Mahalakshmi Forging & Engg. Concern, Howrah v. I.T.O.Wd.-47(1), Kolkata, Kolkata

ITA 1598/KOL/2009 | 1993-1994
Pronouncement Date: 07-05-2010

Appeal Details

RSA Number 159823514 RSA 2009
Assessee PAN AALFM6741R
Bench Kolkata
Appeal Number ITA 1598/KOL/2009
Duration Of Justice 7 month(s) 27 day(s)
Appellant Mahalakshmi Forging & Engg. Concern, Howrah
Respondent I.T.O.Wd.-47(1), Kolkata, Kolkata
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Bench Allotted SMC
Tribunal Order Date 07-05-2010
Assessment Year 1993-1994
Appeal Filed On 10-09-2009
Judgment Text
1 IN THE INCOME TAX APPELLATE TRIBUNAL 'A BENCH : KOLKATA (BEFORE HONBLE SRI D.K.TYAGI J.M. AND HONB LE SRI B.C.MEENA A.M.) I.T.A. NO. 1598 /KOL/2009 ASSESSM ENT YEAR : 1993-94 MALAKSHMI FORGING & ENGG. CONCERN VS ITO WARD 47(1) KOLKATA (PAN NO. AALFM 6741 R) (APPELLANT) (RESPONDENT) APPELLANT BY : S/SRI S.P.C HOWDHURY SOUMITRA CHOWDHURY. RESPONDENT BY : SRI O.P.AGARW AL. O R D E R PER SHRI B.C.MEENA A.M. THIS IS AN APPEAL FILED BY THE ASSESSEE AGAINST TH E ORDER OF THE CIT(A)- XXX KOLKATA DATED 04.08.2008 FOR THE ASSESSMENT YEAR 1993-94. 2. GROUNDS RAISED ARE AS FOLLOWS : 1. FOR THAT THE ORDER OF THE CIT(A) IS BAD IN LAW AS THE SAME WAS PASSED IN CONTRAVENTION OF THE JUDGEMENT OF THE HONBLE S UPREME COURT OF INDIA. 2. FOR THAT WHERE ASSESSMENT IS REDUCED ENHANC ED OR ANNULLED OR WHERE FRESH ASSESSMENT IS DIRECTED TO BE MADE TH EN THE LIABILITY OF INTEREST U/S 220(2) CAN ONLY ARISE FROM THE DATE OF FRESH DEMAND NOTICE. 3. FOR THAT IN THE FACTS AND CIRCUMSTANCES OF TH E CASE THE ASSESSING OFFICER WAS NOT JUSTIFIED IN CHARGING INTEREST RELATING TO THE PERIOD PRIOR TO THE DATE OF DEMAND NOTICE IN THE DEMAND NOTICE DATED 10.05.2007 AND IN THE ORDER U/S 251/243(3)/184 DATED 10.05.2007 OF THE INCOME TAX ACT. 4. FOR THAT THE AUTHORITIES BELOW DID NOT FO LLOW THE RATIO OF JUDGMENTS OF THE HONBLE APEX COURT AS REPORTED IN 52 ITR 5 38 AND 44 STA PAGE 136 IN THE CASE UNDER APPEAL. 5. FOR THAT IN ANY EVENT THE LEVY OF INTERES T U/S 234A 234B AND 234C WAS ALSO WRONG ILLEGAL AND ARITHMETICALLY INC ORRECT. 6. FOR THAT WITHOUT PREJUDICE OF THE ABOVE GROUND S YOUR APPELLANT STATES THAT INTEREST U/S 234C CAN ONLY BE CHARGE D UNDER BASIS OF INCOME RETURNED. 3. WHILE PLEADING ON BEHALF OF THE ASSESSEE THE LEARNED A.R. SUBMITTED THAT AS PER THE PROVISIONS OF SECTION 220(2) INT EREST CAN BE CHARGED FROM THE DATE OF FRESH DEMAND NOTICE WHEN THE INCOME IS R EDUCED ENHANCED OR WHERE THE FRESH ASSESSMENT IS TO BE MADE AND HE PLEADED THAT THE A.O. IS NOT JUSTIFIED 2 IN CHARGING INTEREST PRIOR TO THE DEMAND NOTICE WHICH HAS BEEN WRONGLY CONFIRMED BY THE CIT(A) AND HE ALSO RELIED ON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE OF PHILIPS INDIA LTD. AND ANOTHER VS ASSISTANT COMMISSIONER COMMERCIAL TAXES CALCUTTA (52 ITR 44). 