DCIT, Circle - 3, Kolkata, Kolkata V. M/s. Kiswok Industries Pvt. Ltd., Kolkata

ITA 92/KOL/2011

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 48279 (ITAT-KOLKATA)
• Duration Of Justice: 6 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 20-07-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-07-2011
• Assessment Year: 2006-2007
• Appeal Filed On: 13-01-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: S K ROY
• Section: 143(3); 234B; 115JB

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH: KOL KATA () BEFORE , /AND , . ! . '# ) [BEFORE HONBLE SRI MAHAVIR SINGH, JM & HONBLE SHR I C. D. RAO, AM] $ $ $ $ / I.T.A NOS. 92 & 93/KOL/2011 %& '( %& '( %& '( %& '(/ // / ASSESSMENT YEARS: 2006-07 & 2007-08 DEPUTY COMMISSIONER OF INCOME-TAX, -VS- M/S. KISW OK INDUSTRIES PVT. LTD. CIRCLE - 3, KOLKATA. (PAN-AABCK 3219 P) (*+ /APPELLANT ) (,-*+/ RESPONDENT ) FOR THE APPELLANT: SHRI S. K. ROY FOR THE RESPONDENT: MS. SHREYA LOYALKA '. / ORDER PER BENCH : THESE APPEALS BY REVENUE ARE ARISING OUT OF COMMON ORDER OF CIT(A)-I, KOLKATA IN APPEAL NOS.194 & 587/CIT(A)-I/C-3/08-09 & 09-10 DA TED 20.09.2010. ASSESSMENT FOR ASSESSMENT YEAR 2006-07 WAS FRAMED BY DCIT,CIRCLE-3 , KOLKATA AND ASSESSMENT FOR ASSESSMENT YEAR 2007-08 WAS FRAMED BY ADDL. CIT, RA NGE-3, KOLKATA U/S. 143(3) R.W.S. 115JB OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED T O AS THE ACT) VIDE THEIR SEPARATE ORDER 28.11.2008 AND 28.12.2009 RESPECTIVELY. 2. THE ONLY COMMON ISSUE IN THESE TWO APPEALS OF TH E REVENUE IS AGAINST THE ORDER OF CIT(A) IN RESPECT OF CHARGEABILITY OF INTEREST U/S. 234B AND 234C OF THE ACT. FOR THIS, REVENUE HAS RAISED COMMON GROUNDS IN BOTH THE YEARS AND THE GROUNDS ARE IDENTICALLY WORDED EXCEPT AMOUNT. WE WILL TAKE UP THE GROUNDS FROM ITA NO. 9 2/K/2011, WHICH READS AS UNDER: 1) THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(A) ERRED IN HOLDING THAT INTEREST OF RS.88,289/- LEVIED U/S. 23 4B AND INTEREST OF RS.37,255/- LEVIED U/S. 234C ARE NOT CHARGEABLE AS THE INCOME OF THE ASSESS EE HAS BEEN DETERMINED ON BOOK PROFIT U/S. 115JB. 3. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSING OFFICER CHARGED INTEREST U/S. 234B AND 234C IN RESPECT OF BOTH THE ASSESSMENT YEARS UN DER CONSIDERATION ON THE FOLLOWING GROUND: 2 ITA 92 & 93/K/2011 M/S. KISWOK IND. P. LTD. . A.Y.06-07 & 07-08 IN COURSE OF ASSESSMENT PROCEEDINGS, IT WAS SUBMIT TED THAT INTEREST U/S. 234B AND 234C WAS NOT PAYABLE WHERE THE TAX IS PAYABLE ON BOOK PR OFIT AS PER THE PROVISIONS OF SEC. 115JB OF THE ACT. THE ASSESSEES SUBMISSION IS DUL Y CONSIDERED. HOWEVER, IN THIS CASE, INTEREST U/S. 234B & 234C IS APPLICABLE AS IN THE P ROVISION OF SEC. 115JB(5), IT IS PROVIDED THAT ALL OTHER PROVISIONS SHALL APPLY. AC CORDINGLY INTEREST U/S. 234B & 234C IS TO BE CHARGED ON TAX PAYABLE U/S. 115JB AS CHARGED ON TAX PAYABLE UNDER NORMAL COMPUTATION. AGGRIEVED, ASSESSEE PREFERRED APPEAL BEFORE CIT(A), WHO FOLLOWING THE DECISION OF MUMBAI BENCH IN THE CASE OF DCIT VS. GLENMARK LABORATORIES LTD. 127 TTJ 719 (MUM) HELD THAT INTEREST U/S. 234B AND 234C ARE NOT CHARGEABLE AS T HE INCOME OF THE ASSESSEE HAS BEEN DETERMINED ON BOOK PROFIT U/S. 115JB OF THE ACT. AG GRIEVED, REVENUE IS NOW IN APPEALS BEFORE US. 4. WE HAVE HEARD RIVAL SUBMISSIONS AND GONE THROUGH FACTS AND CIRCUMSTANCES OF THE CASE. WE FIND THAT THE ISSUE IS COVERED IN FAVOUR OF ASSE SSEE BY THE DECISION OF HONBLE APEX COURT IN THE CASE OF JCIT VS. ROLTA INDIA LTD. (2011) 330 ITR 470 (SC), WHEREIN HONBLE COURT HAS HELD THAT IT IS CLEAR FROM READING SECTIONS 115JA A ND 115JB OF THE ACT THAT THE QUESTION WHETHER A COMPANY WHICH IS LIABLE TO PAY TAX UNDER EITHER P ROVISION DOES NOT ASSUME IMPORTANCE BECAUSE SPECIFIC PROVISION IS MADE IN THE SECTION S AYING THAT ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO A MAT COMPANY (SECTION 115JA(4) AND SECTION 115JB(5) ). IT WAS FURTHER HELD THAT AMENDMENTS HAVE BEEN MADE IN THE RELEVANT FINA NCE ACTS PROVIDING FOR PAYMENT OF ADVANCE TAX UNDER SECTIONS 115JA AND 115JB AND SECT ION 234B IS CLEAR THAT IT APPLIES TO ALL COMPANIES AND FURTHER PRE-REQUISITE CONDITION FOR A PPLICABILITY OF SECTION 234B IS THAT THE ASSESSEE IS LIABLE TO PAY TAX UNDER SECTION 208 AND THE EXPRESSION 'ASSESSED TAX' IS DEFINED TO MEAN THE TAX ON THE TOTAL INCOME DETERMINED UNDER S ECTION 143(1) OR UNDER SECTION 143(3) AS REDUCED BY THE AMOUNT OF TAX DEDUCTED OR COLLECTED AT SOURCE. THUS, HONBLE APEX COURT HELD THAT THERE IS NO EXCLUSION OF SECTION 115J / 115JA IN THE LEVY OF INTEREST UNDER SECTION 234B AND THE EXPRESSION 'ASSESSED TAX' IS DEFINED TO MEAN TH E TAX ASSESSED ON REGULAR ASSESSMENT WHICH MEANS THE TAX DETERMINED ON THE APPLICATION OF SECT ION 115J / 115JA IN THE REGULAR ASSESSMENT AND INTEREST UNDER SECTION 234B IS PAYABLE ON FAILU RE TO PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SECTION 115JA. SIMILAR IS THE VIEW IN RESPECT TO CHARGEABILITY OF INTEREST U/S. 234C OF THE ACT. RESPECTFULLY FOLLOWING THE AFORESAID DECISION OF HONBLE APEX CO URT IN THE CASE OF ROLTA INDIA LTD. (SUPRA), 3 ITA 92 & 93/K/2011 M/S. KISWOK IND. P. LTD. . A.Y.06-07 & 07-08 WE DO FIND INFIRMITY IN THE ORDER OF CIT(A) AND THE SAME IS HEREBY REVERSED. APPEALS OF REVENUE ARE ALLOWED. 5. IN THE RESULT, THE APPEALS OF THE REVENUE ARE AL LOWED. 6. ORDER PRONOUNCED IN OPEN COURT. SD/- SD/- . ! . , '# , (C. D. RAO) (MAHAVIR SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER ( !# !# !# !#) )) ) DATED 20TH JULY, 2011 /0 %12 3 JD.(SR.P.S.) '. 4 ,5 6'5'7- COPY OF THE ORDER FORWARDED TO: 1 . *+ / APPELLANT DCIT, CIRCLE-3, KOLKATA. 2 ,-*+ / RESPONDENT- M/S. KISWOK INDUSTRIES PVT. LTD., 11, BRABOURNE ROAD, KOLKATA-700 001. 3 . .% ( )/ THE CIT(A), KOLKATA 4. .% / CIT, KOLKATA 5 . >? ,% / DR, KOLKATA BENCHES, KOLKATA -5 ,/ TRUE COPY, '.%@/ BY ORDER, 2 /ASSTT. REGISTRAR .