Dr Ved Prakash, Hyderabad v. ACIT, Hyderabad

ITA 846/HYD/2009 | misc
Pronouncement Date: 05-02-2010 | Result: Allowed

Appeal Details

RSA Number 84622514 RSA 2009
Assessee PAN AEJPP5605B
Bench Hyderabad
Appeal Number ITA 846/HYD/2009
Duration Of Justice 6 month(s) 21 day(s)
Appellant Dr Ved Prakash, Hyderabad
Respondent ACIT, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 05-02-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted A
Tribunal Order Date 05-02-2010
Date Of Final Hearing 21-01-2010
Next Hearing Date 21-01-2010
Assessment Year misc
Appeal Filed On 15-07-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH A' HYDERABAD BEFORE SHRI G.C.GUPTA VICE PRESIDENT AND SHRI CHANDRA POOJARI ACCOUNTANT MEMEBR ITA NO.846/HYD/09 : ASSTT . YEAR 1985-86 DR. VED PRAKASH HYDERABAD ( PAN AEJPP 5605 B ) V/S. ASST. COMMISSIONER OF INCOME TAX CIRCLE 5(1) HYDERABAD. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI AJAY GANDHI RESPONDENT BY : SHRI H.PHANI RAJU O R D E R PER G.C.GUPTA VICE PRESIDENT: THIS APPEAL OF THE ASSESSEE FOR THE ASSESSMENT YEAR 1985- 86 IS DIRECTED AGAINST THE ORDER OF COMMISSIONER OF INCO ME- TAX(APPEALS). 2. GROUNDS OF APPEAL OF THE ASSESSEE ARE AS UNDER- '1. THE ORDER OF THE CIT(APPEALS) IS IN GROSS VIOLATION OF THE PROVISIONS OF LAW AND HENCE IS BAD IN LA W. INTEREST U/S. 220(2) 2. THE CIT(APPEALS) HAS ERRED IN UPHOLDING THE LEVY OF INTEREST U/S. 220(2). 3. THE CIT(APPEALS) HAS ERRED IN UPHOLDING THE CONTENT ION OF ASSESSING OFFICER THAT SEC.154 OF THE INCOME-TAX AC T IS NOT APPLICABLE IN THE PRESENT CASE. ITA NO.846/HYD/09 DR. VED PRAKASH HYDERABAD 2 4. THE CIT(A) HAS ERRED IN UPHOLDING THAT THE LIMITATI ON PROVIDED U/S. 154 OF THE ACT IS NOT APPLICABLE FOR LEVY OF I NTEREST U/S. 220(2) OF THE ACT. 5. THE CIT(A) HAS ERRED IN UPHOLDING THE CONSEQUENTIA L ORDER PASSED BY THE ASSESSING OFFICER. OTHER GROUNDS 6. THE CIT(A) HAS ERRED IN UPHOLDING THE ASSESSMENT O F INCOME OF RS.S6 41 800 7. THE CIT(A) HAS ERRED IN UPHOLDING THE LEVY OF DEM AND OF RS.1 09 700.' 3. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF TH E CIT(A) IN THIS CASE FOR THE RELEVANT ASSESSMENT YEAR 1985-86 HAS CHARGED INTEREST UNDER S.220(2) OF THE ACT AT RS.7 398 VIDE HIS ORDER D ATED 26.4.1991. THEREAFTER ANOTHER CONSEQUENTIAL ORDER DATED 23.9.19 94 WAS PASSED BY THE ASSESSING OFFICER FOR GIVING EFFECT TO THE ORDER O F THE TRIBUNAL DATED 18.3.1992 AND AGAIN THE SAME AMOUNT OF RS.7 398 WAS CHARGED AS INTEREST UNDER S.220(2) OF THE ACT. HE SUBMITTED THA T THE ASSESSING OFFICER WHILE PASSING THE FURTHER CONSEQUENTIAL O RDER DATED 19.3.2008 FOR GIVING EFFECT TO THE ORDER OF THIS TR IBUNAL FOR THE