ANIL HASTAKALA PVT. LTD., Jaipur V. ACIT, Alwar

MA 158/JPR/2016

• Counselvise Citation: [2016] 124 COUNSELVISE.COM (IT) 5091 (ITAT-JAIPUR)
• Duration Of Justice: 1 month(s) 27 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 22-12-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 26-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AJAY MALIK CIT DHK
• Section: 153A; 243B; 234B; 147

Judgement Text

VK;DJ VIHYH; VF/KDJ.K] T;IQJ U;K;IHB] T;IQJ IN THE INCOME TAX APPELLATE TRIBUNAL, JAIPUR BENCHE S, JAIPUR JH DQY HKKJR] U;KF;D LNL; ,OA JH FOE FLAG ;KNO] YS [KK LNL; DS LE{K BEFORE: SHRI KUL BHARAT, JM & SHRI VIKRAM SINGH YAD AV, AM VK;DJ VIHY LA-@ MA NO.158/JP/16 (ARISING OUT OF ITA NO. 605/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2003-04 M/S ANIL HASTKALA PVT. LTD., 87, VIKAS PATH, ALWAR CUKE VS. THE ACIT, CENTRAL CIRCLE, ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AADCA 7019 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT VK;DJ VIHY LA-@ MA NO.159/JP/16 (ARISING OUT OF ITA NO. 606/JP/2015) FU/KZKJ.K O'K Z@ ASSESSMENT YEAR : 2004-05 M/S ANIL HASTKALA PVT. LTD., 87, VIKAS PATH, ALWAR CUKE VS. THE ACIT, CENTRAL CIRCLE, ALWAR LFKK;H YS[KK LA-@THVKBZVKJ LA-@ PAN NO. AADCA 7019 D VIHYKFKHZ@ APPELLANT IZR;FKHZ@ RESPONDENT FU/KZKFJRH DH VKSJ LS@ ASSESSEE BY : SHRI P.C. PARWAL (CA) JKTLO DH VKSJ LS@ REVENUE BY : SHRI AJAY MALIK.(ADDL. CIT ) LQUOKBZ DH RKJH[K@ DATE OF HEARING : 16.12.2016 ?KKS'K .KK DH RKJH[K @ DATE OF PRONOUNCEMENT : 22/12/2016. VKNS'K@ ORDER PER SHRI VIKRAM SINGH YADAV, A.M. THESE MISCELLANEOUS APPLICATIONS HAVE BEEN FILED BY THE ASSESSEE AGAINST THE ORDER PASSED BY THE CO-ORDINATE BENCH I N ITA NO. 605 & 606/JP/15 DATED 28.04.2016. MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 2 2. IN ITS APPLICATION, THE ASSESSEE HAS SUBMITTED T HAT THE HONBLE ITAT WHILE DECIDING THIS GROUND ON PAGE 5 OF THE ORDER R EPRODUCED SECTION 243B(I) AND SECTION 243B(3) ( BY MISTAKE MENTIONED AS (2)). AT PAGES 6 & 7 OF THE ORDER IT IS OBSERVED THAT WHERE ASSESSEE MAKES AN APPLICATION FOR SETTLEMENT OF THE CASE U/S 245C, THE ASSESSEE IS REQUIRED TO P AY TAX AND INTEREST THEREON WHICH WOULD HAVE BEEN PAID UNDER THE PROVISIONS OF ACT, HAD THE INCOME BEEN DISCLOSED IN THE RETURN OF INCOME. THEREAFTER IT W AS HELD THAT AS THE TAX IS REQUIRED TO BE PAID IN THE FORM OF ADVANCE TAX ETC . BEFORE 1 ST APRIL OF NEXT FOLLOWING FINANCIAL YEAR AND WHERE ASSESSEE HAS N OT DEPOSITED THE TAX AMOUNT BEFORE 1 ST APRIL, HE IS REQUIRED TO PAY THE INTEREST FROM TH E DATE OF 1 ST APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR. IT WAS FURTHER HELD THAT THE WORDS REFERRED TO IN SECTION 245C CLEARLY SHOWS THAT DATE OF APPL ICATION FOR SETTLEMENT WILL RELATE BACK TO THE FILING OF THE RETURN BEFORE THE AO AND THEREFORE THE TAX AND INTEREST THEREON IS REQUIRED TO BE CALCULATED IN TH E MANNER PROVIDED U/S 234B I.E. 1 ST APRIL FOLLOWING NEXT FINANCIAL YEAR U/S 234B(1). 