M/s Alok Coal Agencies Ltd, Kolkata V. DCIT, Ranchi

ITSSA 6/RAN/2016

• Counselvise Citation: [2018] 122 COUNSELVISE.COM (IT) 3784 (ITAT-RANCHI)
• Duration Of Justice: 2 year(s) 3 month(s) 12 day(s)
• Appeal Type: Income Tax (Search & Seizure) Appeal
• Pronouncement Date: 25-05-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2005-2006
• Appeal Filed On: 12-02-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K MOHANTY
• Assessee Lawyers: S K PODDAR
• Keywords: Search and seizure; Question of law
• Section: 234B

Judgement Text

1 IT (SS) A NO. 06 /RAN/ 201 6 IN THE INCOME TAX APPELLATE TRIBUNAL, RANCHI BENCH, RANCHI BEFORE SHRI N.S.SAINI , ACCOUNTANT MEMBER & SHRI PAVAN KUMAR GADALE , JUDICIAL MEMBER IT (SS) A NO. 06 /RAN/201 6 A .Y. : 20 0 5 - 200 6 M/S ALOK COAL AGENCIES LTD ROOM NO.8, 17 TH FLOOR, 33A, JAWAHARLAL NE HRU ROAD, KOLKATA - 700071 V S THE DCIT, CENTRAL CIRCLE - 1, RANCHI P AN NO. : A A ECA 0909 R (APPELLANT ) . RESPONDENT ASSESSEE BY : SHRI S.K.PODDAR & DEVESH PODDAR, ADV REVENUE BY :SHRI A.K.MOHANTY , JCIT DATE OF HEARING : 2 4 . 0 5 .201 8 DATE OF PRONOUNCEMENT : 25.05 .201 8 O R D E R PER PAVAN KUMAR GADALE, JM : THIS IS AN APPEAL FILED BY THE ASSESSE E AGAINST THE ORDER OF CIT ( A ) , PATNA , DATED 04.12.2015 , FOR THE ASSESSMENT YEAR 200 5 - 0 6 . 2. AT THE TIME OF HEA RING, LD.AR OF THE ASSESSEE DID NOT PRESS THE GROUNDS NO.1 TO 5. ACCORDINGLY, GROUNDS NO.1 TO 5 ARE DISMISSED A S NOT PRESSED. 3. THE EFFECTIVE GROUND OF APPEAL RAISED BY THE ASSESSEE IS AS UNDER : - 6. FOR THAT INTEREST U/S.234A AND 234B SHOULD BE CHARGED ON THE RETURNED INCOME AND NOT ON THE ASSESSED INCOME FOLLOWING THE DECISION OF HONBLE JHARKHAND HIGH COURT. LD.CIT(A) WAS NOT JUSTIFIED IN NOT FOLLOWING THE DECISION OF HONBLE JHARKHAND HIGH COURT WHICH IS BINDING IN NATURE. 2 IT (SS) A NO. 06 /RAN/ 201 6 4 . B RIEF FACTS OF THE CASE ARE THA T THE RE WAS A SEARCH AND SEIZURE ACTION IN RUNGTA GROUP OF CASES ON 07.09.2007, THE ASSESSEE BEING PART OF RUNGTA GROUP WAS COVERED U/S.133A OF THE ACT. THEREAFTER PROCEEDINGS U/S.153C OF THE ACT WAS INITIATED BY THE AO AND THE ASSESSMENT WAS COMPL ETED AT RS.75,50,897/ - AS AGAINST RETURNED INCOME OF RS.49,64,000/ - MAKING AN ADDITION OF RS.25,86,889/ - ON ACCOUNT OF SUNDRY BALANCES WRITTEN OFF. 5 . AGGRIEVED BY THE ASSESSMENT ORDER, THE ASSESSEE HAS FILED AN APPEAL WITH THE CIT(A). IN THE APPELLATE PR OCEEDINGS LD. AR OF THE ASSESSEE ARGUED THE GROUNDS AND REITERATED THE SUBMISSIONS AND LD.CIT(A) HAVING CONSIDERED THE FINDINGS AND THE SUBMISSIONS OF THE ASSESSEE DEALT ON THE DISPUTED ISSUE AND DISMISSED THE APPEAL OF THE ASSESSEE. 6 . AGGRIEVED BY THE OR DER OF CIT(A), THE ASSESSEE HAS FILED AN APPEAL BEFORE THE TRIBUNAL. 