Rivaa Exports, Surat V. The Income tax Officer, Ward-2(4), Surat

MA 10/AHD/2010

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 7325 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 10 month(s) 24 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2011
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2003-2004
• Appeal Filed On: 28-01-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: A K PATEL
• Section: 234B

Judgement Text

, , . . , . , ! ! ! ! ' ' ' ' IN THE INCOME TAX APPELLATE TRIBUNAL : D BENCH : AHMEDABAD BEFORE HONBLE SHRI D.K.TYAGI, J.M. & HONBLE SHR I A.MOHAN ALANKAMONY, A.M.) ## ## ## ## (M.A.) NOS.10 & 11/AHD/2010 : ASSESSMENT YEARS 2003-04 & 2004-05 ( ARISING OUT OF ITA NOS.2041 & 2042/AHD./2009) RIVAA EXPORTS, SURAT ..,.. ( / APPLICANT) -VS- PAN: AADFP 1706H I.T.O., WARD-2(4), SURAT .. ( $%& / RESPONDENT) ' ( /APPLICANT BY : SMT. URVASHI SHODHAN, A.R. $%& ' ( / RESPONDENT BY : SHRI A.K.PATEL, SR.D.R. ) * ' +! / DATE OF HEARING : 25/11/2011 ,- ' +! / DATE OF PRONOUNCEMENT : 22/12/2011 . . . . / ORDER PER SHRI A.MOHAN ALANKAMONY, ACCOUNTANT MEMBER : THE ASSESSEE HAS FILED THESE TWO MISCELLANEOUS APPL ICATIONS SEEKING RECTIFICATION OF CERTAIN MISTAKES ARISING OUT OF THE COMMON ORDER PASSED BY THE TRIBUNAL DATED 31.12.2009 IN ITA NOS.2041/AHD/2009 AND 2042/AHD/20 09 FOR THE ASSESSMENT YEAR 2003-2004 AND 2004-2005 RESPECTIVELY. SINCE THE ISS UES ARE RELATED TO THE SAME ASSESSEE AND SIMILAR, A COMMON ORDER IS PASSED FOR THE SAKE OF CONVENIENCE. 2. AT THE TIME OF HEARING, THE LD. A. R. SUBMITTED WITH RESPECT TO ASSESSMENT YEAR 2003-04 THAT THE LD. CIT (A) IN PARA 3.5 ON PAGE 7 OF THE ORDER NOTED THAT THE APPLICANT HAS NOT AGITATED LEVY OF INTEREST U/S 234A, B & C A ND OBSERVING FURTHER THAT THE CBDT CIRCULAR NO. 2 OF 2006 IS REGARDING THE LEVY OF INT EREST WHILE GIVING EFFECT TO THE AMENDMENTS BROUGHT IN BY THE TAXATION LAWS (AMENDME NT) ACT, 2005 REFRAINED FROM 2 M.A.NOS. 10 & 11/AHD/2010 ADJUDICATING LEVY OF INTEREST. THE APPLICANT HAS AL READY SUCCEEDED SINCE NEITHER AO HAS LEVIED INTEREST NOR CIT (A) HAS CONFIRMED THE LEVY OF INTEREST AS NO GROUND WAS RAISED BEFORE HIM. THE DISCUSSION BY LD. CIT (A) IN THE OR DER ON LEVY OF INTEREST IS ACADEMIC ONLY. THEREFORE NO SUBMISSIONS WERE MADE BY LD. A.R . OF THE APPLICANT BEFORE THE HON'BLE BENCH ON THIS ISSUE. 