DCIT, Ludhiana V. M/s Nahar Indl. Enterprises Ltd., Ludhiana

MA 36/CHANDI/2005

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9654 (ITAT-CHANDIGARH)
• Duration Of Justice: 7 year(s) 11 month(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 13-12-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: B
• Assessment Year: 1997-1998
• Appeal Filed On: 13-01-2005
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Section: 234B; 115JB; 6

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL CHANDIGARH BENCH A CHANDIGARH BEFORE MS.SUSHMA CHOWLA, JUDICIAL MEMBER AND SHRI MEHAR SINGH, ACCOUNTANT MEMBER MA NO. 36/CHD/2005 IN ITA NO.792/CHD/2000 ASSESSMENT YEAR: 1997-98 DCIT, CC-V, V M/S NAHAR INDUSTRIAL. LUDHIANA. ENTERPRISES LTD., LUDHIANA. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AKHILESH GUPTA RESPONDENT BY : (WRITTEN SUBMISSIONS) DATE OF HEARING : 07.12.2012 DATE OF PRONOUNCEMENT : 13.12.2012 ORDER PER MEHAR SINGH, AM THE PRESENT MISCELLANEOUS APPLICATION HAS BEEN FILE D BY THE REVENUE FOR AMENDMENT OF THE ORDER OF THIS TRIB UNAL DATED 31.08.2004, FOR THE ASSESSMENT YEAR 1997-98, PASSED IN ITA NO. 792/CHD/2000. THE MISCELLANEOUS APPLICATION, FILED BY THE REVENUE IS REPRODUCED HEREUNDER : 1. THE SUBJECT APPEAL FILED BY THE REVENUE IN THE CASE OF M/S NAHAR INDUSTRIAL ENTERPRISES, LUDHIANA FOR THE A.Y. 1997-98 WAS DISM ISSED VIDE ORDER DATED 31.8.2004. THE COPY OF THIS ORDER IS ENCLOSED HEREW ITH. 2. THE ISSUE INVOLVED WAS CHARGING OF INTEREST U/S 234 B & 234C WHEN THE INCOME HAS BEEN DETERMINED U/S 115JA. 3. IT IS, HOWEVER, TO SUBMIT THAT THIS ISSUE HAS RECEN TLY BEEN DECIDED BY THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF M/S NAHAR EXPORTS LTD. WHEREIN IT HAS BEEN HELD THAT THE INTEREST U/S 234B & 234C ARE CHARGEABLE EVEN WHEN THE INCOME HAS BEEN DETERMINED U/S 115JA. 4. THIS BEING MISTAKE APPARENT FROM RECORD IN VIEW OF THE FULL BENCH'S DECISION OF THE HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF SMT. ARUNA LUTHRA 252 ITR 76. IT IS THUS REQUESTED THA T THE SAID ORDER MAY KINDLY BE AMENDED. 2. IN RESPONSE TO THE ABOVE MENTIONED APPLICATION, ASSESSEE 2 HAS FILED WRITTEN SUBMISSIONS, WHICH ARE REPRODUCED HEREUNDER: IT IS HUMBLY SUBMITTED AS UNDER: FACTS: THE ASSESSING OFFICER ASSESSED INCOME OF THE ASSES SEE'S COMPANY U/S 115JA OF THE ACT AT RS. 1,59,82,237/- A ND COMPUTE TAX ON MAT AT RS. 68,72,360/-. IN THE ASSESSMENT ORDER INTEREST U7S 2 34B&C WAS CHARGED AT RS. 132162/-- ON THE TAX CALCULATED IN THE ASSESSMENT C OMPUTED U/S 115JA OF THE ACT. THE ASSESSEE FILED APPEAL BEFORE WORTHY C.I.T.