CAPGEMINI BUSINESS SERVICES (INDIA) LTD, MUMBAI V. ADDL CIT 1(2), MUMBAI

ITA 5347/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75316 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-01-2014
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 13-01-2014
• Assessment Year: 2008-2009
• Appeal Filed On: 24-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Keywords: Additional evidence

Judgement Text

, LH LHLH LH IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL C CC C BENCH, BENCH, BENCH, BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , . , . , ! ! ! ! '# '# '# '# BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & & & & SHRI SHRI SHRI SHRI D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO D. KARUNAKARA RAO, AM , AM , AM , AM ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.5347/MUM/2012 5347/MUM/2012 5347/MUM/2012 5347/MUM/2012 ( $% $% $% $% & & & & / ASSESSMENT YEAR :2008-09) M/S CAPGEMINI BUSINESS SERVICES (INDIA) LTD., C/O KALYANIWALLA & MISTRY, ARMY & NAVY BUILDING, 3 RD FLOOR, 148, MAHATMA GANDHI ROAD, FORT, MUMBAI-400001 % % % % / VS. ADDL. COMMISSIONER OF INCOME TAX, 1(2), AAYAKAR BHAVAN, M. K. MARG MUMBAI #' ! ./ ( ./ PAN/GIR NO. :AABCI1046A ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) $% $%$% $% ,- ,- ,- ,- . / . / . / . / /ASSESSEE BY : MR. AKRAM KHAN # # # # . / . / . / . / / REVENUE BY : SHRI RAVI PRAKASH % % % % . .. . -! -! -! -! / DATE OF HEARING : 13 TH JANUARY 2014 01& 01& 01& 01& . .. .-! -! -! -! /DATE OF PRONOUNCEMENT: 22 ND JANUARY 2014 ' 2 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER DATED 11.6.2012 ARISING FROM THE ASSESSMENT ORDER PASSED U/S 115WE(3) OF THE INCOME TAX ACT FOR THE ASSESSMENT YEAR 2008-09. 2. THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL: 1. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN CONFIRMING THE LEVY OF INTEREST UNDER SECTION 115WJ (3) TO THE EXTENT OF ` 83,405/-. 2. THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) ERRED IN HOLDING THAT THE ADVANCE FRINGE BENEFIT TAX OF ` 31 ,00,000/- PAID ITA NO.5347/M/2012 CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 2 BY THE APPELLANT ON 17 TH SEPTEMBER, 2007 WAS PAID BEYOND THE DUE DATE FOR PAYMENT OF ADVANCE TAX. 3. BOTH THE LOWER AUTHORITIES FAILED TO APPRECIATE THAT 15 TH SEPTEMBER, 2007 WAS A BANK HOLIDAY ON ACCOUNT OF GA NESH CHATURTHI AND 16 TH SEPTEMBER, 2007 WAS A SUNDAY AND THEREFORE, THE PAYMENT OF ADVANCE TAX ON 17 TH SEPTEMBER, 2007 WAS WITHIN DUE DATE IN TERMS OF CBDT CIRCULAR NO. 676 DATED 14 TH JANUARY, 1994. 3. WE HAVE HEARD THE LD. A.R AS WELL AS LD. D.R AND CONSIDERED THE RELEVANT MATERIAL ON RECORD. THE ASSESSEE FILED RET URN OF FRINGE BENEFIT DECLARING VALUE OF TAXABLE FRINGE BENEFITS AT ` 2.7 0 CRORES. THE A.O CHARGED INTEREST U/S 115WJ(3) AMOUNTING TO ` 1,25,7 18/- ON THE GROUND THAT THE FIRST AND SECOND INSTALLMENT OF ADVANCE TA X WERE PAID BY THE ASSESSEE BEYOND DUE DATES OF 15.6.2007 AND 15.9.200 7. THE ASSESSEE CHALLENGED THE ACTION OF THE A.O CHARGING INTEREST U/S 115WJ(3) BEFORE THE CIT(A). THE CIT(A) TREATED THE FIRST INSTALLMENT OF ADVANCE TAX DUE ON 15.6.2007 AS WITHIN TIME PERIOD AS THE ASSESSEE DEP OSITED CHEQUE ON THE SAME DATE WHICH WAS REALISED/CLEARED ON 18.6.2007. HOWEVER, THE PAYMENT DUE ON 15.9.2007 WAS HELD BY THE CIT(A) AS BEYOND THE TIME AND THEREFORE, THE INTEREST TO THE EXTENT OF DEFAULT IN THE SECOND INSTALLMENT WAS CONFIRMED. 