DCIT CIR 6(1), MUMBAI vs. BOROSIL GLASS WORKS LTD, MUMBAI

आयकर अपीऱीय अधिकरण, म ुंबई न्यायपीठ “फी” म ुंबई IN THE INCOME TAX APPELLATE TRIBUNAL “B” BENCH, MUMBAI BEFORE SHRI MAHAVIR SINGH, JM AND SHRI RAJESH KUMAR, AM आमकय अऩीर सं./I.T.A. No.6583/Mum/2014 (ननधधारण वषा / Assessment Year : 2011-12) Dy. Commissioner of Income बनधम/ M/s Borosil Glass Works Ltd, 4th floor, Khanna Const. House- Tax circle 6(1) R No.506, Vs. 44 Dr R G Thandani Marg, 5th floor, Ayakar Bhavan, Worli, M K Road, Mumbai-400018 Mumbai-400020 स्थधयी ऱेखध सं./ PAN : AAACB5484G अपीऱार्थी ओर से / Revenue by Shrimati Bharti Singh प्रत्यर्थी की ओर से/ Assessee by Shri Vijay Mehta सुनवाई की तायीख / Date of Hearing : 25.5.2016 घोषणा की तायीख /Date of Pronouncement : 15.6.2016 आदेश / O R D E R PER RAJESH KUMAR, A. M: This appeal by the revenue is directed against the order dated 12.8.2014 of Commissioner of Income Tax (Appeals)-14, Mumbai (Hereinafter called as the CIT(A) for assessment year 2011-12.

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appealable u/s 246 of the Act. Only issue raised by the revenue is that the ld. CIT(A) has gone beyond the Act to allow the relief to the assessee. 3. Brief facts of the case are that the assessee filed its return of income on 28.9.2011 declaring gross total income at Rs.6,96,12,47,101/- which was revised on 30.1.2012 at Rs.6,87,70,67,982/-. The said revised return was filed to correct the amount of Short Term Capital Loss which was wrongly calculated in the original return of income. The revised return was processed u/s 143(1) on 2.3.2013 raising the demand of Rs.4,53,41,500/-. Thereafter, the assessee once again revised the return on 30.3.2013 declaring total income at Rs.6,87,70,67,985/-. The case was selected for scrutiny and statutory notices were issued to the assessee u/s 143(2) and 142(1) of the Act and served upon the assessee. The assessee company was engaged in the business of trading of Scientific, Industrial and Household articles made of Low Expansion Borosilicate glass wares. Ultimately, the AO completed the assessment u/s 143(3) of the Act on 31.3.2013 accepting the returned income under the normal provisions at Rs.6,87,70,67,990/- and under the special provisions of section 115JB at Rs.8,00,42,67,895/-. However, while framing assessment order, the AO raised a demand of Rs.71,78,492/- towards interest u/s 234C of the Act for failure to pay advance tax for the first quarter of the relevant financial year. Aggrieved by the order of the AO, the assessee preferred an appeal before the ld.CIT(A) challenging the levy of interest under section 234C amounting to

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Rs.71,64,280/-. The ld.CIT(A) allowed the appeal of the assessee after considering the submissions which have been incorporated in para 3.1 of the appellate order by observing and holding as under: “3.1 In appeal it is submitted as under: The appellant filed its revised return of income on 30.03.2013 declaring gross total income of Rs.687,70,67,985/- under normal provisions and Rs.800,42,67,895/ under the book profits as per section 115.JB of the Act. Scrutiny notice u/s 142(1) of the Act was issued on the appellant on 23.6.2009. On completion of assessment proceedings for the year under consideration, the returned income was accepted as the assessed income under normal provisions of the Act at Rs.6,87,70,67,985 under the book profits, i.e. u/s 115JB of the Act Rs.800,42.67,895/-. However, while calculating the tax effect on such income as assessed, the Ld. AO raised a demand of Rs. 71,78,4921/-. On perusal of the said income tax computation form, it was observed that the Ld. AO levied the interest u/s 234C for short payment of advance tax liability for the first quarter of the relevant financial year. At the juncture we humbly submit that the Ld AO has erroneously raised a demand of Rs. 71,64,580/- pertaining to levy of interest u/s 234C due to short payment of advance tax in the first quarter wherein no capital gain had been accrued. The assessee had sold its property at Marol, Mumbai for a sum of Rs.830Crores. The sale deed was executed in August 2010 (i.e. sale occurred in the second quarter of the relevant financial year). The total long term gain that occurred upon the sale of land at Marol amounted to Rs. 688,87,43,961. Upon the determination of the exact amount of the long-term capital gain in August 2010, the assessee duly discharged its duty of paying the advance tax of 2nd, 3rd and 4th quarter of the year. However, the learned AO in his calculation sheet levied interest u/s 234C for less payment of advance tax for the 1st quarter of the year resulting to a demand of Rs.71,64,280 without making any adverse averments in this regard. On reading the first proviso to section 234C{1}(a), it can be said that the shortfall on account of underestimate or failure to estimate is in respect of amount of capital gains and such shortfall in payment of advance tax is