3. IT WAS FURTHER SUBMITTED THAT HONBLE ITAT HAS R EPRODUCED SUB SECTION (3) OF SECTION 234B AT PAGE 5 OF THE ORDER WHICH IS INSERTED BY FINANCE ACT 2015 W.E.F. 01.06.2015. PRIOR TO THIS INSERTION SUB-SEC TION 3 STOOD AS UNDER: WHERE AS A RESULT OF AN ORDER OF REASSESSMENT OR R ECOMPUTATION U/S 147 OR SECTION 153A, THE AMOUNT ON WHICH INTEREST WAS PAY ABLE UNDER SUB-SECTION (1) IS INCREASED, THE ASSESSEE SHALL BE LIABLE TO PAY S IMPLE INTEREST AT THE RATE OF ONE PERCENT FOR EVERY , MONTH OR PART OF A MONTH CO MPRISED IN THE PERIOD COMMENCING ON THE DAY FOLLOWING THE DATE OF DETERMI NATION OF TOTAL INCOME UNDER SUB-SECTION (1) OF SECTION 143 AND WHERE A RE GULAR ASSESSMENT IS MADE AS IS REFERRED TO IN SUB SECTION (1) FOLLOWING THE DATE OF REGULAR ASSESSMENT AND MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 3 ENDING ON THE DATE OF THE REASSESSMENT OR RECOMPUA TION U/S 147 OR SECTION 153A ON THE AMOUNT BY WHICH THE TAX ON THE TOTAL IN COME DETERMINED ON THE BASIS OF THE REASSESSMENT OR RECOMPUATION EXCEEDS T HE TAX ON THE TOTAL INCOME DETERMINED UNDER SUB-SECTION (1) OF SECTION 143 OR ON THE BASIS OF REGULAR ASSESSMENT AFORESAID. 4. IT WAS FURTHER SUBMITTED THAT IN THE PRESENT CAS E, THE RETURN FILED BY THE ASSESSEE WAS PROCESSED U/S 143(1) AND THEREAFTER NO TICE U/S 153A WAS ISSUED AGAINST WHICH THE RETURN WAS FILED. AS PER SECTION 245C, ASSESSEE IS REQUIRED TO PAY THE TAX AND INTEREST THEREON ON THE ADDITIO NAL INCOME OFFERED IN THE SETTLEMENT PETITION, WHICH WOULD HAVE BEEN PAID UND ER THE PROVISIONS OF THIS ACT HAS THAT INCOME DISCLOSED IN THE APPLICATION BE EN DECLARED IN THE RETURN OF INCOME BEFORE THE DATE OF APPLICATION. ON THE DATE OF APPLICATION RETURN U/S 153A WAS ALREADY FILED. THEREFORE, IF THE ADDITIONA L INCOME WOULD HAVE BEEN INCLUDED IN THE RETURN ALREADY FILED IN RESPONSE TO NOTICE U/S 153A, INTEREST AS PER PROVISIONS OF THE ACT IS CHARGEABLE U/S 243B AN D NOT U/S 234B (1). AS PER SECTION 234B(3), INTEREST IS CHARGEABLE FOR THE PE RIOD COMMENCING ON THE DAY FOLLOWING THE DATE OF DETERMINATION OF THE INCOME U/S 143(1) AND NOT FROM 1ST DAY OF APRIL FOLLOWING THE SAID FINANCIAL YEAR . WHY THIS SPECIFIC SUB-CLAUSE 3 OF SECTION 234B IS NOT APPLICABLE ON THE ASSESSEE I S NOT DECIDED WHICH APPEARS TO BE BY QUOTING THE AMENDED SUB-SECTION 3 INSTEAD OF SUB SECTION 3 AS APPLICABLE FOR THE A.Y. UNDER CONSIDERATION. BASED ON ABOVE, IT WAS SUBMITTED THAT SINCE THE ABO VE MISTAKE IS A MISTAKE APPARENT ON RECORD, IT IS REQUESTED TO KINDLY SUITA BLY MODIFY THE FINDING GIVEN AT PAGES 7 AND 8 OF THE ORDER AND OBLIGE. MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 4 5. HERE IT WOULD BE