ITO WD 2(2)(2), V. KHATAU LEASING & FINANCE CO.P.LTD,

MA 206/MUM/2011

• Counselvise Citation: [2011] 123 COUNSELVISE.COM (IT) 6719 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 11 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 10-06-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 2003-2004
• Appeal Filed On: 30-03-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Assessee Lawyers: D J JARIWALA
• Section: 234B; 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A : MUMBAI BEFORE SHRI D.K. AGARWAL, (JM) AND SHRI RAJENDRA S INGH,(AM) MA NO.206/MUM/2011 ARISING OUT OF ITA NO.1780/MUM/2010 ASSESSMENT YEAR : 2003-04 THE INCOME TAX OFFICER WARD 2(2)(2) AAYAKAR BHAVAN, M.K. ROAD MUMBAI-400 016. ..( APPLICANT ) VS. M/S. KHATAU LEASING & FINANCE CO. PVT. LTD. 410/411, KHATAU HOUSE, MOGUL LANE MAHIM MUMBAI-400 020. ..( RESPONDENT ) P.A. NO. (AAACK 2824 K) APPLICANT BY : NONE RESPONDENT BY : MS. D.J . JARIWALA O R D E R PER RAJENDRA SINGH (AM). THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E REVENUE REQUESTING FOR AMENDMENT FOR THE ORDER DATED 23.12. 2010 OF THE TRIBUNAL IN ITA NO.1780/MUM/2010 IN RELATION TO THE LEVY OF INT EREST UNDER SECTION 234B AND 234C IN THE MAT ASSESSMENT UNDER SECTION 115JB. 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE AS SESSMENT IN THIS CASE HAD BEEN MADE UNDER SECTION 115JB AND INTEREST UNDE R SECTION 234B AND 234C, HAD BEEN LEVIED TO THE TUNE OF RS.48,089/- IN THE MAT ASSESSMENT. MA NO.206/M/11 A.Y:03-04 2 THE ASSESSEE SUBSEQUENTLY FILED APPLICATION UNDER S ECTION 154 REQUESTING FOR DELETION OF THE INTEREST LEVIED BASED ON THE JUDGME NT OF HONBLE MUMBAI HIGH COURT IN CASE OF SNOWCEM INDIA LTD. VS. DCIT (313 I TR 170) IN WHICH IT WAS HELD THAT NO INTEREST UNDER SECTION 234B AND 234C W AS LEVIABLE IN RELATION TO ASSESSMENTS MADE UNDER SECTION 115JA AND 115JB OF T HE ACT. THE RECTIFICATION PETITION HAD BEEN REJECTED BY THE ASS ESSING OFFICER WHICH WAS ALSO CONFIRMED BY THE CIT(A). IN FURTHER APPEAL, T HE TRIBUNAL IN THE ORDER DATED 23.12.2010 IN ITA NO.1780/M/2010 DIRECTED THE ASSESSING OFFICER TO RECTIFY THE ORDER AND DELETED THE INTEREST IN VIEW OF THE JUDGMENT OF HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF SNOWCEM IN DIA LTD. (SUPRA), AS NON CONSIDERATION OF THE JUDGMENT OF THE HON'BLE JURISD ICTIONAL HIGH COURT WOULD CONSTITUTE A MISTAKE APPARENT FROM RECORD IN VIEW O F THE JUDGMENT OF HONBLE SUPREME COURT IN CASE OF ACIT VS. SAURASHTRA KUTCH SE ( 305 ITR 227). AGAINST THE SAID ORDER OF THE TRIBUNAL THE REVENUE HAS FILED THE MISCELLANEOUS APPLICATION IN WHICH IT HAS POINTED THAT SUBSEQUENT TO THE DECISION OF THE TRIBUNAL, HONBLE SUPREME COURT VIDE JUDGMENT DATED 7.1.2011 IN CASE OF ROLTA INDIA LTD. HAVE HELD THAT INTEREST UNDER SECT ION 234B AND 234C WILL BE CHARGEABLE ON THE TAX PAYABLE UNDER SECTION 115JB. 3. AT THE TIME OF HEARING OF THE PETITION, NO ONE A PPEARED ON BEHALF OF THE REVENUE. WE HAVE HEARD THE LD. AR FOR THE ASSE SSEE AND PERUSED THE RECORDS. SUBSEQUENT TO THE IMPUGNED ORDER OF THE T RIBUNAL DATED 23.12.2010, HONBLE SUPREME COURT IN THE CASE OF RO LTA INDIA LTD. HAVE HELD THAT INTEREST UNDER SECTION 234B AND 23C IS CHARGEA BLE IN RESPECT OF MAT ASSESSMENTS UNDER SECTION 115JA AND 115JB AFFIRMING THE JUDGMENT OF HONBLE HIGH COURT OF KARNATAKA IN THE CASE OF JINDAL THERMAL POWER COMPANY LTD. IN (154 TAXMANN 547). THE SUBSEQUENT JUDGMENT OF THE HONBLE APEX COURT DOES CONSTITUTE A MISTAKE APPARE NT FROM RECORD AS HELD BY HONBLE SUPREME COURT IN THE CASE OF SAURASHTRA K UTCH SE(SUPRA). WE THEREFORE, AMEND THE ORDER DATED 23.12.2010 OF THE TRIBUNAL AND CONFIRM THE ORDER OF THE CIT(A) UPHOLDING THE LEVY OF INTEREST UNDER SECTION 234B AND 234C. MA NO.206/M/11 A.Y:03-04 3 4. IN THE RESULT THE MISCELLANEOUS APPLICATION OF T HE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 10.6.2011. SD/- SD/- (D.K. AGARWAL) ( RAJENDRA SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED: 10.6.2011. JV. COPY TO: THE APPLICANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR BENCH TRUE COPY BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.