M/s. Holi Shrine Hotels P.Ltd., Jammu V. Income Tax Officer, Jammu

ITA 66/ASR/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 5834 (ITAT-AMRITSAR)
• Duration Of Justice: 1 year(s) 4 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 09-06-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: SMC
• Assessment Year: 2000-2001
• Appeal Filed On: 05-02-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Assessee Lawyers: P N ARORA
• Keywords: Business income; Business expenditure; Question of law; Onus to prove; Reassessment proceedings
• Section: 153A; 234B; 147; 148; 6; 28; 10

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH ; AMRITSAR. BEFORE SH. H.L. KARWA, VICE PRESIDENT AND SH. MEHAR SINGH, ACCOUNTANT MEMBER I.T.A. NO. 66(ASR)/2010 ASSESSMENT YEAR : 2000-01 PAN : AAACH3988H M/S. HOLY SHRINE HOTELS PVT. LTD. VS. ASSTT. COMM R. OF INCOME TAX, JAMMU. RANGE 1(1), JAMMU. (APPELLANT) (RESPONDENT) ASSESSEE BY : SH. P.N. ARORA, ADVOCATE DEPARTMENT BY: SH. TARSEM LAL, DR ORDER PER MEHAR SINGH, AM THE PRESENT APPEAL FILED BY THE ASSESSEE IS DIRECT ED AGAINST THE ORDER OF THE CIT(A), JAMMU, DATED 14.12.2009, PASSED UNDE R SECTION 250(6) OF THE INCOME-TAX ACT, 1961 (HEREINAFTER REFERRED TO IN SH ORT THE ACT), FOR THE ASSESSMENT YEAR 2000-01, WHERE THE ASSESSEE HAS RAI SED FOLLOWING GROUNDS OF APPEAL: 1. THAT THE LD. CIT(APPEALS) WAS NOT JUSTIFIED IN TREATING RS.5,56,236/- AS RENTAL INCOME INSTEAD OF BUSINESS INCOME. 2. THAT THE LD. CIT(A) WAS ALSO NOT JUSTIFIED IN NO T ALLOWING SET OFF OF BUSINESS EXPENSES OF COMPANY AGAINST RENTAL INCOME. 3. THAT THE LD. CIT(A) ERRED IN LAW IN CONFIRMING T HE INTEREST CHARGED UNDER SECTION 234(B) OF THE INCOME-TAX ACT. 2. THE FIRST ISSUE RAISED BY THE ASSESSEE, IN THIS APPEAL, PERTAINS TO TREATING THE RECEIPT OF RS.5,56,236/- AS INCOME FRO M HOUSE PROPERTY INSTEAD 2 OF INCOME FROM BUSINESS AND PROFIT. THE SECOND GROU ND OF APPEAL IS INTER- CONNECTED TO THE FIRST GROUND OF APPEAL AS ALSO C ONSEQUENTIAL TO THE DETERMINATION OF HEAD OF INCOME, AS CONTEMPLATED UN DER SECTION 14 OF THE ACT, UNDER WHICH THE IMPUGNED RECEIPT FALLS. 3. THE BRIEF AND NEAT FACTS OF THE CASE AS CULLED O UT FROM THE RECORD ARE THAT THE ASSESSEE HAS GIVEN ITS BUILDING ON RENTAL BASIS, TO VARIOUS GOVT. OFFICES. HOWEVER, SUCH RECEIPT HAS BEEN SHOWN BY TH E ASSESSEE AS INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFESSION UNDER SECTION 28 OF THE ACT. DURING THE ASSESSMENT PROCEEDINGS, THE ASSESSE E WAS AFFORDED REASONABLE AND PROPER OPPORTUNITY, TO PRESENT AND S