M/S. NAROTAMDASS GOEL, MUMBAI V. THE ACIT 12(3), MUMBAI

ITA 6116/MUM/2007

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48940 (ITAT-MUMBAI)
• Duration Of Justice: 3 year(s) 7 month(s) 30 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-05-2011
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 15-12-2010
• Assessment Year: 2000-2001
• Appeal Filed On: 01-10-2007
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: ASHIMA GUPTA
• Assessee Lawyers: IN PERSON
• Keywords: Rectification of order; Condonation of delay
• Section: 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL 'B' BENCH, MUMBAI BEFORE SHRI R.V. EASWAR, PRESIDENT AND SHRI T.R. SOOD, ACCOUNTANT MEMBER ITA NO. 6116/MUM/2007 (ASSESSMENT YEAR: 2000-01) NAROTAMDASS GOEL A C I T 12(3) 124 NCPA APARTMENT ROM NO. 138, 1ST FLOOR NARIMAN POINT, MUMBAI 400021 VS. INCOME TAX OFFICE, MUMBAI PAN - AAEPG 5649 P APPELLANT RESPONDENT APPELLANT BY: ASSESSEE IN PERSON RESPONDENT BY: SMT. ASHIMA GUPTA O R D E R PER T.R. SOOD, A.M. THIS APPEAL FILED BY ASSESSEE IS AGAINST THE ORDER OF THE CIT(A) XII, MUMBAI DATED 22.12.2005 IN RELATION TO A.Y. 2000-01 . 2. IN THIS APPEAL DETAILED GROUNDS HAVE BEEN FILED BUT AT THE TIME OF HEARING ASSESSEE SUBMITTED THAT THE ONLY ISSUE IS R EGARDING LEVY OF INTEREST UNDER SECTION 234C IN THE RECTIFICATION ORDER PASSE D UNDER SECTION 154. 3. THE APPEAL IS FILED LATE BY 572 DAYS AND SHRI GOEL POINTED OUT THAT AN APPLICATION FOR CONDONATION OF DELAY ALONGWITH AFFI DAVIT HAS ALREADY BEEN FILED. IN THE APPLICATION IT IS MAINLY STATED THAT THE APPELLATE ORDER WAS PASSED BY CIT(A) ON 22-12-2005. ASSESSEE GAVE THIS ORDER TO SHRI H.N. JAIN, CHARTERED ACCOUNTANT, WHO HAD APPEARED BEFORE THE F IRST APPELLATE AUTHORITY. SHRI JAIN ADVISED THE ASSESSEE THAT AN A PPLICATION UNDER SECTION 264 SHOULD BE MOVED BEFORE THE COMMISSIONER OF INCO ME TAX. THE ORDER UNDER SECTION 264 HAS BEEN PASSED ON 03.09.2007 AND LATER ON THE APPEAL WAS FILED BEFORE THE TRIBUNAL ON 01.10.2007. THE DE LAY WAS MAINLY CAUSED BECAUSE OF THE WRONG ADVICE AND ASSESSEE WAS PURSUI NG A WRONG REMEDY, THEREFORE, THE DELAY MAY BE CONDONED. THE LEARNED D .R. OPPOSED THE APPLICATION. AFTER CONSIDERING THE RIVAL SUBMISSION S WE ARE SATISFIED THAT THE DELAY HAS BEEN CAUSED BECAUSE ASSESSEE WAS PURSUING WRONG REMEDY UNDER ITA NO. 6116/MUM/2007 NAROTAMDASS GOEL 2 THE ADVICE OF THE CHARTERED ACCOUNTANT. THEREFORE, WE ARE OF THE OPINION THAT ASSESSEE HAS SUFFICIENT CAUSE FOR FILING THE APPEAL LATE AND ACCORDINGLY THE DELAY IS CONDONED. 4. AFTER HEARING BOTH THE PARTIES WE FIND THAT ORIGINA L RETURN WAS PROCESSED UNDER SECTION 143(1) AND SINCE CREDIT FOR SOME OF THE TAXES WAS NOT ALLOWED ASSESSEE MOVED AN APPLICATION DATED 14. 