7 . AT THE OUTSET, THE LD.AR SUBMITTED THAT THIS ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE ON THE DECISION OF JURISDICTIONAL HIGH COURT IN CASE OF AJAY PRAKASH VERMA IN ITA NO.38 OF 201 0 REPORTED IN 2013(1) TMI 140, WHEREIN THE HONBLE HIGH COURT HAS HELD THAT INTEREST U/S.234B CAN BE LEVIED ONLY ON THE RETURNED INCOME AND NOT ON THE ASSESSED INCOME. LD.AR ALSO REL I ED ON THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHR I GIRDHARI LAL SHARMA VS. ITO, WARD - 1(4), JAMSHEDPUR IN ITA NO. 31/RAN/2013 , DATED 07.05.2012 8. CONTRA, LD. DR RELIED ON THE ORDERS OF LOWER AUTHORITIES. 3 IT (SS) A NO. 06 /RAN/ 201 6 9 . WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL ON RECORD. PRIMA FACIE THE DISPUTED ISSUE, BEING CHARGING OF INTEREST U/S.234B AS ENVISAGED BY LD. AR, IS COVERED BY THE DECISION OF HOBBLE JURISDICTIONAL HIGH COURT IN THE CASE OF AJAY PRAKASH VERMA IN ITA NO.38 OF 2010 REPORTED IN 2013(1) TMI 140 . THE HONBLE COURT IN PARA23&24 HELD AS U NDER : - '23. LEARNED COUNSEL FOR THE APPELLANT SUBMITTED THAT IT HAS BEEN ORDERED BY THE AO THAT INTEREST BE CHARGED AS PER RULE. INTEREST CAN BE LEVIED UNDER SECTION 234A AND 234B OF THE ACT. IT IS SUBMITTED THAT IN VIEW OF THE JUDGMENT OF FULL BENCH OF R ANCHI BENCH OF PATNA HIGH COURT DELIVERED IN THE CASE OF SMT. TEJ KUMARI VRS. COMMISSIONER OF INCOME - TAX REPORTED IN [2001 ] 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 SLP BEFORE 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 IN 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 SECTIONS 234A AND 234B IS CONC ERNED, 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 AO 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.' 10 . LD. AR ALSO PLACED RELIANCE ON THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SHRI GIRDHARI LAL SHARMA VS. ITO, WARD - 1(4), JAMSHEDPUR IN ITA NO. 31/RAN/2013 , ORDER DATED 07.05.2012 IN PARA NO. 4 IT (SS) A NO. 06 /RAN/ 201 6 6 , RELYING UPON THE ABOVE DECISION OF THE HON'BLE JHARKHAND HIGH COURT , HELD AS UNDER: - 'WE ACCORDINGLY FOLLOWING THE ABOVE DECISION, DIRECT THE ASSESSING OFFICER TO RE - COMPUTE THE INTEREST UNDER SECTION 2348 ON THE BASIS OF THE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN FILED.' 11. WE RESPECTFULLY FOLLOWING THE DECISION OF THE JURISDICTIONAL HIGH COURT AND THE DECISION OF COORDINATE BENCH OF THE TRIBUNAL DIRECT THE AO TO RECOMPUTE THE INTEREST U/S.234B ON THE BASIS OF TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN FILED. THIS GROUND OF APPEAL OF THE ASSESSEE IS ALLOWED. 12 . IN THE RESULT, APPEAL O F THE ASSESSEE IS ALLOWED . ORDER PRONOUNCED IN THE OPEN COURT ON 25 / 05 /201 8 SD/ - SD/ - ( N.S.SAINI ) ( PAVAN KUMAR GADALE ) ACCO UNTANT MEMBER JUDICIAL MEMBER RANCHI , DATED 25 / 05 /201 8 PRAKASH KUMAR MISHRA , SR. PS COPY OF THE ORDER FORWARDED TO : BY ORDER, //TRUE COPY// SR.PS, ITAT, RANCHI 1. THE APPELLANT 2. TH E RESPONDENT 3. THE CIT(A) CONCERNED 4. CIT , CONCERNED 5. DR, ITAT, RANCHI 6. GUARD FILE.