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TMI Blog2010 (1) TMI 1169X X X X Extracts X X X X X X X X Extracts X X X X ..... 82,695 against self-assessment tax out of amount lying in PD account. 2. We have heard the parties. The learned counsel for the assessee, Mr. Anil Goyal, chartered accountant argued and submitted with regard to ground No. 2 that the order under s. 143(3) was passed in the case of the assessee on 31st Dec., 2008 and the appeal against the order was to be filed with the learned CIT(A) within 30 days from that date. Since the appeal could not be filed within that time period, the assessee filed an application with the learned CIT(A) along with an affidavit and copies filed on record for condonation of the delay in filing the appeal. The assessee filed appeal in prescribed Form No. 35 on 12th Aug., 2009 along with challans for deposit of prescribed fee of ₹ 1,000. This application for condonation of delay was not accepted by the learned CIT(A) and the appeal was dismissed by him in limine being barred by limitation without going into the merits of the case. He further submitted the AO [sic-CIT(A)] has erred in dismissing the appeal of the assessee in limine without going into the merits of the case even though the assessee had filed a petition dt. 4th Aug., 2009 for condonation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her held that delay in filing of appeal should be condoned in a case wherein explanation given by assessee is found to be satisfactory. The various cases cited and relied upon by the learned CIT(A) in his order are from various High Courts which cannot overrule the binding judgment of Hon'ble Supreme Court as mentioned above. 3.2 As regards the legal ground arising out of this ground of appeal to be adjudicated by the Hon'ble Bench is as under : Whether the AO is empowered to charge interest under ss. 234B and 234C without paying any attention to the request of the assessee to adjust the amount of advance tax instalments and self-assessment tax out of his own money lying in PD account with the IT Department. Since this is a legal ground, it can be raised before the Hon'ble Tribunal at any stage of appeal. Reliance is placed on the following decisions of the Hon'ble apex Court. (i) National Thermal Power Co. Ltd. vs. CIT (1999) 157 CTR (SC) 249: (1998) 229 ITR 383(SC) held Tribunal has the right to decide the question raised before it for the first time. (ii) Jute Corporation of India Ltd. vs. CIT (1990) 88 CTR (SC) 66: (1991) 187 ITR 688(SC) held an appellate a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d against the assessee was ₹ 51,32,160 without giving any credit for the advance tax instalment and self-assessment tax. 4.1 Against this order, application under s. 154 dt. 29th March, 2007 (paper book 16) for rectification of the mistakes and for deletion of the interest charged under ss. 234B and 234C was filed by the assessee. This application is still pending with the AO. Subsequently assessment was completed under s. 143(3) and in the tax computation sheet dt. 29th Dec., 2008 (copy on record) for assessment under s. 143(3) the assessee was informed that following interest has been charged : Interest under s. 234B ₹ 6,55,618 Interest under s. 234C ₹ 1,69,916 In this computation sheet dt. 29th Dec., 2008 for the first time, the assessee came to know that the Department had adjusted ₹ 53,12,289 out of PD account of the assessee considering the same as payment of self-assessment tax. The assessee filed an application under s. 154 dt. 2nd Jan., 2009 against the order passed under s. 143(3) and objected to charging of interest under ss. 234B and 234C (copy at paper book 17). But this application has also not been disposed of by the Department. Order pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... kash Sharma vs. Asstt. CIT (2009) 20 DTR (Del)(Trib) 561; (iii) Asstt. CIT vs. Raghu Nandan Lal & Ors. (2003) 79 TTJ (Chd)192. In view of above facts and the decided case laws in favour of the assessee it is submitted that this ground of appeal may kindly be decided in favour of the assessee and huge interest charged under ss. 234B and 234C may kindly be deleted. 5. The learned Departmental Representative on the other hand opposed the arguments made by the learned Authorised Representative and further opposed the admission of legal ground which was raised by learned Authorised Representative. 6. We have perused the facts of the case and heard the parties at length. There appears to be a sufficient cause in not presenting the appeal in time before the learned CIT(A). In view of decisions of various Courts of law in particular the decision of Hon'ble Supreme Court of India in the case of Collector, Land Acquisition vs. Mst. Katiji & Ors. (supra) where it has been held as under (headnotes reproduced) : "The legislature has conferred power to condone delay by enacting s. 5 of the Limitation Act, 1963, in order to enable the Courts to do substantial justice to parties by d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 157 CTR (SC) 249 : (1998) 229 ITR 383 (SC) headnotes of the said decision are reproduced for the sake of clarity as under : "Under s. 254 of the IT Act, 1961, the Tribunal may, after giving both the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit. The power of the Tribunal in dealing with appeals is thus expressed in the widest possible terms. The purpose of the assessment proceedings before the taxing authorities is to assess correctly the tax liability of an assessee in accordance with law. If, for example, as a result of a judicial decision given while the appeal is pending before the Tribunal, it is found that a non-taxable item is taxed or a permissible deduction is denied, there is no reason why the assessee should be prevented from raising that question before the Tribunal for the first time, so long as the relevant facts are on record in respect of the item. There is no reason to restrict the power of the Tribunal under s. 254 only to decide the grounds which arise from the order of the CIT(A). Both the assessee as well as the Department have a right to file an appeal/cross-objection before the Tribunal. The Tribunal shou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Tribunal directly referred to the Supreme Court the question whether where, on the facts found by the IT authorities, a question of law arose (although not raised before the authorities) which bore on the tax liability of the assessee the Tribunal had jurisdiction to examine the same : Held, that the Tribunal had jurisdiction to examine a question of law which arose from the facts as found by the IT authorities and having a bearing on the tax liability of the assessee. (Matter remanded to Tribunal for consideration of new grounds raised by the assessee on the merits)." 8. In view of the decision of Hon'ble Supreme Court of India in the case of National Thermal Power Co. Ltd. (supra) and other decisions relied upon, the additional ground raised by the assessee is admitted. 9. As regards the additional ground raised by the assessee i.e., ground No. 3 raised, the facts as stated are mentioned hereinbefore that a search was conducted on the assessee on 19th June, 2003 and a cash of ₹ 32,00,000 was seized and Indra Vikas Patras of ₹ 1,29,00,000 were seized. The said Indra Vikas Patras after encashment were transferred by the Department in the PD account and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax liability became due. Insofar as the adjustment of the cash seized against the liability of the firm is concerned, the Tribunal rightly held that there is no difference between a firm and its partners. The partners constitute the firm and they are liable to make good any demand of taxes on behalf of the firm. The partners of the concerned assessee had categorically prayed that the cash seized from their premises, which also happened to be the premises of the firm, should be adjusted against the advance tax liability of the firm/assessee. Such a request could have been made by the partners to bind the assessee and there could not have been any ground for rejecting such a request. The Revenue accepted the return filed by the assessee and in fact it was found that they were entitled to a refund, which was more than the amount of cash that was seized. The Tribunal also noted that since the question of charging interest under ss. 234B and 234C of the Act was highly debatable, it would be appropriate not to charge interest from the assessees. The Tribunal was right and no substantial question of law arose from the order." 10. In view of the decision in the case of K.K. Marketin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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