11.2005 THROUGH WHICH THE A.O. ALLOWED CREDIT FOR RELEVANT PAYMENT OF TAX ES AND ALSO MADE AN ORDER FOR CHARGING OF INTEREST UNDER SECTION 234C. ON APP EAL THE CIT(A) SET AIDE ISSUE VIDE PARA 3.2, WHICH IS AS UNDER: - 3.2 I HAVE CONSIDERED THE SUBMISSIONS OF THE APPEL LANT CAREFULLY. I HAVE ALSO GONE THROUGH THE RECTIFICATION ORDER DATE D 17.22.2005. IT IS NOTED THAT THE ASSESSING OFFICER WHILE PASSING THE RECTIFICATION ORDER HAS GIVEN DIRECTION TO CHARGE INTEREST U/S 234C OF THE I.T. ACT, THEREFORE, LEVY OF INTEREST U/S. 234C OF RS.28,363/ - IS CORRECT. SO FAR AS THE LEVY OF INTEREST U/S. 234 B IS CONCERNED, TH E ASSESSING OFFICER HA NOT ISSUED ANY SPECIFIC DIRECTIONS IN THE RECTIF ICATION ORDER TO CHARGE SUCH INTEREST. THE LEVY OF INTEREST U/S. 234 B OF RS.82,641/- IS THEREFORE, NOT CORRECT AND JUSTIFIED IN VIEW OF THE DECISIONS OF THE ITAT REFERRED ABOVE. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO DELETE THE LEVY OF INTEREST OF RS.82,641/- CHARGED U/S. 23 4B OF THE I.T. ACT. 5. BEFORE US SHRI GOEL, ASSESSEE, MAINLY CONTENDED THA T INTEREST COULD NOT HAVE BEEN LEVIED BY THE ORDER PASSED UNDER SECT ION 154 AS LEVY OF INTEREST IS A DEBATABLE ISSUE. 6. ON THE OTHER HAND THE LEARNED D.R. REFERRED TO THE ORDER PASSED UNDER SECTION 154 AND POINTED OUT THAT THE DIRECTION FOR CHARGING OF INTEREST UNDER SECTION 234C WAS CLEARLY GIVEN. THEREFORE INTEREST HAS BEEN CORRECTLY LEVIED. 7. AFTER CONSIDERING THE RIVAL SUBMISSIONS WE FIND THA T THE HON'BLE SUPREME COURT IN THE CASE OF CIT VS. ANJUM M. H. GH ASWALA & ORS. 252 ITR 1 HAS HELD THAT LEVY OF INTEREST UNDER SECTION 234A , 234B AND 234C IS OF MANDATORY NATURE. FURTHER, A CLEAR DIRECTION HAS BE EN GIVEN IN THE RECTIFICATION ORDER FOR CHARGING OF INTEREST. MISTA KE IN AN ORDER CAN BE OF A FACT OR OF A LAW. IF ORIGINALLY INTEREST WAS OMITTE D TO BE CHARGED UNDER SECTION 234C THEN THE SAME CAN BE CHARGED LATER ON, PARTICU LARLY WHEN NO ASSESSMENT HAS BEEN FRAMED UNDER SECTION 143(3). MO REOVER, A CLEAR ITA NO. 6116/MUM/2007 NAROTAMDASS GOEL 3 DIRECTION FOR CHARGING OF INTEREST HAS BEEN GIVEN I N THE RECTIFICATION ORDER. ACCORDINGLY WE CONFIRM THE ORDER OF THE CIT(A). 8. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 31 ST MAY 2011. SD/- SD/- (R.V. EASWAR) (T.R. SOOD) PRESIDENT ACCOUNTANT MEMBER MUMBAI, DATED: 31 ST MAY 2011 COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) XII, MUMBAI 4. THE CIT XII, MUMBAI CITY 5. THE DR, B BENCH, ITAT, MUMBAI BY ORDER //TRUE COPY// ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI N.P.