ITO, Palakkad V. Simon Thanikkal, Palakkad

ITA 904/COCH/2008

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 8226 (ITAT-COCHIN)
• Duration Of Justice: 1 year(s) 4 month(s) 4 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-03-2010
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: DB
• Next Hearing Date: 01-03-2010
• Assessment Year: 2002-2003
• Appeal Filed On: 30-10-2008
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: T J VINCENT
• Assessee Lawyers: T M SREEDHARAN
• Keywords: Audit objection

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.904/COCH/2008 ASSESSMENT YEAR:2002-03 THE INCOME - TAX OFFICER, WARD-2, PALAKKAD. VS. SIMON THANIKKAL, DEVELOPMENT OFFICER, LIC OF INDIA, PALAKKAD. PA NO.ABKPT 1389E (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI T.J. VINCENT, JR.D.R. RESPONDENT BY SHRI T.M. SREEDHARAN, ADV. O R D E R PER N.VIJAYAKUMARAN,J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(APPEALS)-V, KOCHI, DATED 10-07 -2008. THE ASSESSMENT YEAR INVOLVED IS 2002-03. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 2. THE LD. CIT(APPEALS) ERRED IN CANCELLING THE O RDER UNDER 154 OF THE I.T.ACT,1961 LEVYING INTEREST U/S.234A(3). 3. THE LD. CIT(APPEALS) OUGHT TO HAVE NOTED THAT AS PER SECTION 234A(3) THE ASSESSEE IS LIABLE TO PAY I NTEREST ON THE AMOUNT BY WHICH THE TAX ON TOTAL INCOME ITA NO. 904/COCH/2008 2 DETERMINED U/S.147 EXCEEDS THE TAX ON TOTAL INCOME DETERMINED U/S.143(1). IN THIS CASE, THERE IS SHOR TFALL OF RS.61,000/- BETWEEN THE TAX DETERMINED ON REGULA R ASSESSMENT AND U/S.143(1) OF THE I.T.ACT,1961. 4. SINCE REVENUE AUDIT OBJECTION IN THIS CASE FOR THIS YEAR HAS BEEN ACCEPTED BY THE DEPARTMENT, APPEAL IS MAINTAINABLE BEFORE THE HONBLE INCOME-TAX APPELLAT E TRIBUNAL, AS PER CBDTS INSTRUCTION NO.5/2008 DATED 15- 5-2008. 3. WE HAVE HEARD SHRI T.J. VINCENT, LD. D.R. FOR TH E REVENUE AND SHRI T.M. SREEDHARAN, LD. COUNSEL FOR T HE ASSESSEE AND CONSIDERED THE SUBMISSIONS CAREFULLY A ND PERUSED THE MATERIALS AVAILABLE ON RECORD. UNDER SECTION 154, DEBATABLE ISSUE CANNOT BE RECTIFIED. ONLY TH E ERROR APPARENT FROM RECORD ALONE IS AVAILABLE FOR RECTIFI CATION. HERE IN THIS CASE, 154 CAN BE MADE FOR THE PURPOSE OF LEVYING INTEREST U/S.234A(3) PROVIDED IF THE FACTS RELATES ONLY TO THE FIRST REGULAR ASSESSMENT WHICH WILL BE CALLED THE FIRST ASSESSMENT AS INITIALLY IT WAS 143(1)(A) AND FINALLY TAX DETERMINED ON REGULAR ASSESSMENT MADE U/S.144 R.W.S .147 ON 24-01-2005. THERE IS A DIFFERENCE IN THE TAX DETERMINATION. THEREFORE, 234A(3) IS EXIGIBLE AND UP TO THAT POINT ACTION U/S.154 IS JUSTIFIED. ITA NO. 904/COCH/2008 3 4. BUT AS CONTENDED BY THE LD. COUNSEL THERE WAS A TOTAL TAX DEDUCTION WHICH WENT TO THE TUNE OF RS.1,32,029 /- AS AGAINST THE DEMAND OF RS.1,27,881/-, WHICH WAS THE TAX DETERMINED ON REGULAR ASSESSMENT MADE U/S.144 R.W.S .147. THERE IS A DEBATABLE POINT FOR DISCUSSION IN VIEW O F THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF DR. PRANOY ROY & ANOTHER VS. CIT REPORTED IN 254 ITR 75 5, AS IT THROWS LIGHT ON THE DEBATABLE ISSUE AND ADMITTEDLY THE TDS DEDUCTION WAS MORE THAN THE AMOUNT OF TAX DEMANDED, WHICH RESULTED IN THE TAX DETERMINATION ON REGULAR ASSESSMENT AS PER THE ASSESSMENT ORDER DATED 24-01- 2005. IN VIEW OF THE ABOVE FACTS, WE SEE NO REASON TO INT ERFERENCE WITH THE FINDINGS OF THE LD. CIT(APPEALS). HENCE, WE UPHOLD HIS ORDER. ACCORDINGLY, THE APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. 5. IN THE RESULT, THE DEPARTMENTAL APPEAL IS DISMIS SED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM, DATED THE 04 TH MARCH,2010. PM. ITA NO. 904/COCH/2008 4 COPY FORWARDED TO: 1. THE INCOME-TAX OFFICER, WARD-2, PALAKKAD. 2. SIMON THANIKKAL,DEVELOPMENT OFFICER, LIC OF INDIA, PALAKKAD. 3. CIT(A)-V,KOCHI. 4. CIT, KOCHI. 5. D.R. BY ORDER SD/- ASSISTANT REGISTRAR