DCIT - CC- 4(1)- MUMBAI CR RG -4 PR. CIT- (C)-2, MUMBAI V. ASHWIN S. MEHTA, MUMBAI

ITA 6226/MUM/2018

• Counselvise Citation: [2020] 110 COUNSELVISE.COM (IT) 3668 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 10 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-11-2020
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 1993-1994
• Appeal Filed On: 31-10-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR P DANIEL LD SPL
• Assessee Lawyers: DHAVAL SHAHLD
• Keywords: Rectification of order
• Section: 143(3); 234B; 154

Judgement Text

ITA NO.6226/MUM/2018 SHRI ASHWIN S. MEHTA ASSESSMENT YEAR: 1993-94 1 IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH, MUMBAI , , BEFORE HONBLE SHRI AMARJIT SINGH, JM AND HONBLE SHRI MANOJ KUMAR AGGARWAL, AM (HEARING THROUGH VIDEO CONFERENCING MODE) ./ I.T.A. NO.6226/MUM/2018 ( / ASSESSMENT YEAR: 1993-94) D CIT - CENTRAL CIRCLE - 4(1) CENTRAL RANGE-4 R.NO.1916, 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI-400 021. / VS. SHRI ASHWIN S. MEHTA 32, MADHULI, DR. A.B. ROAD WORLI, MUMBAI-400 018. ! ./ ./PAN/GIR NO. ABAPM-2121-M ( !# /APPELLANT ) : ( $%!# / RESPONDENT ) ASSESSEE BY : SHRI DHAVAL SHAH- LD. AR REVENUE BY : DR. P. DANIEL - LD.SPL. COUNSEL / DATE OF HEARING : 09/11/2020 / DATE OF PRONOUNCEMENT : 10/11/2020 / O R D E R MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY REVENUE FOR ASSESSMENT YEAR [IN SHORT REFERRED TO AS AY] 1993-94 CONTEST THE ORDER OF LD. COMMIS SIONER OF INCOME- TAX (APPEALS)-52, MUMBAI, [IN SHORT REFERRED TO AS CIT(A)], APPEAL NO.CIT(A)-52/IT-59/DCIT-4(1)/17-18 DATED 10/08/2018. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - ITA NO.6226/MUM/2018 SHRI ASHWIN S. MEHTA ASSESSMENT YEAR: 1993-94 2 A. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN LAW IN RESTRICTING THE MEANING OF REGULAR ASSESSMENT WITHOUT APPRECIATING THE FACT THAT ASSESSMENT ORDER DATED 17.12.2007 WAS PASSED U/S 143(3) RWS 254 OF THE ACT IS ALSO REGULAR ASSESSMENT. B. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT INTEREST U/S 234A & 234B IS T O BE COMPUTED TILL THE DATE OF ORIGINAL ASSESSMENT AND NOT TILL THE DATE OF FRESH ASSESSMENT WITHOUT APPRECIATING THAT PROVISIONS OF SECTION 234-A & 234B PROVIDES IN TEREST COMPUTATION TILL THE DATE OF REGULAR ASSESSMENT U/S 143(3) UNDER WHICH THE FRESH ASSESSMENT ORDER WAS PASSED. C. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT INTEREST U/S 220(2) IS TO BE COMPUTED FROM THE DATE OF FRESH ASSESSMENT ORDER WITHOUT APPRECIATING THE FACT THAT THE ISSUES OF ADDITION MADE IN ORIGINAL ASSESSMENT ORDER AND FRESH ASSESSMENT ORDE R ARE SAME, HENCE, ASSESSEE WAS IN DEFAULT FROM THE DATE OF ORIGINAL ASSESSMENT ORDER AND NO NEW MATERIAL EVIDENCE HAS BEEN FURNISHED BY ASSESSEE IN FRESH AS SESSMENT PROCEEDINGS SO AS TO CHALLENGE ITS DEFAULT. D. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE C ASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT FOR INTEREST U/S 220(2) THE D ATE OF FRESH ASSESSMENT ORDER IS TO BE CONSIDERED, HOWEVER, FOR INTEREST U/S 234A & 234 B, THE FRESH ASSESSMENT WOULD NOT BE CONSIDERED AS REGULAR ASSESSMENT, THEREBY, B RINGING COMPLETE ANOMALY AND ARBITRARINESS IN ITS ORDER. THE LD. AR FOR ASSESSEE, AT THE OUTSET, SOUGHT DISM ISSAL OF THE REVENUES APPEAL IN TERMS OF ORDER OF TRIBUNAL IN A SSESSEES OWN CASE IN REVENUES APPEAL FOR AY 1992-93, ITA NO.3118/MUM/20 18 ORDER DATED 16/07/2019 RENDERED ON SIMILAR FACTS AND CIRCUMSTAN CES. A COPY OF THE ORDER HAS BEEN PLACED ON RECORD. IT HAS FURTHER BEE N SUBMITTED THAT THE ASSESSEE HAS ACCEPTED THE VERDICT THAT THE RECTIFIC ATION APPLICATION WAS TIME BARRED AND DID NOT PREFER ANY FURTHER APPEAL. THE LD. SPL. COUNSEL FOR DEPARTMENT, DR. P.DANIEL, RELIED ON THE ORDERS OF LD. AO. 2. IN THE ABOVE BACKGROUND, WE FIND THAT IN TERMS O F SEC.154, THE ASSESSEE SOUGHT RECTIFICATION OF ASSESSMENT ORDER P ASSED U/S 143(3) R.W.S. 254 ON 17/12/2007. IN THIS APPLICATION, THE ASSESSEE CONTESTED WRONGFUL CHARGING OF INTEREST U/S 234A & 234B. THE ASSESSEE CONTENDED THAT THE INTEREST SHOULD BE CHARGED ONLY UP-TO THE DATE OF ORIGINAL ITA NO.6226/MUM/2018 SHRI ASHWIN S. MEHTA ASSESSMENT YEAR: 1993-94 3 ASSESSMENT ONLY. THE LD. AO REJECTED THE SAME ON ME RITS AND ALSO ON THE GROUND THAT THERE WAS NO MISTAKE APPARENT FROM RECORD AND MORE THAN 4 YEARS HAD ALREADY LAPSED SINCE THE PASSING O F THE SAID ORDER U/S 143(3) R.W.S. 254 OF THE ACT. IN THE RECTIFICATION ORDER, THE LD. AO FURTHER HELD THAT WITHOUT PREJUDICE TO HIS VIEW THAT THE IN TEREST U/S 234A & 234B HAS TO BE CHARGED UP-TO THE DUE DATE AS PER THE FRE SH ASSESSMENT ORDER, EVEN IF THE VIEW OF THE ASSESSEE WAS TO BE ACCEPTED THAT THIS INTEREST SHOULD BE CHARGED TILL THE DUE DATE AS PER THE ORIG INAL ASSESSMENT ORDER, THEN INTEREST U/S 220(2) WAS TO BE LEVIED FROM THE DATE OF ORIGINAL ASSESSMENT ORDER. THE LD. AO ALSO HELD THAT INTERES T U/S 234C WAS TO BE LEVIED IN THE CASE OF THE ASSESSEE FOR DEFERMENT OF ADVANCE TAX ON THE BASIS OF ASSESSED INCOME. 3. UPON FURTHER APPEAL, LD. CIT(A) HELD THE RECTIFI CATION ORDER TO BE BAD IN LAW IN TERMS OF SEC. 154(7) SINCE 4 YEARS HA D ALREADY LAPSED SINCE THE PASSING OF THE ORDER AGAINST WHICH RECTIF ICATION WAS SOUGHT BY THE ASSESSEE. THEREFORE, THE GROUNDS, ON MERITS, WO ULD BECOME INFRUCTUOUS.HAVING SAID SO, LD. CIT(A) PROCEEDED TO DELVE INTO THE MERITS OF THE ISSUE ALSO. IT WAS OBSERVED THAT LD. AO WHI LE COMPUTING INTEREST U/S 234A & 234B, COMPUTED THE SAME ONLY UP-TO 29/03 /1996 I.E. THE DATE OF THE ORIGINAL ASSESSMENT WHICH WAS CONTRADICTORY TO THE STAND OF LD. AO. SIMILARLY, INTEREST U/S 220(2) WAS COMPUTED FRO M THE DATE OF ORIGINAL ASSESSMENT ORDER WHICH WAS WITHOUT PREJUDICE VIEW O F AO. 4. REGARDING INTEREST U/S 234A & 234B, THE LD. CIT( A), RELYING UPON APPELLATE ORDERS IN THE CASE OF OTHER FAMILY MEMBER S OF THE ASSESSEE, HELD THAT THE ISSUE WAS DEBATABLE AND THEREFORE, IT COULD NOT BE SUBJECT MATTER OF RECTIFICATION U/S 154. SINCE LD. AO HAD H IMSELF CHARGED INTEREST ITA NO.6226/MUM/2018 SHRI ASHWIN S. MEHTA ASSESSMENT YEAR: 1993-94 4 U/S 234A & 234B UP-TO THE DATE OF ORIGINAL ASSESSME NT ORDER ONLY, THE GROUND THUS RAISED BY THE ASSESSEE WERE DISMISSED A S WELL AS HELD TO BE INFRUCTUOUS SINCE THE ORDER U/S 154 WAS HELD TO BE BAD IN LAW. REGARDING INTEREST U/S 234C, THE ACTION OF LD. AO I N CHARGING THE SAME ON THE BASIS OF ASSESSED INCOME WAS UPHELD. BUT THE GROUNDS RAISED WERE HELD TO BE INFRUCTUOUS SINCE THE ORDER U/S 154 WAS HELD TO BE BAD IN LAW. REGARDING CHARGING OF INTEREST U/S 220(2), THE WITH OUT PREJUDICE VIEW OF LD. AO WAS HELD TO BE NOT JUSTIFIED AND GROUND RAIS ED BY THE ASSESSEE WAS ALLOWED ON MERITS. HOWEVER, THE GROUND WAS ALSO HELD TO BE INFRUCTUOUS SINCE ORDER U/S 154 WAS HELD TO BE BAD IN LAW. AGGRIEVED, THE REVENUE IS IN FURTHER APPEAL BEFORE US. 5. UPON DUE CONSIDERATION, WE FIND THAT SIMILAR WAS THE APPEAL OF REVENUE FOR AY 1992-93 WHICH WAS ADJUDICATED BY TRI BUNAL VIDE ITS ORDER DATED 16/07/2019 AS FOLLOWS: - 5. WE HAVE PERUSED THE CITED ORDER OF TRIBUNAL REND ERED IN CROSS-APPEALS IN ASSESSEES OWN CASE FOR AY 1992-93 PASSED IN THE MA TTER OF ASSESSMENT FRAMED U/S 143(3) R.W.S. 254 OF THE ACT. WE FIND THAT THE ISSUE OF CHARGING OF INTEREST U/S 234A, 234B, 234C & 220(2) HAS ALREADY BEEN DELVED I NTO BY THE CO-ORDINATE BENCH, IN PARA 61.1 OF THE ORDER. IN THE SAID PARA, THE RE VENUE AUTHORITIES HAVE BEEN DIRECTED TO FOLLOW THE ORDER PASSED IN THE CASE OF LATE HARSHAD S. MEHTA VIDE PARA NOS. 29 TO 30.10 AND CHARGED INTEREST ACCORDINGLY. IN PARA 30.10 OF THE ORDER, IT HAS BEEN HELD THAT INTEREST U/S 220(2) WAS TO BE CHARGE D FROM THE DATE OF DEFAULT OF FRESH DEMAND NOTICE ISSUED AFTER THE FRESH ASSESSMENT MAD E IN CONSEQUENT OF THE ORDERS OF THE APPELLATE AUTHORITIES. SIMILARLY, THE ISSUE OF CHARGING OF INTEREST U/S 234A, 234B & 234C HAS ALSO BEEN DEALT WITH BY THE COORDIN ATE BENCH, IN OTHER PARAS. SINCE A VIEW HAS ALREADY BEEN TAKEN BY THE COORDINA TE BENCH IN THE MATTER, REFRAINING FROM DELVING INTO THE ISSUES ANY FURTHER , WE DIRECT LD. AO TO FOLLOW THE CITED ORDER OF THE TRIBUNAL. WE ALSO FIND THAT ISSUE OF CHARGING OF INTEREST U/S 234A, 234B, 234C & 220(2) HAS ALREADY BEEN DEALT WITH BY THE CO-ORDINA TE BENCH OF THE TRIBUNAL IN ASSESSEES OWN CASE VIDE PARA NOS. 70 & 70.1 OF ITA ITA NO.6226/MUM/2018 SHRI ASHWIN S. MEHTA ASSESSMENT YEAR: 1993-94 5 NO.6120/MUM/2017 COMMON ORDER DATED 14/01/2019 AND FINALLY HELD AS UNDER: - 70.1 WE HAVE ALREADY ADJUDICATED THE ISSUES OF CHA RGING INTEREST U/S.234A, 234B, 234C & 220(2) OF THE ACT VIDE THIS ORDER IN THE CAS E OF LATE HARSHAD S. MEHTA VIDE PARAS NOS. 29 TO 30.10 AND IN THE CASE OF JYOTI MEH TA VIDE PARA NO.46.1 AND IN ASSESSEES OWN CASE FOR AY 1992-93 VIDE PARA NO.61 .1 ABOVE. HERE, ALSO WE DIRECT THE AO TO FOLLOW THE ORDER IN THE CASE OF HARSHAD S . MEHTA ABOVE AND CHARGE INTEREST ACCORDINGLY. THESE GROUNDS ARE DECIDED AC CORDINGLY. ACCORDINGLY, IT WOULD BE SUFFICE ON OUR PART TO DIR ECT LD. AO TO FOLLOW THE AFORESAID DIRECTIONS OF THE TRIBUNAL WHILE COMPUTIN G THE INTEREST. 6. IN THE RESULT, THE APPEAL STANDS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH NOVEMBER, 2020. SD/- SD/- (AMARJIT SINGH) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER MUMBAI; DATED : 10/11/2020 SR.PS, JAISY VARGHESE ! / COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. + ( ) / THE CIT(A) 4. + / CIT CONCERNED 5. ,-$. , . , / DR, ITAT, MUMBAI 6. -/01 / GUARD FILE / BY ORDER, / (DY./ASSTT.REGISTRAR) , / ITAT, MUMBAI.