ACIT, Cochin V. M/s.Lakshmi hospital, Cochin

MA 86/COCH/2012

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 9362 (ITAT-COCHIN)
• Duration Of Justice: 3 month(s) 20 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2004-2005
• Appeal Filed On: 09-08-2012
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: SUSAN GEOPRGE VARGHESE
• Section: 153A; 234B

Judgement Text

1 MA NO. 86/COCH/2012 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI B.R. BASKA RAN(AM) M.A. NO.86/COCH/2012 (ARISING OUT OF I.T.A NO. 564/COCH/2009) (ASSESSMENT YEAR 2004-05) THE A.C.I.T., CENT.CIR.1 VS M/S LAXMI HOSPITAL KOCHI DIWANS ROAD, ERNAKULAM PAN : AAAFL4194N (APPLICANT) (RESPONDENT) APPLICANT BY : SMT. SUSAN GEOPRGE VARGHESE RESPONDENT BY : NONE WRITTEN SUBMISSION DATE OF HEARING : 30-11-2012 DATE OF PRONOUNCEMENT : 30-12-2012 O R D E R PER N.R.S. GANESAN (JM) THE REVENUE HAS FILED THE PRESENT MISCELLANEOUS AP PLICATION ON THE GROUND THAT THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL. 2. NO ONE APPEARED FOR THE TAXPAYER IN SPITE OF SER VICE OF NOTICE. HOWEVER, THE TAXPAYER HAS FILED WRITTEN SUBMISSION. THEREFORE, WE HEARD 2 MA NO. 86/COCH/2012 THE LD.DR AND PROCEEDED TO DISPOSE OF THE MISCELLAN EOUS APPLICATION ON MERIT. 3. SMT. SUSAN GEORGE VARGHESE, THE LD.DR SUBMITTED THAT FOR THE ASSESSMENT YEAR 2004-05 THE RETURN OF INCOME WAS SU BMITTED BY THE TAXPAYER ON 27-07-2006. THE ASSESSMENT WAS COMPLET ED U/S 153A ON 28- 12-2006. THEREFORE, INTEREST WAS LEVIED U/S 234B(1 ) OF THE ACT. IN VIEW OF THE EXPLANATION 2 TO SECTION 234B THE LD.DR SUBMITT ED THAT THE JUDGMENT OF THE KERALA HIGH COURT REPORTED IN (2011) 198 TAXMAN 485 IN THE CASE OF C.I.T. VS B LAKSHMIKANTHAN MAY NOT BE APPLICABLE. REFERRING TO THE WRITTEN SUBMISSION, THE LD.REPRESENTATIVE SUBMITTED THAT TH E TAXPAYER HAS ALSO AGREED WITH THE CONTENTION OF THE DEPARTMENT. THER EFORE, ACCORDING TO THE LD.REPRESENTATIVE, THE ORDER OF THIS TRIBUNAL NEEDS TO BE RECTIFIED. 4. WE HAVE ALSO CAREFULLY GONE THROUGH THE WRITTEN SUBMISSION FILED BY THE TAXPAYER. IN THE WRITTEN SUBMISSION, THE TAXPA YER HAS SUBMITTED AS FOLLOWS: 3 MA NO. 86/COCH/2012 THE QUESTION BEFORE THE HONBLE BENCH WAS IN RESP ECT OF INTEREST U/S 234B OF THE ACT. AS PER THE DECISION OF THE HONBLE BENCH IT WAS DECIDED THAT U/S 234B(3) IS AP PLICABLE FOR ALL THE ASSESSMENT YEARS. BUT FOR THE A.Y 2004-05 THE RETURN OF INCOME WAS SUBMITTED AND THE ASSESSMENT WAS COMPLET ED FOR THE FIRST TIME U/S 153A. HENCE PROVISIONS OF SECTI ON 234B(1) IS ONLY APPLICABLE. NOW THE APPELLANT IN THE MISCELLANEOUS PETITION IS SUBMITTING THAT IN RESPECT OF A.Y. 2004-05 THE PROV ISIONS OF SECTION 234B(1) IS APPLICABLE. SINCE THIS CLAIM OF THE APPELLANT IS FOUND TO BE CORRECT AND IN ACCORDANCE WITH THE D ECISION OF THE HONBLE HIGH COURT OF KERALA IN THE CASE OF COM MISSIONER OF INCOME TAX VS. B LAKSHMIKANTHAN AS CLAIMED BY TH E APPELLANT, WE THE RESPONDENT ARE IN AGREEMENT WITH THE MISCELLANEOUS PETITION NOW FILED BY THE ASSIST.COM MISSIONER OF INCOME-TAX / CENTRAL CIRCLE 1/EKM FOR THE A.Y. 2 004-05. 5. IN VIEW OF THE WRITTEN SUBMISSION IT IS OBVIOUS THAT THE PROVISIONS OF SECTION 234B(1) IS APPLICABLE. IN VIEW OF THE JUDGM ENT OF THE KERALA HIGH COURT IN THE CASE OF B LAKSHMIKANTHAN (SUPRA) THE T AXPAYER CLARIFIES THAT THE CONTENTION OF THE DEPARTMENT IN THE MISCELLANEOUS A PPLICATION IS CORRECT. THEREFORE, THIS TRIBUNAL IS OF THE CONSIDERED OPINI ON THAT PROVISIONS OF SECTION 234B(1) IS APPLICABLE FOR THE ASSESSMENT YE AR 2004-05. ACCORDINGLY, THERE IS AN ERROR IN THE ORDER OF THIS TRIBUNAL DAT ED 20-06-2011 AS FAR AS THE ASSESSMENT YEAR 2004-05 IS CONCERNED AND THE SAME I S RECTIFIED HEREUNDER: 4 MA NO. 86/COCH/2012 6. THE FOLLOWING SHALL BE INCORPORATED AS PARAGRAPH 5A: 5A. NOW COMING TO ASSESSMENT YEAR 20004-05 IN ITA NO.564/COCH/2009 IN VIEW OF THE ADMISSION MADE BY T HE TAXPAYER THAT THE PROVISIONS OF SECTION 234B(1) IS APPLICABLE FOR THE YEAR UNDER CONSIDERATION, THE LOWER AUTHORITIES HAVE RIGHTLY LEVIED THE INTEREST. THEREFORE, THIS TRIBU NAL DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LOWER AUTHORITY. ACCORDINGLY THE SAME IS CONFIRMED. 7. NOW EXISTING PARAGRAPH 6 SHALL BE DELETED AND TH E FOLLOWING SHALL BE INSERTED AS PARAGRAPH 6: 6. IN THE RESULT, APPEALS OF THE ASSESSEE FOR THE ASSESSMENT YEARS 1999-2000 TO 2003-04 IN ITA NOS 559 TO 563/CO CH/2009 ARE ALLOWED; HOWEVER, FOR ASSESSMENT YEAR 2004-05 I N ITA NO.564/COCH/2005 IS DISMISSED. 8. IN THE RESULT, THE MISCELLANEOUS APPLICATION OF THE REVENUE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 30 TH DECEMBER, 2012. SD/- SD/- (B.R. BASKARAN) (N.R.S. GANESAN) ACCOUNTANT MEMBER JUDICIAL MEMBER COCHIN, DT : 30 TH DECEMBER, 2012 PK/- 5 MA NO. 86/COCH/2012 COPY TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME-TAX 4. THE COMMISSIONER OF INCOME-TAX(A) 5. THE DR (TRUE COPY) BY ORDER ASSTT. REGISTRAR, INCOME-TAX APPELLATE TRIBUNAL, COCHIN BENCH