Shri Krishna Bothra 302, Vinayak Apartment Prithviraj Road, C-Scheme, Jaipur, Jaipur V. ITO Ward-6 (2), Jaipur, Ward-6(2), Jaipur

ITA 967/JPR/2019

• Counselvise Citation: [2021] 108 COUNSELVISE.COM (IT) 9316 (ITAT-JAIPUR)
• Duration Of Justice: 1 year(s) 7 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 17-03-2021
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: SMC
• Assessment Year: 2010-2011
• Appeal Filed On: 18-07-2019
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONISHA CHOUDHARYADDL CIT DHK
• Assessee Lawyers: H M SINGHVI
• Keywords: Rectification of order
• Section: 143(3); 153A; 139(1); 139(4); 147; 148; 144; 90; 154; 139

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHES A, JAIPUR JH LANHI XLKA ] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS[KK LNL; DS LE{K BEFORE SHRI SANDEEP GOSAIN, JM & SHRI VIKRAM SINGH YADAV, AM VK;DJ VIHY LA -@ ITA NO. 967/JP/2019 FU/KZKJ.K O'KZ@ ASSESSMENT YEAR : 2010-11 KRISHNA BOTHRA, 302, VINAYAK APARTMENT, PRITIVIRAJ ROAD, C-SCHEME, JAIPUR. CUKE VS. I.T.O. WARD 6(2) JAIPUR. LFKK;H YS[KK LA -@THVKBZVKJ LA-@ PAN/GIR NO.: ARZPB 5089 Q VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS @ ASSESSEE BY : SHRI H.M. SINGHVI (CA) JKTLO DH VKSJ LS @ REVENUE BY: SMT. MONISHA CHOUDHARY(ADDL.CIT) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 21/01/2021 MN?KKS 'K.KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 17/03/2021 VKNS'K@ ORDER PER: SANDEEP GOSAIN, J.M. THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD. CIT(A)-2, JAIPUR DATED 21/05/2019 FOR THE A.Y. 2010-11 WHEREIN SOLE EFFECTIVE GROUND OF APPEAL HAS BEEN TAKEN AND THE SAME IS REPRODUCED AS UNDER: 1. THAT THE LD. CIT(A) WENT WRONG IN CONFIRMING THE ADDITION OF RS. 9,41,283/- OF INTEREST U/S 234A(1) WHEREAS IT SHOULD BE CHARGED AS PER SEC. 234A(3) WHICH IS BAD IN LAW. 2. THE HEARING OF THE APPEAL WAS CONCLUDED THROUGH VIDEO CONFERENCE IN VIEW OF THE PREVAILING SITUATION OF COVID-19 PANDEMIC. ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 2 3. THE ONLY GROUND RAISED BY THE ASSESSEE RELATES TO CHALLENGING THE ORDER OF THE LD. CIT(A) IN CONFIRMING THE ADDITION OF RS. 9,41,283/- OF INTEREST U/S 234A(1) OF THE INCOME TAX ACT, 1961 (IN SHORT, THE ACT). THE LD. AR APPEARING ON BEHALF OF THE ASSESSEE HAS REITERATED THE SAME ARGUMENTS AS WERE RAISED BEFORE THE LD. CIT(A) AND ALSO RELIED ON THE WRITTEN SUBMISSIONS FILED BEFORE THE BENCH WHICH IS REPRODUCED BELOW: THAT THE ASSESSEE DID NOT FILE THE RETURN OF INCOME U/S 139(1) BUT FILED HER RETURN OF INCOME FOR THE FIRST TIME IN COMPLIANCE TO NOTICE U/S 148 DATED 20-06-2014 ON DATED 11-02-2016 DECLARING INCOME OF RUPEES 2,97,250 /- AND PAID THE TAX AND INTEREST A/ S 234 A, B, C. THUS, THERE IS A DELAY IN FILING OF RETURN FOR 19 MONTHS I.E FROM AUG. 2014 TO FEB. 2016. IN ORIGINAL ITNS 150 THE AO CHARGED INTEREST U/S 234A(3) OF RS. 266950/- FOR THE PERIOD FROM 01/08/2014 TO 11/02/2016 I.E. 19 MONTHS ON THE TAX OF RS. 1404981/ -THE AO RECTIFIED THE SAME U/S 154 