SCHREIBER DYNAMIX DAIRIES LTD, MUMBAI v. DCIT CEN CIR 6, MUMBAI

ITA 5133/MUM/2009 | 2006-2007
Pronouncement Date: 10-12-2010 | Result: Allowed

Appeal Details

RSA Number 513319914 RSA 2009
Bench Mumbai
Appeal Number ITA 5133/MUM/2009
Duration Of Justice 1 year(s) 3 month(s) 1 day(s)
Appellant SCHREIBER DYNAMIX DAIRIES LTD, MUMBAI
Respondent DCIT CEN CIR 6, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 10-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted E
Tribunal Order Date 10-12-2010
Date Of Final Hearing 01-12-2010
Next Hearing Date 01-12-2010
Assessment Year 2006-2007
Appeal Filed On 08-09-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E MUMBAI. BEFORE SHRI P.M. JAGTAP ACCOUNTANT MEMBER AND SHRI V. DURGA RAO JUDICIAL MEMBER ITA NO.5132 & 5133/MUM/2009 (ASSESSMENT YEARS : 2006-07 & 2007-08) M/S. SCHREIBER DYNAMIX DAIRIES LTD. A-306/307 DYNASTYBUSINESS PARK 58 ANDHERI KURLA ROAD ANDHERI MUMBAI-400028 PAN AAACD37433 VS. DY. COMMISSIONER OF INCOME TAX CENTRAL CIRCLE 6 AAYAKAR BHAVAN MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. ARATI VISSANJI. RESPONDENT BY : SHRI D.SONGATE. PER V. DURGA RAO : THESE TWO APPEALS FILED BY THE ASSESSEE AGAINST T HE COMMON ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (AP PEALS) CENTRAL-II MUMBAI DT.19.6.2009. SINCE THE ISSUES ARE COMMON A CONSOLIDATED ORDER IS BEING GIVEN FOR THE SAKE OF CONVENIENCE AND BREVITY . 2. THE FACTS IN BRIEF ARE THAT THE ASSESSEE IS ENGA GED IN THE BUSINESS OF MANUFACTURER OF DAIRY AND ULTRA HEAT TREATED PRODUC TS. FOR THE A.Y. 2006-07 THE ASSESSEE FILED RETURN OF INCOME DECLARING NIL I NCOME AS PER NORMAL PROVISIONS OF THE INCOME TAX ACT 1961 (THE ACT) AN D INCOME OF ` 36 99 05 734 AS PER THE PROVISIONS OF SECTION 115JB OF THE ACT. IN COMPUTING THE TAX LIABILITY OF THE YEAR THE ASSESS EE ITSELF CALCULATED TAX PAYABLE AS PER THE PROVISIONS OF SECTION 115JB OF T HE ACT INCLUDING SURCHARGE AND EDUCATION CESS AGGREGATING TO ` 2 85 09 969. THE ASSESSEE ALSO CALCULATED INTEREST UNDER SECTION 234C AS PER THE C ALCULATION SHEET ENCLOSED WITH THE RETURN OF INCOME AS ANNEXURE A AT ` .11 54 654 AND CALCULATED THE ITA NOS.5132 & 5133/MUM/10 2 REFUND DUE AT ` 18 35 378. THE ASSESSING OFFICER HAS ACCEPTED THE INTEREST CALCULATION MADE BY THE ASSESSEE UNDER SECTION 234C OF THE ACT. THE ASSESSEE DID NOT FILE ANY APPEAL AGAINST THE SEARCH ASSESSMENT ORDER UNDER SECTION 143(3) R.W.S. 153A OF THE ACT DT.31.12.2008 WHEREBY INTEREST UNDER SECTION 234C WAS LEVIED AT ` 11 61 951. SUBSEQUENTLY THE ASSESSEE FILED RECTIFICATION PETITION DT.27.1.2009 REQUESTING THE ASSESSING OFFICER TO RECTIFY THE INTEREST CHARGED UNDER SECTION 234C OF THE ACT FOR THE ASSESSMENT YEAR 2006-07 ON THE BASIS OF DECISION GIVEN IN THE CASE OF CIT VS. KWALITY BISCUITS LTD. (284 ITR 434) (SC). THE ASSESSING OFFICER HAS NOT AGREE WITH THE SUBMISSION MADE BY THE ASSESSEE THAT THE CASE RELIE D UPON BY THE ASSESSEE IS NOT APPLICABLE AND REJECTED THE RECTIFICATION PE TITION FILED BY THE ASSESSEE ON THE GROUND THAT IN THE CASE OF KWALITY BISCUITS LTD. (SUPRA) THE HON'BLE SUPREME COURT DECIDED THE ISSUE RELATING TO PROFITS UNDER SECTION 115J OF THE ACT AND IN THE PRESENT CASE THE ASSESSEE COMPUTED THE BOOK PROFITS UNDER SECTION 115JB OF THE ACT. THE JUDGEMENT RELIED UPO N BY THE ASSESSEE HAS NO APPLICATION TO THE FACTS OF THE CASE. ON APPEAL T HE CIT(A) CONFIRMED THE VIEW OF THE ASSESSING OFFICER AND DISMISSED THE APP EAL FILED BY THE ASSESSEE BEFORE HIM. 3. WE HAVE HEARD BOTH THE SIDES PERUSED THE MATERI AL AND GONE THROUGH THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY ISSU E INVOLVED IN THIS APPEAL IS WHETHER THE INTEREST U/S. 234C ARE LEVIABLE IN CASE OF THE ASSESSMENT ORDER UNDER SECTION 115JB OF THE ACT. IN THIS REGARD HON 'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF ACIT VS. NATURAL GEMS LTD. (20 10) (327 ITR269) BY FOLLOWING THE DECISION IN THE CASE OF CIT VS. KWALI TY BISCUITS LTD. (SUPRA) HAS ITA NOS.5132 & 5133/MUM/10 3 HELD THAT THE TRIBUNAL WAS CORRECT IN LAW IN DIRECT ING THE ASSESSING OFFICER TO DELETE THE AMOUNT CHARGED AS INTEREST UNDER SECTION 234B AND 234C OF THE ACT ON THE MINIMUM ALTERNATE TAX LEVIED UNDER SECTI ON 115JB ON THE BOOK PROFITS. RESPECTFULLY FOLLOWING THE JURISDICTIONAL HIGH COUR T DECISION IN THE CASE OF NATURAL GEMS LTD. (SUPRA) BOTH THE APPEALS FILED B Y THE ASSESSEE ARE ALLOWED. IN THE RESULT THE APPEALS FILED BY THE ASSESSEE AR E ALLOWED. PRONOUNCED IN THE OPEN COURT ON 10-12-2010. SD/- SD/- (P.M. JAGTAP) (V. DURGA RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DT.10-12-2010. *GPR COPIES OF THE ORDER FORWARDED TO : (1) THE APPELLANT (2) THE RESPONDENT (3) CIT MUMBAI (4) CIT(A) MUMBAI (5) DR (6) GUARD FILE TRUE COPY BY ORDER ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES ITA NOS.5132 & 5133/MUM/10 4 DATE INIT IALS 1. DRAFT DICTATED ON 2. DRAFT PLACED BEFORE AUTHOR 3. DRAFT PROPOSED & PLACED BEFORE SECOND MEMBER 4. DRAFT DISCUSSED & APPROVED BY SECOND MEMBER 5. APPROVED DRAFT COMES TO SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON 7. FILE SENT TO BENCH CLERK 8. DATE ON WHICH FILE GOES TO THE HEAD CLERK 9. DATE OF DISPATCH OF ORDER.