RELEVANT TO REFER TO THE FINDIN GS OF THE CO-ORDINATE BENCH, WHICH IS THE SUBJECT MATTER OF PRESENT APPLI CATION, WHICH IS AS UNDER: (4.3.) WE HAVE HEARD RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE SHORT CONTROVERSY INVOLVED IN THE PRESENT APPEAL IS WHETHER THE ASSESSEE IS LIABLE TO PAY THE INTEREST FROM 01.04.2003 (I.E. FR OM THE 1 ST DAY OF APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR) OR FROM THE DATE OF PROCESSING I.E. 28.05.2004 (DATE OF INTIMATION UNDER SECTION 143(1) IN TERMS O F SECTION 243B(3) OF THE IT ACT IN RESPECT OF ITA NO. 605/2015. BEFORE WE DECI DE THE ISSUE, WE REPRODUCE THE RELEVANT PROVISIONS HEREUNDER : SECTION 234B. INTEREST FOR DEFAULTS IN PAYMENT OF ADVANCE TAX. (1) SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION, WH ERE, IN ANY FINANCIAL YEAR, AN ASSESSEE WHO IS LIABLE TO PAY ADVANCE TAX UNDER SECTION 208 HAS FAILED TO PAY SUCH TAX OR, WHERE THE ADVANCE TAX PAID BY S UCH ASSESSEE UNDER THE PROVISIONS OF SECTION 210 IS LESS THAN NINETY P ER CENT OF THE ASSESSED TAX, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INT EREST AT THE RATE OF ONE PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRIS ED IN THE PERIOD FROM THE 1 ST DAY OF APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR TO THE DATE OF DETERMINATION OF TOTAL INCOME UNDER SUB-SECTION (1) OF SECTION 143 AND WHERE A REGULAR ASSESSMENT IS MADE, TO THE DATE OF SUCH REGULAR ASSESSMENT, ON AN AMOUNT EQUAL TO THE ASSESSED TAX OR, AS THE CASE MAY BE, ON THE AMOUNT BY WHICH THE ADVANCE TAX PAID AS AFORESAID FALLS SHORT OF THE ASSESSED TAX. EXPLANATION 2. WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 OR SECTION 153A, THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGUL AR ASSESSMENT FOR THE PURPOSES OF THIS SECTION. (2) WHERE, AS A RESULT OF AN ORDER OF REASSESSMENT OR R ECOMPUTATION UNDER SECTION 147 OR SECTION 153A, THE AMOUNT ON WHICH IN TEREST WAS PAYABLE IN RESPECT OF SHORTFALL IN PAYMENT OF ADVANCE TAX FOR ANY FINANCIAL YEAR UNDER SUB-SECTION (1) IS INCREASED, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE THE RATE OF ONE PER CENT, FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD COMMENCING ON THE 1 ST DAY OF APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR AND ENDING ON THE DAT E OF THE REASSESSMENT OR RECOMPUTATION UNDER SECTION 147 OR SECTION 153A, ON THE AMOUNT BY WHICH THE TAX ON THE TOTAL INCOME DETERMINED ON THE BASIS OF THE REASSESSMENT OR RECOMPUTATION EXCEEDS THE TAX ON TH E TOTAL INCOME DETERMINED UNDER SUB-SECTION (1) OF SECTION 143 OR ON THE BASIS OF THE REGULAR ASSESSMENT AS REFERRED TO IN SUB-SECTION (1 ), AS THE CASE MAY BE. APPLICATION FOR SETTLEMENT OF CASES. MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 5 SECTION 245C. (1) AN ASSESSEE MAY, AT ANY