TMI Blog2010 (7) TMI 205X X X X Extracts X X X X X X X X Extracts X X X X ..... ry. The Assessing Officer charged interest u/s 158BFA of the Act. Commissioner (Appeals) dismissed the appeal. Tribunal deletes the interest. Held that - the Tribunal was wrong in counting he period of 45 days, as required under the law for filing the return, only from November 20, 1998 and absolving the assessee from liability to pay any interest. From the total time taken by the assessee from the date of service of notice under section 158BC of the Act till the filing of the return, the time taken by Department to supply the documents had to be excluded. If the period exceeded 45 days, the assessee would be liable to pay the interest for the period beyond 45 days. - 745 of 2009 with I. T. A. No. 186 of 2010 - - - Dated:- 22-7- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 93 and 1993-94. Forty-five days were to expire on October 5, 1997. However, before the expiry of the said period, the assessee requested the Department to supply certain documents. According to the assessee, the revised return for the aforesaid block period could not be filed for want of those documents, as the said documents were seized by the Department during the search. There is no dispute about this fact, viz., it was not possible for the assessee to file the return in the absence of these documents. The Department took abnormally long period in supplying these documents and the same were supplied only on November 20, 1998. Thereafter, return was filed on January 1, 1999. 5. According to the Assessing Officer (AO), since the return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... noticed that the word used in section 158BFA(1) is ' shall' . Once it is held that there was a delay in filing the return, necessary consequences enshrined under section 158BFA which man- dates the charging of interest along with other consequences, if any, come into play. The language of the statute is very clear and unambiguous and gives no power to any of the authorities to exercise discretion and waive interest as contemplated under section 158BFA in appellate proceedings. Therefore, the moment there is a delay in filing the return and delay is attributable to the assessee' s conduct the pro- visions of section 158BFA(a) come into operation. This proposition of ours find support from the decision of the Income-tax Appellate Tribunal, De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k return was not on reasons which are attributable to the assessee. Further, the Revenue has also not been able to place before us any evidence to show that the assessee had by its action delayed the obtaining of the copies of the seized material. This being so, the delay in filing the return cannot be attributable to the assessee. The delay in filing the return having been held to be not attributable to the assessee, the levy of interest under section 158BFA (1) cannot be held to be leviable for such period, which was required by the assessee for the purpose of obtaining the seized material from the Revenue. Further, the assessee having filed its return of income within the reasonable time of 40 days of obtaining the seized material from t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8. On this basis, it is submitted that there is a delay and section 158BFA(1) is mandatory in nature as per which the interest becomes payable and is liable to be paid by the assessee for the entire period from October 6, 1997 till the date of filing of the return. 9. Mr. Salil Aggarwal, on the other hand, submits that it was not a case where the assessee became liable to pay the interest and the approach of the Tribunal was perfectly justified. 10. After hearing the counsel for the parties and going through the record, we are of the opinion that the approach adopted by either the Assessing Officer or the Tribunal is not justified. Both have taken extreme view. Neither the conduct of the assessee is without blemish nor the Revenue can ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of notice under section 158BC of the Act. However, the assessee did not act with promptitude even after the service of that notice. When it knew that the return is to be filed within 45 days, there was no reason to wait for 41 days before making a request for supply of copies of the documents, which request was made on October 1, 1997, i.e., just 4 days before the expiry of notice. Even after the documents were supplied on November 20, 1998, the assessee took further more than 40 days in filing the return. 12. On the other hand, the Department also slept over the request of the assessee for furnishing the copies of the documents. It took more than one year in supplying the documents as the request was made on October 1, 1997, and documen ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
