Deputy Commissioner of Income TAX, Central Circle-2(1), Bangalore V. Sri K Mahesh Kumar , Hospet

MA 379/BANG/2018

• Counselvise Citation: [2019] 118 COUNSELVISE.COM (IT) 6364 (ITAT-BANGALORE)
• Duration Of Justice: 29 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-01-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2011-2012
• Appeal Filed On: 06-12-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR VINOD SHARMA
• Assessee Lawyers: V SRINIVASAN
• Section: 234B

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SHRI N.V. VASUDEVAN, VICE PRESIDENT AND SHRI A.K GARODIA, ACCOUNTANT MEMBER MP NO.379/BANG/2018 (IN ITA NO.1245/BANG/2018) ASSESSMENT YEAR : 2011-12 THE DY. COMMISSIONER OF INCOME-TAX, CENTRAL CIRCLE-2(1), BENGALURU. VS. SHRI K MAHESH KUMAR, 21 ST WARD, BELLARY ROAD CIRCLE, HOSPET-583 201. PAN : AQPLM 9826H . APPELLANT RESPONDENT APPLICANT BY : DR. VINODSHARMA, JCIT RESPONDENT BY : SHRI V SRINIVASAN, ADVOCATE DATE OF HEARING : 04.01.2019 DATE OF PRONOUNCEMENT : .01.2019 O R D E R PER N.V. VASUDEVAN, VICE PRESIDENT THIS MISC. APPLICATION IS FILED BY THE REVENUE U/S 254(2) OF THE INCOME-TAX ACT 1961 (ACT) PRAYING THAT THE ORDER OF THE TRIBUNAL SUFFERS FROM MISTAKE APPARENT ON THE FACE OF THE RECORD AND SHOULD BE RECTIFIED. 2. THE TRIBUNAL, VIDE ORDER DATED 1/6/2018 DISPOSED OFF THE APPEAL OF THE ASSESEE BY GIVING THE FOLLOWING DIRECTIONS:- 7. AT THE TIME OF HEARING, THE ID. COUNSEL FOR THE ASSESSEE FILED BEFORE US CHALLANS EVIDENCING PAYMEN T OF TAX ON THE TOTAL INCOME DECLARED BY THE ASSESSEE IN THE RETURN OF INCOME. COPY OF THE CHALLANS WERE ALS O GIVEN TO THE ID. DR, WHO ACCEPTED THE FACT THAT THE TAX DUE ON INCOME DECLARED IN THE RETURN OF INCOME HAS SINCE BEEN PAID BY THE ASSESSEE. THE ID. COUNSEL FO R MP NO.379/BANG/2018 PAGE 2 OF 6 THE ASSESSEE PRAYED THAT THE IMPUGNED ORDER MAY BE SET ASIDE AND CIT(APPEALS) BE DIRECTED TO HEAR THE APPEAL OF ASSESSEE ON MERITS. THE ID. DR HAD NO OBJECTION FOR ADOPTING SUCH A COURSE. ACCORDINGLY, THE ORDER OF CIT(APPEALS) IS SET ASIDE AND THE CIT(APPE ALS) IS DIRECTED TO HEAR AND DECIDE THE APPEAL OF ASSESS EE ON MERITS, AFTER AFFORDING OPPORTUNITY OF BEING HEA RD TO THE ASSESSEE. 3. IN THIS MISC. APPLICATION, THE REVENUE HAS POINT ED OUT THAT THE ADMITTED TAX LIABILITY ON THE INCOME DECLARED IN TH E RETURN OF INCOME WAS COMPUTED BY THE ASSESSEE AS FOLLOWS:- 4. WHEREAS THE CORRECT COMPUTATION OF TAX PAYABLE W OULD BE RS.24,66,640/- AND, THEREFORE, THE ASSESSEE WOULD S TILL BE LIABLE TO PAY BALANCE TAX OF RS.3,06,640/- AS PER THE CALCULATION S GIVEN BELOW:- MP NO.379/BANG/2018 PAGE 3 OF 6 5. THE REVENUE HAS ACCORDINGLY MADE A PRAYER IN THE MISC. APPLICATION THAT THE ORDER OF THE CIT(A) WHICH WAS CHALLENGED BY THE ASSESSEE IN THE AFORESAID APPEAL SHOULD BE UPHELD A ND THE ASSESEES APPEAL SHOULD BE DISMISSED. 6. THE LD DR REITERATED THE STAND OF THE REVENUE AS STATED IN THE MISC. APPLICATION. 7. THE LD COUNSEL FOR THE ASSESSEE ON THE OTHER HA ND SUBMITTED BEFORE US THAT THE HONBLE BOMBAY HIGH COURT IN THE CASE O F CIT VS. MANOJ KUMAR BERIWAL 316 ITR 218 (BOM) HAS TAKEN A VIEW IN THE C ONTEXT OF PAYMENT OF ADMITTED TAX ON THE RETURNED INCOME U/S 249(4) OF T HE ACT THAT THE EXPRESSION TAX DOES NOT INCLUDE INTEREST. THE FO LLOWING RELEVANT OBSERVATIONS OF THE COURT WERE BROUGHT TO OUR NOTIC E. ON THE LITERAL READING OF SECTION 249(4) OF THE A CT, THE LANGUAGE USED BY THE LEGISLATURE IS 'HAS PAID TAX D UES'. THE EXPRESSION 'TAX' HAS BEEN DEFINED IN SECTION 2( 43) OF THE