2.1 WITH RESPECT TO ASSESSMENT YEAR 2004-05, THE LD . A.R. SUBMITTED THAT LD. CIT (A) IN PARA 3.5 ON PAGE 7 HAS TAKEN COGNIZANCE OF THE C BDT CIRCULAR NO. 2 OF 2006 DATED 17/01/2006 DIRECTING NOT TO CHARGE INTEREST WHERE A DMISSIBLE DEDUCTION IS RECOMPUTED IN VIEW OF THE AMENDMENTS MADE BY TAXATION LAWS (AMEND MENT) ACT OF 2005 AND FURTHER HAS DIRECTED AO TO REWORK THE INTEREST LEVIABLE U/S 234 IN THE LIGHT OF THE SAID CIRCULAR, THE HON'BLE ITAT GROSSLY ERRED IN DISMISSING THE GROUND BY HOLDING THAT LEVY OF INTEREST U/S 234A, 234B & 234D IS MANDATORY. THE HON'BLE ITAT CO MPLETELY OVERLOOKED THE DIRECTIONS ISSUED BY CBDT IN THE ABOVE MENTIONED CI RCULAR AND IN LIGHT OF THE SAME THE IMPUGNED ORDER REQUIRES TO BE MODIFIED TO THAT EXTE NT. IN LIGHT OF THE ABOVE CIRCUMSTANCES NO SUBMISSIONS WERE MADE BY LD. A.R. OF THE APPLICA NT BEFORE THE HON'BLE BENCH ON THIS ISSUE. 2.2 THE LD. A.R. HUMBLY SUBMITTED THAT THE ERROR HA S OCCURRED IN PARA 3.3 AT PAGE NO.4 OF THE ORDER OF THE ITAT DATED 31.12.2009, WHICH IS REPRODUCED HEREINBELOW: 3.3 AS REGARDS ISSUE RELATING TO LEVY OF INTEREST U /S 234A ,234B& 234D RAISED IN GROUND NO. 3 OF THE APPEAL, THE LD. AR ON BEHALF OF THE ASSESSEE DID NOT MAKE ANY SUBMISSIONS BEFORE US. THE ITAT VIDE THEIR ORDERS D ATED 23.3.2007 & 23.1.2008 HAD RESTORED THIS ISSUE TO THE FILE OF THE AO WHILE THE LD. CIT(A) HAS OBSERVED IN THE IMPUGNED ORDER DIRECTIONS ISSUED BY THE ITAT TO RECONSIDER LEVY OF INTEREST ARE ERRONEOUS AND IRRELEVANT. LEVY OF INTEREST U/S 234A , 234B & 234D OF THE ACT, BEING MANDATORY [COMMISSIONER OF INCOME TAX. VS ANJ UM M. H. GHASWALA AND OTHERS, 252 ITR 1(SC)] AND NO INFIRMITY HAVING BEEN POINTED OUT IN ITS LEVY, THIS 3 M.A.NOS. 10 & 11/AHD/2010 GROUND IS DISMISSED. HOWEVER, THE AO SHALL ALLOW CO NSEQUENTIAL RELIEF WHILE GIVING EFFECT TO THIS ORDER. 2.3 THE LD. A.R. EXPLAINED THAT WITH RESPECT TO ASS ESSMENT YEAR 2003-04, THE GROUND NO.3 RAISED IN THE APPEAL, THE ASSESSEE HAD ONLY AG ITATED AGAINST THE UNWARRANTED REMARK OF THE LD. CIT(A) THAT THE ASSESSEE AND THE A.R. WE RE RESPONSIBLE FOR MISLEADING THE HONBLE ITAT IN RESPECT OF NON-ADJUDICATION OF THE GROUND RAISED AGAINST LEVY OF INTEREST UNDER SECTION 234A, 234B AND 234C WHERE THE HONBLE ITAT IN THEIR ORDER HAD ERRONEOUSLY MENTIONED THAT THE ISSUE RELATING TO LE VY OF INTEREST UNDER SECTION 234A AND 234B WAS AGITATED BY THE ASSESSEE. THE LD. A.R. SUB MITTED THAT THE ASSESSEE HAD NOT RAISED THIS ISSUE IN ITS APPEAL BEFORE THE ITAT BUT HAD ONLY POINTED OUT THE UNETHICAL REMARK OF THE LD. CIT(A). THEREFORE, IT WAS HUMBLY PRAYED THAT THE LAST TWO SENTENCES OF PARA 3.3 OF THE ITAT ORDER DATED 31.12.2009 MAY BE DELETED AND THE REMARKS OF THE LD. CIT(A) BE CONDEMNED. 