RELEVANT ASSESSMENT YEAR 1985-86 DATED 4.1.2008 MODIFI ED THE CONSEQUENTIAL ORDER DATED 23.9.1994 AND THIS TIME CHARG ED INTEREST UNDER S.220(2) OF THE ACT AT RS.1 09 633. THE LEARN ED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THERE WAS NO MISTAKE ON THE P ART OF THE ASSESSEE FOR MAKING THE PAYMENT OF TAXES AS AND WHEN DEM ANDED BY THE DEPARTMENT AND THEREFORE THERE WAS NO VALID DE MAND OUTSTANDING AGAINST THE ASSESSEE. HE SUBMITTED THAT IF T HERE WAS ANY MISTAKE IN THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING O FFICER DATED 26.4.1991 OR 23.9.1994 THE ONLY COURSE OPEN TO THE ASSESSING OFFICER WAS TO PASS A RECTIFICATION ORDER UNDER S.154 OF THE ACT. HE ITA NO.846/HYD/09 DR. VED PRAKASH HYDERABAD 3 SUBMITTED THAT AS A RESULT OF THE APPELLATE ORDER PASSE D BY THE TRIBUNAL ON 4.1.2008 THE ASSESSING OFFICER IS AUTHORIZED ONLY TO PASS A CONSEQUENTIAL ORDER AND NOT TO CORRECT ANY MISTAKE COMMIT TED AS BACK AS IN THE YEAR 1991. HE RELIED ON THE DECISION OF THE O RISSA HIGH COURT IN THE CASE OF EPARI SADASIVA RAO V/.S. CCIT (306ITR 86 ) AND ON THE DECISION OF THE PUNE BENCH OF THE TRIBUNAL IN THE CASE O F BHAGWANDAS ASSOCIATES V/S. ITO (12 DTR (TRIBUNAL ORDERS) 195) IN SUP PORT OF THE ABOVE SUBMISSIONS. 4. THE LEARNED DEPARTMENTAL REPRESENTATIVE ON THE O THER HAND OPPOSED THE SUBMISSIONS OF THE LEARNED COUNSEL FOR THE ASSESSEE. HE SUBMITTED THAT ON THE BASIS OF THE REVISED INCO ME ASSESSED AS A RESULT OF THE ORDER PASSED BY THE TRIBUNAL T HE ASSESSING OFFICER HAS ONLY PROCEEDED TO COMPUTE THE TAX LIABILITY OF THE ASSESSEE AND HAS LEVIED INTEREST UNDER S.220(2) OF THE ACT AS T HERE WAS A DEFAULT ON THE PART OF THE ASSESSEE IN MAKING THE PAYM ENT OF TAX DEMANDED WITHIN THE DUE DATE. HE SUBMITTED THAT THE RE-COMPUTATION OF INTEREST UNDER S.220(2) OF THE ACT WAS CORRECTLY MADE BY THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF TH E TRIBUNAL DATED 4.1.2008 AND AS SUCH THERE WAS NO NECESSITY OF ISSUING ANY NOTICE UNDER S.154 OF THE ACT TO THE ASSESSEE. HE REFERRED TO T HE DECISION OF THE HYDERABAD BENCH OF THE TRIBUNAL IN THE CASE OF SMT. SRIKANTA DEVI BALDWA (ITA NO.217/HYD/08 DATED 26.9.2008) WHEREIN IT WAS HELD THAT PROVISIONS OF S.154 ARE NOT APPLICABLE IN THE MAT TER OF CHARGING OF INTEREST UNDER S220(2) OF THE ACT. HE ALSO RELIED ON TH E DECISION OF THE MADRAS HIGH COURT IN THE CASE OF SUPER SPINNING MILLS LT D. V/S. CIT (244 ITR 814) AND ALSO THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN THE CASE OF RAJAT LAL V/S. DCIT (308 ITR (AT) 58) I N SUPPORT OF THE ABOVE SUBMISSIONS. ITA NO.846/HYD/09 DR. VED PRAKASH HYDERABAD 4 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS. WE FIND THA T THE ASSESSING OFFICER VIDE HIS CONSEQUENTIAL ORDER DATED 26.4. 