INCOME-TAX ACT. TAX AS PER THE DEFINITION DOES NOT MP NO.379/BANG/2018 PAGE 4 OF 6 INCLUDE INTEREST WHICH HAS BEEN INDEPENDENTLY REFER RED TO UNDER SECTION 2(28)(A) OF THE INCOME-TAX ACT. WHEN THE LEGISLATURE ITSELF HAS USED TWO DIFFERENT EXPRESSIO NS AND DEFINED THEM SEPARATELY, THEN WHILST CONSIDERING TH E LANGUAGE OF A SECTION, THE COURTS ARE BOUND TO LOOK AT THE DEFINITIONS IN THE LEGISLATION FOR THE PURPOSE OF I NTERPRETING AND CONSTRUING THE EXPRESSIONS AND WORDS UNDER THE ACT, THE OBJECT BEING TO AVOID CONFLICT AND HAVE A HARMO NIOUS INTERPRETATION, UNLESS THE CONTEXT OTHERWISE REQUIR ES. IN THESE CIRCUMSTANCES, IN OUR OPINION, THE EXPRESSION 'TAX' DOES NOT INCLUDE INTEREST FOR THE PURPOSE OF SECTIO N 249(4) OF THE INCOME-TAX. 8. HE BROUGHT TO OUR NOTICE THAT EVEN AS PER THE CA LCULATION OF THE REVENUE ADMITTED TAX ON THE RETURNED INCOME HAS B EEN PAID AND, THEREFORE, THE ASSESEE HAS PAID MUCH MORE THAN WHAT IS REQUIRED FOR COMPLIANCE IN TERMS OF SEC. 249(4) OF THE ACT. AC CORDING TO HIM, THEREFORE, THE M.P FILED BY THE REVENUE IS WITHOUT ANY MERIT A ND DESERVES TO BE DISMISSED. 9. WE HAVE GIVEN A VERY CAREFUL CONSIDERATION TO TH E RIVAL SUBMISSIONS. AS RIGHTLY CONTENDED BY THE LD COUNSEL FOR THE ASSE SSEE, THE TAX PAYABLE ON THE TOTAL INCOME IS RS.47,10,706/- AND THERE IS NO DISPUTE ON THIS ASPECT. THE DISPUTE IS ONLY WITH REGARD TO INTEREST U/S 234 A, 234B AND 234C. ADMITTEDLY, THE ASSESSEE HAS PAID ADVANCE TAX OF RS .30 LAKHS AND HAS ALSO MADE A FURTHER PAYMENT OF RS.21,60,000/-. THUS, TH E TAX PAYABLE ON TOTAL INCOME DECLARED IN THE RETURNED INCOME HAS BEEN DUL Y PAID BY THE ASSESSEE. THIS WAS SUFFICIENT COMPLIANCE OF THE RE QUIREMENT OF SEC. 249(4) OF THE ACT. THE DECISION OF THE HONBLE BOMBAY HIG H COURT IN THE CASE OF CIT VS. MANOJ KUMAR BERIWAL (SUPRA) SQUARELY SUPPOR TS THE PLEA OF THE ASSESSEE THAT FOR THE PURPOSE OF SEC.249(4) OF THE ACT, IT IS ONLY TAX PAYABLE ON TOTAL INCOME THAT IS RELEVANT EXCLUDING INTEREST PAYABLE U/S.234- A, 234B AND 234C OF THE ACT. IN THE GIVEN FACTS AN D CIRCUMSTANCES OF THE CASE, WE ARE OF THE VIEW THAT THERE IS NO ERROR IN THE ORDER OF THE TRIBUNAL, MP NO.379/BANG/2018 PAGE 5 OF 6 MUCH LESS AN APPARENT ERROR CALLING FOR RECTIFICATI ON US/ 254(2) OF THE ACT. THE MISC. APPLICATION FILED BY THE REVENUE IS ACCOR DINGLY DISMISSED. 10. IN THE RESULT, MISC. PETITION OF THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 4 TH JANUARY, 2019 . SD/- SD/- ( A.K GARODIA ) ( N.V. VASUDEVAN) ACCOUNTANT MEMBER VICE PRESIDENT BANGALORE, DATED, 4 TH JANUARY, 2019. / VMS / COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT(A) 5. THE DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASST. REGISTRAR, ITAT, BANGALORE MP NO.379/BANG/2018 PAGE 6 OF 6 1. DATE OF DICTATION 2. DATE ON WHICH THE TYPED DRAFT IS PLACED BEFORE THE DICTATING MEMBER . 3. DATE ON WHICH THE APPROVED DRAFT COMES TO SR.P.S .. 4. DATE ON WHICH THE FAIR ORDER IS PLACED BEFORE THE DICTATING MEMBER .. 5. DATE ON WHICH THE FAIR ORDER COMES BACK TO THE S R. P.S. .. 6. DATE OF UPLOADING THE ORDER ON WEBSITE.. 7. IF NOT UPLOADED, FURNISH THE REASON FOR DOING SO .. 8. DATE ON WHICH THE FILE GOES TO THE BENCH CLERK .. 9. DATE ON WHICH ORDER GOES FOR XEROX & ENDORSEMENT 10. DATE ON WHICH THE FILE GOES TO THE HEAD CLERK . 11. THE DATE ON WHICH THE FILE GOES TO THE ASSISTANT REGISTRAR FOR SIGNATURE ON THE ORDER . 12. THE DATE ON WHICH THE FILE GOES TO DISPATCH SEC TION FOR DISPATCH OF THE TRIBUNAL ORDER . 13. DATE OF DESPATCH OF ORDER. ..