UBSTANTIATE ITS CLAIM OF TREATING SUCH RECEIPTS FROM THE USE OF SPACE OF TH E BUILDING, AS INCOME FROM PROFITS AND GAINS OF BUSINESS OR PROFESSION U/S 2 8 OF THE ACT. BEFORE THE AO, IT WAS SUBMITTED THAT THE ASSESSEE WAS DENIED BAR LICENCE AND HENCE, THE SAID PROPERTY COULD NOT BE USED FOR THE PURPOSE OF HOTEL BUSINESS. THE AO GAVE A FINDING THAT THE HOTEL BUILDING WAS NOT U SED FOR THE PURPOSE OF HOTEL BUSINESS. HOWEVER, THE ROOMS WERE GIVEN ON RE NT, TO VARIOUS PARTIES. THE SAID BUILDING WAS USED BY THE ASSESSEE ONLY FOR LETTING OUT THE ROOMS, TO VARIOUS PARTIES, ON RENTAL BASIS. AFTER APPRECIATIO N OF THE FACTUAL MATRIX OF THE CASE AND PLACING RELIANCE ON VARIOUS DECISIONS, THE AO HELD THAT THE IMPUGNED RECEIPT FROM LETTING OUT OF THE VARIOUS R OOMS OF THE HOTEL CONSTITUTES INCOME FROM HOUSE PROPERTY UNDER SECTIO N 22 OF THE ACT. CONSEQUENTLY, THE AO ALSO DISALLOWED EXPENSES CLAI MED BY THE ASSESSEE, TREATING THE SAID INCOME AS INCOME FROM BUSINESS A ND PROFIT . THE AO HAS ALLOWED DEDUCTION, AS CONTEMPLATED UNDER SECTION 2 4 OF THE ACT. THE LD. CIT(A), CONFIRMED THE FINDING OF THE A.O. AND HELD THAT THE IMPUGNED RECEIPT IS TO BE ASSESSED UNDER SECTION 22 OF THE A CT, AS INCOME FROM HOUSE PROPERTY AND STATUTORY DEDUCTION AS ADMISSIBLE UN DER SECTION 24 OF THE ACT, 3 ARE TO BE ALLOWED. AGGRIEVED WITH THE ORDER OF THE CIT(A), THE ASSESS EE IS NOW IN APPEAL BEFORE THIS BENCH. 4. BEFORE US, THE LD. COUNSEL FOR THE ASSESSEE, SH. P.N. ARORA, PLEADED THAT THE ASSESSEE WAS DENIED BAR LICENCE WHICH LED TO GIVING ROOMS OF THE HOTEL ON RENTAL BASIS, WITH A VIEW TO EARNING PROFI T.IT WAS STATED THAT THE IT WAS THE FIRST YEAR OF COMMENCEMENT OF ACTIVITIES. 5. THE LD. DR, ON THE OTHER HAND, PLACED RELIANCE ON THE ORDERS OF THE LOWER AUTHORITIES. 6. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE, SUBMISSIONS MADE BY THE RIVAL PARTIES AND THE RELEVANT STATUTORY PROVIS IONS OF THE ACT. IN THE CONTEXT OF ISSUE RAISED IN GROUND NO.1, IT IS ESSE NTIAL TO APPRECIATE THE STATUTORY CHARACTER AND SIGNIFICANCE OF THE PROVISI ONS OF SECTION 14 OF THE ACT. THE HEADS OF INCOME, UNDER SECTION 14 OF THE A CT ARE MANDATORY IN NATURE. SIMILARLY, HEADS OF INCOME ARE MUTUALLY EX CLUSIVE AND DISTINCT. IT IS MANDATORY THAT INCOME FALLING UNDER ONE SPECIFIC CA NNOT BE TAXED UNDER ANOTHER HEAD. HEADS OF INCOME CANNOT BE CHOSEN AT T HE OPTION OF THE ASSESSEE AS PER HIS CONVENIENCE. IT IS IMPERATIVE ON THE PART OF THE REVENUE TO CHARGE THE INCOME UNDER THE SPECIFIC HEAD, UNDER WHICH IT FALLS, SINCE THE LAW LEAVES NO OPTION IN THE MATTER. 