L & T KOMATSU LTD, MUMBAI v. ITO WD 2(2)(1), MUMBAI

ITA 3154/MUM/2010 | 2005-2006
Pronouncement Date: 23-03-2011 | Result: Allowed

Appeal Details

RSA Number 315419914 RSA 2010
Assessee PAN AAACL4175C
Bench Mumbai
Appeal Number ITA 3154/MUM/2010
Duration Of Justice 11 month(s) 1 day(s)
Appellant L & T KOMATSU LTD, MUMBAI
Respondent ITO WD 2(2)(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 23-03-2011
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted G
Tribunal Order Date 23-03-2011
Assessment Year 2005-2006
Appeal Filed On 22-04-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES G MUMBAI BEFORE SHRI R V EASWAR PRESIDENT AND SHRI RAJENDRA SINGH ACCOUNTANT MEMBER I T A NO: 3154/MUM/2010 (ASSESSMENT YEAR: 2005-06) L & T KOMATSU LIMITED MUMBAI APPELLANT (PAN: AAACL4175C) VS INCOME TAX OFFICER 2(2)(1) MUMBAI RESPONDENT APPELLANT BY: MS HEENA DOSHI RESPONDENT BY: MR S K SINGH O R D E R R V EASWAR PRESIDENT: THIS IS AN APPEAL BY THE ASSESSEE RELATING TO THE ASSESSMENT YEAR 2005-06. THE FIRST GROUND IS THAT THE CIT(A) ERRED IN DISMISSING THE APPEAL ON THE GROUND THAT NO APPEAL LIES BEFORE HIM UNDER SECTION 246A OF THE INCOME TAX ACT 1961 AGA INST THE LEVY OF INTEREST UNDER SECTION 234B. THE OTHER GROUNDS ARE DIRECTED AGAINST THE MERITS OF THE LEVY OF INTEREST. 2. IN OUR OPINION THE CIT(A) WAS NOT JUSTIFIED IN HOLDING THAT NO APPEAL LAY BEFORE HIM AGAINST THE LEVY OF INTEREST UNDER SECTION 234B OF THE ACT. SECTION 246A(1)(A) PROVIDES A RIG HT OF APPEAL TO THE ASSESSEE AGGRIEVED BY AN ORDER AGAINST HIM WHER E HE DENIES HIS LIABILITY TO BE ASSESSED UNDER THE ACT. IN THE CASE OF CENTRAL PROVINCES MANGANESE ORE CO. LTD. VS. CIT (1986) 160 ITR 961 (SC) THE SUPREME COURT HAS HELD THAT WHERE THE ASS ESSEE DENIES HIS LIABILITY TO PAY INTEREST UNDER SECTION 139(8) OR SECTION 215 IT AMOUNTS TO DENIAL OF THE ASSESSEES LIABILITY TO BE ASSESSED UNDER ITA NO: 3154/MUM/2010 2 THE ACT. IT WAS HELD IN THIS CASE THAT THE LEVY OF INTEREST IS PART OF THE PROCESS OF ASSESSMENT AND THOUGH INTEREST IS LE VIED UNDER SEPARATE SECTIONS; THE LEVY IS NEVERTHELESS A PART OF THE PROCESS OF ASSESSING THE TAX LIABILITY OF THE ASSESSEE. IT WA S FURTHER HELD THAT IT IS THEREFORE OPEN TO AN ASSESSEE TO DISPUTE THE LEV Y IN APPEAL PROVIDED HE LIMITS HIMSELF TO THE GROUND THAT HE IS NOT LIABLE TO THE LEVY AT ALL. IN THE PRESENT CASE AS GROUND NO.2 B EFORE THE CIT(A) SHOWS THE ASSESSEE HAS CONTENDED THAT THE LEVY OF INTEREST AROSE ON ACCOUNT OF A RETROSPECTIVE AMENDMENT MADE TO THE SECTION SUBSEQUENT TO THE FILING OF THE RETURN AND THEREFOR E THE ASSESSEE WAS NOT LIABLE TO PAY THE INTEREST UNDER SECTION 23 4B OF THE ACT. THE ASSESSEE HAS THUS DENIED ITS LIABILITY TO BE AS SESSED UNDER THE ACT WITHIN THE MEANING OF THE AFORESAID JUDGMENT. THE APPEAL AGAINST THE LEVY IS THEREFORE MAINTAINABLE. WE THE REFORE SET ASIDE THE ORDER OF THE CIT(A) AND RESTORE THE APPEAL TO H IS FILE FOR BEING DECIDED ON MERITS IN ACCORDANCE WITH LAW. THE APPE AL OF THE ASSESSEE IS THUS ALLOWED BUT ONLY FOR STATISTICAL P URPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF HEARING ON 23 RD MARCH 2011. SD/- SD/- (RAJENDRA SINGH) (R V EASWAR) ACCOUNTANT MEMBER PRESIDE NT MUMBAI DATED 23 RD MARCH 2011 SALDANHA ITA NO: 3154/MUM/2010 3 COPY TO: 1. L & T KOMATSU LTD. TAXATION DEPARTMENT L & T HOUSE N M MARG BALLARD ESTATE MUMBAI 400 001 2. ITO 2(2)(1) MUMBAI 3. CIT-2 MUMBAI 4. CIT(A)-5 MUMBAI 5. DR G BENCH TRUE COPY BY ORDER ASSTT. REGISTRAR ITAT MUMBAI