Appeal Details
Counselvise Citation
740719914 RSA 2010
Assessee PAN
Bench
Appeal Number
Duration Of Justice
3 year(s) 7 month(s) 12 day(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
10-06-2014
Appeal Filed By
Assessee
Order Result
Allowed
Bench Allotted
E
Next Hearing Date
10-06-2014
Assessment Year
2007-2008
Appeal Filed On
29-10-2010
Judgement Text
, INCOME TAX APPELLATE TRIBUNAL,MUMBAI - E BENCH. .. , ! , BEFORE S/SH.I.P.BANSAL, JUDICIAL MEMBE R & RAJENDRA,ACCOUNTANT MEMBER /. ITA NO.7407/MUM/2010, ' ' ' ' # # # # / ASSESSMENT YEAR-2007-08 M/S.ESSAR PROCUREMENT SERVICES LTD.(FORMERLY KNOWN AS ESSAR PROJECTS) ESSAR HOUSE, 11 KESHAVRAO KHADYE MARG, MALAKSHMI, MUMBAI 400034 VS. ITO 5(1)(4) AAYKAR BHAVAN,M K ROAD, MUMBAI-20 PAN:AAACE0892R ( $% / APPELLANT) ( &'$% / RESPONDENT) ( ) / REVENUE BY :SH.B.YADGIRI '*+ '*+ '*+ '*+ ) ) ) ) / ASSESSEE BY :SH.VIJAY MEHTA ' ' ' ' ( (( ( +, +, +, +, / DATE OF HEARING : 10-06-2014 -.# ( +, / DATE OF PRONOUNCEMENT : 10-06-2014 ' ' ' ' , 1961 ( (( ( 254 )1( +/+ +/+ +/+ +/+ 0 0 0 0 ORDER U/S.254(1)OF THE INCOME-TAX ACT,1961(ACT) PER RAJENDRA,AM ! ! ! ! ' ' ' ' : CHALLENGING THE ORDER DATED 23.08.2010 OF THE CIT(A )-9,MUMBAI,ASSESSEE HAS RAISED FOLLOWING GROUNDS OF APPEAL: 1.COMMISSIONER OF INCOME TAX (APPEALS)-9, MUMBAI, H EREINAFTER REFERRED TO AS CIT (A), ERRED IN CONFIRMING THE CHARGING INTEREST BY THE ASSESSING O FFICER U/S 234B AMOUNTING TO RS.5,23,65, 539/- ON THE TAX PAYABLE UNDER SECTION 115JB. THE APPELLANT CRAVES LEAVE TO ADD ANY OTHER GROUND AND ALTER OR WITHDRAW THE AFORESAID GROUND. 2. EFFECTIVE GROUND OF APPEAL IS ABOUT CHARGING OF INT EREST UNDER SECTION 234B OF THE ACT ON THE TAX PAYABLE UNDER SECTION 115JB OF THE ACT. IN THIS CASE, THE ORIGINAL RETURN OF INCOME WAS FILED ON 31/10/2007 DECLARING TOTAL INCOME OF RS.1,27,971 /-.LATER ON SAME WAS REVISED TO ADD BACK THE TOTAL INCOME OF RS.1,49,21,99,565/-ON ACCOUNT OF PR OVISION FOR DIMINUTION IN THE VALUE OF INVEST - MENTS.AS A RESULT,TOTAL INCOME WAS REVISED TO RS.10 ,36,40,270/-.WHILE FINALISING THE ASSESSMENT ASSESSING OFFICER(AO) ACCEPTED THE REVISED INCOME.H E CHARGED INTEREST UNDER SECTION 234B OF THE INCOME TAX ACT WITH EFFECT FROM 01.04.2007.ASSE SSEE PREFERRED AN APPEAL BEFORE THE FIRST APPELLATE AUTHORITY(FAA),WHO UPHELD LEVY OF INTERES T U/S.234B OF THE ACT. 3. BEFORE US,AUTHORISED REPRESENTATIVE(AR) STATED THAT LIABILITY TO PAY INTEREST HAD ARISEN DUE TO RETROSPECTIVE AMENDMENT,THAT TAXES WERE PAID AS PER THE LAW PREVAILING AT THE TIME OF MAKING OF PAYMENT OF ADVANCE TAX/FILING OF RETURN OF INCOME, THAT THE AMENDMENT TO EXPLANATION (1)TO SECTION 115JB HAD BEEN MADE RETROSPECTIVE W.E.F. 01 .04. 