6.1. IN THIS CASE, IT IS AN UNDISPUTED FACT THAT TH E ROOMS OF THE HOTEL WERE GIVEN ON RENTAL BASIS, TO VARIOUS PARTIES. IT IS A LSO AN UNDISPUTED FACT THAT NO HOTEL BUSINESS WAS CARRIED ON BY THE ASSESSEE, DURI NG THE YEAR UNDER CONSIDERATION. THEREFORE, IN CONSONANCE WITH THE TR UE LEGISLATIVE INTENT AS CONTAINED UNDER SECTION 22 OF THE ACT, THE IMPUGNED INCOME/RECEIPT OF THE ASSESSEE IS TAXABLE AS INCOME FROM HOUSE PROPERTY . IT IS PERTINENT TO REPRODUCE THE PROVISIONS OF SECTION 22 OF THE ACT, FOR THE PURPOSE OF PROPER APPRECIATION OF THE SAME. 4 SECTION 22. INCOME FROM HOUSE PROPERTY THE ANNUAL VALUE OF PROPERTY CONSISTING OF ANY BUIL DINGS OR LANDS APPURTENANT THERETO OF WHICH THE ASSESSEE IS THE OWNER, OTHER THAN SUCH PORTIONS OF SUCH PROPERTY AS HE MAY OCCUP Y FOR THE PURPOSES OF ANY BUSINESS OR PROFESSION CARRIED ON BY HIM THE PROFITS OF WHICH ARE CHARGEABLE TO INCOME-TAX, SHALL BE CHARGEABLE T O INCOME TAX UNDER THE HEAD INCOME FROM HOUSE PROPERTY. 6.2 A PERUSAL OF THE PAPER BOOK OF THE ASSESSEE RE VEALED THAT THE ASSESSEE PLACED RELIANCE ON THE FOLLOWING CASE LAWS: I) DECISION OF ITAT, CALCUTTA A BENCH, IN THE CASE OF PFH MALL & RETAIL MANAGEMENT LTD. VS. ITO, 110 ITD 337 II) DECISION OF GUJARAT HIGH COURT, IN THE CASE OF ACIT VS. SAPTARSHI SERVICES LTD. (2004) 265 ITR379 III) DECISION OF ANDHRA PRADESH HIGH COURT IN THE CASE O F CIT VS. K. RAMAIAH K. RAMAKRISHNA MURTHY & ORS. (1986) 159 ITR 929 (AP). IV) DECISION OF HONBLE SUPREME COURT IN THE CASE OF SU LTAN BROTHERS (P) LTD. VS. CIT (1964) 51 ITR 353 (SC). 6.3. WE HAVE CAREFULLY PERUSED ANDCONSIDERED THE CASE LAWS RELIED UPON BY THE ASSESSEE AND FOUND THAT THE FACTS OF THESE C ASES ARE FACTUALLY DIFFERENT AND DISTINGUISHABLE, HENCE, THE SAME ARE NOT APPLIC ABLE TO THE FACTS OF THE PRESENT CASE. 7. THE GENERAL RULE IS THAT ONUS OF PROOF IS ALWAYS ON THE PARTY WHO ASSETS A PROPOSITION OR FACT WHICH IS NOT SELF-EVID ENT. THE BURDEN OF PROOF HAS TWO SHADES OF MEANING. IN ITS PRIMARY SENSE, IT MEANS, THE BURDEN OF ESTABLISHING THE CASE. THE SECOND MEANING OF BURDE N OF PROOF IS ON THE PRINCIPLE OF EVIDENCE. IN THE SECOND SENSE, THE BUR DEN WOULD BE SHIFTED FROM ONE PARTY TO THE OTHER AS AND WHEN ADEQUATE EVIDENC E TO DISCHARGE THE BURDEN THAT LAY ON A PARTY, IS BEING PRODUCED BY TH AT PARTY. IN THE INSTANT 5 CASE, THE ASSESSEE HAS FAILED TO DISCHARGE THE BURD EN OF PROOF TO ESTABLISH HIS CASE, HAVING REGARD TO THE FACT-SITUATION OF THE CA SE. 7.1. FURTHER, WHERE THERE IS A LETTING OUT OF THE P REMISES