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Income Tax Appellate Tribunal, “G” BENCH, MUMBAI
Before: HON’BLE SHRI SANDEEP GOSAIN, JM & HON’BLE SHRI MANOJ KUMAR AGGARWAL, AM
आदेश / O R D E R Manoj Kumar Aggarwal (Accountant Member): -
Aforesaid appeal by the Revenue for Assessment Year [in short referred to as ‘AY’] 1992-93 contest the order of Ld. Commissioner of Shri Ashwin S. Mehta Assessment Year-1992-93 Income-Tax (Appeals)-52, Mumbai, [in short referred to as ‘CIT(A)’], Appeal No. CIT(A)-52/IT-455/DCIT-4(1)/16-17 dated 02/02/2018 on following grounds of appeal:- 1. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in law in restricting the meaning of regular assessment without appreciating the fact that assessment order dated 28.03.2016 was passed u/s 143(3) rws 254 of the Act.
2. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that interest u/s 234A & 234B is to be computed till the date of original assessment and not till the date of fresh assessment without appreciating that provisions of section 234A & 234B provides interest computation till the date of regular assessment u/s 143(3) under which the fresh assessment order was passed.
3. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that interest u/s 220(2) is to be computed from the date of fresh assessment order without appreciating the fact that the issues of addition made in original assessment order and fresh assessment order are same, hence, assessee was in default from the date of original assessment order and no new material evidence has been furnished by assessee in fresh assessment proceedings so as to challenge its default.
4. "On the facts and in the circumstances of the case and in law, the Ld.CIT(A) erred in holding that for interest u/s 220(2) the date of fresh assessment order is to be considered, however, for interest u/s 234A & 234B, the fresh assessment would not be considered as regular assessment, thereby, bringing complete anomaly and arbitrariness in its order.' The appellant, therefore, prays that on the grounds stated above, the order of the CIT{A)-52, Mumbai, may be set aside and that of the Assessing Officer restored.
The Ld. Authorized Representative for Assessee [AR], Shri Vijay Mehta, at the outset, submitted that the issues are squarely covered by the recent decision of Tribunal rendered in bunch of appeals on 14/01/2019. The issues in the present appeal are stated to be have been covered by cross-appeals & 3386/Mum/2017 for AY 1992-93 in assessee’s own case. The relevant pages of the order have been placed on record. The Ld. Counsel for revenue, on the other hand, pleaded that the revenue could not be deprived-off of interest during interregnum period.
Shri Ashwin S. Mehta Assessment Year-1992-93 3.1 In the above background, we find that the dispute of the present appeal stem from rectification order passed by Ld. Assessing Officer u/s 154 on 06/09/2016 pursuant to rectification application filed by the assessee against the order dated 28/03/2016 passed by Ld. AO u/s 143(3) r.w.s. 254 of the Act determining the income at Rs.1884.71 Crores. Two issue arises under the appeal. It is worth mentioning that the assessee is a notified entity under the provisions of the Special Court Act. 3.2 The first issue pertains to charging of interest u/s 220(2). As per assessee’s submissions, the interest was to be charged after expiry of 35 days from the issue of fresh assessment order passed pursuant to the directions of the Tribunal in set aside proceedings and not from the date of issue of original assessment order dated 27/03/1995. The computations make a difference of Rs.1536 Crores. However, Ld. AO disregarded the same since it was not a mistake apparent from record and therefore, could not be a subject matter of rectification u/s 154. Without prejudice, the submissions were rejected by Ld. AO relying upon CBDT circular No. 334 dated 03/04/1982 and drawing analogy from Section 240 of the Act. 3.3 The second issue pertains to chargeability of interest under Sec. 234A, 234B & 234C.The assessee, while contesting charging of interest u/s 220(2) from the date of original order, submitted that interest u/s 234A & 234B was not to be charged up-to the date of present order but only up-to the date of original order. The Ld. AO opined that if in case at a