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Shri Suresh Sharma Versus Asst. Commissioner of Income Tax, Circle 3 (1) , Bangalore.

2015 (10) TMI 2427 - ITAT BANGALORE

Rectification of mistake - rectification application before the Assessing Officer in respect of the quantum of interest charged under Section 234A - Held that:- CIT (Appeals) has specifically considered the contention of the assessee regarding the excessive charging of interest under Section 234A of the Act and also the applicability of the decision of the Hon'ble Apex Court in the case of CIT V Pranoy Roy & Another in [2008 (9) TMI 150 - SUPREME COURT] and rendered a finding against the assesse .....

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the assessee and has therefore upheld the decision of the learned CIT (Appeals). In the present M.P. also the assessee has not made out any case that the decision of the learned CIT (Appeals) and the impugned order of the Tribunal are on facts, which are wrongly considered.

In view of the facts of the matter as discussed above and the clear findings recorded no merit in the contentions made by the assessee in the present M.P. In our view, a clear finding has been rendered on all issue .....

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ection 254(2) of the Act. For the reasons discussed above, we are very clear that the assessee has not pointed out any mistake apparent from the record - Decided against assessee. - M.P. No.75/Bang/2015 - Dated:- 24-9-2015 - SHRI VIJAYPAL RAO, JUDICIAL MEMBER AND SHRI JASON P. BOAZ, ACCOUNTANT MEMBER For The Appellant : Smt. Sheetal, Advocate. For The Respondent : Shri S. Nambi Rajan, JCIT (D.R) ORDER Per Shri Jason P. Boaz, A.M. : This Miscellaneous Petition ( M.P. in short) is raised in respec .....

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me of the assessee was determined at ₹ 2,95,35,710. The assessee subsequently on 15.12.2011 filed a rectification application before the Assessing Officer in respect of the quantum of interest charged under Section 234A of the Act. The Assessing Officer passed an order under Section 154 of the Act dt.18.5.2012 rejecting the assessee's application. Aggrieved by this order under Section 154 of the Act, the assessee preferred an appeal before the CIT (Appeals) - II, Bangalore who dismisse .....

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along was that interest charged under Section 234A and 234B of the Act was excessive and it was never the case of the appellant that the same was not chargeable and therefore finding given by the CIT (Appeals) is not sustainable in the eye of law. 3. The CIT (Appeals) ought to have appreciated on the peculiar facts and circumstances of the case, the interest worked out by the appellant under Section 234A and 234B was correct, which would have been accepted by the Assessing Officer. 4. Without pr .....

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d the assessee's appeal. It is against this order of the Tribunal that the assessee has preferred the present M.P. , seeking rectification of the order of the Tribunal by accepting the interest calculation under Section 234A of the Act as submitted by the assessee to the authorities concerned. 3.3 From a perusal of the contents of the M.P., it is the contention of the assessee that :- i) interest under Section 234A of the Act is chargeable after reducing the amount of tax paid by the assesse .....

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f self-assessment tax was required to be reduced out of the total payment before the interest under Section 234A of the Act is computed. It is the contention of the assessee that the order of the Tribunal suffers from a mistake in this regard, which requires rectification. 3.4 Per contra, the learned Departmental Representative vehemently opposed the M.P. and submitted that the assessee is seeking a review of the decision taken in the impugned order of the Tribunal, which is not permissible unde .....

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excessive interest under Section 234A of the Act. It was also contended that the judicial pronouncement by the Hon'ble Apex Court in the case of Pranoy Roy (supra) and the Hon'ble Gujarat High Court in the case of Bharatbhai B Shah V ITO reported in (2007) 31 Taxman.Com 34 were squarely applicable to the assessee's case and ought to have been considered and followed by the authorities below. It is contended by the assessee that the M.P. that these issues have not been considered by t .....

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relied upon. On an appreciation of the facts on record, we find that the grievances raised by the assessee in the grounds of appeal regarding the quantum of interest it is chargeable under Section 234A and 234B of the Act, as per the assessee's calculation at ₹ 34,116 and ₹ 4,99,921 respectively visa- vis that of the Assessing Officer, at ₹ 2,86,932 and ₹ 5,51,822 respectively, has been addressed by the learned CIT(A) in the impugned order. We also find that the lear .....

