M/s. Ashok Kumar, Amit Kumar & Shipra Estate Pvt. Ltd., Ghaziabad V. DCIT, Ghaziabad

ITA 6142/DEL/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 3071 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-03-2018
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 01-12-2016
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: RAVIKANT GUPTA
• Keywords: Rectification of order; Revised return
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DLEHI BEFORE SHRI G.D. AGRAWAL, HONBLE PRESIDENT AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER I.T.A. NO.6142/DEL/2016 ASSESSMENT YEAR: 2010-11 ASHOK KUMAR, AMIT KUMAR & SHIPRA VS DCIT, CIRCLE -1, ESTATE P. LTD., GHAZIABAD. GHAZIABAD. (PAN: AAJFA2511K) (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI PRATEEK GUPTA, CA DEPARTMENT BY: SHRI RAVI KANT GUPTA, SR. DR ORDER DATE OF HEARING: 21.03.2018 DATE OF PRONOUNCEMENT: 26 .03.2018 PER K.N. CHARY, JM CHALLENGING THE ORDER DATED 22.9.2016 IN APPEAL NO.191//2015-16 PASSED BY THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS), GHAZIABAD (FOR SHORT LD. CIT(A)), ASSESSEE PREFERRED THIS APPEAL . 2. BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT I S A PARTNERSHIP FIRM ENGAGED IN THE BUSINESS OF REAL ESTATE DEVELOPMENT. FOR TH E ASST YEAR 2010-11, THE ASSESSEE FILED THEIR RETURN OF INCOME ON 15.10.2010 DECLARING A TOTAL INCOME OF RS.9,09,71,590/-. HOWEVER, THE SAME WAS REVISED ON 25.2.2011. AFTER THE SCRUTINY, AN ORDER U/S 143(3) OF THE ACT WAS PASSED ON 28.2.2013 ASSESSING THE 2 TOTAL INCOME OF THE ASSESSEE AT RS.11,59,71,590/-. SUBSEQUENTLY, BY WAY OF ORDER DATED 28.2.2013 U/S 154 OF THE INCOME-TAX ACT, 1961 (THE ACT) , LEARNED AO LEVIED INTEREST OF RS.14,05,510/- U/S 234A OF THE A CT. 3. ASSESSEE CONTENDED BEFORE THE LEARNED CIT(A) IN APPEAL THAT THERE WAS VOLUNTARILY REVISION OF THE ORIGINAL ASSESSMENT AND WHEN THE LAW PERMITS SUCH A REVISION AND THE REVISION WAS MADE WITHIN THE TIME, THE DATE OF FILING OF THE REVISED RETURN OF INCOME WILL RELATE BACK TO THE DA TE OF FILING OF THE ORIGINAL RETURN OF INCOME AND THEREBY PURGES ANY DEFECT IN THE ORIGIN AL RETURN. ON THIS PREMISE, IT WAS ARGUED ON BEHALF OF THE ASSESSEE THAT THE QU ESTION OF LEVY OF INTEREST U/S 234A DOES NOT ARISE. LEARNED CIT(A), BY WAY OF IMPU GNED ORDER, DEALT WITH THIS ASPECT AT LENGTH, BUT DID NOT AGREE WITH THE ASSESS EE AND CONFIRMED THE ORDER OF THE LEARNED AO. HENCE, THIS APPEAL BY THE ASSESSEE . 4. WE HAVE GONE THROUGH THE RECORD. THE FACTS ARE SIMPLE AND ADMITTED. THERE IS NO DENIAL OF THE FACT THAT ALONG WITH THE ORIGINAL ASSESSMENT THAT THE ASSESSEE HAD SHOWN TO HAVE PAID A TAX OF RS.3,11,18 ,010/-. IN THE RAP AUDIT, IT WAS FOUND TO BE INCORRECT. IT WAS OBSERVED BY THE RAP AUDIT PARTY THAT THE ASSESSEE ACTUALLY DEPOSITED SELF ASSESSMENT TAX OF R S.3,36,47,930/- ON 24.2.2011 BUT NOT AS ON THE DATE OF THE ORIGINAL RETURN. EVEN IN THE ABSENCE OF ANY DISPUTE ON THESE FACTS, WE FAILED TO UNDERSTAND HOW THE ORD ER OF THE LD. AO IS LEGALLY WRONG. IT IS NOT THE PENALTY THAT THE AO LEVIED BUT IT IS ONLY THE INTEREST U/S 234A. UNDER SECTION 139(9)(C) (I) OF THE ACT, THE RETURN NOT ACCOMPANIED BY THE TAX ON SELF ASSESSMENT CLAIMED TO HAVE BEEN PAID IS DEFECT IVE. UNDISPUTEDLY, THE ASSESSEE PAID THE TAX ON THE SELF ASSESSMENT ON 24. 4.2011 BUT NOT BY THE DATE OF 15.10.2010. NO DOUBT, THE REVISED RETURN WILL ASSU ME THE CHARACTER OF THE ORIGINAL 3 ASSESSMENT FOR THE PURPOSE OF ITS NATURE, BUT NOT F OR THE INTEREST LIABILITY U/S 234A OF THE ACT, WHICH IS MANDATORY IN NATURE. 5. FURTHER, WHEN THE ASSESSEE HAD SHOWN THE PAYMENT OF SELF ASSESSMENT TAX IN THE RETURN DATED 15.10.2010 BUT AS A MATTER OF F ACT DEPOSITED THE SAME ONLY ON 24.10.2011, IT IS NOT OPEN TO THE ASSESSEE TO CONTE ND THAT IT IS NOT AN ERROR APPARENT ON THE FACE OF THE RECORD. WHATEVER MAY BE THE WORDINGS IN THE NOTICE, THE NATURE OF THE PROCEEDINGS ARE NOT VITIATED AND THE LEARNED AO IS JUSTIFIED IN PASSING THE RECTIFICATION ORDER U/S 154 OF THE ACT, WHICH IS RIGHTLY CONFIRMED BY THE LEARNED CIT(A). WE DO NOT FIND ANY ILLEGALITY OR IRR EGULARITY IN THE ORDERS OF THE AUTHORITIES BELOW. WE, THEREFORE, WHILE UPHOLDING THE SAME, FIND THE APPEAL DEVOID OF MERITS. THE SAME IS ACCORDINGLY DISMISSED . 4. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON MARCH , 2018. SD/- SD./- (G.D. AGARWAL) (K. NARASIMHA CHARY ) PRESIDENT JUDICIAL MEMBER DATED: 26 TH MARCH, 2018 VJ COPY FORWARDED TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) BY ORDER 5. DR, ITAT ASSTT. REGISTRA R, ITAT