Speed A Way Pvt Ltd., CHENNAI V. ACIT, CHENNAI

ITA 881/CHNY/2016

• Counselvise Citation: [2016] 121 COUNSELVISE.COM (IT) 3979 (ITAT-CHENNAI)
• Duration Of Justice: 7 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 23-11-2016
• Appeal Filed By: Assessee
• Bench Allotted: A
• Assessment Year: 2009-2010
• Appeal Filed On: 06-04-2016
• Court: TRIBUNAL
• Department Lawyers: N GOPI KRISHNA
• Section: 54

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI , . !' BEFORE SHRI CHANDRA POOJARI, ACCOUNTANT MEMBER AND SHRI G.PAVAN KUMAR, JUDICIAL MEMBER ./ I.T.A.NO.881/MDS./2016 / ASSESSMENT YEAR : 2009-10 M/S.SPEED A WAY PVT LTD. 207, OLD NO.155,ANNA SALAI, CHENNAI 600 002. VS. THE ASSISTANT COMMISSIONER OF INCOME TAX, CORPORATE CIRCLE 6(2), CHENNAI [PAN AAHCS 0229 F] ( #$ / APPELLANT) ( %&#$ /RESPONDENT) / APPELLANT BY : MR.SAROJ KUMAR PARIDA, ADVOCATE /RESPONDENT BY : MR.N.GOPI KRISHNA, JCIT, DR / DATE OF HEARING : 05 - 1 0 - 201 6 !' / DATE OF PRONOUNCEMENT : 23 - 11.2016 ' / O R D E R PER CHANDRA POOJARI, ACCOUNTANT MEMBER THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF THE COMMISSIONER OF INCOME-TAX (APPEALS)-15,CHENNA I DATED 22.01.2016 PERTAINING TO ASSESSMENT YEAR 2009-10. ITA NO. 881/MDS./2016 :- 2 -: 2. THE MAIN GRIEVANCE OF THE ASSESSEE IN THIS AP PEAL IS WITH REGARD TO LEVY OF INTEREST U/S.234C CONFIRMED BY LD.CIT(A) . 3. THE FACTS OF THE ISSUE ARE THAT THE ASSESSEE FI LED ITS RETURN OF INCOME ON 30.09.2009. THE INTIMATION WAS ISSUED U/S .143(1) OF THE ACT AND LATER ON THE SAME WAS RECTIFIED U/S.154 OF THE ACT ON 02.05.2011 CHARGING INTEREST U/S.234C OF THE ACT AT ` 2,71,306/-. AGAINST THIS, THE ASSESSEE CARRIED THE APPEAL BEFORE LD.CIT(A) STATIN G THAT THE ASSESSEE TRIED TO MAKE PAYMENT OF ADVANCE TAX TO THE CREDIT OF INCOME TAX ON 15.09.2008, BUT DUE TO FAILURE OF CENTRALIZED SERVE R IN STATE BANK OF INDIA (SBI), THE ASSESSEE COULD NOT TRANSFER THE AM OUNT ON 15.09.2008 AND TRANSFERRED ONLY ON 16.09.2008. THE DELAY OF O NE DAY IN MAKING THE PAYMENT WAS DUE TO THE CIRCUMSTANCES BEYOND THE CONTROL OF ASSESSEE AND INTEREST CANNOT BE LEVIED U/S.234C OF THE ACT. HOWEVER, THE LD.CIT(A) FOUND THAT IT IS A MANDATORY REQUIREM ENT OF THE ASSESSEE TO MAKE PAYMENT FOR ADVANCE TAX WITHIN 15.09.2008 A ND THE DELAY OF ONE DAY CANNOT BE CONDONED. AGAINST THIS, THE ASSE SSEE IS IN APPEAL BEFORE US. 4. WE HAVE HEARD BOTH THE PARTIES AND PERUSED THE MATERIAL ON RECORD. ADMITTEDLY, THE AO RECTIFIED THE MISTAKE CR EPT IN THE INTIMATION ISSUED U/S.143(1) OF THE ACT VIDE PROCEEDINGS U/S.1 54 OF THE ACT. U/S.154 OF THE ACT ONLY MISTAKE APPARENT FROM RECOR D WOULD BE RECTIFIED. THE MISTAKE APPARENT FROM RECORD MUST B E OBVIOUS AND ITA NO. 881/MDS./2016 :- 3 -: PATENT MISTAKE AND NOT SCRUTINY, WHICH CAN BE CONST RUED BY A LONG PROCESS OF REASONING AND POINTS ON WHICH THERE MAY BE CONCEPTUALLY TWO OPINIONS AND HENCE, DECISION ON A DEBATABLE POI NT OF LAW WAS NOT A MISTAKE APPARENT FROM RECORD. IN THE PRESENT CAS E, THE PLEA OF ASSESSEE BEFORE THE LOWER AUTHORITIES THAT THE ASSE SSEE PERSON TAKE CHEQUE FOR THE PAYMENT BEFORE 15.09.2008, BUT DUE T O FAILURE OF CENTRALIZED SERVER IN SBI, THE CHEQUE WAS TRANSFERR ED BY THE BANK ONLY ON 16.09.2008 AND THE ASSESSEE HAS PRESENTED THE CH EQUE FOR PAYMENT OF ADVANCE TAX BEFORE DUE DATE, THE CHEQUE ISSUED BY THE ASSESSEE WAS HONOURED, HENCE THE DATE OF PRESENTATI ON OF CHEQUE IN THE BANK IS TO BE RECKONED AT THE DATE OF PAYMENT OF ADVANCE T AX AND NOT THE DATE ON WHICH THE CHEQUE IS CLEARED FOR THE PURPOSE OF CALCULATING THE INTEREST U/S.234C OF THE ACT. FOR THIS EFFECT, THE ASSESSEE RELIED ON THE JUDGEMENTS OF ANDHRA PRADES H HIGH COURT IN THE CASE OF J AND J DECHANE VS. CIT REPORTE IN (199 0) 182 ITR 345 AND OF JURISDICTIONA HIGH COURT IN THE CASE OF CIT VS. REPCO HOME FINANCE LTD IN (2014) 90 CCH 0195(MAD.). 4.1 IN OUR OPINION, THERE IS NO NECESSITY OF GOIN G TO THE PROBLEM OF ASSESSEES COMPANY ON THE REASON THAT THE ISSUE IS VERY MUCH DEBATABLE AND THIS CANNOT BE DEALT BY THE AO IN THE PROCEEDINGS U/S.154 OF THE ACT. AS BEING SO, IN OUR OPINION, TH E AO IS NOT JUSTIFIED ITA NO. 881/MDS./2016 :- 4 -: IN LEVYING THE INTEREST U/S.234C OF THE ACT IN PROC EEDINGS U/S.154 OF THE ACT. HENCE, WE ALLOW THIS GROUND RAISED BY THE ASSESSEE. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS AL LOWED. ORDER PRONOUNCED ON 23 RD NOVEMBER, 2016, AT CHENNAI. SD/ - SD/ - ( . ) ( G.PAVAN KUMAR ) / JUDICIAL MEMBER ( ) (CHANDRA POOJARI) / ACCOUNTANT MEMBER #$ / CHENNAI %& / DATED: 23 RD NOVEMBER , 2016 K S SUNDARAM &'(()*( +* / COPY TO: ( 1 . / APPELLANT 3. ( ,(- . / CIT(A) 5. */0 (1 / DR 2. / RESPONDENT 4. ( , / CIT 6. 02(3 / GF