INCREASING THE INTEREST CHARGED U/S 234A FROM RS. 266950/- TO 941983/-U/S 234A(1) INSTEAD OF INTEREST U/S 234A(3). THE RESULT THEREOF WAS INCREASE OF INTEREST FROM RS. 266950/- TO RS. 941983/- . THE QUESTION NOW ARISES WHETHER THE INTEREST U/S 234A SHOULD BE CHARGED FOR A PERIOD OF 19 MONTHS AS PER THE PROVISIONS CONTAINED IN SEC. 234A(3 OR IT . SHOULD BE CHARGED FROM THE PERIOD FROM 01/08/2010 TO 01/02/2016 I.E. FOR THE PERIOD OF 67 MONTHS. IT IS A SETTLED PROPOSITION OF LAW QUA RECTIFICATION THAT A MISTAKE APPARENT ON RECORD MUST BE OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY LONG DRAWN PROCESS OF REASONING ON POINTS ON WHICH THERE MAY BE CONCEIVABLY TWO OPINIONS. ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 3 SINCE THE MATTER IN DISPUTE IS DEBATABLE AS THERE ARE TWO SUB SECTIONS (1) & (3) FOR CHARGING OF INTEREST U/S 234A, HENCE RECTIFICATION ORDER PASSED IS BAD IN LAW IN VIEW OF HON'ABLE SUPREME COURT JUDGEMENT IN THE CASE OF TS BALARAM, ITO VS. VOLKART BROTHERS (82 ITR 50,53,54) WHEREIN IT HAS BEEN HELD THAT ' A DECISION ON DEBATABLE POINT OF LAW IS NOT THE MISTAKE APPARENT FROM RECORDS' AND SAME HAS BEEN FOLLOWED BY THE NUMBER OF HIGH COURTS AND ITAT BENCHES OF INDIA. NOW FOR THE SAKE OF YOUR CONVENIENCE WE ARE REPRODUCING THE SUB SECTION (1) AND (3). 234A. (1) WHERE THE RETURN OF INCOME FOR ANY ASSESSMENT YEAR UNDER SUB- SECTION (1) OR SUB-SECTION (4) OF SECTION 139 , OR IN RESPONSE TO A NOTICE UNDER SUB-SECTION (1) OF SECTION 142 , IS FURNISHED AFTER THE DUE DATE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF ONE PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DATE IMMEDIATELY FOLLOWING THE DUE DATE, AND, (A) WHERE THE RETURN IS FURNISHED AFTER THE DUE DATE, ENDING ON THE DATE OF FURNISHING OF THE RETURN; OR (B) WHERE NO RETURN HAS BEEN FURNISHED, ENDING ON THE DATE OF COMPLETION OF THE ASSESSMENT UNDER SECTION 144 , ON THE AMOUNT OF THE TAX ON THE TOTAL INCOME AS DETERMINED UNDER SUB- SECTION (1) OF SECTION 143 , AND WHERE A REGULAR ASSESSMENT IS MADE, ON THE AMOUNT OF THE TAX ON THE TOTAL INCOME DETERMINED UNDER REGULAR ASSESSMENT, AS REDUCED BY THE AMOUNT OF, (I) ADVANCE TAX, IF ANY, PAID; (II) ANY TAX DEDUCTED OR COLLECTED AT SOURCE; 98 [(IIA) ANY RELIEF OF TAX ALLOWED UNDER SECTION 89 ;] (III) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90 ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; (IV) ANY RELIEF OF TAX ALLOWED UNDER SECTION 90A ON ACCOUNT OF TAX PAID IN A SPECIFIED TERRITORY OUTSIDE INDIA REFERRED TO IN THAT SECTION; (V) ANY DEDUCTION, FROM THE INDIAN INCOME-TAX PAYABLE, ALLOWED UNDER SECTION 91 , ON ACCOUNT OF TAX PAID IN A COUNTRY OUTSIDE INDIA; AND (VI) ANY TAX CREDIT ALLOWED TO BE SET OFF IN ACCORDANCE WITH THE PROVISIONS OF SECTION 115JAA OR SECTION 115JD . 