Embrocia Hatcheries Pvt. Ltd v. The Income Tax Officer-Cum-Assessing Officer And Others

CWP No. 11918 of 2005 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 11918 of 2005 Date of Decision: 1.2.2011 Embrocia Hatcheries Pvt. Ltd. ....Petitioner. Versus The Income Tax Officer-cum-Assessing Officer and others ...Respondents. CORAM:-HON'BLE MR. JUSTICE ADARSH KUMAR GOEL.HON'BLE MR. JUSTICE AJAY KUMAR MITTAL. PRESENT: Mr. K.L. Goyal, Senior Advocate with Mr. Sandeep Goyal, Advocate for the petitioner.Mr. Sandeep Goyal, Advocate for the petitioner. Mr. Mukand Gupta, Advocate for the respondents. ADARSH KUMAR GOEL, J. 1.This order will dispose of CWP Nos. 11918, 13347 and13399 of 2005 as all the three petitions have been filed by the sameassessee on a common issue. 2.The issue arises from an application of the assessee forwaiver of interest leviable under Section 234B of the Income Tax Act,1961 (in short “the Act”) based on circular issued by the CBDT dated21.5.1996 read with subsequent clarification dated 30.1.1997. 3.Case of the petitioner is that prior to the judgment of theHon'ble Supreme Court in Venkateshwra Hatcheries Pvt. Ltd., (1996)237 ITR 174, the assessee was treated as industrial undertaking for thepurposes of Sections 80HH and 80I of the Act in view of judgment of the Andhra Pradesh High Court in CIT v. Sri Venkateswara Hatcheries (P)Ltd., 174 ITR 231 (AP). Thus, in terms of the circular, the assessee wasentitled to waiver. In the impugned order, the Chief Commissioner hasrejected the claim of the assessee on the ground that the view taken bythe High Court was not in the case of the assessee which is not therequirement of the circular. 4.Learned counsel for the revenue has not been able to rebutthe contention that waiver does not require that earlier view should be inthe case of the assessee as observed by the Commissioner in theimpugned order. 5.Accordingly, we quash the impugned orders and remit thematter to the Chief Commissioner for fresh decision in accordance withlaw, after giving due consideration to the circulars in question. 6.The petitioner may appear before the Chief Commissioner for further proceedings on March 28, 2011. A photo copy of this order be placed on the files of theconnected cases. (ADARSH KUMAR GOEL) JUDGE February 1, 2011 gbs (AJAY KUMAR MITTAL) JUDGE