DCIT, Central Circle- 25, New Delhi V. Avtar Singh Kochar , Delhi

ITA 7224/DEL/2017

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 1194 (ITAT-DELHI)
• Duration Of Justice: 3 year(s) 7 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-07-2021
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 04-12-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SATPAL GULATI
• Keywords: Rectification of order; TDS
• Section: 143(3); 234B; 143(1); 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH A NEW DLEHI BEFORE SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER AND SHRI K. NARASIMHA CHARY, JUDICIAL MEMBER ITA NO. 7224/DEL/2017 ASSESSMENT YEAR: 2011-12 DCIT, CENTRAL CIRCLE-25, VS. AVTAR SINGH KOCHAR, NEW DELHI. 751, B-VI, BHIWANI STAND, ROHTAK. PAN : AEOPK4447F (APPELLANT) (RESPONDENT) APPELLANT BY : SH. SATPAL GULATI, CIT/DR RESPONDENT BY: NONE DATE OF HEARING: 05/07/2021 DATE OF ORDER : 08/07/2021 ORDER PER K. NARASIMHA CHARY, J.M. AGGRIEVED BY THE ORDER DATED 11/09/2017 PASSED BY T HE LEARNED COMMISSIONER OF INCOME TAX (APPEALS)-29, NEW DELHI ('LD. CIT(A)') IN THE CASE OF AVTAR SINGH KOCHAR (THE ASSESSEE) FOR THE ASSESSMENT YEAR 2011-12, THE REVENUE FILED THIS APPEAL. 2. BRIEF FACTS OF THE CASE NECESSARY FOR DISPOSAL O F THIS APPEAL ARE THAT THE ASSESSEE IS AN INDIVIDUAL AND DERIVES INCOME FR OM SALARY, HOUSE PROPERTY, BUSINESS AND OTHER SOURCES. FOR ASSESSMEN T YEAR 2011-12, ASSESSEE FILED HIS RETURN OF INCOME ON 20.09.2012 S HOWING AN INCOME OF 2 RS.20,18,25,050/-. ASSESSMENT WAS ALSO CONCLUDED AT SUCH INCOME BY ORDER DATED 25.03.2013 U/S. 143(3) OF THE INCOME-TA X ACT (FOR SHORT THE ACT). THEREAFTER, ASSESSING OFFICER ISSUED NOTICE U/S. 154 OF THE ACT STATING THAT THE TOTAL TAX COMPUTED ERRONEOUSLY BY SHOWING THE TAX ALREADY CHARGED U/S. 143(1) AT RS.6,22,13,560/- INS TEAD OF GIVING TOTAL CREDIT OF RS.76,35,174/- IN THE GARB OF TDS AND OTH ER PAYMENTS AND THEREBY INTEREST U/S. 234A, 234B AND 234C COULD NOT BE CHARGED. ON THIS PREMISE, ASSESSING OFFICER, HOLDING THAT SINCE CRED IT OF WRONG AMOUNT OF TAX WAS GIVEN IN ITNS 150 DATED 25.03.2013 AND INTE REST U/S. 234A, 234B AND 234C OF THE ACT COULD NOT BE CHARGED, PASSED AN ORDER CHARGING INTEREST U/S. 234A, 234B, 234C AND 220(2) OF THE AC T. 3. WHEN THE ASSESSEE PREFERRED APPEAL, THE CIT(A) D ELETED THE SAME HOLDING THAT SINCE THE ASSESSING OFFICER PASSED ORD ER U/S. 143(3) ON 25.03.2013, BY WHICH THE TAX WAS CALCULATED AT NIL AMOUNT AND BY ORDER U/S. 154/143(3) DATED 08.02.2016 BY WHICH THE INTER EST OF RS.68,65,627/- U/S. 220(2) OF THE ACT WAS CALCULATED. HE PLACED RE LIANCE ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF BHARAT COMMERCE AND INDUSTRIES VS. CIT, (1994) 210 ITR 13. SINCE THE CI T(A) DELETED THE CHARGING OF INTEREST, REVENUE PREFERRED THIS APPEAL. 