(A) O N VARIOUS ISSUES INCLUDING THE CHARGING OF INTEREST U7S 234B & 234C IN THE CASE OF INCOME ASSESSED U/S 115JA OF THE ACT. THE WORTHY C.I.T HAS ALLOWED THE APPEAL ON THIS GROUND AND DELETED THE INTEREST CHARGED BY THE DEPARTMENT. THE DEPARTMENT FILED APPEAL BEFORE HON'BLE ITAT. TH E HON'BLE ITAT DISMISSED THE APPEAL OF THE DEPARTMENT BY RELYING UPON THE DECISI ON OF ITS OWN ORDER IN THE CASE OF VARINDER AGRO CHEMICALS V/S ACIT (2000) 113 TAXM AN 224. THE DEPARTMENT DID NOT FILE ANY APPEAL BEFORE HON'BLE H .C AGAINST THE SAID ORDER. AS PER KNOWLEDGE OF THE ASSESSEE, EVEN DEPARTMENT ACCE PTED THE DECISION OF VARINDER AGRO CHEMICALS. THEREAFTER IN ANOTHER CASE OF M/S NAHAR EXPORTS LTD AND UPPER INDIA STEELS LTD, HON'BLE PUNJAB HIGH COURT DECIDED THE ISSUE AGAINST THE ASSESSEE. ON THE BASIS OF THE SAID ORDER, THE DEPARTMENT FILED MISC. APPLI CATION BEFORE THIS HON'BLE BENCH. TO BE FAIR ENOUGH THE HON'BLE SUPREME COURT DECIDED THE ISSUE AGAINST THE ASSESSEE IN THE CASE OF ROLTA INDIA LTD (COPY ENCLO SED) ON 7 TH JAN. 2011. ARGUMENT: IT IS HUMBLY SUBMITTED THAT THERE WAS NO MISTAKE IN THE ORDER OF THE HON'BLE ITAT IN ASSESSEE'S CASE. THE DECISION WAS G IVEN BY ITAT ON THE BASIS OF RELEVANT FACTS AND CASE LAWS. THE SUBSEQUENT DECISI ON OF JURISDICTIONAL HIGH COURT WILL NOT RENDER THE ORDER ERRONEOUS AND THE M ISTAKE WILL NOT BECOME A MISTAKE APPARENT FROM RECORD. THE HUMBLE ASSESSEE R ELIES UPON THE DECISION OF HON'BLE MADRAS HIGH COURT IN THE CASE OF SHREE PALA NIDPPA TRANSOORT V/S CIT REPORTED IN 238 ITR - 492 (MADRAS). THE EXC ERPT OF DECISION IS ENCLOSED. FURTHER IT IS SUBMITTED THAT SUBSEQUENT EXPOSITION OF LAW BY HON'BIE SUPREME COURT IN OTHER CASES DOES NOT RENDER ORDER AS MADE ON A MISTAKES. IN THIS REGARD THE RELIANCE IS PLACED ON THE DECISION OF CALCUTTA HIGH COURT IN THE CASE OF GEO MILLER & CO LTD V/S DCIT 262 ITR - 237 (CAL.) THE E XTRACT OF THE SAID DECISION IS ALSO ENCLOSED. YOUR HONOUR WOULD APPRECIATE THAT THE HON'BLE SUPRE ME COURT DECIDED THE ISSUE IN 2011 I.E. AFTER 7 YEARS OF PASSING THE ORD ER BY THIS HON'BLE BENCH, THOUGH THE M.A IS STILL PENDING BEFORE THIS BENCH. HOWEVER , THE HON'BLE BENCH DECIDED THE ISSUE IN THE CASE OF THE ASSESSEE ON THE BASIS OF RELEVANT CASE LAWS. IN VIEW OF THE DECISIONS RELIED UPON BY THE HUMBLE ASSESSEE (D ETAIL ENCLOSED)THERE WAS NO MISTAKES IN THE ORDER OF THIS HON'BLE BENCH WHICH C AN BE RECTIFIED U/S 254(2) OF THE ACT. THE M.A DESERVES TO BE REJECTED, THOUGH THE DE CISION OF HON'BLE SUPREME COURT, RENDERED AFTER 7 YEARS FROM THE DATE OF PASS ING OF ORDER OF ITAT, IS AGAINST THE ASSESSEE. THE HON'BLE MEMBERS MAY DECID E THE ISSUE ACCORDINGLY. 3. IN ITA NO. 792/CHD/2002 ASSESSMENT YEAR 1997-98, THE 3 HON'BLE TRIBUNAL, FOLLOWING THE DECISION OF THE ITA T, CHANDIGARH BENCH-A IN THE CASE OF VARINDER AGRO CHE MICALS V ACIT (2000) 113 TAXMAN 224, ADJUDICATED THE ISSUE I N FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE, ON THE QUESTI ON OF CHARGEABILITY OF INTEREST U/S 234B&C, IN THE CONTEX T OF SECTION 115JA OF THE ACT. THE APPEAL, BEARING NO. ITA 792/C HD/2000 WAS FILED BY THE ASSESSEE, WHEREIN GROUND RAISED IS REPRODUCED HEREUNDER : THE LD. CIT(APPEALS) HAS ERRED BOTH IN LAW AND ON FACTS OF THE CASE IN DELETING THE INTEREST CHARGED U/S 234B AND 234C IGNORING THE FACT THAT CHARGING OF INTEREST IS A STATUTORY PROVISION AND IS CHARGED ON THE INCOME ASSESSED IRRESPECTIVE OF THE FACT THAT I T IS DETERMINED ON THE BASIS OF SECTION 115JA OR OTHERWISE WHILE FRAMI NG REGULAR ASSESSMENT. 