Mahesh Kumar Bhagchandka, New Delhi v. ACIT, New Delhi

ITA 492/DEL/2010 | 2007-2008
Pronouncement Date: 09-04-2010 | Result: Allowed

Appeal Details

RSA Number 49220114 RSA 2010
Bench Delhi
Appeal Number ITA 492/DEL/2010
Duration Of Justice 2 month(s) 5 day(s)
Appellant Mahesh Kumar Bhagchandka, New Delhi
Respondent ACIT, New Delhi
Appeal Type Income Tax Appeal
Pronouncement Date 09-04-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 09-04-2010
Assessment Year 2007-2008
Appeal Filed On 03-02-2010
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH : E NEW DELHI BEFORE SHRI RAJPAL YADAV JUDICIAL MEMEBR AND SHRI K.G. BANSAL ACCOUNTANT MEMBER I.T.A NO. 492/DEL/10 ASSTT. YEAR 2007-08 MAHESH KUMAR BHAGCHANDKA 5 OLOF PALME MARG VASANT VIHAR NEW DELHI 110 057. VS. ASSTT. COMMISSIONER O INCOME TAX CENTRAL CIRCLE-8 NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY: SHRI R.C. RAI CA RESPONDENT BY: SHRI G.S. SAHOTA SR. DR. ORDER PER RAJPAL YADAV JM: THE ASSESSEE IS IN APPEAL BEFORE US AGAINST THE OR DER OF LD. CIT(A) DATED 10.11.2009 PASSED FOR ASSTT. 2007-08. THE SOLITARY GRIEVANCE OF THE ASSESSEE IS THAT LD. CIT(A) HAS ER RED IN DISMISSING THE APPEAL OF ASSESSEE WITHOUT ADJUDICATING THE GROUNDS OF APPEAL ON MERIT. 2. THE LD. COUNSEL FOR THE ASSESSEE AT THE VERY OUT SET SUBMITTED THAT A SEARCH U/S 132 OF THE INCOME TAX ACT WAS CONDUCTE D ON M2K GROUP ITA NO. 492/DEL/10 ASSTT. YEAR 2007-08 2 INCLUDING RESIDENCE OF THE ASSESSEE ON 24 TH JANUARY 2007. THE ASSESSEE HAS FILED HIS RETURN OF INCOME ON 30 TH SEPTEMBER 2008 DECLARING TAXABLE INCOME OF RS. 6 09 19 230/- . HE PAID TAX DUE ON RETURNED INCOME AT THE TIME OF FILLING THE RETURN I .E 30 TH SEPTEMBER 2008. THE DISPUTE IN THE PRESENT APPEAL IS THAT ASSESSEE HAS NOT PAID INTEREST U/S 234B AND 234C ALONGWITH THE RETURN THEREFORE HIS APPEAL HAS BEEN TREATED AS NON MAINTAINABLE BEFORE LD. FIRST APPELL ATE AUTHORITY AS PER SECTION 249 (4)(A) OF THE ACT. LD. COUNSEL FOR THE ASSESSEE ON THE STRENGTH OF HONBLE BOMBAY HIGH COURT DECISION IN T HE CASE OF CIT VS. MANOJ KUMAR BERIWAL REPORTED IN 217 CTR (BOM.) 407 SUBMITTED THAT EXPRESSION TAX EMPLOYED IN SECTION 249(4) WOULD N OT INCLUDE INTEREST. HE POINTED OUT THAT HONBLE BOMBAY HIGH COURT HAS C ONSIDERED THE SIMILAR SITUATION AND HAS OBSERVED THAT IF ASSESSEE HAS PAID THE TAX ON THE RETURN INCOME THEN HIS APPEAL WOULD BE DECIDED ON MERIT BY THE LD. CIT(A). THE LD. FIRST APPELLATE AUTHORITY CANNOT TR EAT THE APPEAL AS NOT MAINTAINABLE IN THE ABSENCE OF NON PAYMENT OF INTER EST CHARGEABLE U/S 234B AND 234C OF THE ACT ON SUCH RETURNED INCOME. T HE LD. COUNSEL FOR THE ASSESSEE FURTHER POINTED OUT THAT LD. CIT(A) HA S DECIDED THE APPEAL ON 10.11.2009 AND ASSESSEE HAS MADE THE PAYMENT OF INTEREST ALSO ON 4 TH NOVEMBER 2009. ACCORDING TO HIM EVEN IF THERE WAS ANY DEFICIENCY THAT HAS ALREADY BEEN CORRECTED BY THE ASSESSEE AND HIS APPEAL COULD ITA NO. 492/DEL/10 ASSTT. YEAR 2007-08 3 NOT BE DISMISSED IN LIMINEE. FOR BUTTERACING HIS CO NTENTION HE RELIED UPON THE DECISION OF HONBLE DELHI HIGH COURT RENDE RED IN THE CASE OF CIT VS. RAMA BODY BUILDER REPORTED IN 250 ITR 825. ON THE OTHER HAND LD. DR RELIED UPON THE ORDER OF LD. CIT(A). 