ITO, Jamshedpur V. Shree Tirupati Minerals Pvt. ltd,

ITA 9/RAN/2016

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 0018 (ITAT-RANCHI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-12-2016
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2008-2009
• Appeal Filed On: 04-12-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: SANJAY PAL
• Assessee Lawyers: S K PODAR
• Keywords: Question of law
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI SMC BENCH, RANCHI BEFORE SHRI N.S SAINI, ACCOUNTANT MEMBER ITA NO.09/RAN/2016 ASSESSMENT YEAR : 2008 - 09 ITO, WARD 3(3), JAMSHEDPUR VS. SHREE TIRUPATI MINERALS PVT LTD., WARD NO.6, DALMIA HOUSE, SARAIKELA, KHAR ASWAIN PAN/GIR NO. AAJCS 8604 C (APPELLANT ) .. ( RESPONDENT ) ASSESSEE BY : SHRI S.K.PODAR, AR REVENUE BY : SHRI SANJAY PAL , DR DATE OF HEARING : 5/12/ 2016 DATE OF PRONOUNCEMENT : 5/12/ 2016 O R D E R THIS IS AN APPEAL FILED BY THE REVENUE AGA INST THE ORDER OF CIT(A) - JAMSHEDPUR , DATED 28.9.2015 , FOR THE ASSESSMENT YEAR 2008 - 09 . 2. THE ONLY GRIEVANCE IN THIS APPEAL IS THAT THE LD CIT(A) IS ERRED IN DELETING THE INTEREST CHARGED U/S.234B OF THE ACT OF RS.15,972/ - RELYING ON THE DECISION OF HONBLE JURISDICTIONAL HIGH COURT IN TH E CASE OF AJAY PRAKASH VERMA, T.A. NO.38 OF 2010 REPORTED IN 2013( (1) TMI 140. 3. I HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD. THE BRIEF FACTS ARE THAT THE ASSESSEE FILED THE RETURN 2 ITA NO.09/RAN/2016 ASSESSMENT YEAR :2008 - 09 OF INC OME AT A LOSS OF RS.20,91,229/ - . IN THE ASSESSMENT MADE U/S.143(3) OF THE ACT VIDE ORDER DATED 29.9.2010, THE ASSESSING OFFICER ASSESSED THE INCOME OF THE ASSESSEE AT RS.1,56,510/ - . AS THE ASSES SEE HAD NOT PAID ADVANCE TAX ON THE ASSESSED INCOME OF RS.1,56,510/ - , THE ASSESSING OFFICER CHARGED INTEREST U/S.234B OF THE ACT ON THE TAX DETERMINED IN THE ASSESSMENT MADE U/S.143(3) OF THE ACT. 4. AGGRIEVED BY THE CHARGING OF INTEREST U/S.234B OF THE ACT BY THE ASSESSING OFFICER, THE ASSESSEE FILED APPEAL BEFORE THE LD CIT(A). THE LD CIT(A) DIRECTED THE ASSESSING OFFICER TO MODIFY THE INTEREST CALCULATION U/S.234B OF THE ACT FOLLOWING THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJ AY PRAKASH VERMA (SUP RA), WHERE IT HAS BEEN HELD THAT INTEREST UNDER SECTION 234B CAN BE CHARGED ONLY ON THE INCOME DECLARED IN THE RETURN AND NOT ON ASSESSED INCOME. 5. THE ONLY SUBMISSION OF LD D.R. IS THAT THE REVENUE HAS NOT ACCEPTED THE DECISION OF HO N'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) AND HAS FILED SLP THEREAGAINST BEFORE THE HON'BLE SUPREME COURT. THEREFORE, THIS APPEAL HAS BEEN FILED BEFORE THE TRIBUNAL IN KEEPING THE ISSUE ALIVE. 6. IN THE REJOINDER, THE LD A. R. OF THE ASSESSEE SUBMITTED THAT THE DEPARTMENT HAD PREFERRED A CIVIL REVIEW PETITION BEFORE THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF ITO VS. AJAY PRAKASH VERMA IN CIVIL REVIEW NO. 66/2013 RELYING ON THE DECISION OF HON'BLE PUNJAB & HARYANA HIGH CO URT IN THE CASE OF RAJKUMAR SINGHAL VS UNION OF INDIA (2002) 255 3 ITA NO.09/RAN/2016 ASSESSMENT YEAR :2008 - 09 ITR 561 (P&H) , WHEREIN, IT WAS HELD THAT THE INTEREST CAN BE LEVIED ON THE ASSESSED INCOME AS PER SECTION 234B IN VIEW OF THE AMENDMENT CARRIED OUT IN THE ACT AND AFTER CONSIDERING THE SAME, THE HON'BLE JHARKAHAND HIGH COURT VIDE ITS ORDER DATED 01/09/2015 DISMISSED THE REVIEW PETITION . 