ABC Promoters & Builders Pvt.Ltd., Pune V. ITO, Pune

ITA 768/PUN/2009

• Counselvise Citation: 76824514 RSA 2009
• Duration Of Justice: 2 year(s) 1 month(s) 16 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 10-08-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 04-08-2011
• Assessment Year: 1989-1990
• Appeal Filed On: 24-06-2009
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY SINGH
• Assessee Lawyers: NILESH KHANDELWAL
• Keywords: Opportunity of being heard
• Section: 143(3); 234B; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL PUNE BENCH A, PUNE BEFORE SHRI SHAILENDRA KUMAR YADAV, JUDICIAL MEMBER AND SHRI G.S. PANNU, ACCOUNTANT MEMBER ITA NO 768/PN/09 (ASSTT. YEAR: 1989-90) ABC PROMOTERS & BUILDERS P. LTD., .. APPELLANT C/.O SHAH KHANDELWAL JAIN & ASSOCIATES, LEVEL 3, BUSINESS BAY, PLOT NO 84, WELLESLEY ROAD, NEAR RTO, PUNE PAN AABCA 5478N VS. INCOME-TAX OFFICER, RESPONDENT WD. 1(1), PUNE APPELLANTS BY: SHRI NILESH KHANDELW AL RESPONDENT BY: SHRI SANJAY SINGH ORDER PER G.S. PANNU, AM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDE R OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, PUNE DATED 07.5 .2009 PERTAINING TO THE ASSESSMENT YEAR 1989-90. 2. THE GROUNDS OF APPEAL RAISED BY THE ASSESSEE READ AS FOLLOWS: 1. ON FACTS & CIRCUMSTANCES PREVAILING N THE CASE & AS PER PROVISIONS OF LAW, IT BE HELD THAT INTEREST IMPOSED BY THE AO CAN BE LEVIED ONLY IN TERMS OF SUB-SECTION (4) OF SECTION 234B OF THE ACT AND NOT UNDER THE GE NERAL PROVISIONS SECTION 234B OF THE ACT. SUITABLE DIRECTIONS BE GIVEN SO THAT TH E AO CAN MODIFY THE ORDER PASSED GIVING EFFECT TO THE DIRECTIONS GIVEN BY THE SETTLEMENT COMMISSION IN ITS ORDER PASSED UNDER SECTION 245D(4). JUST & PROPER R ELIEF BE GRANTED TO THE APPELLANT IN THIS RESPECT. 2. ON FACTS & CIRCUMSTANCES PREVAILING N THE CASE & AS PER PROVISIONS OF LAW, IT BE HELD THAT THE INTEREST IMPOSED BY THE AO U/S 234B O F THE ACT WHILE LGIVING EFFECT TO THE DIRECTION GIVEN BY THE SETTLEMENT COMMISSION IN ORDER PASSED U/S 245D(4) & UPHELD BY THE 1 ST APPELLATE AUTHORITY IS CONTRARY TO SUCH DIRECTION AND IS NOT COVERED BY THE PROVISION OF SEC.234B(4) OF THE ACT JUSTIFYING IMPOSITION OF ANY 2 INTEREST FOR THE FIRST LTIME. THE INTEREST CHARGED U/S 234B BY THE AO BE DELETED. JUST & PROPER RELIEF BE GRANTED TO THE APPELLANT IN THIS RESPECT. 3. BEFORE US, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMIT TED THAT IDENTICAL ISSUE WAS RAISED IN THE ASSESSEES CASE FOR ASSESSMENT YEAR 1989 -90 IN ITA NO 152/PN/2005 AND OUR CO-ORDINATE BENCH VIDE ORDER DATE D 20.6.2011 HAS SET ASIDE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO D ECIDE THE ISSUE AFRESH IN VIEW OF THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF BRIJ LAL & ORS V. CIT 328 ITR 477 (SC) AND, THEREFORE, FOLLOWING THE PRECEDENT, THE ISSUE INVOLVED IN THE PRESENT APPEAL BE ALSO REMITTED BACK TO THE FIL E OF THE ASSESSING OFFICER FOR DECIDING THE SAME AFRESH IN ACCORDANCE WITH THE DIRECTION S GIVEN IN THE AFORESAID ORDER OF THE TRIBUNAL. 4. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFULLY. WE FIND THAT ON SIMILAR FACTS AND CIRCUMSTANCES IN THE ASSESSEES OWN CASE IN ITA NO 152/PN/05 FOR THE ASSESSMENT YEAR 1989-90, OUR CO-ORDINATE BENCH H AS DISCUSSED THE ISSUE IN DETAIL AND AFTER CONSIDERATION OF ALL RELEVANT FACT S AND CASE LAW, ESPECIALLY THE JUDGMENT OF THE HONBLE SUPREME COURT IN THE CASE OF BRIJ LAL & ORS (SUPRA), SET ASIDE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FO R ADJUDICATION AFRESH. ACCORDINGLY, ON THE SIMILAR PARITY OF REASONING, WE SET ASIDE THE ORDERS OF THE AUTHORITIES BELOW ON