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2023 (2) TMI 355 - MADRAS HIGH COURTWaiver of interest u/s 234B - interest in defaults in payment of advance tax - scope of Notification in F.No.400/234/95-IT(B), dated 23.05.1996, which sets out certain explicit situations where waiver of interest under Section 234B may be considered - as argued since ‘capital gains’ has been specifically excluded under clause (c) of the above Notification, it is a conscious decision of the Legislature and of the Central Board of Direct Taxes, to exclude capital gains, as a head of income, from the ambit of waiver - HELD THAT:- The above Notification is not relevant for the purposes of this case. The situation contemplated in clause (c) is one where income chargeable under a head other than ‘capital gains’, is received or has accrued after the due date of payments of the first or second instalments of advance tax. Such a situation does not arise in this matter as the entire consideration has not just been received but also offered to tax in the respective assessment years. That apart, the contents of a Notification cannot stand in the way of this Court, or limit its interpretation, of statutory provisions. Reliance upon the Notification is thus found to be misplaced and this argument rejected. Delay in payment of advance tax - It is an admitted position that the advance taxes relevant to AYs 2012-13 and 2013-14 have been paid in time, in the course of financial years 2011-12 and 2012-13 respectively. The re-assessments in this case transpired on 29.12.2017. The charge of interest under Section 234 B is mandatory and to compensate in delay in payment of advance tax as has been categorically settled in the case of CIT V. Anjum Ghaswala [2001 (10) TMI 4 - SUPREME COURT] - Thus, there is no doubt in mind that the request for waiver is to be considered strictly in light of the statutory prescription. The use of the phrase ‘or otherwise’ would apply to all and any payments made by an assessee, including, in this case, advance tax paid for the subsequent two assessment years. Needless to state, any delay in effecting such remittances would have to be duly compensated by the petitioner. The payments in the present case are not adhoc, and have been made specifically towards advance tax for liability towards capital gains in FYs 2011- 12 and 12-13. Moreover, the Department has been in possession of the entire amounts from FY 2011-12 and 12-13, as the assessee has long satisfied the demands for the corresponding assessment years by way of advance and selfassessment taxes. It is the aforesaid amounts that have been adjusted against the liability for AY 2011-12. The exercise is substantially revenue neutral. However, liability to advance tax commences from the financial year relevant to the assessment year in question, in this case being 2011-12. In the present case, the petitioner seeks credit in respect of the advance tax remitted during FY 2011-12 and 12- 13, relevant to AY 2012-13 and 13-14. Thus, there is a delay of one and two years respectively, as the amounts for which credit is sought ought to have been remitted in FY 2010-11, relevant to AY 2011-12. To this extent, the petitioner is liable to interest in terms of Section 234B. The impugned order rejecting the prayer for waiver of interest is set aside, to the extent as indicated above.
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