AND COLLECTION OF RENT, THE INCOME IS TO BE ASSESSED AS PROPERTY I NCOME. IN THE PRESENT CASE, IT IS AN ADMITTED FACT THAT THE IMPUGNED BUILDING HAS BEEN GIVEN ON RENTAL BASIS. THEREFORE, THE SAID RENTAL INCOME CAN ONLY BE ASSESSED UNDER THE HEAD INCOME FROM HOUSE PROPERTY AND NOT UNDER PROFIT S AND GAINS OF BUSINESS OR PROFESSION. THEREFORE, RELYING ON THE UNDISPUTE D AND ADMITTED FACT OF THE CASE AND THE PROVISION OF SECTION 22 OF THE ACT, TH E IMPUGNED INCOME OF THE ASSESSEE CLEARLY FALLS UNDER THE HEAD INCOME FROM HOUSE PROPERTY UNDER SECTION 22 OF THE ACT. IT IS PERTINENT TO ADD THAT THE CONCLUSION IN THIS CASE IS BASED PURELY ON THE INTERPRETATION OF THE PROVISION S OF SECTION 22 OF THE ACT AND FACTUAL MATRIX OF THE CASE. 7.2 IN VIEW OF THE ABOVE DISCUSSIONS, IT IS OBVIOUS THAT THE RECEIPT INCOME FROM THE USE OF SPACE OF VARIOUS HOTEL ROOMS, PROVI DED BY THE ASSESSEE, TO VARIOUS PARTIES, ON RENTAL BASIS SQUARELY FALLS UND ER THE HEAD INCOME FROM HOUSE PROPERTY UNDER SECTION 22 OF THE ACT. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSIONS, WE DO NOT FIND ANY INFIRMITY IN THE FINDINGS CONTAINED IN THE ORDER OF THE LD. CIT(A), AND, HENCE, THE S AME ARE CONFIRMED. 7.3. HOWEVER, FOR THE SAKE OF MERE CLARITY ON THE SUBJECT, WE CONSIDER IT PROPER TO REPRODUCE THE RELEVANT AND OPERATIVE PAR T OF THE DECISION OF THE HONBLE SUPREME COURT, IN THE CASE OF SHAMBHU INVE STMENT P. LTD. VS. CIT, 263 ITR 143 (SC), AS UNDER: INCOME FROM HOUSE PROPERTY OR BUSINESS INCOME ASSESSEE LETTING OUT PORTION OF PREMISES WITH FURNITURE AND FIXTURES AND PROVIDING SERVICES TO OCCUPANTS MONTHLY RENT INCLUSIVE OF C HARGES SECURITY 6 ADVANCE COVERING ENTIRE COST OF PROPERTY RECEIVED F ROM OCCUPANTS INCOME ASSESSABLE AS INCOME FROM PROPERTY INCOME TAX ACT. THE ASSESSEE OWNED AN IMMOVABLE PROPERTY COSTING RS .5,42,443/-. IT OCCUPIED A PORTION OF THE PROPERTY AND LET OUT THE REST TO BE USED AS TABLE SPACE TO OCCUPANTS, WITH FURNITURE AND FIXTU RES AND LIGHTS AND AIR-CONDITIONS. THE ASSESSEE PROVIDED SERVICES LIKE WATCH AND WARD STAFF, ELECTRICITY AND WATER AND OTHER COMMON AMEN ITIES. THE MONTHLY RENT PAYABLE WAS INCLUSIVE OF ALL CHARGES. THE ASSE SSEE HAD ALSO RECOVERED BY WAY OF SECURITY FROM THE OCCUPANTS A S UM OF RS.4,25,000. THE HIGH COURT HELD THAT THE INCOME FR OM THE PROPERTY WAS ASSESSABLE IN THE HANDS OF ASSESSEE AS INCOME F ROM HOUSE PROPERTY [ (20001) 249 ITR 47 (CAL)]. THE ASSESSEE PREFERRED APPEALS TO THE SUPREME COURT. THE SUPREME COURT DISMISSED THE APPEALS HOLDING THAT THERE WAS NO REASON TO INTERFERE WITH THE CONCLUSION ARRIVED AT BY THE HIGH COURT. 