1991 PASSED FOR GIVING EFFECT TO THE ORDER OF THE CIT(A) HAS CHA RGED INTEREST UNDER S.220(2) AT RS.7 398 ONLY. THE ASSESSING OFFICER VIDE H IS SUBSEQUENT CONSEQUENTIAL ORDER DATED 23.9.1994 PASSED FOR GIVING E FFECT TO THE ORDER OF THE TRIBUNAL DATED 18.3.1992 HAD CHARGED IN TEREST UNDER S.220(2) AT THE SAME FIGURE OF RS.7 398. HOWEVER WH ILE PASSING THE FURTHER SUBSEQUENT CONSEQUENTIAL ORDER DATED 19.3.2008 THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE ORDER OF TH E TRIBUNAL IN THIS CASE DATED 4.1.2008 HAS CHARGED INTEREST UNDER S.220(2) OF RS.1 09 633 AGAINST WHICH THE ASSESSEE IS IN APPEAL BEFORE US. WE FIND THAT WHILE PASSING THE CONSEQUENTIAL ORDER DATED 19.3.2008 THE ROLE OF THE ASSESSING OFFICER WAS LIMITED TO GIVING ONLY THE CONSEQUENTIAL EFFECT TO THE APPELLATE ORDER PASSED BY TH E TRIBUNAL AND THE ASSESSING OFFICER IS NOT AUTHORISED TO RECTIFY SOME M ISTAKE IN CALCULATION IN HIS EARLIER ORDER PASSED ON 26.4.1991 OR 23.9.1994. IF THERE WAS ANY MISTAKE IN THE EARLIER ORDER PASSED BY TH E ASSESSING OFFICER THE LEGAL COURSE OPEN TO THE ASSESSING OFFICER WA S TO MAKE RECOURSE TO THE PROVISIONS FOR RECTIFICATION UNDER S.15 4 OF THE ACT. WE FIND THAT WHAT CANNOT BE DONE DIRECTLY COULD NOT BE VA LIDLY DONE INDIRECTLY. THERE IS NO MISTAKE ON THE PART OF THE A SSESSEE AND THE MISTAKE WAS IN THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSI NG OFFICER AS A RESULT OF THE APPELLATE ORDER PASSED BY TH E CIT(A) AND THE TRIBUNAL AS BACK AS ON 26.4.1991 AND 23.9.1994 RESPECT IVELY AND THE SAME CANNOT BE RECTIFIED WHILE PASSING CONSEQUENTIAL ORDER GIVING EFFECT TO THE ORDER OF THE TRIBUNAL IN THE YEAR 200 8. IN THESE FACTS OF THE CASE WE ARE UNABLE TO SUSTAIN THE ORDERS OF THE RE VENUE AUTHORITIES ON THIS ISSUE AND ACCORDINGLY WE ARE UNABLE TO UPHOLD THE CHARGING OF INTEREST UNDER S.220(2) OF RS.1 09 638 AS AGAINST ITA NO.846/HYD/09 DR. VED PRAKASH HYDERABAD 5 RS.7 398 CHARGED BY THE DEPARTMENT IN THE EARLIER CONSE QUENTIAL ORDERS. ACCORDINGLY GROUNDS OF APPEAL OF THE ASSESSEE ARE ALLOWED. 6. IN THE RESULT APPEAL OF THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE COURT ON 5.2.2010 SD/- SD/- (CHANDRA POOJARI) (G.C.GUPTA) ACCOUNTANT MEMBER VICE PRESIDENT DT/- 05.02.2010 COPY FORWARDED TO: 1. DR.VED PRAKASH M/S. GANDHI & GANDHI CHARTERED ACCOUNTANTS 1002 PAIGAH PLAZA BASHEERBAGH HYDERABAD 500 063 2. DY. COMMISSIONER OF INCOME TAX CIRCLE 3(1) HYDE RABAD. 3. COMMISSIONER OF INCOME-TAX (APPEALS)=V HYDERABAD. 4. COMMISSIONER OF INCOME-TAX IV HYDERABAD. 5. THE DEPARTMENTAL REPRESENTATIVE ITAT HYDERABAD. B.V.S.