STAGE OF A CASE RELATIN G TO HIM, MAKE AN APPLICATION IN SUCH FORM AND IN SUCH M ANNER AS MAY BE PRESCRIBED, AND CONTAINING A FULL AND TRUE DISCLOSU RE OF HIS INCOME WHICH HAS NOT BEEN DISCLOSED BEFORE THE ASSESSING OFFICER , THE MANNER IN WHICH SUCH INCOME HAS BEEN DERIVED, THE ADDITIONAL AMOUNT OF INCOME-TAX PAYABLE ON SUCH INCOME AND SUCH OTHER PARTICULARS A S MAY BE PRESCRIBED, TO THE SETTLEMENT COMMISSION TO HAVE THE CASE SETTL ED AND ANY SUCH APPLICATION SHALL BE DISPOSED OF IN THE MANNER HERE INAFTER PROVIDED : PROVIDED THAT NO SUCH APPLICATION SHALL BE MADE UNLESS, - (I) IN A CASE WHERE PROCEEDINGS FOR ASSESSMENT OR REASS ESSMENT FOR ANY OF THE ASSESSMENT YEARS REFERRED TO IN CLAUSE ( B) OF SUB-SECTION (1) OF SECTION 153A OR CLAUSE ( B) OF SUB-SECTION ( 1) OF SECTION 153B IN CASE OF A PERSON REFERRED TO IN SECTION 153A OR SECTION 153C HAVE BEEN INITIATED, THE ADDITIONAL AMOUNT OF INCOME-TAX PAYABLE ON THE INCOME DISCLOSED IN THE APPLICATION EXCEEDS FIFTY L AKH RUPEES, (IA) IN A CASE WHERE (A) THE APPLICANT IS RELATED TO THE PERSON REFERRED TO IN CLAUSE (I) WHO HAS FILED AN APPLICATION (HEREAFTER IN THIS SUB-SEC TION REFERRED TO AS SPECIFIED PERSON); AND (B) THE PROCEEDINGS FOR ASSESSMENT OR RE-ASSESSMENT FOR ANY OF THE ASSESSMENT YEARS REFERRED TO IN CLAUSE (B) OF SUB-S ECTION (1) OF SECTION 153A OR CLAUSE (B ) OF SUB-SECTION (1) OF S ECTION 153B IN CASE OF THE APPLICANT, BEING A PERSON REFERRED TO I N SECTION 153A OR SECTION 153C, HAVE BEEN INITIATED, THE ADDITIONAL AMOUNT OF INCOME-TAX PAYABLE ON THE INCOME DISCLOSED IN THE APPLICATION EXCEEDS TEN LAKH RUPEES, (II) IN ANY OTHER CASE, THE ADDITIONAL AMOUNT OF INCOME- TAX PAYABLE ON THE INCOME DISCLOSED IN THE APPLICATION EXCEEDS TEN LAKH RUPEES, AND SUCH TAX AND THE INTEREST THEREON, WHICH WOULD HAVE BEEN PAID UNDER THE PROVISIONS OF THIS ACT HAD THE INCOME DISCLOSED IN THE APPLICATION BEEN DECLARED IN THE RETURN OF INCOME BEFORE THE ASSESSI NG OFFICER ON THE DATE OF APPLICATION, HAS BEEN PAID ON OR BEFORE THE DATE OF MAKING THE APPLICATION AND THE PROOF OF SUCH PAYMENT IS ATTACH ED WITH THE APPLICATION. AS PER SECTION 245C, THE ASSESSEE IS REQUIRED TO MA KE AN APPLICATION FOR SETTLEMENT OF CASES IN THE PRESCRIBED FORMAT AS MEN TIONED IN SECTION 245C(1) TO THE SETTLEMENT COMMISSION AND IF SUCH CASE IS AR ISING OUT OF THE PROCEEDINGS FOR ASSESSMENT OR REASSESSMENT U/S 153A , THEN THE ADDITIONAL AMOUNT OF INCOME TAX PAYABLE SHOULD EXCEED RS. 50 L AKHS, AS IN THE PRESENT CASE, AND THE ASSESSEE IS REQUIRED TO PAY SUC H TAX AND INTEREST THEREON WHICH WOULD HAVE BEEN PAID UNDER THE PROVISIONS OF THIS ACT HAD THE INCOME BEEN DISCLOSED IN THE RETURN OF INCOME. MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 6 IF THE ASSESSEE DISCLOSES EXCESS INCOME IN THE RETU RN OF INCOME OR HAS