234A (3) WHERE THE RETURN OF INCOME FOR ANY ASSESSMENT YEAR, REQUIRED BY A NOTICE UNDER SECTION 148 OR SECTION 153A ISSUED AFTER THE DETERMINATION ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 4 OF INCOME UNDER SUB-SECTION (1) OF SECTION 143 OR AFTER THE COMPLETION OF AN ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 OR SECTION 144 OR SECTION 147 , IS FURNISHED AFTER THE EXPIRY OF THE TIME ALLOWED UNDER SUCH NOTICE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF ONE PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DAY IMMEDIATELY FOLLOWING THE EXPIRY OF THE TIME ALLOWED AS AFORESAID, AND, (A) WHERE THE RETURN IS FURNISHED AFTER THE EXPIRY OF THE TIME AFORESAID, ENDING ON THE DATE OF FURNISHING THE RETURN; OR (B) WHERE NO RETURN HAS BEEN FURNISHED, ENDING ON THE DATE OF COMPLETION OF THE REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 OR REASSESSMENT UNDER SECTION 153A , ON THE AMOUNT BY WHICH THE TAX ON THE TOTAL INCOME DETERMINED ON THE BASIS OF SUCH REASSESSMENT OR RECOMPUTATION EXCEEDS THE TAX ON THE TOTAL INCOME DETERMINED UNDER SUB-SECTION (1) OF SECTION 143 OR ON THE BASIS OF THE EARLIER ASSESSMENT AFORESAID. FROM THE READING OF SUB SEC (3) THE INTEREST WAS RIGHTLY CHARGED FOR 19 MONTHS AND THEREFORE THE INCREASE OF INTEREST U/S 234A BY WAY OF RECTIFICATION IS BAD IN LAW. FURTHER, HON'BLE BOMBAY ITAT IN THE CASE OF PRITI PITHAWALA V. ITO (BOMBAY)(SEE P.B. PG. NO. 19-23) IN PARAGRAPH 8 AND 9 HAS MENTIONED AS UNDER.:- '8. SEC. 234A PRESCRIBES AS UNDER: '234A(1) WHERE THE RETURN OF INCOME FOR ANY ASSESSMENT YEAR UNDER SUBSECTION (1) OR SUB-SECTION 139, OR IN RESPONSE TO A NOTICE UNDER SUB- SECTION (1) OF SECTION 142, IS FURNISHED AFTER THE DUE DATE, OR IS NOT FURNISHED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF ONE AND ONE-FOURTH PERCENT FOR EVERY MONTH, OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE DATE IMMEDIATELY FOLLOWING THE DUE DATE, AND:- A) WHERE THE RETURN IS FURNISHED AFTER THE DUE DATE, ENDING ON THE DATE OF FURNISHING OF THE RETURN; OR B) WHERE NO RETURN HAS BEEN FURNISHED, ENDING ON THE DATE OF COMPLETION OF THE ASSESSMENT U/S 144, ON THE AMOUNT OF THE TAX ON THE TOTAL INCOME AS DETERMINED UNDER SECTION (1) OF SECTION 143 OR ON REGULAR ASSESSMENT AS ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 5 REDUCED BY THE ADVANCE TAX, IF ANY, PAID AND TAX DEDUCTED OR COLLECTED AT SOURCE. EXPLANATION 1 EXPLANATION 3. WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147, THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PURPOSE OF THIS SECTION.' 9. WITH A VIEW TO SIMPLIFY THE PROCEDURE, WHICH HAD LED TO LITIGATION AND CONSEQUENT DELAY IN REALIZATION OF DUES, THE AMENDING ACT, 1987, HAS SUBSTITUTED THE AFORESAID PROVISIONS BY A SIMPLE SCHEME OF PAYMENT OF MANDATORY INTEREST FOR DEFAULTS MENTIONED THEREIN. THE AFORESAID PROVISIONS PROVIDES THAT WHERE A RETURN OF INCOME IS FURNISHED AFTER THE DUE DATE OR IS NOT FURNISHED, THE ASSESSEE SHALL PAY SIMPLE INTEREST AT THE RATE OF ONE AND ONE-FOURTH PER CENT FOR EVERY MONTH, OR PART OF A MONTH COMPRISES IN THE PERIOD OF DEFAULT ON THE AMOUNT OF TAX ON TOTAL INCOME DETERMINED ON REGULAR ASSESSMENT, AS REDUCED BY ANY ADVANCE TAX PAID OR TAX DEDUCTED AT