4. WHEN THE MATTER IS CALLED, THERE IS NO REPRESENT ATION FROM THE ASSESSEE. NOTICE WAS SENT TO THE ADDRESS GIVEN IN F ORM NO. 36. IF THE ASSESSEE IS AVAILABLE IN SUCH ADDRESS, SUCH NOTICE SHOULD HAVE BEEN SERVED ON THE ASSESSEE. IF FOR ANY REASON, THE ASSE SSEE IS NOT AVAILABLE THERE, IT IS FOR THE ASSESSEE TO MAKE ARRANGEMENTS FOR SERVICE OF SUCH NOTICE BY FURNISHING THE ADDRESS WHERE THE ASSESSEE WOULD BE AVAILABLE, OR TO DELIVER IT TO SOME AUTHORISED PERSON, OR BY M AKING REQUEST TO THE 3 POSTAL DEPARTMENT TO DETAIN THE MAIL TILL THE ASSES SEE CLAIMS THE SAME. NON-SERVICE OF NOTICE IS SOLELY ATTRIBUTABLE TO THE CONDUCT OF ASSESSEE. IN THESE CIRCUMSTANCES, WE PROCEED TO DECIDE THE APPEA L BASING ON THE MATERIAL AVAILABLE ON RECORD. 5. LEARNED DR PLACES RELIANCE ON THE ORDER OF THE A SSESSING OFFICER. 6. WE HAVE GONE THROUGH THE RECORD IN THE LIGHT THE SUBMISSIONS MADE BY LD. DR. THE FACTS ARE ABSOLUTELY SIMPLE AND ADMITTED. BY ORDER DATED 25.03.2013, INCOME OF THE ASSESSEE WAS DETERM INED AT RETURNED INCOME BY WHICH THE TAX WAS CALCULATED AT NIL. ASSE SSING OFFICER, HOWEVER, PASSED AN ORDER U/S. 154/143(3) OF THE ACT CALCULAT ING THE INTEREST U/S. 220(2) AT RS.68,65,627/-. IN BHARAT COMMERCE AND IN DUSTRIES (SUPRA), HONBLE JURISDICTIONAL HIGH COURT OBSERVED THAT COUNSEL CONTENDS THAT SECTION 220(2) GIVES POWER TO THE AUTHORITY TO LEVY IN TEREST ONLY IF THE AMOUNT SPECIFIED IN ANY PARTICULAR DEMAND HAS NOT BE EN PAID IN ACCORDANCE WITH SECTION 220(1) AND THAT THE TAX DETER MINED IN THE RECTIFICATION ORDER DOES NOT RELATE BACK TO THE ASSESSM ENT ORDER. IN OUR VIEW, THIS SUBMISSION OF THE PETITIONERS COUNSEL IS C ORRECT AND IS LIABLE TO BE ACCEPTED. HONBLE JURISDICTIONAL HIGH COURT QUASHED THE DEMAN D. BASED ON THIS DECISION, LD. CIT(A) CONCLUDED THAT W HEN THE VERY BASIS OF CALCULATION OF INTEREST, I.E., THE AMOUNT OF TAX PA YABLE ON THE BASIS OF WHICH INTEREST CALCULATION HAS TO BE MADE IS UNKNOW N THE MISTAKE IS NOT APPARENT FROM RECORD AND THE NOTICE UNDER SECTION 1 54 AS WELL AS ORDER UNDER SECTION 154 BOTH ARE BAD AND ILLEGAL WHICH AR E LIABLE TO BE QUASHED. SINCE THE LD. CIT(A) DELETED THE INTEREST BY FOLLOWING THE BINDING PRECEDENT RENDERED BY HONBLE JURISDICTIONAL HIGH C OURT, IN THE ABSENCE OF ANY DECISION TO THE CONTRARY BY ANY HIGHER FORUM , WE CANNOT FIND FAULT 4 WITH THE FINDINGS OF THE LD. CIT(A). WE, CONSEQUENT LY FIND THE GROUNDS OF APPEAL AS DEVOID OF MERITS AND DISMISS THE SAME. 7. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 8 TH DAY OF JULY, 2021. SD/- SD/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED: 08/07/2021 AKS