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.2012 rejected the appellant s application. In the appeal filed against the assessment / rectification order so made, the appellant is not agitating the quantum of income assessed but is questioning the amount of interest levied under Section 234A and 234B of the Act. ; the appellant s ground is that interest under Section 234A is not leviable on the amount of tax paid after the date of payment up to the date of filing of the return. The appellant contends that, instead of the interest of ₹ .....

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ions he has also relied on the decision of Gujarat High Court in the case of Bharatbhai B. Shah Vs. ITO reported in (2013) 31 taxmann.com 34. Let us look at the factual matrix of this case in terms of relevant dates and payment : Tax Deducted at Source 21,05,330 Advance Tax on 14.3.2009 25,00,000 Self Assessment Tax on 29.7.2009 10,00,000 29.08.2009 20,00,000 29.09.2009 10,00,000 3.11.2009 10,00,000 50,00,000 Tax on Regular Assessment 9,60,000 It can be seen from the above that the assessee has .....

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of income late but also paid the taxes late. Thus ground No.2 & 3 is dismissed as the said decision is not applicable in the present case. That leaves the decision of Gujarat High Court in the case of Bharathbahi B Shah (supra). At the outset, the decision is given by Gujarat High Court which is not the jurisdictional High Court. That apart, even in this case the assessee has paid taxes before due date though belatedly filed the return of income. In the present case, however the assessee ha .....

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at the said case being factually different cannot be applied to the present assessee. As regards assessee's contention at para 4 of the written submission regarding the working of interest, I find the Assessing Officer s working to be correct on the following grounds : (i) The Act under Section 234A(1) provides for giving credit to Advance Tax paid and tax deducted / collected at source. 1) Where the return of income for any assessment year under sub-section (4) of section 139, or in respons .....

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under Section 144. On the amount of the tax on the total income as determined under sub-section (1) of section 143, and where a regular assessment is made, on the amount of the tax on the total income determined under regular assessment, as reduced by the amount of :- (i) Advance tax, if any, paid; (ii) Any tax deducted or collected at source; (iii) Any relief of tax allowed under Section 90 on account of tax paid in a country outside India; (iv) Any relief of tax allowed under Section 90A on a .....

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the statutory provisions. (iii) Observing the principle of cassus omissus wherein what is not present in the law cannot be read into it, the assessee's calculation is unacceptable as the assessee is reading an intent that is absent in the Act itself which is to calculate 234A only on certain payments. (iv) In fiscal policy, interest is charged to compensate the loss of revenue to the exchequer. To that extent by not paying his taxes in time, the assessee has to bear the consequences in terms .....

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lt in furnishing return of income, default in payment of advance tax and interest for deferment of advance tax are mandatory in nature. 4. In the result, the appeal is dismissed. 6.3.2 From a perusal of the operative portion of the impugned order extracted above (supra), the grounds raised and arguments put forth in this appeal, it is clear that the learned CIT(A) in the impugned order has addressed both the issues of excessive calculation of charge of interest under Section 234A and 234B of the .....

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either on facts in respect of the calculation of interest under Section 234A and 234B of the Act or in law and on facts in respect of the judicial decisions cited by the assessee. In this view of the matter, we see no reason to interfere with the findings of the learned CIT(A) in the impugned order and therefore uphold the same. Consequently, the assessee's grounds raised at S.Nos.2 to 4 stands dismissed. 3.5.3 From the above, it is clear that the learned CIT (Appeals) has specifically consi .....

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at the assessee has failed to controvert the findings of the learned CIT (Appeals), either on facts in respect of the calculation of interest under Section 234A of the Act or in law in respect of the judicial decisions cited by the assessee and has therefore upheld the decision of the learned CIT (Appeals). In the present M.P. also the assessee has not made out any case that the decision of the learned CIT (Appeals) and the impugned order of the Tribunal are on facts, which are wrongly considere .....

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