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made good on or before the remaining installment of advance tax and if no installment is remaining due then by 31st March of the financial year, the assessee would not have to pay interest under section 234C. This proviso is based on the reasoning that it is not expected that a person would pay the tax on capital gain before the same is being accrued/arisen to him. It is very unreasonable and absurd interpretation to provisions of section 234C to consider the assessee in default is non-payment of the advance tax of even those installments which- fell prior to accrual of capital gain. There is no such intention of the legislature. The appellant's taxable income under the MAT provisions was Rs.688,87,43,961/- which is wholly on account of LTCG which had arisen on the sale of the above mentioned land at Moral. The learned AO calculates interest u/s 234C amounting to Rs.71,57,883/- for the first quarter without considering the fact that the LTCG on the sale of land crystallized only in second quarter. Under these circumstances the assessee cannot be held liable for the interest in respect of earlier installment of advance tax at which time no such income was earned by the assessee. The proviso to section 234C(1}(a) provides that tax relatable to the capital gain, etc., is to be paid as a part of remaining installments of advance tax which ore due in the financial year. The advance tax provisions far the capital gain are based on the principle "Pav as you earn". Therefore, the assessee can not be required to make the payment of installment of advance tax before the capital gains has accrued or arisen. Advance tax on the current income shall be payable by all the companies, who are liable to pay the same, in four installments during each financial year on or before the specified dates. The provisions of section 115JB (5) of the Act clearly indicates that the provisions of advance tax are applicable while determining the tax liability in terms of the provisions of section 115JB of the Act. The CBDT Circular is sufficient reflection of the intent behind the/provisions of section 115JB(5) of the Act. In regards to this, our first submission is that the provisions of section 234C apply to the current income of the appellant. The Act provides for dual mechanism to derive at the current income of appellant by applying normal provisions of income tax or arriving at the taxable book profits as enumerated u/s 115JB of the Act. The AO is statutorily duty bound! to compute the tax and interest in terms of provisions of Section 234C read with section 115JB of the Act. Further,

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we would like to draw to your Honor's attention to the (equal provisions which govern the advance tax and interest thereon provisions. A copy of the results published by the appellant company for the quarter ending 30.06.2010 (copy attached as Annexure 1). Accordingly, based on the results so declared by the company, an estimation of the advance tax liability for the l-It quarter of FY 2010-11 had been prepared by the appellant company, (I copy of which is attached as Annexure 2, Hence, based on the said results declared by the company, it is evident that the appellant company was not liable to pay advance tax for the 1st quarter of FY 2010-11.” And thus deleted the demand of Rs.71,64,280/- on account of interest u/s 234C. Aggrieved by the order of the ld.CIT(A), the revenue is in appeal before us. 4. The ld. DR vehemently argued before us that since the AO has accepted the returned income of the assessee in the assessment proceedings, therefore the order of the AO was not appealable under section 246A of the Act and thus the order passed by the ld. CIT(A) was without jurisdiction and without any authority under the provisions of the Act. Since the ld.CIT(A) did not have any jurisdiction under the Act to pass the said order and therefore the ld.DR prayed that the order of the ld. CIT(A) be set aside and that of AO be restored. 5. The ld. Senior Counsel of the assessee submitted that the order passed by the AO under the provisions of section 143(3) of the Act raising demand of Rs.71,64,280/- u/s 234C for failure to pay first installment of advance tax was very much appealable and the arguments of the ld.DR has no force legal or otherwise since the assessee was not liable to pay the first installment. The assessee denied its liability to the demand raised of Rs.71,64,280/-. The income

