Shri Vikrambhai Somabhai Patel,, Ahmedabad v. The Income Tax Officer, Ward-2(3),, Ahmedabad

MA 167/AHD/2014 | 2007-2008
Pronouncement Date: 29-04-2015 | Result: Allowed

Appeal Details

RSA Number 16720524 RSA 2014
Assessee PAN AEUPP6088H
Bench Ahmedabad
Appeal Number MA 167/AHD/2014
Duration Of Justice 6 month(s) 20 day(s)
Appellant Shri Vikrambhai Somabhai Patel,, Ahmedabad
Respondent The Income Tax Officer, Ward-2(3),, Ahmedabad
Appeal Type Miscellaneous Application
Pronouncement Date 29-04-2015
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 29-04-2015
Date Of Final Hearing 17-04-2015
Next Hearing Date 17-04-2015
Assessment Year 2007-2008
Appeal Filed On 09-10-2014
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCH C BENCH AHMEDABAD .. BEFORE SHRI N.S. SAINI ACCOUNTANT MEMBER AND SHRI KUL BHARAT JUDICIAL MEMBER MA NO.167/AHD/2014 A.Y. 2007-08 ( IN ./ IN I.T.A. NO. 62/AHD/2011 AY 2007-08) SHRI VIKRAMBHAI SOMABHAI PATEL C/O.S L PATEL & CO. NR.BANK OF BARODA DELHI CHAKLA AHMEDABAD (ORIGINAL APPELLANT) / VS. THE ITO WARD-2(3) AHMEDABAD (ORIGINAL RESPONDENT) ./ ./ PAN/GIR NO. : AEUPP 6088 H ( # / APPLICANT ) .. ( $% # / RESPONDENT ) #& / APPLICANT BY : SHRI MS. URVASHI SHODHAN AR $% #'& / RESPONDENT BY : SHRI ROOPCHAND SR.DR ()'* / DATE OF HEARING 17/04/2015 + -.'* / DATE OF PRONOUNCEMENT 29/04/2015 / O R D E R PER SHRI KUL BHARAT JUDICIAL MEMBER : THIS MISCELLANEOUS APPLICATION HAS BEEN FILED BY TH E ASSESSEE ON 09.10.2014 (ARISING OUT OF ITA NO.62/AHD/2011 FOR A Y 2007-08) SEEKING FOR MODIFICATION OF THE ORDER DATED 23/05/2 014 PASSED BY THE ITAT C BENCH AHMEDABAD. MA NO.167 /AHD/2014 (IN ITA NO.62/A HD/2011 SHRI VIKRAMBHAI SOMABHAI PATEL VS. ITO ASST.YEAR2007-08 - 2 - 2. THE GROUND FOR MOVING THE PRESENT APPLICATION IS WITH REGARD TO GROUND NO.4 RAISED IN ITA NO.62/AHD/2011 WHEREIN T HE GROUND WAS DISMISSED BY THE TRIBUNAL AS BEING CONSEQUENTIAL IN NATURE. THE LD.COUNSEL FOR THE ASSESSEE REITERATED THE SUBMISSI ONS MADE IN THE APPLICATION. IT IS CONTENDED BY THE LD.COUNSEL FOR THE ASSESSEE THAT DURING THE COURSE OF HEARING IT WAS ARGUED THAT INTEREST ON ANY SHORTFALL OF ADVANCE TAX OR SELF ASSESSMENT TAX ARISING DUE TO A MENDMENT INTRODUCED SUBSEQUENT TO FILING RETURN OF INCOME IS NOT CHARGE ABLE SINCE THE APPLICANT IS PREVENTED BY REASONABLE CAUSE NOT TO TAKE INTO A CCOUNT THE AMENDED PROVISIONS. IN SUPPORT OF THIS CONTENTION THE LD. COUNSEL FOR THE ASSESSEE PLACED A RELIANCE ON THE DECISION OF THE COORDINATE BENCH (ITAT B BENCH AHMEDABAD) IN THE CASE OF INTAS EXPORTS VS. A CIT IN ITA NOS.1819 & 1820/AHD/2008 FOR AYS 2003-04 & 2004-05 RESPECTIVELY DATED 30/07/2010. 