M/s. Central Warehousing Corporation, New Delhi V. ACIT (OSD), New Delhi

ITA 635/DEL/2012

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 61609 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-04-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: B
• Assessment Year: 2002-2003
• Appeal Filed On: 07-02-2012
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: SURENDER PAL
• Assessee Lawyers: PROF S SAMPATH
• Keywords: Retrospective amendment
• Section: 234B; 14A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : B : NEW DELHI BEFORE SHRI G.D. AGRAWAL, VICE PRESIDENT AND SHRI I.P. BANSAL, JUDICIAL MEMBER ITA NO.635/DEL/2012 ASSESSMENT YEAR : 2002-03 CENTRAL WAREHOUSING CORPORATION, WAREHOUSING BHAWAN, 4/1, SIRI INSTITUTIONAL AREA, AUGUST KRANTI BHAWAN, HAUZ KHAS, NEW DELHI. PAN : AAACC1206D VS. ACIT (OSD), CIT-I, CR BUILDING, IP ESTATE, NEW DELHI. (APPELLANT) (RESPONDENT) ASSESSEE BY : PROF. S. SAMPATH, CA REVENUE BY : SHRI SURENDER PAL, SR. DR ORDER PER I.P. BANSAL, JUDICIAL MEMBER THIS IS AN APPEAL FILED BY THE ASSESSEE. IT IS DIRECTED A GAINST THE ORDER PASSED BY THE CIT (A) DATED 7 TH DECEMBER, 2011 FOR ASSESSMENT YEAR 2002-03. 2. AT THE OUTSET, IT WAS POINTED OUT BY THE LEARNED A R THAT ONLY ONE ISSUE IS RAISED IN THE PRESENT APPEAL WHICH IS REGARDING DISALLOWANCE MADE U/S 14A READ WITH RULE 8D OF IT RULES, 1962. TH E ASSESSING OFFICER HAS MADE DISALLOWANCE U/S 14A WITH REFERENCE T O RULE 8D OF ` 28,20,693/- AND LEARNED CIT (A) HAS UPHELD THE DISAL LOWANCE MADE BY THE ASSESSING OFFICER. IT IS THE SUBMISSION OR THE LEARNED AR THAT THE MATTER SHOULD BE RESTORED BACK TO THE FILE OF ASSESSING O FFICER WITH A ITA NO.635/DEL/2012 2 DIRECTION TO RE-DETERMINE THE DISALLOWANCE AS PER THE DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MAXOPP INVEST MENT LIMITED VS. CIT 247 CTR 162 (DEL). HE SUBMITTED THAT ADMITTEDLY RULE 8D HAS BEEN HELD TO HAVE NO RETROSPECTIVE EFFECT, HENCE, WI LL NOT BE APPLICABLE FOR THE ASSESSMENT YEAR UNDER CONSIDERATION. 3. ON THE OTHER HAND, THE LEARNED DR RELIED UPON TH E ORDER OF ASSESSING OFFICER AND CIT (A). 4. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIONS IN THE LIGHT OF THE MATERIAL PLACED BEFORE US. WE FIND THAT THERE I S A FORCE IN THE CLAIM OF THE LEARNED AR THAT RULE 8D IS NOT APPLICAB LE TO THE IMPUGNED ASSESSMENT YEAR, HENCE, THE MATTER HAS TO BE RECONSIDERED IN THE LIGHT OF THE AFOREMENTIONED DECISION OF HONBLE DELHI HIGH COURT IN THE CASE OF MAXOPP INVESTMENT LIMITED VS. CIT (SUPRA) AS THE SAID DECISION OF HONBLE DELHI HIGH COURT WAS NOT AVAILABLE WHEN LEAR NED CIT (A) HAS DECIDED THE ISSUE. WE, THEREFORE, RESTORE THIS ISSUE TO THE FILE OF ASSESSING OFFICER FOR RE-DETERMINATION OF THE DISALLOWAN CE U/S 14A. WE DIRECT ACCORDINGLY. THIS ISSUE OF DISALLOWANCE U/S 14A IS CONSIDERED TO BE ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORE SAID. 5. THOUGH THE LEARNED AR HAS NOT RAISED ANY ARGUMENT IN RESPECT OF GROUND NOS.7 AND 8 WHICH RELATE TO LEVIABILITY OR OT HERWISE OF INTEREST U/S 234B IN RESPECT OF ASSESSMENT MADE UNDER THE PROVISION S OF SECTION 115JB, THESE GROUNDS ARE REPRODUCED BELOW:- 7. IT IS CONTENDED THAT INTEREST OF SECTION 234B IS NOT CHARGEABLE WHEN THE APPELLANT IS SUBJECTED TO MAT UNDER SECTION 115JB AS DECIDED BY THE HONBLE SUPREME COURT KWALITY BISCUITS LTD. 8. IT IS CONTENDED THAT CIT (APPEALS) HAD ERRED IN COMI NG TO THE CONCLUSION THAT CHARGE OF INTEREST IS MANDATORY AND CONSEQUENTIAL IN NATURE. ITA NO.635/DEL/2012 3 6. WE FIND THAT THIS ISSUE IS NOW COVERED BY THE DECISIO N OF HONBLE SUPREME COURT IN THE CASE OF JCIT VS. ROLTA INDIA LTD . 330 ITR 470 (SC) WHEREIN IT HAS BEEN HELD THAT INTEREST U/S 234B AND 23 4C SHALL BE PAYABLE FOR FAILURE TO PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE U/S 115JA/115JB. THEREFORE, WE HOLD THAT LEARNED CIT ( A) HAS RIGHTLY DECIDED THAT INTEREST IS LEVIABLE U/S 234B IN RESPECT O F INCOME COMPUTED U/S 115JB. HOWEVER, LD. ASSESSING OFFICER IS DI RECTED TO RE- COMPUTE THAT INTEREST ON THE INCOME WHICH REMAINS FIN ALLY ASSESSABLE AFTER GIVING EFFECT TO THIS ORDER. WE DIRECT ACCORD INGLY. 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PAR TLY ALLOWED FOR STATISTICAL PURPOSES IN THE MANNER AFORESAID. THE ORDER PRONOUNCED IN THE OPEN COURT ON 13.04.20 12. SD/- SD/- [G.D. AGRAWAL] [I.P. BANSAL] VICE PRESIDENT JUDICIAL MEMBER DATED, 13.04.2012. DK COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT DEPUTY REGISTRAR, ITAT, DELHI BENCHES