later stage, appellate authorities decide that interest under Section 220(2) was to be charged from the date of fresh assessment order, then in that case the Shri Ashwin S. Mehta Assessment Year-1992-93 interest u/s 234B shall be charged till the date of fresh assessment order and therefore, no separate demand was raised on this account. Regarding interest u/s 234A, Ld. AO concluded that no valid return of income was ever filed by the assessee and therefore, the interest u/s 234A was to be charged till the date of fresh assessment order. At present the interest u/s 234A was charged till the date of original assessment order. However, Ld. AO, in the similar manner, opined that if at any later stage appellate authority decides that interest under Sec. 220(2) was to be charged from the date of fresh assessment order, then in that case the interest u/s 234A shall be charged till the date of fresh assessment order. Regarding interest u/s 234C, the assessee submitted that the issue could not be taken up in assessee’s rectification application. However, disregarding the same on the ground that interest u/s 234C was already charged at Rs.13.98 Crores while completing the assessment, the Ld. AO held that assessee was liable to pay interest for deferment of advance tax payment on the basis of assessed income. Therefore, Ld. AO concluded that interest u/s 234C was to be charged accordingly after due verification. 4.1 Aggrieved, the assessee contested the stand of Ld. AO, by way of elaborate submissions, before Ld. first appellate authority, which has already been reproduced in the impugned order and therefore, not repeated here for the sake of brevity and to avoid duplication. The Ld. first appellate authority, relying upon certain binding judicial pronouncements and also relying upon the order of its predecessor in assessee’s own case for same AY, directed Ld. AO to recompute interest u/s 220(2) from the due date as Shri Ashwin S. Mehta Assessment Year-1992-93 per the fresh assessment order and not from the due date as per the original assessment order. 4.2 Regarding alternative stand of Ld. AO in charging of interest u/s 234A & 234B, the first appellate authority came to a conclusion that the issue was disputable and could not be considered while passing rectification order u/s 154. The assessee’s ground of charging of interest u/s 234C were termed as infructuous since the first appellate authority, vide order dated 28/02/2017, in assessee’s appeal against order u/s 143(3) r.w.s. 254 had already held that interest u/s 234C was to be computed on the basis of returned income. 4.3 Aggrieved as aforesaid, the revenue is in further appeal before us.
We have perused the cited order of Tribunal rendered in cross- appeals in assessee’s own case for AY 1992-93 passed in the matter of assessment framed u/s 143(3) r.w.s. 254 of the Act. We find that the issue of charging of interest u/s 234A, 234B, 234C & 220(2) has already been delved into by the co-ordinate bench, in para 61.1 of the order. In the said para, the revenue authorities have been directed to follow the order passed in the case of Late Harshad S. Mehta vide para nos. 29 to 30.10 and charged interest accordingly. In para 30.10 of the order, it has been held that interest u/s 220(2) was to be charged from the date of default of fresh demand notice issued after the fresh assessment made in consequent of the orders of the appellate authorities. Similarly, the issue of charging of interest u/s 234A, 234B & 234C has also been dealt with by the coordinate bench, in other paras. Since a view has already been taken by the Shri Ashwin S. Mehta Assessment Year-1992-93 coordinate bench in the matter, refraining from delving into the issues any further, we direct Ld. AO to follow the cited order of the Tribunal. 6. In result, the appeal stands dismissed. Order pronounced in the open court on 16th July, 2019.
Sd/- Sd/- (Sandeep Gosain) (Manoj Kumar Aggarwal) �ाियक सद� / Judicial Member लेखा सद� / Accountant Member मुंबई Mumbai; िदनांकDated : 16/07/2019 Sr.PS:-Jaisy Varghese आदेश की �ितिलिप अ�ेिषत/Copy of the Order forwarded to : अपीलाथ�/ The Appellant 1. ��थ�/ The Respondent 2. आयकरआयु�(अपील) / The CIT(A) 3. आयकरआयु�/ CIT– concerned 4. िवभागीय�ितिनिध, आयकरअपीलीयअिधकरण, मुंबई/ DR, ITAT, Mumbai 5. गाड�फाईल / Guard File 6.