIONS. THE LEGISLATURE CONSCIOUSLY USED THE WO RD THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDINGLY AS IF SUCH RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139, SO AS T O MAKE IT CLEAR THAT WHAT IS NOT OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, ALL OTHER PROVISIONS OF THIS ACT SHALL SO FAR AS MAY BE APPLI CABLE INCLUDING PROVISIONS OF SECTION 234A. THIS IS ABUNDANTLY CLEA R BECAUSE OF EXPLANATION SAVE AS OTHERWISE PROVIDED IN THIS SECT ION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHAL L APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION. IN FACT, IF THE CONTENTION OF THE ASSESSEE IS ACCEPTED, IT WOULD AMOUNTS TO ENCOURAGI NG THE NON FILING OF RETURNS BY THE TAX PAYERS, WHO WOULD TAKE THE CHANC E AND FILE RETURNS AS ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 11 AND WHEN NOTICE U/S 148/153A IS ISSUED, SO THAT THE Y CAN SAVE INTEREST AMOUNT ON TAX PAYABLE TO THE GOVT. EXCHEQUER FOR A PERIOD OF FOUR OR SIX YEARS AS THE CASE MAY BE. 12. COMING TO THE PROVISIONS OF SECTION 234A OF THE IT ACT, 1961. THE METHOD OF COMPUTATION OF INTEREST U/S 234A IS SPECI FICALLY PROVIDED. THERE IS NO AMBIGUITY IN THE PROVISIONS IN AS MUCH IT IS VERY CLEAR IN TERMS OF SECTION 234A(1) AND 234A(3). SEC. 234A(1) DEALS WITH A SITUATION WHERE RETURN OF INCOME IS FILED BELATEDLY AND ALSO WHERE NO RETURN IS FILED U/S 139(1) OR 139(4) AND SEC. 234A( 3) DEALS WITH A SITUATION WHERE RETURN IS FILED U/S 148/153A AFTER DETERMINATION OF INCOME U/S 143(1) OR COMPUTATION OF INCOME U/S 143( 3) OR 147 OF THE ACT. AS PER SUB CLAUSE (A) OF SECTION 234A(1), WHER E A RETURN IS FURNISHED AFTER THE DUE DATE, INTEREST IS CHARGEABL E FROM THE DATE IMMEDIATELY FOLLOWING THE DUE DATE AND ENDING ON TH E DATE OF FURNISHING RETURN OF INCOME. SUB CLAUSE (B) DEALS WITH A SITUA TION WHERE NO RETURN IS FILED. SIMILARLY EXPLANATION 1 AND 3 EXPLAINS TH E DUE AND POSITION OF ASSESSMENT. ACCORDING TO EXPLANATION1 DUE DATE ME ANS THE DATE SPECIFIED IN SUB SECTION (1) OF SECTION 139 AS APPL ICABLE IN THE CASE OF THE ASSESSEE. EXPLANATION 3 EXPLAINS WHERE IN RELAT ION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDE R SECTION 147 OR SECTION 153A, THE ASSESSMENT SO MADE SHALL BE REGAR DED AS REGULAR ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 12 ASSESSMENT FOR THE PURPOSE OF SECTION 234A. SIMILAR LY SUB SECTION (3) OF SECTION 234A PROVIDES FOR A SITUATION WHERE AN ASSE SSMENT HAS ALREADY BEEN MADE U/S 143(1) OR (3) OR SECTION 147 AND RETU RN IS FURNISHED AFTER THE EXPIRY OF THE TIME ALLOWED IN THE NOTICE U/S 14 8 OR 153A OF THE ACT. IN SUB SECTION (3), INTEREST UNDER SECTION 234A IS CHARGEABLE ON THE TAX ON TOTAL INCOME DETERMINED ON THE BASIS OF REASSESS MENT EXCEEDS THE TAX ON THE TOTAL INCOME DETERMINED U/S 143(1) OR (3 ) AS THE CASE MAY BE, ON THE BASIS OF EARLIER ASSESSMENT. THEREFORE, ON PERUSAL OF SAID PROVISIONS OF SECTION 153A AND 234A ALONG WITH EXPL ANATIONS, IT IS AMPLY CLEAR THAT SECTION 234A(1)(A) APPLIES WHERE A RETUR N IS FILED FOR THE FIRST TIME UNDER ANY OF THE PROVISIONS OF SECTIONS 139, 1 48 OR 153A AND SUB CLAUSE (B) APPLIES, WHERE NO RETURN IS FILED AND AS SESSMENT IS MADE U/S 144 OF THE ACT. SUB SECTION (3) OF SECTION 234A DEA LS WITH A SITUATION WHERE RETURN IS FILED U/S 148 OR 153A, SUBSEQUENT T O ORIGINAL ASSESSMENT U/S 143(1) OR (3), BUT WHICH IS NOT APPLICABLE TO T HE PRESENT CASE, BECAUSE THE ASSESSEE HAS FILED HIS RETURN FOR THE F IRST TIME U/S 153A OF THE ACT. 13. HAVING SAID, LET US COME TO THE FACTS OF THE PR ESENT CASE. THE ASSESSEE HAD NOT FILED ORIGINAL RETURN UNDER SECTIO N 139 OF THE ACT. HE HAD FILED HIS RETURN FOR THE FIRST TIME IN RESPONSE TO NOTICE U/S 153A OF THE ACT. IN VIEW OF THE CLEAR PROVISIONS OF SECTION 234A AND