4. ON THE OTHER HAND THE LEARNED D.R. RELIED ON THE ORDER OF THE CIT(A) AND ALSO PLEADED THAT THE CASE LAW RELIED UPON B Y THE ASSESSEE IS NOT APPLICABLE TO THE FACTS OF THE PRESENT CASE. 5. AFTER HEARING BOTH THE SIDES AND CONSIDERING THE FACTS OF THE CASE WE FIND THAT IN THE CASE RELIED UPON BY THE ASSESSEE THE F ACTS ARE DIFFERENT THAN THE FACTS INVOLVED IN THE ASSESSEES CASE. IN THE ASSESSEE S CASE ASSESSMENT WAS COMPLETED ON 29 TH MARCH 1996. IN THE APPEAL THE CIT(A) GRANTE D PART RELIEF . IN THE FURTHER APPEAL TO THE ITAT THE ISSUE WAS RESTORE D BACK TO THE FILE OF THE CIT(A). THE CIT(A) AGAIN PASSED ORDER ON 30.3.07. THE A.O . GAVE EFFECT TO THE ORDER OF THE CIT(A) AND CHARGED THE INTEREST U/S 220(2) OF THE INCOME TAX ACT. THUS THE ORDER OF THE A.O. WAS NEVER SET ASIDE IN THIS CASE. THERE WAS ONLY MODIFICATION IN THE ORDER OF THE AO BY THE CIT(A). IN VIEW OF TH ESE FACTS WE DISMISS THE APPEAL OF THE ASSESSEE ON THIS ISSUE. THIS DECIDE S GROUND NOS. 1 TO 4. 6. GROUND NOS. 5 & 6 ARE REGARDING THE LEVY OF IN TEREST U/SS 234A 234B AND 234C. 7. AFTER HEARING THE RIVAL SUBMISSIONS WE FIND TH AT INTEREST FOR DEFAULT IN FURNISHING RETURN OF INCOME IS LEVIED U/S 234A. THE INTEREST U/S 234A IS LEVIED WHEN THE RETURN IS FURNISHED AFTER THE DUE DATE T ILL THE DATE OF FURNISHING THE RETURN OR WHEN THE RETURN WAS NOT FURNISHED THE INTEREST IS LEVIED TILL THE DATE OF COMPLETION OF ASSESSMENT U/S 144. THE INTEREST U /S 234B IS LEVIED FOR THE DEFAULT IN THE PAYMENT OF ADVANCE TAX AND INTER EST U/S 234C IS LEVIED WHEN THERE IS DIFFERMENT IN THE ADVANCE TAX. THE AO S ORDER DATED 10.5.2007 SHOWS THAT INTEREST HAS BEEN LEVIED UNDER THESE PRO VISIONS OF SECTION 234A 234B AND 234C. LEVY OF INTEREST UNDER THESE PROVISIONS IS MANDATORY. IN ALL THESE SECTIONS THE EXPRESSION USED IS SHALL WHILE PRIOR TO FI NANCE ACT 1987 IN THE CORRESPONDING SECTIONS PERTAINING TO IMPOSITION OF INTEREST THE EXPRESSION USED WAS MAY. THUS BY CHANGE IN THE PROVISIONS THE L EVY OF INTEREST HAS BECOME MANDATORY AS EXPRESSION SHALL IS USED DELIBERATE LY. THIS HAD BEEN HELD BY THE 3 HONBLE SUPREME COURT IN THE CASE OF CIT VS GHA SWALA (252 ITR 1) (SC). KEEPING THESE FACTS IN VIEW WE FIND NO MERIT IN THE APPEAL. HOWEVER IN THE GROUND NO. 5 IT HAS BEEN PLEADED THAT IT IS ARITHM ETICALLY INCORRECT. THEREFORE WE RESTORE THIS ISSUE TO THE FILE OF THE A.O. TO R ECALCULATE INTEREST AS PER THE PROVISIONS OF LAW. 8. IN THE RESULT THE ASSESSEES APPEAL IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 07.05.2010 SD/- SD/- (D.K.TYAGI) (B.C.MEENA) JUDICIAL MEMBER ACCOUNTANT MEMBER DATED : 07.05.2010 COPY FORWARDED TO :- 1) ITO WARD 47(1) KOLKATA. 2) M/S MA LAKSHMI FORGING & ENGG. CONCERN C/O S RI RAGHUNATH SETT DHARMATALA SANTRAGACHI HOWRAH. 3) CIT(A) KOLKATA. 4) CIT KOLKATA. 5) D.R. ITAT KOLKATA. BY ORDER ASSISTA NT REGISTRAR I.T.AT. KOLKATA. BCD