4. A BARE PERUSAL OF THE ORDER OF THE TRIBUNAL REVE ALS THAT THE QUESTION WAS DECIDED IN FAVOUR OF THE ASSESSEE, FOL LOWING THE ABOVE REFERRED DECISION OF THE TRIBUNAL. 5. IN THE COURSE OF PRESENT APPELLATE PROCEEDINGS, IT TRANSPIRED AND LD. 'DR' STATED THAT THE ISSUE IS CO VERED IN FAVOUR OF THE REVENUE AND AGAINST THE ASSESSEE, BY THE DEC ISION OF THE HON'BLE SUPREME COURT, IN THE CASE OF JCIT V ROLTA INDIA LTD. (2011) 330 ITR 470 (S.C) AND DECISION OF JURISDICTI ONAL HIGH COURT IN ASSESSEE'S OWN CASE AND REPORTED IN 339 IT R 557 (P&H). THE RELEVANT PART OF THE DECISION IS REPRODUCED HER EUNDER : HELD, ALLOWING THE APPEAL, THAT THE ASSESSMENT ORDE R PASSED IN PURSUANCE OF THE REVISIONAL ORDER ENHANCING THE ASS ESSED INCOME WOULD MAKE THE ASSESSEE LIABLE TO INTEREST UNDER SE CTION 234B(4) OF THE ACT. THE COMMISSIONER(APPEALS) AND THE TRIBUNA L WERE NOT RIGHT IN HOLDING OTHERWISE. THE INTEREST U/S 234B AND 23 4C WOULD BE 4 PAYABLE ON FAILURE TO PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SECTION 115JA/115JB. 6. IN THE IMPUGNED MA, REPRODUCED ABOVE, THE REVENU E PLACED RELIANCE ON THE FULL BENCH DECISION OF THE JURISDIC TIONAL HIGH COURT IN THE CASE OF CIT V ARUNA LUTHRA (2001) 252 ITR 76 (P&H), TO SUPPORT HIS CONTENTION, FOR RECTIFICATION U/S 254(2) OF THE ACT, FOLLOWING THE DECISION OF THE JURISDICTION AL HIGH COURT. 7. WE HAVE CONSIDERED THE SUBMISSIONS, MADE BY LD. 'DR', WRITTEN SUBMISSIONS, FILED BY THE ASSESSEE AND THE IMPUGNED ORDER PASSED BY THE TRIBUNAL ON THE ISSUE OF CHARGE ABILITY OF INTEREST U/S 234B AND 234C, IN THE CONTEXT OF SECTI ON 115JA OF THE ACT. THE ISSUE IN QUESTION IS COVERED BY THE D ECISION OF THE HON'BLE SUPREME COURT, IN THE CASE OF ROLTA INDIA L TD. (SUPRA) AND RELEVANT PART OF THE SAME IS REPRODUCED HEREUND ER : IT IS CLEAR FROM READING SECTIONS 115]A AND 115JB OF THE INCOME-TAX ACT,: 1961, THAT THE QUESTION WHETHER A COMPANY WHICH IS LIABLE TO PAY TAX UNDER EITHER PROVISION DOES NOT ASSUME IMPORTANCE BECAUSE SPECIF IC PROVISION IS MADE IN THE SECTION SAYING THAT ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO A MAT COMPANY (SECTION 115JA(4) AND SECTION 115JB(5)). SIMILARLY, AMENDMENTS HAVE BEEN MADE IN THE RELEVANT FINANCE ACTS PROVIDING FOR PAYMENT OF ADVANCE TAX UNDER SECTIONS 115JA AND 115JB. SECTION 234B IS CLEAR THAT IT APPLIES TO ALL COMPANIES. THE PRE-REQUISITE CONDITION FOR APPLICABILITY OF SECTION 234B IS THA T THE ASSESSEE IS LIABLE TO PAY TAX UNDER SECTION 208 AND THE EXPRESSION 'ASSESSED TAX' IS DEFINED TO MEAN THE TAX ON THE TOTAL INCOME DETERMINED UNDER SECTION 143(1) OR UNDER SECTION 14 3(3) AS REDUCED BY THE AMOUNT OF TAX DEDUCTED OR COLLECTED AT SOURCE. THUS, THERE IS NO EXCLUSION OF SECTION 115J/115A IN THE LEVY OF INTER