Having Heard The Learned Senior Counsel For Theappellant And Also Learned Senior Standing Counsel For Therespondent, We Are Inclined To Think That In View Of Th v. The Deputy Commissioner Of Income-Tax,Circle-1(1)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &THE HONOURABLE MR. JUSTICE SHAJI P.CHALY THURSDAY, THE 28TH DAY OF MAY 2015/7TH JYAISHTA, 1937ITA.No. 30 of 2013 () ---------------------- ORDER DATED 24.08.2012 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHINBENCH, COCHIN IN I.T.A. NO.904/COCH/2007 ASSESSMENT YEAR 2003-04.APPELLANT:--------- M/S.APPOLLO TYRES LTD, 6TH FLOOR, CHERUPUSHPAM BUILDINGS KOCHI-31.(PAN: AAACA 69990Q). BY ADVS.SRI.JOSEPH MARKOSE (SR.) SRI.V.ABRAHAM MARKOS SRI.MATHEWS K.UTHUPPACHAN SRI.BINU MATHEW SRI.TERRY V.JAMES SRI.TOM THOMAS (KAKKUZHIYIL) RESPONDENT: ---------- THE DEPUTY COMMISSIONER OF INCOME-TAX, CIRCLE-1(1), ERNAKULAM, PIN-682018. BY ADV. SRI.P.K.R.MENON,SR.COUNSEL, GOI(TAXES) BY ADV. SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS INCOME TAX APPEAL HAVING BEEN FINALLY HEARD ON 28-05-2015, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX APPELLANT'S ANNEXURES: A1: TRUE COPY OF ASSESSMENT ORDER DATED 27.3.2006 OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), ERNAKULAM. COMMISSIONER OF INCOME TAX, CIRCLE 1(1), ERNAKULAM. A2: TRUE COPY OF ORDER DATED 4.7.2006 OF THE ASSISTANT COMMISSIONER OF INCOME TAX, CIRCLE 1(1), ERNAKULAM. OF INCOME TAX, CIRCLE 1(1), ERNAKULAM. A3: TRUE COPY OF RECTIFICATION APPLICATION DATED 13.9.2006 FILED BY THE APPELLANT. THE APPELLANT. A4: TRUE COPY OF ORDER DATED 16.2.2007 OF THE ASSESSING OFFICER. A5: TRUE COPY OF APPELLATE ORDER DATED 25.9.2007 OF THE COMMISSIONER OF INCOME TAX (APPELS) - II, KOCHI. COMMISSIONER OF INCOME TAX (APPELS) - II, KOCHI. A6: CERTIFIED COPY OF ORDER DATED 24.8.2012 OF THE INCOME TAX APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN I.T.A. NO.904/COCH/2007. APPELLATE TRIBUNAL, COCHIN BENCH, COCHIN IN I.T.A. NO.904/COCH/2007. RESPONDENT'S ANNEXURES: NIL smv //TRUE COPY//P.A. TO JUDGE ANTONY DOMINIC & SHAJI P. CHALY, JJ. ----------------------------------------------- I.T.A. No.30 of 2013 ----------------------------------------------- Dated this the 28[th] of May, 2015 JUDGMENT Antony Dominic,J. This appeal is filed against the order passed by the IncomeTax AppellateTribunal,Cochin BenchinI.T.A.No.904/Coch/2007 pertaining to the assessment year 2003-2004.By the said order, the Tribunal has confirmed interest levied onthe appellant under Section 234C and 234D of the Income TaxAct. 2. In so far as the interest levied under Section 234C isconcerned, the case of the appellant is that following thenotification dated 01.03.2003 issued by the Government of India,they got credit for additional excise duty of Rs.36.24 Crores andthat the same should be treated as exempted from the levy ofinterest under Section 234C. This has been negatived by theauthorities concurrently and the correctness of this finding ischallenged before us. 3. Section 234C of the Income Tax Act provides for interest for deferment of advance tax, in the manner as provided in thesection. As per the proviso to this section, only the amount ofcapital gains and income of the nature referred to in Section 2(24)(ix) of the Act, alone are exempted. It cannot be said thatthe credit of additional excise duty received by the appellant fallsin either of the exempted categories in Section 234C.Therefore, the finding of the authorities on the above issuerequires to be upheld and we do do. 4. Second question raised by the appellant is whether theTribunal is correct in upholding the levy of interest underSection 234D up to the date of passing the consequential orderfollowing the appellate order treating the said order as an orderof regular assessment as provided under this section. for deferment of advance tax, in the manner as provided in thesection. As per the proviso to this section, only the amount ofcapital gains and income of the nature referred to in Section 2(24)(ix) of the Act, alone are exempted. It cannot be said thatthe credit of additional excise duty received by the appellant fallsin either of the exempted categories in Section 234C.Therefore, the finding of the authorities on the above issuerequires to be upheld and we do do. 4. Second question raised by the appellant is whether theTribunal is correct in upholding the levy of interest underSection 234D up to the date of passing the consequential orderfollowing the appellate order treating the said order as an orderof regular assessment as provided under this section. 5. A reading of the Annexure -A1, the revised assessmentorder issued consequent to the direction contained in theappellate order shows that interest under Section 234D has beencharged on the appellant till the date of the revised ordertreating it as the regular assessment. According to theappellant, regular assessment for the purpose of levy of interestunder Section 234D is the original order of assessment passedunder Section 143(3) of the Act and not the revised assessmentorder and that therefore, the levy of interest confirmed by the appellate authority and the Tribunal is incorrect. 6. Having heard the learned Senior Counsel for theappellant and also learned Senior Standing Counsel for therespondent, we are inclined to think that in view of the principleslaid down by the Apex Court in Modi Industries Ltd. & others v. Commissioner of Income Tax & another [216 ITR 759], theterm 'regular assessment' used in Section 234D, which is alsodefined in Section 2(40), is the original order of assessment andnot the revised order passed in compliance with the appellateorders. Therefore, this question raised by the appellant has tobe answered in their favour. 7. The appeal is, therefore, disposed of holding that the assessee is liable to pay interest under Section 234D is upto thedate of first order of assessment. Annexure-A1 order ofassessment will be modified in the light of the above. Appeal is disposed of accordingly. Sd/-JUDGE ANTONY DOMINIC Sd/-JUDGE SHAJI P. CHALY //true copy// P.A. to Judge