ROCKLINE DEVELOPERS P. LTD, MUMBAI V. ITO 9(3)(4), MUMBAI

ITA 6595/MUM/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 4354 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-01-2016
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: A
• Next Hearing Date: 30-11-2015
• Assessment Year: 2011-2012
• Appeal Filed On: 31-10-2014
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: AMRITA RANJAN
• Section: 143(3); 234B; 80IB

Judgement Text

, INCOME TAX APPELLATE TRIBUNAL,MUMBAI- A BENCH , , BEFORE S/SH. JOGINDER SINGH,JUDICIA L MEMBER & RAJENDRA,ACCOUNTANT MEMBER /.ITA/6595/MUM/2014, /ASSESSMENT YEAR :2011-12 M/S. ROCKLINE DEVELOPERS PVT. LTD. 801, HUBTOWN SOLARIS, N.S. PHADKE MARG, OFF TELI GALI, ANDHERI (E) MUMBAI-400 069 PAN:AAACR 4467 P VS. INCOME TAX OFFICER-9(3)(4) MUMBAI. ( / APPELLANT) ( / RESPONDENT) /ASSESSEE BY :SHRI VIMAL PUNMIYA / REVENUE BY : MS. AMRITA RANJAN / DATE OF HEARING : 30-11- -2015 / DATE OF PRONOUNCEMENT : 01.01.2016 , 1961 1961 1961 1961 2 22 254 5454 54( (( (1 11 1) )) ) ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA, AM - CHALLENGING THE ORDER DT.2.9.14 OF CIT(A)-20,MUMBAI ,THE ASSESSEE HAS FILED THE PRESENT APPEAL. DURING THE COURSE OF HEARING BEFORE US,THE AUTHORIS ED REPRESENTATIVE(AR)STATED THAT GROUND A WAS ACADEMIC IN NATURE.HENCE,SAME IS NOT BEING ADJU DICATED. 2. ASSESSEE-COMPANY,ENGAGED IN THE BUSINESS OF BUILDER S AND DEVELOPERS, FILED ITS RETURN OF INCOME ON 28.09.2011DECLARING INCOME AT RS.NIL AFTE R CLAIMING DEDUCTION OF RS.51.98 CRORES U/S. 80IB OF THE ACT.THE ASSESSING OFFICER(AO)COMPLETED THE ASSESSMENT ON 31.3.2003, U/S. 143(3) OF THE ACT AND HELD THAT PROVISIONS OF SECTION115JB WERE ATTRACTED.HE ALSO CHARGED INTEREST U/S. 234A,234B AND 234COF THE ACT. 3 .AGGRIEVED BY THE ORDER OF THE AO, THE ASSESSEE PRE FERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA)AND CHALLENGED THE CHARGING OF INTERE ST U/S. 234 B AND C,AMOUNTING TO RS.2.72 CRORES AND 52.28 LACS RESPECTIVELY.BEFORE HIM,IT WA S ARGUED THAT UPTO 20011-12 THERE WAS NO REQUIREMENT FOR MAKING ADVANCE TAX PAYMENT AS PER T HE PROVISIONS OF 115JB. THE ASSESSEE RELIED UPON THE CASES OF KWALITY BISCUITS ( 284ITR434)SNOWCHEM(313 ITR 117)AND ROLTA INDIA(330 ITR470).IT ALSO REFERRED TO THE CASE OF CHARBHUJA I NDUSTRIES LTD.(ITA6901/M/12 DT.24.1.14.)IT WAS FURTHER ARGUED THAT DURING THE YEAR UNDER APPEA L THE JUDGMENT OF SC DELIVERED IN THE CASE OF KWALITY BISCUITS (SUPRA),WOULD PREVAIL. AFTER CONSIDERING THE SUBMISSIONS OF THE ASSESSEE,T HE FAA HELD THAT THERE WAS DEFAULT OF PAYMENT OF ADVANCE TAX AND DEFERMENT OF ADVANCE TAX ,THAT THE DECISION OF ROLTA INDIA(SUPRA) WOULD PREVAIL OVER THE EARLIER DECISION,THAT THE TR IBUNAL HAD DECIDED THE ISSUE IN FAVOUR OF THE ASSESSEE IN EARLIER YEAR BECAUSE THE JUDGMENT OF RO LTA INDIA (SUPRA)WAS PRONOUNCED ON 7.1.11, THAT THE ADVANCE TAX WAS TO BE PAID BEFORE MARCH 20 10, THAT THE ISSUE FOR THAT YEAR WAS DECIDE IN LIGHT OF THE DECISION OF KWALITY BISCUITS(SUPRA),TH AT IN THE CASE OF CHARBHUJA INDUSTRIES LTD. (SUPRA)THE