7.4. THE RATIO OF THE DECISION OF THE HONBLE SUPRE ME COURT, IS BINDING ON ALL COURTS AND TRIBUNAL IN THE COUNTRY, IN VIEW OF ARTICLE 141 OF THE CONSTITUTION. 8. IN THE SECOND GROUND OF APPEAL, THE ASSESSEE CON TENDED THAT THE CIT(A), WAS NOT JUSTIFIED IN ALLOWING SET OFF OF BU SINESS EXPENSES OF COMPANY AGAINST RENTAL INCOME. 9. IN VIEW OF OUR CATEGORICAL FINDINGS, IN GROUND N O.1, THAT THE IMPUGNED INCOME IS TO BE ASSESSED UNDER THE HEAD I NCOME FROM HOUSE PROPERTY, AS CONTEMPLATED UNDER SECTION 22 OF THE ACT, THE EXPENSES CLAIMED BY THE ASSESSEE IN TERMS OF GROUND NO. 2 FALLS BEY OND THE PURVIEW OF SECTION 24 OF THE ACT. THE EXPENSES CAN BE CLAIMED IN CASE THE INCOME IS ASSESSED UNDER SECTION 28 OF THE ACT. THE ADMISSIBLE EXPENSE S UNDER SECTION 24 HAVE ALREADY BEEN CONSIDERED, IN RESPECT OF INCOME FROM HOUSE PROPERTY. CONSEQUENTLY, GROUND NO.2 WHEREBY THE ASSESSEE HAS CLAIMED CERTAIN 7 EXPENSES PERTAINING TO BUSINESS INCOME, WHICH ARE N OT ADMISSIBLE, ARE DISALLOWED. THUS, THIS GROUND OF APPEAL IS DISMISS ED. 10. IN THE NEXT GROUND OF APPEAL, THE ASSESSEE CONT ENDED THAT THE LD. CIT(A), ERRED IN CONFIRMING THE INTEREST CHARGED U/ S 234B OF THE ACT. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, THE LD. CO UNSEL FOR THE ASSESSEE CONTENDED THAT NO REASONABLE OPPORTUNITY OF BEING H EARD WAS ALLOWED TO THE ASSESSEE BEFORE CHARGING INTEREST UNDER SECTION 234 B OF THE ACT. HE, FURTHER, STATED THAT IN THIS CASE RETURNED INCOME WAS ACCEPT ED AT RS.1,68,250/- AND WHILE PASSING THE ORDER U/S 234B INTEREST WAS CHARG ED AT RS.1602/-. HE, FURTHER, SUBMITTED THAT DURING THE COURSE OF REASSE SSMENT PROCEEDINGS THE INTEREST WAS CHARGED AT RS.81205/- U/S 234B OF THE ACT. THE LD. COUNSEL ALSO MADE A SUBMISSION THAT THE INTEREST CAN BE CHA RGED UPTO THE DATE OF PASSING THE ORDER OR UPTO THE DATE OF REGULAR ASSES SMENT AND NOT WHILE PASSING THE REASSESSMENT ORDER UNDER SECTION 148 OF THE ACT. THUS, FURTHER, INTEREST U/S 234B CANNOT BE CHARGED. THIS VIEW FIN DS SUPPORT FROM THE DECISION OF THE ITAT MUMBAI BENCH IN THE CASE OF DA TAMATICS LTD. VS. ACIT, REPORTED IN (2007) 299 ITR (AT) 286, WHEREIN IT WAS HELD AS UNDER: INTEREST UNDER SECTION 234B CHARGEABILITY ENHAN CEMENT OF TAX ON REASSESSMENT IF THE ASSESSEE TAKES DUE DILIGENCE AND CARE AND MAKES PAYMENT OF TAX AND IT IS ACCEPTED BY THE REVENUE, S UCH AN ASSESSEE CANNOT BE HELD AS A DEFAULTER ONLY BECAUSE SUBSEQUE NTLY INCOME IS ENHANCED WHERE ASSESSMENT HAS ALREADY BEEN