2.1. ON THE CONTRARY LD.SR.DR SUBMITTED THAT THERE IS NO ERROR OR MISTAKE IS POINTED OUT BY THE LD.COUNSEL FOR THE AS SESSEE AS THERE IS NO ERROR IN THE ORDER SOUGHT FOR TO BE MODIFIED. TH EREFORE THERE IS NO REASONABLE GROUND FOR MODIFICATION OF THE TRIBUNAL S ORDER DATED 23/05/2014(SUPRA). MA NO.167 /AHD/2014 (IN ITA NO.62/A HD/2011 SHRI VIKRAMBHAI SOMABHAI PATEL VS. ITO ASST.YEAR2007-08 - 3 - 3. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. WE FIND THAT THE ASSESSEE HA D RAISED THE GROUND NO.4 IN ITA NO.62/AHD/2011 WHICH READS AS UNDER:- 4. LEVY OF INTEREST U/S.234B OF THE ACT IS NOT J USTIFIED 3.1. THE TRIBUNAL WHILE PASSING THE ORDER IN ITA NO S.1819 & 1820/AHD/2008 HELD THAT LEVY OF INTEREST U/S.234B O F THE ACT IS CONSEQUENTIAL IN NATURE. THE LD.COUNSEL FOR THE A SSESSEE HAS HEAVILY PLACED RELIANCE ON THE DECISION OF THE COORDINATE B ENCH RENDERED IN THE CASE OF INTAS EXPORTS VS. ACIT (SUPRA). IN ITA NO. 1819/AHD/2008 THE GROUND NO.8 IS WITH REGARD TO LEVY OF INTEREST U/S. 234B OF THE ACT. THE HONBLE COORDINATE BENCH HAS DECIDED THE ISSUE IN P ARAS-7 TO 8 OF ITS ORDER BY OBSERVING AS UNDER:- 7. GROUND NO.8 FOR ASSESSMENT YEAR 2003-04 AND GRO UND NO.9 FOR ASSESSMENT YEAR 2004-05 ARE IN RESPECT OF CHARGING OF INTEREST U/S.234B AND 234C OF THE I.T. ACT 1961. 7.1. IN THIS REGARD THE VEHEMENT CONTENTION WAS TH AT THE EFFECT OF THE AMENDMENT WAS THE REASON FOR CHARGING OF INTEREST O N SHORT PAYMENT OF TAX EITHER ADVANCE TAX OR SELF ASSESSMENT. THE LEA RNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE FURTHER VEHEMENTLY C ONTESTED THAT THE PROVISO INSERTED BY THE TAXATION LAWS (AMENDMENT) A CT 2005 WERE AFTER THE FILING OF THE RETURN IN THE YEAR 2003 AND 2004 RESPECTIVELY. THEREFORE THE ASSESSEE WAS PREVENTED BY REASONABLE AND SUFFICIENT CAUSE NOT TO TAKE INTO ACCOUNT THE AMENDED PROVISIO NS OF THE I.T. ACT 1961. IT WAS FURTHER CONTESTED THAT THOUGH THE AM ENDMENT TOOK PLACE IN THE YEAR 2005 BUT IT WAS WITH RETROSPECTIVE EFF ECT FROM 01/04/1998 THEREFORE THESE TWO ASSESSMENT YEARS HAD ALSO COME WITHIN THE AMBITS MA NO.167 /AHD/2014 (IN ITA NO.62/A HD/2011 SHRI VIKRAMBHAI SOMABHAI PATEL VS. ITO ASST.YEAR2007-08 - 4 - OF THE AMENDED PROVISIONS. IN SUPPORT OF THE ARGUM ENT LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSEE HAS ALSO PLACED ON RECORD A COPY OF CIRCULAR OF CBDT BEARING NO.2/2006 DATED 1 7/01/2006 WHICH HAD EXPLICITLY MENTIONED THAT SECTION 80HHC IS TO B E READ WITH SECTION 28 OF THE I.T. ACT 1961 IN THE LIGHT OF THE AMENDM ENT OF TAXATION LAW (AMENDMENT) ACT 2005. THE BOARD HAS DIRECTED THAT THE DEMAND SO CREATED SHOULD BE RECOVERED OVER A PERIOD OF FIVE Y EARS. IN SUPPORT OF THIS A RELIANCE ON THE DECISION OF HON'BLE ITAT DE LHI BENCH B IN THE CASE OF EASTMAN INDUSTRIES LTD. VS. DY.CIT REPO RTED AS (2009) 120 ITD 362 (DELHI) HAS BEEN PLACED. AN ANOTHER DECISI ON OF RESPECTED CO-ORDINATE BENCH A AHMEDABAD IN THE CASE OF M/S .POLYSET PRODUCTS PRIVATE LIMITED VS. THE JT.CIT BEARING ITA NO.1650/AHD/2002 (BY ASSESSEE) & ITA NO.1958/AHD/2002 (BY REVENUE) F OR ASSESSMENT YEAR 1998-99 ORDER DATED 28/09/2006 AND SUN PETROCH EMICALS PVT.LTD. (ITA NO.1010/AHD/2009 DATED 05/06/2009 HAS ALSO BE EN CITED IN SUPPORT OF THE AFORESAID CLAIM OF NON-CHARGING OF I NTEREST U/S.234-B & 234-C OF THE I.T. ACT 1961. 8. ON HEARING THE RIVAL SUBMISSIONS WE FIND FORCE IN THE ARGUMENTS OF LEARNED AUTHORISED REPRESENTATIVE OF THE ASSESSE E BECAUSE THE ASSESSEE WAS NOT AWARE OF THE FORTHCOMING AMENDMENT S THEREFORE SHORT PAYMENT OF TAX WAS MADE HOWEVER THE SAID D EFAULT FOR WHICH THE INTEREST U/S.234B & 234C WAS CHARGED COULD NOT BE A TTRIBUTABLE TO THE ASSESSEE. WE THEREFORE DIRECT THE ASSESSING OFF ICER TO RE-CALCULATE THE CHARGE OF INTEREST UNDER THESE TWO SECTIONS ONL Y AFTER EXCLUDING THE QUANTUM OF THE DISALLOWANCE DISCUSSED HEREINABOVE. 3.2. IN THE LIGHT OF THE ABOVE DECISION OF THE COOR DINATE BENCH WE HEREBY RECALL THE TRIBUNALS ORDER DATED 23/05/2014 PASSED IN ITA NO.62/AHD/2011 FOR AY 2007-08 AND DIRECT THE REGIS TRY TO FIX THE ASSESSEES APPEAL IN ITA NO.62/AHD/2011 FOR AY 200 7-08 FOR A LIMITED PURPOSE OF DECIDING GROUND NO.4 IN RESPECT OF CHARG ING OF INTEREST MA NO.167 /AHD/2014 (IN ITA NO.62/A HD/2011 SHRI VIKRAMBHAI SOMABHAI PATEL VS. ITO ASST.YEAR2007-08 - 5 - U/S.234B OF THE ACT IN DUE COURSE. ACCORDINGLY N OTICE BE ISSUED TO BOTH THE PARTIES. 4. IN THE RESULT THE MISCELLANEOUS APPLICATION FIL ED BY ASSESSEE IS DISPOSED OF AS DISCUSSED HEREINABOVE. ORDER PRONOUNCED IN THE COURT ON WEDNESDAY THE 29 TH DAY OF APRIL 2015 AT AHMEDABAD. SD/- SD/- ( .. ) ( ) ( N.S. SAINI ) ( KUL BHARAT ) ACCOUNTANT MEMBER JUDICIAL MEMBER AHMEDABAD; DATED 29/ 04 /2015 2*.. (.../ T.C. NAIR SR. PS !'#$%$&' / COPY OF THE ORDER FORWARDED TO : 1. # / THE APPLICANT. 2. $% # / THE RESPONDENT. 3. 345 6 / CONCERNED CIT 4. 6 ( ) / THE CIT(A)-XVI AHMEDABAD 5. 7(8$45 *45. 3 / DR ITAT AHMEDABAD 6. 8:;<) / GUARD FILE. / BY ORDER %7$ //TRUE COPY// / ( DY./ASSTT.REGISTRAR) / ITAT AHMEDABAD