SOURCE. AS SUCH, THE WORD 'REGULAR ASSESSMENT' IS USED IN THE CONTEXT OF COMPUTATION. IT DOES NOT SAY THAT THE ORDER PASSED U/S 143(3)/141 OF THE ACT SHALL BE SUBSTITUTED BY SECTION 147 OF THE ACT. IN TERMS OF SECTION 234(A) (1) (A) (B), THE PERIOD FOR WHICH THE INTEREST LIABILITY IS CALCULATED IS THE PERIOD BETWEEN THE DATE ON WHICH THE RETURN WAS DUE TO BE FILED AND ENDING ON THE DATE THE SAME ACTUALLY FURNISHED AND WHEN NO RETURN IS FURNISHED ENDING ON THE DATE OF COMPLETION OF THE ASSESSMENT U/S 144 OF THE ACT. ' THAT THE LEARNED CIT(A) ERRED IN CONFIRMING THE INTEREST CHARGED U/S 234A OF RS. 941983/-STATING THAT THE ASSESSEE'S CASE DOES NOT FALL UNDER SEC. 234A SUBSECTION (3). IT IS COVERED BY SEC. 234A(1) EXPLANATION 3 WHERE INTEREST IS TO BE CHARGED FROM THE DUE DATE OF FILING OF RETURN TILL THE DATE OF FILING OF RETURN IN RESPONSE TO NOTICE U/S 147. THAT THE ORDER PASSED BY CIT(A) AND RECTIFICATION ORDER PASSED BY AO IS BAD IN LAW IN VIEW OF THE ABOVE FACTS AND SUBMISSIONS AND THE APPEAL OF THE ASSESSEE MAY KINDLY BE ALLOWED. 4. ON THE OTHER HAND, THE LD. DR HAS VEHEMENTLY SUPPORTED THE ORDER PASSED BY THE LD. CIT(A). ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 6 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND CAREFULLY PERUSED THE MATERIAL AVAILABLE ON RECORD. FROM PERUSAL OF RECORDS, WE NOTICED THAT THE A.O. PASSED ORDER U/S 154 OF THE ACT FOR THE YEAR UNDER CONSIDERATION ON THE GROUND THAT THE ASSESSEE WAS LIABLE TO PAY INTEREST U/S 234A(1) OF THE ACT OF RS. 9,41,283/- INSTEAD OF RS. 2,66,950/- CHARGED AS PER SECTION 234A(1) OF THE ACT BECAUSE IN THIS CASE, SCRUTINY ASSESSMENT U/S 147/143(3) OF THE ACT WAS COMPLETED AT A TOTAL INCOME OF RS.48,71,356/-. HOWEVER, LATER ON, ON VERIFICATION OF THE RECORD, IT WAS FOUND BY THE A.O. THAT INTEREST U/S 234A(1) WAS CHARGED AT RS. 2,66,950/- IN ITNS 150 DATED 31/03/2016 WHEREAS IT WAS TO BE CHARGED AT RS. 9,41,283/- AND THUS CONSIDERED THE SAME TO BE MISTAKE APPARENT FROM THE RECORD. THE A.O. ALSO ISSUED NOTICE TO THE ASSESSEE AND PROVIDED OPPORTUNITY OF HEARING BUT THE ASSESSEE DID NOT APPEAR BEFORE THE A.O.. CONSEQUENTLY, THE ORDER OF RECTIFICATION WAS PASSED BY THE A.O. THEREBY CHARGING INTEREST U/S 234A(1) OF THE ACT AT RS. 9,41,283/- BUT AT THE SAME TIME, THE TOTAL INCOME OF THE ASSESSE WAS KEPT SAME AS WAS DETERMINED U/S 143(3)/147 OF THE ACT. THE LD. AR HAS VEHEMENTLY OPPOSED THE PASSING OF RECTIFICATION ORDER ON THE GROUND THAT THERE WAS NO MISTAKE APPARENT FROM THE RECORD AND CHARGING OF INTEREST IS A DEBATABLE ISSUE AND RELIED UPON THE DECISION OF HONBLE SUPREME COURT IN THE CASE OF TS BALARAM, ITO VS VOLKART BROTHERS 82 ITR 50. ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 7 6. AFTER PERUSAL OF THE FACTS OF THE PRESENT CASE, WE FOUND THAT THE LD. AR SOLELY RELIED UPON THE PROVISIONS OF SECTION 234A(3) OF THE ACT WHEREAS IT HAS CATEGORICALLY BEEN PROVIDED THEREIN THAT FOR RETURN FILED U/S 148 AFTER THE COMPLETION OF AN ASSESSMENT U/S 143(3) OR 144/147 INTEREST IS TO BE CHARGED COMMENCING ON THE DATE FROM THE EXPIRY OF TIME ALLOWED FOR FILING OF RETURN OF INCOME. HOWEVER, ON PERUSAL OF THE FACTS, WE FOUND THAT IT IS AN ADMITTED POSITION THAT IN THE PRESENT CASE, THE ASSESSE HAD NOT FILED ANY RETURN OF INCOME EITHER U/S 139(1) OR U/S 139(4) OF THE ACT AND FOR THE FIRST TIME THE RETURN OF INCOME WAS FILED BY THE ASSESSE IN RESPONSE TO NOTICE U/S 148 OF THE ACT ON 11/02/2016. SINCE NO RETURN OF INCOME WAS EARLIER FILED U/S 139(1) OR U/S 139(4) OF THE ACT, THEREFORE THERE WAS NO QUESTION OF ANY ASSESSMENT U/S 143(3)/144/147 OF THE ACT. THEREFORE, FOR THIS REASON ALONE, THE ASSESSEES CASE DO NOT FALL U/S 234A(3) OF THE ACT AND IT IS PLAINLY COVERED BY THE PROVISIONS OF SECTION 234A(1) EXPLANATION (3) OF THE ACT WHEREAS WHERE INTEREST IS TO BE CHARGED FROM THE DUE DATE OF FILING OF RETURN TILL THE DATE OF FILING OF RETURN IN RESPONSE TO NOTICE U/S 147 OF THE ACT. IT HAS CATEGORICALLY BEEN MENTIONED IN SUB-SECTION (3) OF SECTION 234A OF THE ACT THAT PROVISIONS OF SAID SUB-SECTION CAN ONLY BE INVOKED IN THE CASE WHERE THE COMPLETION OF ASSESSMENT U/S 143(3)/144 OR 147 OF THE ACT TAKES PLACE, BUT ADMITTEDLY IN THE PRESENT CASE, NO RETURN WAS FILED. THERE ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 8 WAS NO OCCASION FOR COMPLETION OF THE ASSESSMENT UNDER THE ABOVE PROVISIONS, THEREFORE, THE ASSESSE CANNOT TAKE BENEFIT OF SUB-SECTION (3) OF SECTION 234A OF THE ACT. 7. WE ARE OF THE CONSIDERED VIEW THAT PROVISIONS OF RECTIFICATION CAN ONLY BE INVOKED FOR CORRECTING THE MISTAKE WHICH ARE APPARENT ON RECORD AND IN THE PRESENT CASE, THE MISTAKE IS OBVIOUS AND PATENT AND DO NOT INVOLVE ANY DISPUTE WHICH IS DEBATABLE IN NATURE. THE DECISION RELIED UPON BY THE LD AR IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. NO NEW FACTS AND CIRCUMSTANCES HAVE BEEN BROUGHT ON RECORD BEFORE US BY THE LD AR AS THE DISPUTE INVOLVED IN THE PRESENT CASE IS ONLY APPLICABILITY OF THE PERIOD OF CHARGING OF INTEREST WHICH CAN BE GATHERED ON THE PLAIN READING OF PROVISIONS OF SECTION 234A(1) OF THE ACT. CONSIDERING THE TOTALITY OF FACTS AND CIRCUMSTANCES AS DISCUSSED ABOVE, WE FIND NO REASON TO INTERFERE OR INTERVENE IN THE ORDER OF THE LD. CIT(A) QUA THIS ISSUE AND WE UPHOLD THE SAME. 8. IN THE RESULT, THIS APPEAL OF THE ASSESSEE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 17 TH MARCH, 2021. SD/- SD/- FOE FLAG ;KNO LANHI XLKA (VIKRAM SINGH YADAV) (SANDEEP GOSAIN) YS[KK LNL;@ ACCOUNTANT MEMBER U;KF;D LNL;@ JUDICIAL MEMBER TK;IQJ@ JAIPUR FNUKAD@ DATED:- 17/03/2021 *RANJAN ITA 967/JP/2019_ KRISHNA BOTHRA VS ITO 9 VKNS'K DH IZFRFYFI VXZSFKR @ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ @ THE APPELLANT- SHRI KRISHNA BOTHRA, JAIPUR. 2. IZR;FKHZ @ THE RESPONDENT- THE I.T.O. WARD 6(2) JAIPUR. 3. VK;DJ VK;QDR @ CIT 4. VK;DJ VK;QDRVIHY @ THE CIT(A) 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ @ DR, ITAT, JAIPUR 6. XKMZ QKBZY @ GUARD FILE (ITA NO. 967/JP/2019) VKNS'KKUQLKJ @ BY ORDER, LGK;D IATHDKJ @ ASST. REGISTRAR