6. AFTER CONSIDERING THE SUBMISSION OF LD D.R. I FIND THAT NO MISTAKE IN THE ORDER OF THE LD CIT(A) COULD BE POINTED OUT BY LD D.R. IT IS ADMITTED BY LD D.R. THAT THE SLP FILED BEFORE THE HON'BLE SUPREME COURT IS STILL PENDING FOR DISPOSAL. HENCE, AS ON DATE THE DECISION OF HON'BLE JURISDICTIONAL HIGH COURT IS VALID AND BINDING. I FIND THAT THE HON'BLE JHARKHAND HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA ( SUPRA) HELD AS UNDER: - 23. LEARNED COUNSEL FOR THE APPELLANT SUBMITTED THAT IT HAS BEEN ORDERED BY THE A.O. THAT INTEREST BE CHARGED AS PER RULE. INTEREST CAN BE LEVIED UNDER SECTIONS 234A & 234B OF THE ACT. IT IS SUBMITTED THAT IN VIEW OF THE JUDGMENT OF FULL BENCH OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI VS. CIT REPORTED IN (2001) 114 TAXMAN 404 (PAT) (FB), THE INTEREST CANNOT BE LEVIED OVER THE ASSESSED INCOME AND IT CAN BE LEVIED ONLY ON THE INCOME DECLARED IN THE RETURN. THE REVENUE PREFERRED S.L.P. BEFORE THE HON'BLE SUPREME COURT AGAINST THE SAID JUDGMENT OF THE FULL BENCH OF PATNA HIGH COURT WHICH WAS DISMISSED BY THE HON'BLE SUPREME COURT ON MERITS VIDE ORDER DATED 01/08/2000 BY SAYING THAT THERE IS NO MERIT I N THE APPEAL. 24. LEARNED COUNSEL FOR THE REVENUE COULD NOT DISPUTE THIS LEGAL POSITION. THEREFORE, SO FAR AS QUESTION OF LAW INVOLVED IN THIS APPEAL THAT WHETHER THE INTEREST COULD HAVE BEEN LEVIED AGAINST THE ASSESSED INCOME OF THE ASSESSEE UNDER SECT ION 234A & 234B IS CONCERNED, IN VIEW OF THE FULL BENCH JUDGMENT OF RANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI, THE REVENUE CAN LEVY THE INTEREST ONLY ON THE TOTAL INCOME DECLARED IN THE RETURNS AND NOT ON THE INCOME ASSESSED AND DETERMINED BY THE A.O. TO THAT EXTENT. THE ORDERS PASSED BY THE AUTHORITIES BELOW ARE ACCORDINGLY MODIFIED AND INTEREST SHALL BE CHARGEABLE IN THE LIGHT OF THE FULL BENCH JUDGMENT REFERRED ABOVE. 4 ITA NO.09/RAN/2016 ASSESSMENT YEAR :2008 - 09 7 . FURTHER, I ALSO FIND THAT THE REVENUE FILED THE REVIEW PETITION BEFORE THE HON'BLE JHARKHAND HIGH COURT BEING CIVIL REVIEW NO. 66/2013 IN THE CASE OF AJAY PRAKASH VERMA (SUPRA) AND THE SAME WAS ALSO DISMISSED ON 01/09/2015. THEREFORE, I DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE COMMISSIONER OF INC OME TAX (APPEALS) WHICH IS CONFIRMED AND THE GROUND OF APPEAL OF THE REVENUE IS DISMISSED. 8 . IN THE RESULT, APPEAL FILED BY THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 5/12/2016 IN THE PRESENCE OF PARTIES. SD/ - (N.S SAINI) A CCOUNTANT MEMBER RANCHI ; DATED 5 /12 /2016 B.K.PARIDA, SPS COPY OF THE ORDER FORWARDED TO : BY ORDER, SR.PS, ITAT, CAMP AT RANCHI 1. THE APPELLANT : ITO, WARD 3(3), JAMSHEDPUR 2. THE RESPONDENT. SHREE TIRUPATI MINERALS PVT LTD., WARD NO.6, DALMIA HOUSE, SARAIKELA, KHARASWAIN 3. THE CIT(A) , JAMSHEDPUR 4. CIT , JAMSHEDPUR 5. DR, ITAT, RANCHI 6. GUARD FILE. //TRUE COPY//