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Income Tax Appellate Tribunal, DELHI BENCH ‘A’ NEW DLEHI
Before: SHRI PRASHANT MAHARISHI & SHRI K. NARASIMHA CHARY
PER K. NARASIMHA CHARY, J.M.
Aggrieved by the order dated 11/09/2017 passed by the learned Commissioner of Income Tax (Appeals)-29, New Delhi ("Ld. CIT(A)") in the case of Avtar Singh Kochar (“the assessee”) for the assessment year 2011-12, the Revenue filed this appeal. 2. Brief facts of the case necessary for disposal of this appeal are that the assessee is an individual and derives income from salary, house property, business and other sources. For assessment year 2011-12, assessee filed his return of income on 20.09.2012 showing an income of
Rs.20,18,25,050/-. Assessment was also concluded at such income by order dated 25.03.2013 u/s. 143(3) of the Income-tax Act (for short “the Act”). Thereafter, Assessing Officer issued notice u/s. 154 of the Act stating that the total tax computed erroneously by showing the tax already charged u/s. 143(1) at Rs.6,22,13,560/- instead of giving total credit of Rs.76,35,174/- in the garb of TDS and other payments and thereby interest u/s. 234A, 234B and 234C could not be charged. On this premise, Assessing Officer, holding that since credit of wrong amount of tax was given in ITNS 150 dated 25.03.2013 and interest u/s. 234A, 234B and 234C of the Act could not be charged, passed an order charging interest u/s. 234A, 234B, 234C and 220(2) of the Act.
When the assessee preferred appeal, the CIT(A) deleted the same holding that since the Assessing Officer passed order u/s. 143(3) on 25.03.2013, by which the tax was calculated at NIL amount and by order u/s. 154/143(3) dated 08.02.2016 by which the interest of Rs.68,65,627/- u/s. 220(2) of the Act was calculated. He placed reliance on the decision of Hon’ble jurisdictional High Court in the case of Bharat Commerce and Industries vs. CIT, (1994) 210 ITR 13. Since the CIT(A) deleted the charging of interest, Revenue preferred this appeal.
When the matter is called, there is no representation from the assessee. Notice was sent to the address given in form No. 36. If the assessee is available in such address, such notice should have been served on the assessee. If for any reason, the assessee is not available there, it is for the assessee to make arrangements for service of such notice by furnishing the address where the assessee would be available, or to deliver it to some authorised person, or by making request to the
postal department to detain the mail till the assessee claims the same. Non-service of notice is solely attributable to the conduct of assessee. In these circumstances, we proceed to decide the appeal basing on the material available on record.
Learned DR places reliance on the order of the Assessing Officer.
We have gone through the record in the light the submissions made by ld. DR. The facts are absolutely simple and admitted. By order dated 25.03.2013, income of the assessee was determined at returned income by which the tax was calculated at nil. Assessing Officer, however, passed an order u/s. 154/143(3) of the Act calculating the interest u/s. 220(2) at Rs.68,65,627/-. In Bharat Commerce and Industries (supra), Hon’ble jurisdictional High Court observed that “counsel contends that section 220(2) gives power to the authority to levy interest only if the amount specified in any particular demand has not been paid in accordance with section 220(1) and that the tax determined in the rectification order does not relate back to the assessment order. In our view, this submission of the petitioners counsel is correct and is liable to be accepted.” Hon’ble jurisdictional High Court quashed the demand. Based on this decision, ld. CIT(A) concluded that when the very basis of calculation of interest, i.e., the amount of tax payable on the basis of which interest calculation has to be made is unknown the mistake is not apparent from record and the notice under section 154 as well as order under section 154 both are bad and illegal which are liable to be quashed. Since the ld. CIT(A) deleted the interest by following the binding precedent rendered by Hon’ble jurisdictional High Court, in the absence of any decision to the contrary by any higher forum, we cannot find fault
with the findings of the ld. CIT(A). We, consequently find the grounds of appeal as devoid of merits and dismiss the same.
In the result, the appeal of the Revenue is dismissed. Order pronounced in the open court on this 8th day of July, 2021.
Sd/- Sd/- (PRASHANT MAHARISHI) (K. NARASIMHA CHARY) ACCOUNTANT MEMBER JUDICIAL MEMBER
Dated: 08/07/2021 ‘aks’