ITO, Palakkad v. Simon Thanikkal, Palakkad

ITA 904/COCH/2008 | 2002-2003
Pronouncement Date: 04-03-2010 | Result: Dismissed

Appeal Details

RSA Number 90421914 RSA 2008
Bench Cochin
Appeal Number ITA 904/COCH/2008
Duration Of Justice 1 year(s) 4 month(s) 4 day(s)
Appellant ITO, Palakkad
Respondent Simon Thanikkal, Palakkad
Appeal Type Income Tax Appeal
Pronouncement Date 04-03-2010
Appeal Filed By Department
Order Result Dismissed
Bench Allotted DB
Tribunal Order Date 04-03-2010
Date Of Final Hearing 01-03-2010
Next Hearing Date 01-03-2010
Assessment Year 2002-2003
Appeal Filed On 30-10-2008
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH COCHIN BEFORE SHRI N.VIJAYAKUMARAN & SHRI SANJAY ARORA I.T.A.NO.904/COCH/2008 ASSESSMENT YEAR:2002-03 THE INCOME - TAX OFFICER WARD-2 PALAKKAD. VS. SIMON THANIKKAL DEVELOPMENT OFFICER LIC OF INDIA PALAKKAD. PA NO.ABKPT 1389E (APPELLANT) ( RESPONDENT ) APPELLANT BY SHRI T.J. VINCENT JR.D.R. RESPONDENT BY SHRI T.M. SREEDHARAN ADV. O R D E R PER N.VIJAYAKUMARAN J.M: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(APPEALS)-V KOCHI DATED 10-07 -2008. THE ASSESSMENT YEAR INVOLVED IS 2002-03. 2. THE EFFECTIVE GROUNDS RAISED BY THE REVENUE ARE AS UNDER: 2. THE LD. CIT(APPEALS) ERRED IN CANCELLING THE O RDER UNDER 154 OF THE I.T.ACT 1961 LEVYING INTEREST U/S.234A(3). 3. THE LD. CIT(APPEALS) OUGHT TO HAVE NOTED THAT AS PER SECTION 234A(3) THE ASSESSEE IS LIABLE TO PAY I NTEREST ON THE AMOUNT BY WHICH THE TAX ON TOTAL INCOME ITA NO. 904/COCH/2008 2 DETERMINED U/S.147 EXCEEDS THE TAX ON TOTAL INCOME DETERMINED U/S.143(1). IN THIS CASE THERE IS SHOR TFALL OF RS.61 000/- BETWEEN THE TAX DETERMINED ON REGULA R ASSESSMENT AND U/S.143(1) OF THE I.T.ACT 1961. 4. SINCE REVENUE AUDIT OBJECTION IN THIS CASE FOR THIS YEAR HAS BEEN ACCEPTED BY THE DEPARTMENT APPEAL IS MAINTAINABLE BEFORE THE HONBLE INCOME-TAX APPELLAT E TRIBUNAL AS PER CBDTS INSTRUCTION NO.5/2008 DATED 15- 5-2008. 3. WE HAVE HEARD SHRI T.J. VINCENT LD. D.R. FOR TH E REVENUE AND SHRI T.M. SREEDHARAN LD. COUNSEL FOR T HE ASSESSEE AND CONSIDERED THE SUBMISSIONS CAREFULLY A ND PERUSED THE MATERIALS AVAILABLE ON RECORD. UNDER SECTION 154 DEBATABLE ISSUE CANNOT BE RECTIFIED. ONLY TH E ERROR APPARENT FROM RECORD ALONE IS AVAILABLE FOR RECTIFI CATION. HERE IN THIS CASE 154 CAN BE MADE FOR THE PURPOSE OF LEVYING INTEREST U/S.234A(3) PROVIDED IF THE FACTS RELATES ONLY TO THE FIRST REGULAR ASSESSMENT WHICH WILL BE CALLED THE FIRST ASSESSMENT AS INITIALLY IT WAS 143(1)(A) AND FINALLY TAX DETERMINED ON REGULAR ASSESSMENT MADE U/S.144 R.W.S .147 ON 24-01-2005. THERE IS A DIFFERENCE IN THE TAX DETERMINATION. THEREFORE 234A(3) IS EXIGIBLE AND UP TO THAT POINT ACTION U/S.154 IS JUSTIFIED. ITA NO. 904/COCH/2008 3 4. BUT AS CONTENDED BY THE LD. COUNSEL THERE WAS A TOTAL TAX DEDUCTION WHICH WENT TO THE TUNE OF RS.1 32 029 /- AS AGAINST THE DEMAND OF RS.1 27 881/- WHICH WAS THE TAX DETERMINED ON REGULAR ASSESSMENT MADE U/S.144 R.W.S .147. THERE IS A DEBATABLE POINT FOR DISCUSSION IN VIEW O F THE DECISION OF THE HONBLE DELHI HIGH COURT IN THE CAS E OF DR. PRANOY ROY & ANOTHER VS. CIT REPORTED IN 254 ITR 75 5 AS IT THROWS LIGHT ON THE DEBATABLE ISSUE AND ADMITTEDLY THE TDS DEDUCTION WAS MORE THAN THE AMOUNT OF TAX DEMANDED WHICH RESULTED IN THE TAX DETERMINATION ON REGULAR ASSESSMENT AS PER THE ASSESSMENT ORDER DATED 24-01- 2005. IN VIEW OF THE ABOVE FACTS WE SEE NO REASON TO INT ERFERENCE WITH THE FINDINGS OF THE LD. CIT(APPEALS). HENCE WE UPHOLD HIS ORDER. ACCORDINGLY THE APPEAL OF THE REVENUE IS LIABLE TO BE DISMISSED. 5. IN THE RESULT THE DEPARTMENTAL APPEAL IS DISMIS SED. SD/- SD/- (SANJAY ARORA) (N.VIJAYKUMARAN) ACCOUNTANT MEMBER JUDICIAL M EMBER ERNAKULAM DATED THE 04 TH MARCH 2010. PM. ITA NO. 904/COCH/2008 4 COPY FORWARDED TO: 1. THE INCOME-TAX OFFICER WARD-2 PALAKKAD. 2. SIMON THANIKKAL DEVELOPMENT OFFICER LIC OF INDIA PALAKKAD. 3. CIT(A)-V KOCHI. 4. CIT KOCHI. 5. D.R. BY ORDER SD/- ASSISTANT REGISTRAR