THE POINT AND RESTORE THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH IN ACCORDANCE WITH THE DIRECT IONS GIVEN IN THE DECISION CITED (SUPRA) AND IN ACCORDANCE WITH LAW, AFTER PROVIDIN G A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 5. BEFORE PARTING, WE MAY REFER TO THE ARGUMENT SET- UP BY THE LEARNED DEPARTMENTAL REPRESENTATIVE TO THE EFFECT THAT EVEN I N THE FACE OF THE PRECEDENT IN THE ASSESSEES OWN CASE BY WAY OF ORDER OF THE TRIBU NAL DATED 20.6.2011 (SUPRA), THE IMPUGNED ISSUE IS LIABLE TO BE DECIDED AGA INST ASSESSEE. IN ORDER TO APPRECIATE THE AFORESAID, WE MAY POINT OUT THAT ASSESSE E HAD CHALLENGED THE INTEREST CHARGED UNDER SECTION 234B OF THE ACT BY THE A SSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF THE INCOME-TAX SETTLEM ENT COMMISSION PASSED UNDER 3 SECTION 245D(4) OF THE ACT. IN THE IMPUGNED PROCEEDINGS, THE ASSESSEE CHALLENGED THE CHARGING OF INTEREST UNDER SECTION 234B ON THE GROUND THAT SINCE THE INCOME ORIGINALLY ASSESSED UNDER SECTION 143(3) OF TH E ACT DID NOT INVITE LEVY OF INTEREST UNDER SECTION 234B, THE ASSESSING OFFICER COULD NOT LEVY THE INTEREST UNDER SECTION 234B(4) WHILE GIVING EFFECT TO THE ORDER S OF THE SETTLEMENT COMMISSION. AS PER THE LEARNED DEPARTMENTAL REPRESENTA TIVE, THE SAID ARGUMENT HAS BEEN RIGHTLY NEGATED BY THE COMMISSIONER O F INCOME-TAX (APPEALS) FOLLOWING THE JUDGMENT OF THE HONBLE BOMB AY HIGH COURT IN THE CASE OF AKBAR TRAVELS OF INDIA (P) LTD. V. INCOME-TAX SETTL EMENT COMMISSION & ORS. 236 CTR 37 (BOM) AND, THEREFORE, THE COMMISSIONER OF INCOME-TAX (APPEALS) MADE NO MISTAKE IN DISMISSING THE APPEAL OF THE ASSESSEE. IN OUR VIEW, THE AFORESAID ARGUMENT OF THE ASSESSEE IS LIABLE TO BE NEGAT ED AND, IN FACT, THE HONBLE SUPREME COURT IN THE CASE OF BRIJ LAL & ORS ( SUPRA), WHICH HAS BEEN REFERRED BY OUR CO-ORDINATE BENCH IN ITS ORDER DATED 20.6.2011 (SUPRA) ALSO HAS ASSERTED THAT THE PROVISIONS OF SECTION 234B APPLIED TO THE PROCEEDINGS OF SETTLEMENT COMMISSION UNDER CHAPTER XIX-A OF THE ACT. SO, HOWEVER, IT IS ALSO CLEAR THAT THE TRIBUNAL IN ITS ORDER DATED 20.6.2011 (SUPRA) WAS DEALING WITH A SIMILAR ISSUE FOR THE SAME ASSESSMENT YEAR IN THE ASSESSEES OW N CASE RELATING TO THE CHARGEABILITY OF INTEREST UNDER SECTION 234B AN D SUCH PROCEEDINGS AROSE OUT OF AN APPLICATION MADE BY THE ASSESSEE UNDER SECTION 154 OF THE ACT IN WHICH CHARGING OF INTEREST UNDER SECTION 234B(4) HAS BEEN RESIST ED. THE TRIBUNAL, AFTER CONSIDERING THE JUDGMENT OF THE HONBLE SUPREME COURT DEEMED IT FIT AND PROPER TO REMIT THE MATTER TO THE FILE OF THE ASSESSING OFFICER TO DECIDE THE ISSUE AFRESH IN THE LIGHT OF PRECEDENT AVAILABLE BY WAY OF JUDGM ENT OF THE HONBLE SUPREME COURT IN THE CASE OF BRIJ LAL & ORS (SUPRA). IN THESE CI RCUMSTANCES, WE DO NOT FIND ANY REASON TO DISTRACT FROM WHAT OUR CO-ORDINATE BENCH HAD ALREADY ADJUDICATED WHILE PASSING THE ORDER DATED 20.6.2011 (SUPRA), AND, THEREFORE, WE HAVE RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER FOR DECIDING AFRESH IN ACCORDANCE WITH DIRECTIONS GIVEN IN THE ASSESSEES OWN CASE D ATED 20.6.2011 4 (SUPRA) AND IN ACCORDANCE WITH LAW, AFTER PROVIDING A REASONABLE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 7. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALLOWED, AS ABOVE. DECISION PRONOUNCED IN THE OPEN COURT ON THIS 10TH DAY OF AUGUST, 2011. SD/- SD/- (SHAILENDRA KUMAR YADAV) (G. S. PANNU) JUDICIAL MEMBER ACCOUNTANT MEM BER PUNE, DATED: 10 TH AUGUST, 2011 B COPY TO:- 1) ASSESSEE 2) DEPARTMENT 3) THE CIT (A)-I, PUNE 4) CIT-I, PUNE 5) DR, A BENCH, ITAT, PUNE. 6) GUARD FILE TRUE COPY BY ORDER ASST. REGISTRAR, I.T.A.T., PUNE