2.4 SIMILARLY, THE LD. A.R. EXPLAINED THAT FOR THE ASSESSMENT YEAR 2004-05, THE ASSESSEE HAD POINTED OUT THE UNWARRANTED STATEMENT OF THE LD . CIT(A) AS MENTIONED ( SUPRA ). THE LD. AR FURTHER SUBMITTED THAT THE ASSESSEE HAD RAIS ED IN HIS ADDITIONAL GROUND BEFORE THE LD. CIT(A) CHALLENGING LEVY OF INTEREST UNDER SECTI ONS 234B AND 234D OF THE ACT., IN THE FIRST ROUND OF APPEAL AND THAT HAD REMAINED NON-DEC IDED BY THE LD. CIT(A). THE REMARKS REGARDING NON-VERIFICATION OF RECORDS AND ISSUANCE OF DIRECTION BY THE HONBLE ITAT TO RECONSIDER LEVY OF INTEREST UNDER ABOVE SECTIONS AR E IRRELEVANT AND ERRONEOUS. THEREFORE, IT WAS PRAYED THAT THE LAST TWO SENTENCES OF PARA 3.3 OF THE ORDER DATED 31.12.2009 OF THE ITAT MAY BE DELETED WITH RESPECT OF ASSESSMENT YEAR 2004-05 ALSO AND PASS APPROPRIATE STRICTURES AGAINST THE LD. CIT(A) FOR HIS UNWARRANT ED STATEMENT IN HIS ORDER. 3. THE LD. D.R. HAD NO OBJECTION FOR DELETING THE L AST TWO SENTENCES OF PARA 3.3 OF THE TRIBUNALS ORDER DATED 31.12.2009 IN ORDER TO CURE THE MISTAKE OCCURRED IN THE TRIBUNALS ORDER FOR THE ASSESSMENT YEAR 2003-04 & 2004-05. 4 M.A.NOS. 10 & 11/AHD/2010 4. WE HAVE HEARD RIVAL SUBMISSIONS AND PERUSED THE MATERIALS ON RECORD. IT IS APPARENT THAT THE ASSESSEE HAS NOT RAISED SPECIFIC GROUND TO ADJUDICATE THE ISSUE RELATING TO LEVY OF INTEREST UNDER SECTIONS 234A, 234B AND 234C FOR THE ASSESSMENT YEAR 2003-04 HOWEVER, HAS ONLY EXPRESSED HIS DISPLEASURE OVER TH E REMARKS OF THE LD. CIT(A) AND FOR THE ASSESSMENT YEAR 2004-05, THE TRIBUNAL HAD OVERS TEPPED IN ADJUDICATING THE ISSUE RELATING TO LEVY OF INTEREST. THEREFORE, WE HEREBY DELETE THE LAST TWO SENTENCES OF PARA 3.3 OF THE TRIBUNALS ORDER DATED 31.12.2009. 4.1 WITH REGARD TO THE UNSAVOURY REMARK OF THE LD. CIT(A) IN HIS ORDER DATED 24.02.2009 IN CAS/485 & 486/08-09 FOR THE ASSESSMEN T YEARS 2003-04 AND 2004-05 RESPECTIVELY, WE REFRAIN FROM MAKING ANY COMMENTS S INCE THE OBJECTIONABLE PORTION OF PARA 3.3 AT PAGE 7 OF THE ORDER IS EXPUNGED BY THE LD. CIT(A) IN HIS ORDER DATED 12.11.2009. 5. IN THE RESULT, BOTH THE MISCELLANEOUS APPLICATIO NS FILED BY THE ASSESSEE ARE ALLOWED. / . ' ,- 0 1 22 / 12 /2011 2 ' * 3 SD/ SD/- (D.K.TYAGI) (A.MOHAN ALANKAM ONY) JUDICIAL MEMBER ACCOUNTANT M EMBER DATED : 22/12/2011 . . . . ' '' ' $+# $+# $+# $+# 5#- 5#- 5#- 5#-+1 +1+1 +1- -- - 1. %& 2. $%& 3. + ); 4. );- - 5. #> $+ , , 3 6. A/ . , B/ D , 3 TALUKDAR/ SR. P.S.