AY. INVOLVED WAS 2008-09, THAT IN THAT M ATTER THE ASSESSEE WAS UNDER BONA FIDE BELIEF THAT ADVANCE TAX NOT PAYABLE IN RESPECT OF MAT U/S. 115JB,THAT DECISION IN THE CASE OF ROLTA, ITA/6595/MUM/2014,AY.2011-12 2 (SUPRA)WAS PRONOUNCED ON 07.01.11 AND SAME WAS RELE VANT FOR THE YEAR UNDER CONSIDERATION, THAT THE DECISION WAS RENDERED MUCH BEFORE FINAL DUE DAT E OF ADVANCE TAX I.E.15.03.2011,THAT THE ASSESSEE WAS UNDER LEGAL OBLIGATION TO DEPOSIT ADVA NCE TAX OF MAT BEFORE THE SAID DATE, THAT ASSESSEE COULD NOT ARGUE THAT IT WAS NOT AWARE OF T HE DECISION BEFORE 31.03.11 OR BEFORE FILING OF RETURN OF INCOME.HE FURTHER REFERRED TO THE JUDGMEN T OF HONBLE KARNATAKA HIGH COURT DELIVERED IN THE CASE OF JINDAL THERMAL (2006-TIOL-302-HC-KAR -IT) WHEREIN THE HONBLE COURT HAD DISTINGUISHED ITS OWN DECISION IN ITS CASE OF KWALI TY BISCUITS(SUPRA)AND HELD THAT SEC.15JB WAS A SELF CONTAINED CODE,THAT IT IMPOSED LIABILITY FOR P AYMENT OF ADVANCE TAX ON MAT-COMPANIES,THAT SUCH COMPANIES WERE LIABLE TO PAY INTEREST U/S.234B AND C IF THEY WERE GOVERNERD BY THE MAT PROVISIONS.FINALLY,HE UPHELD THE LEVY OF INTEREST U /S. 234B AND 234C OF THE ACT. 4 .BEFORE US,THE AR STATED THAT THE JUDGMENT OF HONB LE SUPREME COURT IN THE CASE OF ROLTA INDIA WAS DELIVERED IN THE MONTH OF JANUARY 2011,THAT THE DEFAULT IF ANY HAD TO BE CALCULATED FOR THE LAST INSTALLMENT ONLY, THAT UPTO DECEMBER THE ASSES SEE WAS UNDER THE BONAFIE AND VALID BELIEF THAT IT HAD NOT TO PAY THE ADVANCE-TAX AS THE INCOME WAS GOVERNED BY MAT PROVISIONS.THE DEPARTME -NTAL REPRESENTATIVE(DR)SUPPORTED THE ORDER OF THE AO AND RELIED UPON THE CASE OF SANKHLA POLYMERS(P)LTD.(INCOME TAX APPEAL NOS.1100 OF 2006 AND 33-34 OF 2013). 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL BEFORE US. WE FIND THAT THE LEVY OF INTEREST U/S. 234B AND 234C IN CASE OF COMPANIES GOVERNED BY MAT PROVISIONS WAS FINALLY SETTLED BY THE HONBLE APEX COURT ON 7.1.2011,THAT BEFORE THAT THE ASSESSEES WERE UNDER BONA - FIDE BELIEF THAT THEY HAD NOT TO PAY ADV TAX AS PER THE PROVISIONS OF SEC.207/208 OF THE ACT, THAT AFTER 07.1.2011 POSITION BECAME VERY CLEAR THAT THE ASSESSEES TO BE TAXED U/S.115 JB WOULD ALSO HAVE TO PAY ADVANCE TAX.CONSIDERING THE PECULIAR FA CTS AND CIRCUMSTANCES OF THE CASE,WE ARE OF THE OPINION THAT INTEREST SHOULD BE LEVIED FOR THE DEFAULT OF MARCH INSTALLMENT ONLY AND NOT FOR THE EARLIER THREE INSTALLMENTS.THE AO IS DIRECTED TO RE CALCULATE THE INTEREST ACCORDINGLY.GROUND B IS DECIDED IN FAVOUR OF THE ASSESSEE IN PART. AS A RESULT, APPE AL FILED BY THE ASSESSEE STANDS PARTLY ALLOWED. . ORDER PRONOUNCED IN THE OPEN COUR T ON 1 ST JANUARY, 2016. 01 , 2016 SD/- SD/- ( / JOGINDER SINGH) ( / RAJENDRA) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /MUMBAI, /DATE 01.01.2016 . . . .. . JV.SR.PS. / COPY OF THE ORDER FORWARDED TO : 1. APPELLANT / 2. RESPONDENT / ITA/6595/MUM/2014,AY.2011-12 3 3. THE CONCERNED CIT(A)/ , 4. THE CONCERNED CIT / 5. DR BENCH, ITAT, MUMBAI / , , . . . 6. GUARD FILE/ //TRUE COPY// / BY ORDER, / DY./ASST. REGISTRAR , /ITAT, MUMBAI.