DISCLOSED INCOME IN THE SETTLEMENT PROCEEDINGS BUT HAS NOT PAID PAYABLE TAX OR ADVANCE TAX ON SUCH AMOUNT THAN THE ASSESSEE IS LIABLE TO PAY INTEREST ON THE UNPAID TAX ALONG WITH THE UNPAID TAX AT THE TIM E OF FILING OF THE RETURN OR FILING OF THE SETTLEMENT APPLICATION. IN OUR VIEW, THE ASSESSEE IS LIABLE TO PAY THE INTEREST IN ACCORDANCE WITH SECTION 234B FROM T HE 1 ST DAY OF APRIL OF NEXT FOLLOWING SUCH FINANCIAL YEAR I.E. 1.4.2004 IN THE PRESENT CASE ON THE SAME REASONING AND THE ANALOGY. AS THE TAX IS REQUIRED TO BE PAID IN THE FORM OF ADVANCE TAX ETC. BEFORE 1 ST APRIL OF THE NEXT FOLLOWING FINANCIAL YEAR AS TAX BECAME DUE AND PAYABLE BEFORE THE SAID DATE AND IF THE TAX WAS WRONGLY WITHHELD BY THE ASSESSEE BEYOND 1 ST APRIL, THEN THE REVENUE WOULD HAVE BEEN DEPRIVED FROM THE USE OF THE TAX AMOUNT. SINCE THE ASSESSEE HAS WRONGLY WITHHELD THE AMOUNT OR HAS NOT DEPOSITED TH E TAX AMOUNT BEFORE 1 ST APRIL, THEREFORE, THE ASSESSEE AS IS REQUIRED TO BE DEPOSIT THE TAX PAYABLE UPTO 1 ST APRIL, ALONG WITH RETURN OF INCOME ALONG WITH INTE REST. SIMILARLY, IF ANY AMOUNT IS FOUND TO BE DUE AND PAYABLE IN THE PR OCEEDINGS INITIATED FOR ASSESSMENT OR REASSESSMENT OR RECOMPUTATION, THEN T HE INTEREST IS REQUIRED TO BE PAID FROM THE DATE OF 1 ST APRIL NEXT FOLLOWING SUCH FINANCIAL YEAR, AS THE INCOME ASSESSED, REASSESSED OR RECOMPUTED SHALL REL ATE BACK OR DEEMED TO HAVE BEEN FILLED IN THE RETURN OF INCOME AND THE PR INCIPALS FOR PAY THE INTEREST AS APPLICABLE FOR THE RETURN OF INCOME SHALL MUTATI S MUTANDIS BE APPLICABLE IN THESE CASES AS WELL. IN THE PRESENT CASE, SETTLEM ENT PETITION WAS FILED AND THEREAFTER THE PETITION WAS DEEMED TO HAVE BEEN ADM ITTED ON 31.07.2007 AND THEREAFTER THE SETTLEMENT ORDER WAS PASSED ON 07.02 .2013. BUT AT THE TIME OF FILING OF THE SETTLEMENT PETITION, THE ASSESSEE WAS REQUIRED TO DEPOSIT THE TAX ALONG WITH INTEREST THEREON AS IF SUCH INCOME WOULD HAVE BEEN DISCLOSED AND DECLARED IN THE RETURN OF INCOME. IF THE ASSESSEE H AS DECLARED/DISCLOSED THE SAME INCOME ( INCOME DISCLOSED IN THE SETTLEMENT AP PLICATION), THEN IT WOULD RELATE BACK TO THE DATE OF FILING OF RETURN OF INCO ME. THE CONTENTION OF THE ASSESSEE THAT THE CASE OF THE ASSESSEE WOULD FALL U NDER SECTION 243B(3), IN OUR VIEW IS NOT APPLICABLE. IN FACT, THE PROVISION S OF SECTION 245C MAKES IT ABUNDANTLY CLEAR THAT SUCH TAX AND INTEREST THEREON HAVE TO BE PAID UNDER THE PROVISIONS OF THIS ACT HAD THE INCOME BEEN DISCLOSE D IN THE APPLICATION BUT WAS DECLARED IN THE RETURN OF INCOME BEFORE THE AO ON THE DATE OF APPLICATION. THE WORDS REFERRED IN 245C CLEARLY S HOWS THAT THE DATE OF APPLICATION FOR SETTLEMENT WILL RELATE BACK TO THE FILING OF THE RETURN BEFORE THE AO AND, THEREFORE, THE TAX AND THE INTEREST THEREON IS REQUIRED TO BE CALCULATED IN THE MANNER PROVIDED UNDER SECTION 234 B. THE SECTION234B(1) CLEARLY MENTIONED THAT IF THERE IS A DIFFERENCE IN ADVANCE TAX OR THE TAX, THEN THE INTEREST IS REQUIRED TO BE PAID FROM 1 ST APRIL FOLLOWING NEXT FINANCIAL YEAR. IN VIEW THEREOF, THE APPEALS OF THE ASSESSEE ARE DI SMISSED. 6. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PURSED T HE MATERIAL ON RECORD. THE ISSUE FOR CONSIDERATION BEFORE THE TRIBUNAL WAS WHE THER THE LD CIT(A) WAS MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 7 CORRECT IN UPHOLDING CHARGEABILITY OF INTEREST U/S 234B UNDER SUB-SECTION (1) AND NOT UNDER SUB-SECTION (3) AS CLAIMED BY THE ASS ESSEE WHICH HAS RESULTED IN EXCESS CHARGE OF INTEREST. THE TRIBUNAL IN ITS ORD ER AFTER GOING THE FACTS OF THE CASE, THE PROVISIONS OF SECTION 245C AND SECTION 23 4B HAS ARRIVED AT A CONCLUSION THAT THE PROVISIONS OF SECTION 234B(1) A RE APPLICABLE AND PROVISIONS OF SECTION 234B(3) ARE NOT APPLICABLE. THE LD AR C ONTENTED THAT THE TRIBUNAL WHILE EXAMINING THE PROVISIONS OF SECTION 234B(3) O F THE ACT HAS REFERRED TO THE AMENDED PROVISIONS OF SECTION 234B(3) OF THE AC T WHICH HAVE BEEN INSERTED BY THE FINANCE ACT, 2015 W.E.F 1.6.2015 W HEREAS THE PROVISIONS OF UNAMENDED PROVISIONS OF SECTION 234B(3) PRIOR TO TH E SAID AMENDMENT ARE APPLICABLE IN THE INSTANT CASE. ON PERUSAL OF TRIBU AL ORDER, IT IS NOTED THAT THE TRIBUNAL IN ITS ORDER AT PARA 4.3 HAS REFERRED TO T HE PROVISIONS OF SECTION 234B(3) AS AMENDED BY THE FINANCE ACT, 2015 AND NOT THE PROVISIONS PRIOR TO SUCH AMENDMENT. FURTHER, THE ASSESSMENT YEARS UNDE R CONSIDERATION ARE AY 2003-04 AND AY 2005-05 AND THE ORDERS U/S 245D(4) W ERE PASSED FOR THE BOTH THE YEARS ON 28.02.2013. IT IS THUS CLEAR THAT THE TRIBUNAL HAS REFERRED TO THE PROVISIONS OF SECTION 234B(3) WHICH WERE NOT APPLIC ABLE FOR THE IMPUNGED ASSESSMENT YEARS. WE ACCORDINGLY RECALL THE ORDER PASSED BY THE COORDINATE BENCH DATED 28.04.2016 AND DIRECT THE REGISTRY TO F IX THE ASSESSEES APPEAL FOR FRESH HEARING IN DUE COURSE. THE MISCELLANEOUS APPLICATIONS FILED BY THE ASSESSE E IS ALLOWED FOR STATISTICAL PURPOSES. MA NOS. 158 & 159/JP/16 M/S ANIL HASTHKALA PVT. LTD. ALWAR VS. ACIT, CEN. C IRCLE, ALWAR 8 ORDER PRONOUNCED IN THE OPEN COURT ON 22/12/ 2016. SD/- SD/- (KUL BHARAT ) (VIKRAM SINGH YADAV) U;KF;D LNL;@ JUDICIAL MEMBER YS[KK LNL;@ ACCOUNTANT MEMBER JAIPUR DATED:- 22/12/2016 PILLAI VKNS'K DH IZFRFYFI VXZSF'KR@ COPY OF THE ORDER FORWARDED TO: 1. VIHYKFKHZ@ THE APPELLANT- M/.S ANIL HASTKALA PVT. LD. ALWAR 2. IZR;FKHZ@ THE RESPONDENT- THE ACIT, CENTAL CIRCLE, ALWAR 3. VK;DJ VK;QDR@ CIT , ALWAR 4. VK;DJ VK;QDRVIHY@ THE CIT(A), ALWAR 5. FOHKKXH; IZFRFUF/K] VK;DJ VIHYH; VF/KDJ.K] T;IQJ@ DR, ITAT, JAIPUR 6. XKMZ QKBZY@ GUARD FILE (MA NOS. 158 & 159/JP/2016) VKNS'KKUQLKJ@ BY ORDER, LGK;D IATHDKJ@ ASSISTANT. REGISTRAR.