EST UNDER SECTION 234B. THE EXPRESSION ASSESSED TAX IS DEFINED TO MEAN THE TA X ASSESSED ON REGULAR ASSESSMENT WHICH MEANS THE TAX DETERMINED ON THE APPLICATION O F SECTION 115J/115JA IN THE REGULAR ASSESSMENT. INTEREST UNDER SECTION 234B IS PAYABLE ON FAILURE T O PAY ADVANCE TAX IN RESPECT OF TAX PAYABLE UNDER SECTION 115JA. 8. WE HAVE CAREFULLY PERUSED THE FULL BENCH DECISIO N OF THE HIGH COURT, WHEREIN IT HAS BEEN CATEGORICALLY HELD THAT 5 SUBSEQUENT DECISIONS OF JURISDICTIONAL HIGH COURT, ON A POINT ADJUDICATED BY THE REVENUE AUTHORITY, CONSTITUTE MI STAKE APPARENT FROM RECORD. THE HON'BLE SUPREME COURT, I N THE CASE OF ACIT V SAURASHTRA KUTCH STOCK EXCHANGE LTD. (200 8) 305 ITR 227 (S.C) HAS HELD THAT NON-CONSIDERATION OF DECISI ON OF JURISDICTIONAL HIGH COURT OR OF SUPREME COURT, CONS TITUTES A MISTAKE APPARENT RECORD. A BARE PERUSAL OF PROVISI ON OF SECTION 254(2) OF THE ACT, REVEALS THAT A PATENT MANIFEST A ND SELF-EVIDENT ERROR WHICH DOES NOT REQUIRE ELABORATE DISCUSSION O F FACTS OR LAW OR DOCUMENT TO ESTABLISH, CAN BE SAID TO BE AN ERRO R ON THE FACE OF THE RECORD WHICH CAN BE RECTIFIED. SIMILAR VIEW HAS BEEN HELD BY THE HON'BLE SUPREME COURT IN THE CASE OF T.S.BAL ARAM, ITO V VOLKAR BROTHERS (1971) 82 ITR 50 (S.C) THAT AN ERRO R APPARENT ON RECORD MEANS, AN ERROR WHICH STRIKES (I) ON MERE LO OKING AT AND DOES NOT NEED A LONG DRAWN OUT PROCESS OF REASONING OF POINTS ON WHICH, THERE MAY BE CONCEIVABLY TWO POINTS. SUC H ERROR SHOULD NOT REQUIRE ANY EXTRANEOUS MATTER TO SHOW IT S INCORRECTNESS, TO PUT IT DIFFERENTLY, IT SHOULD BE SO MANIFEST AND CLEAR THAT NO COURT WOULD PERMIT IT TO REMAIN ON RE CORD. 9. IN VIEW OF THE ABOVE LEGAL AND FACTUAL DISCUSSIO N AND HAVING REGARD TO THE SUBMISSION MADE BY THE APPELLA NT, WHEREIN IT HAS BEEN FAIRLY ACCEPTED BY THE ASSESSEE THAT TH E ISSUE IS COVERED BY THE DECISION OF THE HON'BLE SUPREME COUR T QUOTED (SUPRA) AND THE DECISION OF THE JURISDICTIONAL HIGH COURT IN THE ASSESSEE'S CASE AND ALSO IN THE CASE OF UPPER INDIA STEEL LTD. IN THAT DECISION, THE HON'BLE SUPREME COURT HELD THAT INTEREST U/S 234B AND 234C OF THE ACT, CAN BE LEVIED W HEN INCOME IS 6 COMPUTED U/S 115JA AS SPECIFIC PROVISIONS ARE MADE IN SECTION 115JA/115JB TO THE EFFECT THAT ALL OTHER PROVISIONS OF THE ACT SHALL APPLY TO THE MAT COMPANY. IN VIEW OF THE ABO VE LEGAL AND FACTUAL DISCUSSIONS, THE MISTAKE POINTED OUT BY THE REVENUE, IN THE IMPUGNED M.A. FALLS UNDER THE PROVISIONS OF SEC TION 254(2) OF THE ACT. CONSEQUENTLY, THE IMPUGNED ORDER OF THE T RIBUNAL IS RECALLED, WITHIN THE CONTEMPLATION OF SECTION 254(2 ) OF THE ACT. 10. REGISTRY IS DIRECTED TO FIX THE APPEAL, IN REGU LAR COURSE. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH DEC.,2012. SD/- SD/- (SUSHMA CHOWLA) (MEHAR SINGH) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED: 13 TH DEC.,2012. POONAM COPY TO: THE APPELLANT, THE RESPONDENT, THE CIT(A), THE CIT, DR ASSISTANT REGISTRAR, ITAT CHANDIGARH.