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on which the advance tax was pay able arose after the end of that quarter and therefore denied the interest u/s 234C as being payable for non-payment of advance tax in the first quarter. The ld. Counsel heavily relied on the decision of the Hon’ble Supreme Court in the case of Central Provinces Manganese Ore Co. Ltd v. CIT : [1986] 160 ITR 961(SC) and the decision of Hon’ble jurisdictional High Court in the case of Balmukund Acharya V/s DCIT reported in (2009) 310 ITR 310(Bom). The ld. Counsel objected to the appeal filed by the revenue as the ground raised by the revenue was not arising out of the order of ld.CIT(A). He further submitted that the AO did not appear before the ld. CIT(A) and also no objection was raised on this issue before the ld. CIT(A) regarding maintainability of the appeal. Now, the AO could be allowed to raise this ground to prejudice the interest of the assessee. 6. We have heard both the parties and perused the relevant record placed before us including the orders of authorities below and the decisions relied upon by both the parties. We find that the assessee did not pay first installment of advance tax as it was not having any income in the 1st quarter. Thereafter the assessee paid its advance tax in the remaining quarters when the income arose to the assessee. We also find from the order of the AO that the return of income of the assessee was accepted by the AO, however, demand on account of interest u/s 234C for failure to pay advance tax was raised qua non payment of first installment. The assessee challenged the issue before the ld. CIT(A) who

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allowed the claim of the assessee by deleting the demand and interest u/s 234C of the Act. Now, the revenue is in appeal on the ground that the order of AO was not appealable u/s 246A of the Act and therefore the consequent order of the ld.CIT(A) was void abinitio. We have examined the facts of the case vis-à-vis the provisions of Act and various decisions referred during the course of hearing. Before proceeding to decide the issue we would like to elaborate the provisions of section 246A which are reproduced below : “246A. (1) Any assessee [or any deductor] aggrieved by any of the following orders (whether made before or after the appointed day) may appeal to the Commissioner (Appeals) against— (a) an order [passed by a Joint Commissioner under clause (ii) of sub-section (3) of section 115VP or an order] against the assessee where the assessee denies his liability to be assessed under this Act or an intimation under sub-section (1) or sub-section (1B) of 78[section 143 or sub-section (1) of section 200A, where the assessee or the deductor objects] to the making of adjustments, or any order of assessment under sub-section (3) of section 143 [[except an order passed in pursuance of directions of the Dispute Resolution Panel [***] [or an order referred to in sub-section (12) of section 144BA]]] or section 144, to the income assessed, or to the amount of tax determined, or to the amount of loss computed, or to the status under which he is assessed” 7. A close perusal of the aforesaid provisions clause (a) sub-section (1) of Section 246 reveals that any order of the AO against the assessee is appealable order where the assessee denies his liability to be assessed under this Act is appealable. In the case of Central Provinces Manganese Ore Co. Ltd (supra) the Hon’ble Supreme Court held that “The levy of interest is part of the process of assessment. Although sections 143 and 144 do not specifically provide for the

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levy of interest and the levy is, in fact, attributable to section 139(8) or section 215, it is nevertheless a part of the process of assessing the tax liability of the assessee. Inasmuch as the levy of interest is a part of the process of assessment, it is open to an assessee to dispute the levy in appeal provided he limits himself to the ground that he is not liable to the levy at all” . In the case of Balmukund Acharya (supra), the Hon’ble jurisdictional High Court has held if there is a provision conferring the right of appeal it should be read in a reasonable, practical and liberal manner. In our view the AO has framed an assessment order accepting the returned income but raising demand of income tax of Rs.71,64,280/- for levying interest u/s 234C of the Act and assessee was aggrieved by the demand which he has denied altogether. 8. Considering, the facts of the present case in the light of the above decisions, we find that the assessee has denied his liability to pay interest u/s 234C qua the first installment of advance tax. We find merit in the contention of the ld.AR that the assessee has right to appeal against the order of AO in which the assessee has completely denied to pay interest u/s 234C. However, considering the argument of the ld.AR, ratio laid down in the above decisions and respectfully following the decisions referred to, we uphold the order of the ld. CIT(A) by dismissing the appeal of the revenue.

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Order pronounced in the open court on 15th June, 2016 Sd sd (MAHAVIR SINGH ) (RAJESH KUMAR) न्मायमक सदस्म / Judicial Member रेखा सदस्म / Accountant Member भुंफई Mumbai; ददनांक Dated : 15 .06.2016 Sr.PS:SRL: आदेश की प्रनिलऱपऩ अग्रेपषि/Copy of the Order forwarded to : अऩीराथी / The Appellant 1. प्रत्मथी / The Respondent 2. आमकय आमुक्त(अऩीर) / The CIT(A) 3. आमकय आमुक्त / CIT – concerned 4. ववबागीम प्रयतयनधध, आमकय अऩीरीम अधधकयण, भुंफई / DR, ITAT, Mumbai 5. गार्ड पाईर / Guard File 6. आदेशधनुसधर/ BY ORDER, True copy [ उऩ/सहधयक ऩंजीकधर (Dy./Asstt. Registrar) आयकर अऩीऱीय अधधकरण, भुंफई / ITAT, Mumbai