3. WE HAVE DULY CONSIDERED THE RIVAL CONTENTION AND GONE THROUGH THE RECORD CAREFULLY. SECTION 249 (4) (A) READ AS U NDER :- NO APPEAL UNDER THIS CHAPTER SHALL BE ADMITTED UNL ESS AT THE TIME OF FILING OF THE APPEAL. WHERE A RETURN HAS BEEN FILED BY THE ASSESSEE THE ASSESSEE HAS PAID THE TAX DUE ON THE INCOME RETURNED BY HIM. X X X X X X X X X ACCORDING TO THE FIRST APPELLATE AUTHORITY EXPRESSI ON TAX EMPLOYED IN ABOVE PROVISION WOULD ALSO INCLUDE INTEREST CHARGEA BLE U/S 234B AND 234A ETC. WITH SUCH RETURN INCOME. THE LD. CIT(A) H AS HARBOURED THIS BELIEF ON THE GROUND THAT SECTION 140(A) (I) CONTEM PLATES THAT ASSESSEE HAS TO COMPUTE INTEREST U/S 234(A) 234(B) AND 234( C) OF THE ACT AT THE TIME OF MAKING SELF ASSESSMENT AND PAY THE SAME ALO NGWITH TAX DUE IF ANY . HOWEVER THIS BELIEF OF THE LD. CIT(A) DOES NO T MATCH WITH THE AUTHORITATIVE PRONOUNCEMENT OF HONBLE BOMBAY HIGH COURT RENDERED IN THE CASE OF MANOJ KUMAR BERIWAL WHEREIN HONBLE HIG H COURT HAS ITA NO. 492/DEL/10 ASSTT. YEAR 2007-08 4 REFUSED TO INTERFERE IN THE ORDER OF THE TRIBUNAL W HICH HAS PROPOUNDED THAT FOR THE PURPOSE OF SECTION 249(4) OF THE ACT THE DEPOSIT OF TAX WHICH IS CONDITIONED PRECEDENT DOES NOT INCLUDE INTERES T U/S 234B AND 234C OF THE ACT. OTHERWISE ALSO THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISION OF HONBLE JURISDICTIONAL HIGH COUR T IN THE CASE OF CIT VS. RAMA BODY BUILDER. IN THAT CASE THE ASSTT. YEAR INV OLVED IS 1973-74. THE ASSESSEE HAS FILED APPEAL ON 2 ND APRIL 1976. THE ENTIRE TAX DUE ON RETURNED INCOME WAS PAID ON 8 TH MARCH 1977. THE AAC HEARD THE APPEAL ON SEVERAL DATES BUT THE LAST DATE WAS 4.11. 77. HE DISMISSED THE APPEAL OF THE ASSESSEE ON THE GROUND THAT TAX DUE H AD NOT BEEN PAID BY THE ASSESSEE ON 2 ND APRIL 1976 I.E. THE DATE WHEN APPEAL WAS FILED. T HE TRIBUNAL HAS SET ASIDE THE ORDER OF THE LD. CIT(A) AND REMANDED THE MATTER BACK TO THE LD. CIT(A) FOR ADJUDICATION ON M ERIT. THE TRIBUNAL WAS OF THE OPINION THAT AFTER THE PAYMENT OF TAX ON 8 TH MARCH 1977 IT SHOULD BE CONSTRUED THAT ASSESSEE HAS FULFILLED THE REQUIR EMENT OF SECTION 249(4) AND ITS APPEAL SHOULD BE HEARD BY THE LD. FI RST APPELLATE AUTHORITY ON MERIT. THE HONBLE HIGH COURT HAS REFU SED TO INTERFERE IN THIS VIEW OF THE TRIBUNAL. IN THE PRESENT CASE ALSO ASSESSEE HAS PAID THE INTEREST BEFORE THE APPEAL WAS DECIDED BY THE LD. C IT(A). IT HAS BEEN DEMONSTRATED BEFORE US THAT ENTIRE INTEREST DUE ON SUCH RETURNED INCOME WAS PAID ON 4 TH NOVEMBER 2009. TAKING INTO CONSIDERATION BOTH THE SE ITA NO. 492/DEL/10 ASSTT. YEAR 2007-08 5 ASPECTS WE SET ASIDE THE ORDER OF LD. CIT(A) AND RE STORE ALL THE ISSUES TO THE FILE OF LD. CIT(A). LD. FIRST APPELLATE AUTHOR ITY SHALL DECIDE THE APPEAL ON MERIT AFTER PROVIDING DUE OPPORTUNITY OF HEARING TO THE PARTIES. 4. IN THE RESULT THE APPEAL OF THE ASSESSEE IS ALLO WED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 9.4.2010. [K.G. BANSAL] [RAJPAL YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER VEENA DATED 9.4.2010 COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT (A) 5. DR ITAT TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT