DCIT, CHENNAI V. C.Nedumudikilli, CHENNAI

ITA 960/CHNY/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4862 (ITAT-CHENNAI)
• Duration Of Justice: 1 year(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 16-06-2011
• Assessment Year: 2003-2004
• Appeal Filed On: 15-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R VISWANATHAN

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL BENCH C CHENNAI BEFORE DR. O.K. NARAYANAN, VICE-PRESIDENT AND SHRI HARI OM MARATHA, JUDICIAL MEMBER I.T.A.NOS. 958 TO 960/MDS/2010 ASSESSMENT YEARS : 2001-02 TO 2003-04 THE DEPUTY COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-IV(1), CHENNAI. VS. SHRI C. NEDUMUDIKILLI, OLD NO.10, NEW NO.54, NAVALLAR HIGH ROAD, DEVARAJ NAGAR, SALIGRAMMAM, CHENNAI-93. PAN ADPPN 4869 C (APPELLANT) (RESPONDENT) APPELLANT BY : S HRI R. VISWANATHAN RESPONDENT BY : SHRI K. BALASUBRAMANIAN O R D E R PER DR. O.K. NARAYANAN, VICE-PRESIDENT THESE THREE APPEALS ARE FILED BY THE REVENUE FOR TH E ASSESSMENT YEARS 2001-02, 2002-03 AND 2003-04. THE SE THREE APPEALS ARE DIRECTED AGAINST THE COMMON ORDER PASSE D BY THE COMMISSIONER OF INCOME-TAX (APPEALS)-I, AT CHENNAI DATED 26.2.2010. THE APPEALS ARISE OUT OF THE ASSESSMENT S COMPLETED UNDER SEC.143(3) READ WITH SEC.153A OF THE INCOME-T AX ACT, 1961. ITA 958 TO 960/10 :- 2 -: 2. THE COMMON GROUND RAISED BY THE REVENUE IN ALL T HESE APPEALS IS THAT THE COMMISSIONER OF INCOME-TAX (APP EALS) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO RECOMPU TE THE INTEREST UNDER SEC.234B AFTER GIVING RELIEF UNDER SEC.90. I T IS THE CASE OF THE REVENUE THAT THE COMMISSIONER OF INCOME-TAX (AP PEALS) HAS ERRED IN RELYING ON THE JUDGMENT OF THE HON'BLE MADR AS HIGH COURT IN THE CASE OF COMMISSIONER OF INCOME-TAX VS. CHEMP LAST SUNMAR LTD. (314 ITR 231), AS THE ISSUE HAS NOT BEC OME FINAL. IT IS ALSO THE CASE OF THE REVENUE THAT THE COMMISSION ER OF INCOME- TAX (APPEALS) HAS FAILED TO APPRECIATE THAT THE AME NDMENT TO GIVE CREDIT UNDER SEC.90 BEFORE CHARGING INTEREST UNDER SEC.234B WAS INTRODUCED WITH EFFECT FROM THE ASSESSMENT YEAR 200 7-08 AND SHOULD NOT BE APPLIED TO THE ASSESSMENT YEAR 2001-0 2. 3. IN THESE CASES, THE ASSESSEES INCOME WAS ASSESS ED IN CANADA AND TAXES WERE PAID IN THAT COUNTRY. THOSE PAYMENTS HAVE ALSO BEEN GIVEN CREDIT. HOWEVER, THE INTEREST UNDER SEC.234B WAS CALCULATED FOR ALL THESE THREE YEARS W ITHOUT CONSIDERING THE TAXES PAID BY THE ASSESSEE IN CANAD A. 4. WHEN THIS MATTER WAS TAKEN UP BEFORE THE COMMISS IONER OF INCOME-TAX (APPEALS), HE FOUND THAT THE DECISION OF THE ITAT, C ITA 958 TO 960/10 :- 3 -: BENCH, CHENNAI ON THIS ISSUE HAS BEEN UPHELD BY THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF COMMISSION ER OF INCOME- TAX VS. CHEMPLAST SUNMAR LTD. (314 ITR 231) WHERE IT WAS HELD THAT MAT CREDIT AVAILABLE TO AN ASSESSEE UNDER SEC. 115JAA HAS TO BE TREATED AS ADVANCE TAX FOR THE PURPOSES OF CO MPUTATION OF INTEREST UNDER SEC.234B AND 234C, AND THAT RATIO IS APPLICABLE TO THE PRESENT CASE AS WELL. IT IS AGAINST THE ABOVE FINDING THAT THE REVENUE HAS COME IN SECOND APPEALS BEFORE US. 5. WE AGREE WITH THE FINDING OF THE COMMISSIONER OF INCOME- TAX (APPEALS) IN THE PRESENT CASE. ANY AMOUNT OF C REDIT AVAILABLE TO AN ASSESSEE AGAINST THE LIABILITY OF TAX CAST ON HIM, HAS TO BE TAKEN INTO CONSIDERATION WHILE COMPUTING THE INTERE ST LIABILITY. WHERE SUCH CREDITS ARE MADE SET OFF AGAINST THE TAX PAYABLE BY THE ASSESSEE, SUCH CREDITS ALSO PARTAKE THE CHARACT ER OF TAXES PAID IN ADVANCE AND THEREFORE, WHILE COMPUTING THE INTEREST BURDEN, SUCH CREDITS AVAILABLE IN FAVOUR OF THE ASS ESSEE HAS TO BE DEDUCTED FROM THE ADVANCE TAX LIABILITY. 6. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, WE F IND THAT THESE APPEALS FILED BY THE REVENUE ARE LIABLE TO BE DISMISSED. ITA 958 TO 960/10 :- 4 -: 7. IN RESULT, THESE THREE APPEALS ARE DISMISSED. ORDERS PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING, ON THURSDAY, THE 16 TH DAY OF JUNE, 2011 AT CHENNAI. SD/- SD/- (HARI OM MARATHA) (DR.O.K.NARAYANAN) JUDICIAL MEMBER VICE-PRESIDENT CHENNAI, DATED THE 16 TH JUNE, 2011 MPO* COPY TO : APPELLANT/RESPONDENT/CIT/CIT(A)/DR