Commissioner Of Income Tax(Central), Ludhiana v. Sh. Sandeep Jain

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Income Tax Appeal No.261 of 2014(O&M) Date of Order: 29.09.2014 Commissioner of Income Tax(Central), Ludhiana ..Appellant Versus Sh. Sandeep Jain C/o Ludhiana Steel RollingMills, Ludhiana. ..Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE AMIT RAWAL Present:Mr. Rajesh Katoch, Advocate,for the appellant. RAJIVE BHALLA, J (Oral) C.M.No.16670-CII of 2014 Prayer in this application is to condone delay of 24 daysin re-filing the appeal. We have heard counsel for the appellant and as sufficientcause has been shown, allow the application and condone the delayof 24 days in re-filing the appeal. C.M.No.16671-CII of 2014 Allowed as prayed for. Income Tax Appeal No.261 of 2014 The revenue is before us challenging rectification orderdated 08.10.2012(Annexure-AII), passed by the Assessing Officer,order dated 12.03.2013 (Annexure A-IV) passed by theCommissioner of Income Tax (Appeals-I), Ludhiana, as well as orderdated 20.09.2013 (Annexure A-V), passed by the Income TaxAppellate Tribunal Chandigarh Bench 'B', Chandigarh on the following substantial questions of law:- “1. Whether, on the facts and in the circumstances ofthe case, Hon'ble ITAT is justified in law in observingthat the amount seized under Section 132 can beappropriated towards the advance tax liabilitywithout appreciating the fact that the advance taxdoes not constitute the existing liability as perspecific provision of Section 132B.the case, Hon'ble ITAT is justified in law in observingthat the amount seized under Section 132 can beappropriated towards the advance tax liabilitywithout appreciating the fact that the advance taxdoes not constitute the existing liability as perspecific provision of Section 132B. 2. Whether, on the facts and in the circumstances ofthe case, Hon'ble ITAT is justified in not appreciatingthe fact that the amount seized under Section 132Bcan only be adjusted against the existing liabilityand not against advance tax liability.the case, Hon'ble ITAT is justified in not appreciatingthe fact that the amount seized under Section 132Bcan only be adjusted against the existing liabilityand not against advance tax liability. 3. Whether on the facts and in the circumstances ofthe case, the Hon'ble Income Tax Appellate Tribunalis legally correct in upholding the order ofCommissioner of Income Tax (Appeals) wherein ithas been held that AO was not justified in chargingthe consequential interest under Section 234B.”the case, the Hon'ble Income Tax Appellate Tribunalis legally correct in upholding the order ofCommissioner of Income Tax (Appeals) wherein ithas been held that AO was not justified in chargingthe consequential interest under Section 234B.” Counsel for the revenue submits that the only question that the revenue presses is chargeability of interest under Section234B and 234C of the Income Tax Act, 1961, i.e., question no.3.Counsel for the revenue submits that though the Tribunal hasanswered this question against the revenue by placing reliance upona judgment of this Court in Income Tax Appeal No.36 of 2004(Commissioner of Income Tax v. Ashok Kumar, (2011) 334 ITR 355 (P&H), it has ignored explanation (2) to Section 132B of the Act,which makes the assessee liable for interest. Counsel for the revenue submits that the only question that the revenue presses is chargeability of interest under Section234B and 234C of the Income Tax Act, 1961, i.e., question no.3.Counsel for the revenue submits that though the Tribunal hasanswered this question against the revenue by placing reliance upona judgment of this Court in Income Tax Appeal No.36 of 2004(Commissioner of Income Tax v. Ashok Kumar, (2011) 334 ITR 355 (P&H), it has ignored explanation (2) to Section 132B of the Act,which makes the assessee liable for interest. We have heard counsel for the appellant, perused theimpugned orders and considered argument advanced by counsel forthe revenue. The Tribunal has answered the question of chargeabilityof interest, against the revenue by relying upon a judgment of thisCourt in Income Tax Appeal No.36 of 2004 (Commissioner ofIncome Tax v. Ashok Kumar)(supra). The argument by counsel forthe revenue, based upon explanation (2) to Section 132B of the Actdisregards the fact that the explanation came into force on01.06.2013, whereas the present case relates to assessment year2008-09. This apart the explanation is not retrospective in operationand is not referred to as a ground of appeal much less has it beenframed as a substantial question of law. In view of what has been recorded hereinabove, questionno.3 having already been answered against the revenue in IncomeTax Appeal No.36 of 2004 (Commissioner of Income Tax v. Ashok Kumar, (2011) 334 ITR 355 (P&H), the appeal lacks merit and is,therefore, dismissed. (RAJIVE BHALLA) JUDGE September 29, 2014 nt (AMIT RAWAL) JUDGE