EXPLANATION ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 13 PROVIDED THEREIN, THE ASSESSEE CASE FALLS UNDER SEC TION 234A(1)(A), WHERE RETURN IS FURNISHED AFTER THE DUE DATE REFERR ED TO IN SUB SECTION (1) OF SECTION 139 OF THE ACT. THIS IS BECAUSE, THE ACT IS VERY CLEAR IS AS MUCH LEVY OF INTEREST IS CONCERNED, THE PROVISION O F SECTION 234A IS VERY MUCH APPLICABLE WHETHER ASSESSMENT IS MADE UNDER SE CTION 143 OR SECTION 153A. THE LEGISLATURE CONSCIOUSLY USED THE WORD THE PROVISIONS OF THIS ACT SHALL, SO FAR AS MAY BE, APPLY ACCORDIN GLY AS IF SUCH RETURN REQUIRED TO BE FURNISHED UNDER SECTION 139, SO AS T O MAKE IT CLEAR THAT WHAT IS NOT OTHERWISE SPECIFICALLY PROVIDED IN THIS SECTION, ALL OTHER PROVISIONS OF THIS ACT, SHALL SO FAR AS MAY BE APPL ICABLE INCLUDING THE PROVISIONS OF SECTION 234A. THIS IS ABUNDANTLY CLEA R BECAUSE OF EXPLANATION SAVE AS OTHERWISE PROVIDED IN THIS SEC TION, SECTION 153B AND SECTION 153C, ALL OTHER PROVISIONS OF THIS ACT SHALL APPLY TO THE ASSESSMENT MADE UNDER THIS SECTION. THEREFORE, WE ARE OF THE CONSIDERED VIEW THAT THE ASSESSEE CASE CLEARLY FALL S WITHIN THE AMBIT OF SUB CLAUSE (A) OF SECTION 234A(1) AND THE A.O. HAS RIGHTLY CHARGED INTEREST U/S 234A OF THE ACT. 14. COMING TO THE CASE LAW RELIED UPON BY THE ASSES SEE. THE ASSESSEE RELIED UPON THE DECISION OF ITAT, CHENNAI B BENCH IN THE CASE OF DR. V JAYAKUMAR, IN ITA. NO. 520 TO 525/MDS/2010 DATED 04 -02-2011 AND SUBMITTED THAT THE MOMENT NOTICE ISSUED U/S 153A, T HE DUE DATE ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 14 REFERRED TO IN SECTION 139 GETS SHIFTED TO THE DATE PRESCRIBED IN THE NOTICE U/S 153A OF THE ACT. WE HAVE GONE THROUGH THE DECISION OF THE CO-ORDINATE BENCH AND FIND THAT THE BENCH HAS UPHEL D THE ARGUMENTS OF THE ASSESSEE WITHOUT CONSIDERING THE PROVISIONS OF SECTION 153A & 234A OF THE ACT IN A RIGHT PERSPECTIVE. THEREFORE, THE CASE LAW RELIED UPON BY THE ASSESSEE IS NOT CONSIDERED. 15. IN THIS VIEW OF THE MATTER, WE ARE OF THE VIEW THAT WHEN A RETURN IS FILED FOR THE FIRST TIME U/S 139, 148 OR 153A OR TH E ASSESSMENT IS MADE FOR THE FIRST TIME U/S 147 OR 153A, THEN THE ASSESS MENT SO MADE SHALL BE REGARDED AS REGULAR ASSESSMENT FOR THE PURPOSE OF S ECTION 234A OF THE INCOME TAX ACT, 1961. WE, FURTHER OF THE VIEW THAT WHEN A RETURN IS FILED FOR THE FIRST TIME, THE PROVISIONS OF SECTION 234A(1)(A) IS APPLICABLE AND INTEREST IS CHARGEABLE FOR THE PERIOD COMMENCIN G ON THE DATE IMMEDIATELY FOLLOWING THE DUE DATE REFERRED U/S 139 AND ENDING ON THE DATE OF FURNISHING OF THE RETURN. SINCE, THE ASSESS EE HAS FILED RETURN FOR THE FIRST TIME U/S 153A OF THE ACT, THE ASSESSING O FFICER RIGHTLY CHARGED INTEREST U/S 234A FROM THE DUE DATE REFERRED IN SEC . 139(1) TO THE DATE OF FILING RETURN U/S 153A OF THE ACT. THE CIT(A) HA S RIGHTLY UPHELD THE ORDER OF A.O. WE DO NOT FIND ANY ERROR OR INFIRMITY IN THE ORDER OF CIT(A). HENCE, WE INCLINED TO UPHELD CIT(A) ORDER A ND REJECT THE GROUND RAISED BY THE ASSESSEE. ITA NOS.518, 519 & 520/VIZAG/2014 B. SUBBA RAO, VISAKHAPATNAM 15 16. IN THE RESULT THE APPEAL FILED BY THE ASSESSEE FOR THE A.Y. 2004-05 TO 2006-07 ARE DISMISSED. THE ABOVE ORDER WAS PRONOUNCED IN THE OPEN COURT ON 8 TH NOV16. SD/- SD/- ( . ) ( . ) (V. DURGA RAO) (G. MANJUNATHA) /JUDICIAL MEMBER /ACCOUNTANT MEMBER # /VISAKHAPATNAM: ' /DATED : 08.11.2016 VG/SPS )# *# /COPY OF THE ORDER FORWARDED TO:- 1. / THE APPELLANT SHRI B. SUBBA RAO, 31-5-6, SATHA VAHANA NAGAR, KURMANNAPALEM, VISAKHAPATNAM 2. / THE RESPONDENT THE ACIT, CENTRAL CIRCLE-2, VIS AKHAPATNAM 3. + / THE CIT (CENTRAL), HYDERABAD 4. + ( ) / THE CIT (A)-I, HYDERABAD 5. # . , . , # / DR, ITAT, VISAKHAPATNAM 6 . / GUARD FILE / BY ORDER // TRUE COPY // 12 . (SR.PRIVATE SECRETARY) . , # / ITAT, VISAKHAPATNAM