COMPLETE D AND REFUND HAS BEEN MADE, INTEREST CANNOT BE CHARGED FOR THE F IRST TIME IN REASSESSMENT MADE SUBSEQUENTLY UNDER SECTION 147 OR 153A, IF THE ASSESSEE COULD NOT HAVE ANTICIPATED THE ENHANCEMENT OF INCOME BY TAKING DUE CARE AND DILIGENCE- ASSESSEE RECEIVED RE FUND AS A RESULT OF PROCESSING OF RETURN UNDER SECTION S. 143(1)(A) S UBSEQUENTLY, TAX WAS ENHANCED AS A RESULT OF REASSESSMENT UNDER S. 1 43(3) R/W S. 147 INTEREST U/S 234B COULD NOT BE CHARGED. THIS VIEW FURTHER FINDS SUPPORT FROM THE FOLLOWING JUDGMENTS: 8 (I) DECISION OF SUPREME COURT OF INDIA IN THE CASE OF M ODI INDUSTRIES LT. VS. CIT REPORTED IN (1995) 216 ITR 7 59 (SC) . (II) DECISION OF PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. INDERJEET BEDI REPORTED IN (2002) 257 ITR 671 ( P&H). THE RELEVANT PORTION OF THE JUDGMENT IS REPRODUCED HERE UNDER: HELD, THAT, IN THE INSTANT CASE, THE ASSESSMENT MAD E U/S 147 OF THE ACT ON NOVEMBER 30,1990, WAS NOT THE FIR ST OR THE INITIAL ASSESSMENT. THE INITIAL ASSESSMENT HAD BEEN FRAMED U/S 143(1) OF THE ACT ON FEBRUARY 27, 1986. THE REASSESSMENT FRAMED ON NOVEMBER 30, 1990, UNDER SECTION 147 OF THE ACT COULD NOT BE REGARDED AS REG ULAR ASSESSMENT. THE INCOME TAX APPELLATE TRIBUNAL WAS RIGHT IN LAW IN CANCELING INTEREST CHARGED UNDER SE CTION 139(8) AND 217 . NO QUESTION OF LAW AROSE FROM ITS ORDER. 10.1 IN VIEW OF THE ABOVE, HE SUBMITTED THAT THERE WAS NO JUSTIFICATION BY THE AO IN CHARGING INTEREST U/S 234B OF THE ACT DUR ING THE COURSE OF REASSESSMENT PROCEEDINGS. THE INTEREST CHARGED WHIL E COMPLETING THE ASSESSMENT U/S 143(1)(A) CANNOT BE ENHANCED BY THE AO UNDER REASSESSMENT PROCEEDINGS. SIMILARLY, THE LD. CIT(A) WAS ALSO NOT JUSTIFIED IN CONFIRMING THE SAME. ACCORDINGLY, HE CONTENDED THAT THERE WAS NO JUSTIFICATION FOR CHARGING FURTHER INTEREST U/S 234B OF THE ACT AND T HE SAME MAY KINDLY BE CANCELLED. 10.2. IN THE COURSE OF APPELLATE PROCEEDINGS, BOTH THE LD. COUNSEL FOR THE ASSESSEE AND THE LD. DR, WERE FAIR ENOUGH TO SUG GEST THAT THE ISSUE, IN QUESTION, MAY BE RESTORED TO THE FILE OF THE ASSESS ING OFFICER FOR FRESH ADJUDICATION. 11. WE HAVE CAREFULLY PERUSED THE FACTS OF THE CASE , RIVAL SUBMISSIONS OF BOTH THE PARTIES AND THE IMPUGNED ORDERS OF THE AU THORITIES BELOW. WE HAVE 9 CAREFULLY GIVEN OUR THOUGHTFUL CONSIDERATION TO THE JUDGMENTS RELIED UPON BY THE LD. COUNSEL FOR THE ASSESSEE. IT IS OBVIOUS THA T CHARGING OF INTEREST UNDER SECTION 234B IS MANDATORY IN NATURE. 