TMI Blog2015 (6) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... sdictional High Court in Prime Securities Ltd. Versus Assistant Commissioner of Income Tax (Investigation) [2010 (12) TMI 475 - Bombay High Court] we are of the considered opinion that there is no default on the part of the assessee in payment of advance tax which was as per the estimated income of the assessee and is consistent with the practice followed by the assessee right from the beginning which was accepted by the revenue for earlier years. Accordingly, we delete the interest levied u/s. 234B. - Decided in favour of assesse. - I.T.A. No. 302/Mum/2011 - - - Dated:- 26-3-2015 - Shri Vijay Pal Rao And Shri N.K. Billaiya JJ. For the Appellant by : Shri Pradip Shroff For the Respondent : Dr. P. Daniel Special Counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id merchant banking income on actual realization basis/receipt basis and claimed that this is as per consistent method of accounting followed by the assessee right from the beginning and was accepted by the Department from the AY 198788 to 199192. The Assessing Officer while completing assessment u/s. 143(3) dated 30.3.1995 computed total income of the assessee on accrual basis. The assessee challenged the action of the Assessing Officer by filing the appeal before CIT(A) but could not succeed as CIT(A) confirmed the action of Assessing Officer vide order dated 1.12.1986. On second appeal before this Tribunal the issue was set aside to the file of the Assessing Officer for deciding afresh vide order dated 1.9.2004. the Assessing Officer pas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied upon the orders of authorities below. 4. We have considered the rival submissions as well as relevant material on record. There is no dispute that the assessee has been consistently offering income from merchant banking on actual realization basis/ receipt basis right from the assessment year 198788. The Revenue has accepted the income offered by the assessee on actual realization basis in the earlier Assessment years up to 199192. This is the first time when the Assessing Officer has assessed the income on accrual basis and made the addition. It is not the case of the Revenue that the assessee has not paid the advance tax on the self assessed income but the difference of advance tax and tax liability on the basis of assessment or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arises on failure of the assessee to pay advance tax under section 208 or advance tax payable under section 210 is paid less than 90 per cent. Perusal of the provisions of sections 208 and 209 shows that for the purpose of payment of advance tax the assessee has to estimate his current income and then he has to calculate incometax on that income at the rate in force in the financial year. Thus, the amount of advance tax is to be decided by the assessee after estimating his current income and then applying law in force for deciding the amount of tax. It is an admitted position in the present case that the date on which the appellant paid the advance tax it had estimated its income and liability for payment of advance tax in accordance with l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ondition precedent. Perusal of the judgment of the Delhi High Court, which is relied on by the learned counsel appearing for the respondent, shows that in that case also the Delhi High Court has held that for charging of interest establishment of default in payment of advance tax is necessary. In the present case, it is nobody's case that the appellant at the time of payment of advance tax has committed any default or that payment of advance tax made by the appellant was not in consonance with law. The Division Bench of this court in its judgment in the case of the appellant, referred to above, has held that the return filed by the appellant was in consonance with law and there was only a formal defect and the moment that defect was cur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be decided by assessee after estimating his current income and then applying law in force for deciding the amount of tax. The date on which the assessee paid advance tax it has estimated its income and liability of advance tax in accordance with law. Therefore, it was held that there was no failure on the part of the assessee to pay advance tax. The Hon ble High Court has also considered the judgment of Hon'ble Supreme Court in the case of CIT vs. Anjum M.H. Ghaswala (2001) 252 ITR 1. It is to be noted that the Hon'ble Supreme Court in case of Karanvir Singh Gossal (supra), has followed the judgment in case of Anjum M.H. Ghaswala, (supra). Therefore, there is no quarrel on the point that charging of interest u/s. 234B is mandatory ..... X X X X Extracts X X X X X X X X Extracts X X X X
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