2001, BY VIRTUE OF WHICH ANY PROVISION MADE FOR THE DIMINUTION IN THE VALUE OF ASSET WAS R EQUIRED TO BE ADDED BACK TO THE BOOK PROFITS, THAT THE ASSESSEE HAD FILED A REVISED COMPUTATION O F THE TOTAL INCOME AS WELL AS OF BOOK PROFITS IN COMPLIANCE OF THE AMENDMENT,THAT RETROSPECTIVE AMEN DMENT COULD NOT FASTEN TAX LIABILITY TO THE ASSESSEE.HE RELIED UPON THE CASE OF EMAMI LTD.(337 ITR470) DELIVERED BY THE HONBLE CALCUTTA HIGH COURT.HE ALSO REFERRED TO THE CASE OF A SISTER CONCERN,ESSAR INVESTMENT LTD.,WHEREIN TRIBUNAL HAS DECIDED THE IDENTICAL ISSUE IN FAVOUR OF THE ASSESSEE(ITA/6444/MUM/2011, AY. 2005-06,DATED29. 11.2012).DEPARTMENTAL REPRESENTATI VE(DR) SUPPORTED THE ORDER OF THE FAA. 5. WE HAVE HEARD THE RIVAL SUBMISSION AND PERUSED THE MATERIAL PRODUCED BEFORE US.WE FIND THAT IN THE CASE OF ESSAR INVESTMENT LTD.(SUPRA) IDENTIC AL ISSUE HAS BEEN DISCUSSED AND DECIDED AS UNDER: 6.WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS AND PERUSED THE RECORD. THE FACTS ARE NOT IN DISPUTE AND IN IDENTICAL CIRCUMSTANCES THE HONBI E CALCUTTA HIGH COURT OBSERVED THAT AMENDED PROVISIONS TO SECTION 115JB CANNOT BE INVOKED TO HO LD AN ASSESSEE AS DEFAULTER WITH RESPECT TO PAYMENT OF ADVANCE TAX MERELY BECAUSE THE AMENDMENT WAS BROUGHT WITH RETROSPECTIVE EFFECT. IN OTHER WORDS, WHAT HAS TO BE SEEN IS THE LAW THAT WA S EXISTING ON THE DATE WHEN THE ASSESSEE WAS TO PAY ADVANCE TAX AND HE CANNOT BE BRANDED AS DEFAULT ER IN PAYMENT OF ADVANCE TAX ON ACCOUNT OF LAW, WHICH WAS BROUGHT IN RETROSPECTIVELY. SINCE TH ERE IS NO OTHER CONTRADICTORY DECISION ON THIS, BY FOLLOWING THE AFORESAID DECISION WE HOLD THAT TH IS IS NOT A FIT CASE FOR LEVY OF INTEREST UNDER SECTION 234B OF THE ACT. 7. IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS A LLOWED. AS THE FACTS OF THE CASE UNDER APPEAL ARE IDENTICAL TO THE FACTS OF ESSAR INVESTMENT(SUPRA),SO, FOLLOWING ORDER OF THAT MATTER,WE DECIDE EFFECTIVE GROUND OF APPEAL IN FAVOUR OF THE ASSESSEE. AS A RESULT,APP EAL FILED BY THE ASSESSEE STANDS ALLOWED. 1+2 '*+ 1+2 '*+ 1+2 '*+ 1+2 '*+ 3 4 ( / 5 ( + 67 3 4 ( / 5 ( + 67 3 4 ( / 5 ( + 67 3 4 ( / 5 ( + 67. .. . ORDER PRONOUNCED IN THE OPEN COURT ON 10 TH ,JUNE,2014 0 ( -.# 8 9' 10 TWU , 201 4 . ( / : SD/- SD/- ( .. / I.P. BANSAL) ( ! ! ! ! / RAJENDRA) / JUDICIAL MEMBER /ACCOUNTANT MEMBER / MUMBAI, 9' /DATE: 10.06 . 2014. SK 0 0 0 0 ( (( ( &+; &+; &+; &+; < ;#+ < ;#+ < ;#+ < ;#+ / COPY OF THE ORDER FORWARDED TO : 1. ASSESSEE / $% 2. RESPONDENT / &'$% 3. THE CONCERNED CIT(A)/ = > , 4. THE CONCERNED CIT / = > 5. DR E BENCH, ITAT, MUMBAI / ;?/ &+' , . . . 6. GUARD FILE/ / 1 ';+ ';+ ';+ ';+ &+ &+&+ &+ //TRUE COPY// 0' / BY ORDER, @ / 6 DY./ASST. REGISTRAR , /ITAT, MUMBAI
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