4. BEFORE US THE LD. A.R OF THE ASSESSEE HAS SUBMIT TED THAT 15.9.2007 WAS A BANK HOLIDAY ON ACCOUNT OF GANESH CHATURTHI A ND 16.9.2007 WAS SUNDAY THEREFORE, THE PAYMENT OF ADVANCE TAX COULD BE MADE ONLY ON 17.9.2007 WHICH IS WITHIN DUE DATE IN TERMS OF CBDT CIRCULAR NO. 676 DATED 14.1.1994. WHEN THE PAYMENT IS WITHIN THE DUE DATED THEN NO INTEREST CAN BE LEVIED U/S 115WJ(3). THE LD. A.R HA S FURTHER SUBMITTED THAT THE ASSESSEE FILED THE CONFIRMATION OF BANK HOLIDAY ON 15.9.2007 AND ITA NO.5347/M/2012 CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 3 16.9.2007 BEFORE THE CIT(A) WHICH WAS NOT ACCEPTED BY THE CIT(A). THUS, THE LD. A.R HAS SUBMITTED THAT THE ASSESSEE HAS FIL ED THE CONFIRMATION ALONGWITH REQUEST OF ADMISSION OF ADDITIONAL EVIDEN CE WHICH MAY BE ADMITTED IN THIS RESPECT. ON THE OTHER HAND, THE LD . D.R HAS SUBMITTED THAT THIS ADDITIONAL EVIDENCE IS REQUIRED TO BE VER IFIED. HE HAS RELIED UPON THE ORDER OF THE AUTHORITIES BELOW. 5. HAVING CONSIDERED THE RIVAL SUBMISSIONS AND CARE FUL PERUSAL OF THE RELEVANT MATERIAL WE FIND THAT THE CIT(A) HAS CONFI RMED THE LEVY OF INTEREST ON THE GROUND THAT THE ASSESSEE HAS FAILED TO DEPOS IT THE SECOND INSTALLMENT OF THE FRINGE BENEFIT TAX ON OR BEFORE THE DUE DATE I.E. 15.9.2007. THE CIT(A) HAS RECORDED THE CONTENTION O F THE ASSESSEE THAT 15.9.2007 WAS A BANK HOLIDAY ON ACCOUNT OF GANESH C HATURTHI AND 16.9.2007 WAS CLOSED DAY BEING SUNDAY THEREFORE, TH E PAYMENT MADE ON 17.9.2007 IS WITHIN THE TIME PERIOD IN VIEW OF THE CBDT CIRCULAR NO. 676 DATED 14.1.1994. WE FURTHER NOTE THAT THE CIT(A) HA S NOT DEALT WITH THE FACT POINTED OUT BY THE ASSESSEE THAT 15.9.2007 AND 16.9.2007 WERE THE NON-WORKING DAY OF THE BANK BEING HOLIDAY ON ACCOUN T OF GANESH CHATURTHI AND SUNDAY. DESPITE THE FACTS POINTED OUT BY THE ASSESSEE THE AUTHORITIES BELOW DID NOT TAKE ANY STEP TO VERIFY T HAT THE 15.9.2007 AND 16.9.2007 WERE BANK HOLIDAYS AND ACCORDINGLY THE PA YMENT MADE ON 17.9.2007 IS WITHIN THE DUE DATE. EVEN BEFORE US TH E REVENUE HAS NOT DISPUTED THE FACT THAT 15.9.2007 AND 16.9.2007 WERE BANK HOLIDAYS BEING GANESH CHATURTHI AND SUNDAY. IN VIEW OF THE ABOVE F ACTS AND CIRCUMSTANCES OF THE CASE WE HOLD THAT THE PAYMENT MADE BY THE ITA NO.5347/M/2012 CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 4 ASSESSEE ON 17.9.2007 AFTER THE TWO HOLIDAYS ON 15 & 16.9.2007 IS WITHIN THE DUE DATE AND THEREFORE, NO INTEREST U/S 115WJ(3 ) CAN BE LEVIED THE IMPUGNED ORDER OF THE CIT(A) IS SET ASIDE QUA THIS ISSUE AND THE INTEREST LEVIED U/S 115WJ(3) IS DELETED. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22 ND DAY OF JANUARY 2014 SD/- SD/- ( . ) ! '# (D. KARUNAKARA RAO) ACCOUNTANT MEMBER ( ) $ '# (VIJAY PAL RAO) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 22 ND JANUARY 2014 SUBODH COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI