M/s Manoj Kumar Jain & sons, Kolkata V. ACIT, CC - IV, Kolkata, Kolkata

ITA 633/KOL/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3128 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 1 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 18-06-2013
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2007-2008
• Appeal Filed On: 20-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY KR SINGH
• Assessee Lawyers: S K JENA
• Section: 263; 154; 15; 143(3); 234B

Judgement Text

, B , , IN THE INCOME TAX APPELLATE TRIBUNAL, BENCH- B CALCUTTA ( ) BEFORE . . , SHRI N.S.SAINI, ACCOUNTANT MEMBER ! /AND '#'$ 1 & , SHRI GEORGE MATHAN, JUDICIAL MEMBER !' / ITA NO.633/KOL/2012 ASSESSMENT YEAR : 2007-08 M/S. MANOJ KUMAR JAIN & SONS PAN: AAIHM9669P - - - VERSUS -. ACIT, C.C IV, KOLKATA ( &) / APPELLANT ) ( *+&) / RESPONDENT ) &) - /FOR THE APPELLANT / SHRI S.K. JENA, ACA, LD.AR *+&) - / FOR THE RESPONDENT: / SHRI AJAY KR. SINGH, LD. CIT/SR.DR . / 0 1 /DATE OF HEARING : 18-06-2013 23 0 1 /DATE OF PRONOUNCEMENT: 18-06-2013 4 / ORDER THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST T HE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX, (CENTRAL-I), KOLKATA PASSED U/S. 263 O F THE ACT IN M.NO. CIT(C-1)/263/MANOJ KR. JAIN & SONS/TECH/11-12/KOL/13569-71 DATED 30.03.2012 F OR THE ASSESSMENT YEAR 2007-08. 2. SHRI S.K. JENA, ACA, LEARNED AR REPRESENTED O N BEHALF OF THE ASSESSEE. AND SHRI AJAY KR. SINGH, LEARNED. CIT/SR.DR REPRESENTED ON BEHALF OF THE REVENUE. 3. THE ASSESSEE HAS FILED AN ADJOURNMENT LETTER, WH ICH HAS BEEN REJECTED BY THE BENCH AND THE APPEAL OF THE ASSESSEE IS BEING DISPOSED OF ON MERI TS. 4. IN THE ASSESSEES APPEAL, THE ASSESSEE HAS RAIS ED FOLLOWING GROUNDS OF APPEAL:- 1) THAT THE LD.CIT WAS WRONG IN EXERCISING HIS POWE R U/S 263 OF THE I. TAX ACT,1961 ON THE GROUND THAT INTEREST U/S 234A & 234 B HAS BEEN CHARGED WITHOUT PROPER APPLICATION OF LAW. SUCH WRONG CHARGING, EVE N IF ADMITTED, CANNOT BE CONSIDERED AS A GROUND TO HOLD THE ASSESSMENT AS E RRONEOUS AND PREJUDICIAL TO THE INTEREST OF REVENUE. IN THE CIRCUMSTANCES, THE ORDER U/S 263 OF THE I. TAX ACT61 SETTING ASIDE THE ASSESSMENT AS SUCH NEED BE QUASHED. 2) THAT THE LD.CIT WAS WRONG IN HOLDING THAT ON THE ASSESSMENT COMPLETED U/S 153C/143(3) THE PROVISIONS OF SEC.234A(1) AND NOT S EC.234A(3) IS APPLICABLE ON THE BASIS OF RETURN FILED U/S 153C. 567 /PER BENCH ITA NO. 633/KOL/2012-B-PB-GM 2 3) THAT THE LD.CIT WAS WRONG IN HOLDING THAT INTERE ST U/S 234B(1) HAS TO BE CHARGED ON THE BASIS OF TAX DETERMINED ON THE ASSES SMENT MADE U/S 153C/143(3) AND THAT THE PROVISIONS OF SEC.234B(3) IS NOT APPLI CABLE. 4) THAT THE ASSESSEE CRAVES LEAVE TO ADD, ALTER, AM END OR WITHDRAW ANY GROUND OR GROUNDS OF APPEAL BEFORE OR AT THE TIME OF HEARI NG. 5. THE LEARNED SR.DR WAS REQUESTED TO EXPLAIN A S TO HOW THE LD. CIT COULD INVOKE HIS POWER U/S. 263 OF THE ACT IN RESPECT OF RECOMPOSING OF INTEREST U/S. 234 A & 234B OF THE ACT SPECIFICALLY WHEN THE AO HAS CONSIDERED THE ISSUE AND HAS SPECIF ICALLY HELD THAT INTEREST WAS LIABLE TO BE CHARGED U/S. 234B. 6. IN REPLY, THE LEARNED CIT/SR.DR SUBMITTED THAT A S WRONG CHARGING OF INTEREST WAS MADE, THE ASSESSMENT ORDER WAS ERRONEOUS AND PREJUDICIAL TO T HE INTEREST OF THE REVENUE AND CONSEQUENTLY, THE LEARNED COMMISSIONER OF INCOME-TAX WAS EMPOWERED T O REVISE THIS ORDER BY INVOKING HIS POWER U/S. 263 OF THE ACT. 7. WE HAVE CONSIDERED THE SUBMISSION. A PERUSAL OF THE ASSESSMENT ORDER PASSED U/S. 143(3) CLEARLY SHOWS THAT THE ASSESSMENT WAS DONE U/S. 15 3C R.W.S 143(3) OF THE ACT. A PERUSAL OF THE ASSESSMENT ORDER ALSO CLEARLY SHOWS THAT THE ASSESS ING OFFICER HAS SPECIFICALLY HELD THAT INTEREST IS CHARGEABLE U/S. 234B. IT IS FURTHER NOTICED THAT THE ASSESSING OFFICER HAS CHARGED INTEREST U/S. 234 B OF THE ACT. A PERUSAL OF THE ORDER OF THE LEARNED COMMISSIONER OF INCOME-TAX PASSED U/S. 263 OF THE ACT SHOWS THAT THE LEARNED COMMISSIONER OF INCOME- TAX HAS INVOKED HIS POWER U/S. 263 OF THE ACT FOR THE PURPOSE OF RE-WORKING OF INTEREST U/S. 234A & 234B OF THE ACT. A PERUSAL OF THE PROVISIONS OF SECTION 263 OF THE ACT SHOWS THAT HE CAN INVOKE HIS POWERS IF HE CONSIDERS THAT ANY ORDER PASSED THEREIN BY THE ASSESSING OFFICER IS ERRONEOUS AND PREJUDICIAL TO THE INTEREST OF THE REVENUE. IN TH E ORDER PASSED U/S. 263 OF THE ACT THE LEARNED COMMI SSIONER OF INCOME-TAX HAS NOT POINTED OUT ANY ERROR IN THE ASSESSMENT ORDER. THE ONLY ERROR T HAT IS BEING POINTED OUT IN REGARD TO COMPUTATION OF INTEREST U/S. 234A & 234B OF THE ACT. THIS IF AT A LL, IS MATTER OF RECTIFICATION PROVIDED U/S. 154 OF THE ACT. WHAT IS POSSIBLE U/S. 154 OF THE ACT CANNO T BE USED AS A GUISE FOR THE PURPOSE OF INVOKING T HE POWERS OF REVISION. FURTHER, THE RE-WORKING OF INTE REST IN THE ORDER PASSED U/S. 263 OF THE ACT IS ONL Y ON ACCOUNT OF DIFFERENT VIEW TAKEN BY THE ASSESSI NG OFFICER IN THE COMPUTATION OF INTEREST U/S. 234A & 234B OF THE ACT IN THE ASSESSMENT ORDER. ON A DIF FERENT VIEW OF THE LEARNED COMMISSIONER OF INCOME-TAX FROM THAT OF THE ASSESSING OFFICER NO RE VISION U/S. 263 OF THE ACT IS PERMISSIBLE. IN SUCH ITA NO. 633/KOL/2012-B-PB-GM 3 CIRCUMSTANCES, WE ARE OF THE VIEW THAT THE ORDER PA SSED BY THE LEARNED COMMISSIONER OF INCOME-TAX U/S. 263 OF THE ACT IS UNSUSTAINABLE IN LAW AND CO NSEQUENTLY, THE SAME STANDS ANNULLED. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSES SEE IS ALLOWED AS STATED ABOVE. 8 4 . 6 . 9 8 THIS ORDER IS PRONOUNCED IN OPEN COURT ON 18-06-2 013 - SD/- SD/- *PP/SPS 4 0 *--: ;:3< / COPY OF THE ORDER FORWARDED TO: 1. . &) / THE APPELLANT : M/S. MANOJ KUMAR JAIN & SONS, 3 9 SHAKESPEARE SARANI, KOL-17. 2 *+&) / THE RESPONDENT- ACIT, CC-IV, PODDAR COURT, 18 R ABINDRA SARANI, KOL-1. 3 4. . -4 / THE CIT -4 ( )/ THE CIT(A) 5 . =-9 *- / DR, KOLKATA BENCH 6 . GUARD FILE . +: *-/ TRUE COPY, 4./ BY ORDER, 8 !' /ASSTT REGISTRAR ( . . , ) ( N.S.SAINI, ACCOUNTANT MEMBER) ( '#'$ 1 & , ) (GEORGE MATHAN, JUDICIAL MEMBER) ( (( ( 1 1 1 1 ) )) ) DATE 18-06-2013