11.1 IN THIS CONTEXT, IT IS ALSO PERTINENT TO REPRODUCE THE RELEVANT PROVISIONS OF SECTION 234B OF THE ACT FOR THE PURPOSE OF PROPE R APPRECIATION OF THE SAME.: [ INTEREST FOR DEFAULTS IN PAYMENT OF ADVANCE TAX. 234B. (1) SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION , WHERE, IN ANY FINANCIAL YEAR, AN ASSESSEE WHO IS LIABLE TO PAY AD VANCE TAX UNDER SECTION 208 HAS FAILED TO PAY SUCH TAX OR, WHERE THE ADVANCE T AX PAID BY SUCH ASSESSEE UNDER THE PROVISIONS OF SECTION 210 IS LESS THAN NINETY PER CENT OF THE ASSESSED TAX, THE ASSESSEE S HALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF [ONE] PER CENT FOR E VERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FROM THE 1ST DAY OF APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR [TO THE DATE OF DETER MINATION OF TOTAL INCOME UNDER SUB-SECTION (1) OF SECTION 143 [AND WHERE A REGULAR ASSESSMENT IS MADE, TO THE DATE OF SUCH REGULAR ASS ESSMENT, ON AN AMOUNT]] EQUAL TO THE ASSESSED TAX OR, AS THE CASE MAY BE, ON THE AMOUNT BY WHICH THE ADVANCE TAX PAID AS AFORESAID F ALLS SHORT OF THE ASSESSED TAX. [EXPLANATION 1.IN THIS SECTION, ASSESSED TAX MEA NS THE TAX ON THE TOTAL INCOME DETERMINED UNDER SUB-SECTION (1) OF SECTION 143 AND WHERE A REGULAR ASSESSMENT IS MADE, THE TAX ON THE TOTAL INCOME DETERMINED UNDER SUCH REGULAR ASSESSMENT AS REDUCED BY THE AMOUNT OF, EXPLANATION 2.WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 [OR SECTION 153A ], THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE P URPOSES OF THIS SECTION. 11.2 A BARE PERUSAL OF THE PROVISION OF SECTION 23 4B (1) READ WITH EXPLANATION (2) THERETO, CLEARLY REVEALS THAT ASSES SMENT MADE FOR THE FIRST TIME UNDER SECTION 147 OF THE ACT, SHALL BE REGARDE D AS A REGULAR ASSESSMENT FOR THE PURPOSES OF THIS SECTION. 10 11.3 IN THE LIGHT OF THE ABOVE DISCUSSIONS, WE REST ORE THE ISSUE TO THE FILE OF THE A.O., FOR THE PURPOSE OF ADJUDICATING THE ISSUE IN DISPUTE, AFRESH, IN THE LIGHT OF FACTUAL MATRIX OF THE CASE AND IN TERMS OF PROVISIONS OF SECTION 234B(1) AND EXPLANATION (2) THEREUNDER, AFTER AFFOR DING REASONABLE OPPORTUNITY TO THE ASSESSEE. 12. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS PARTLY ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 7TH JUNE, 2011. SD/- SD/- (H.L. KARWA) (MEHAR SINGH) VICE PRESIDENT ACCOUNTANT MEMBER DATED: 7TH JUNE, 2011 /SKR/ COPY OF THE ORDER IS FORWARDED TO : 1. THE ASSESSEE: M/S. HOLY SHRINE HOTELS PVT. LTD. JAM MU. 2. THE ACIT RANGE 1(1), JAMMU. 3. THE CIT(A), 4. THE CIT, 5. THE SR DR TRUE COPY BY ORDER (ASSISTANT REGISTRAR) INCOME TAX APPELLATE TRIBUNAL AMRITSAR BENCH : AMRITSAR.