The Commissioner Of Income Tax v. M/S Gillate India Ltd

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH ATJAIPUR D.B. Income Tax Appeal No.719/2008 The Commissioner of Income Tax ----Appellant Versus M/S Gillate India Ltd ----Respondent _____________________________________________________ For Appellant(s) : Mrs. Parinitoo JainFor Respondent(s) : Mr. Sanjay Jhanwar _____________________________________________________ HON'BLE MR. JUSTICE K.S. JHAVERI HON'BLE MR. JUSTICE VIJAY KUMAR VYASJudgment 16/05/2017 1.By way of this appeal, the appellant has assailed thejudgment and order of the Tribunal whereby Tribunal has partyallowed the appeal of the assessee and dismissed the appeal filedby the department. 2.This court while admitting the appeal on 18.11.2009 framedfollowing substantial questions of law:- “1. Whether the findings of the Tribunal areperverse in allowing the foreign exchangefluctuation loss specifically when the same could notbe ascertained at the end of the financial year andwhen the liability was unpaid and unquantified? 2. Whether the findings of the Tribunal are perversein deleting the addition of Rs.12,00,982/- made onaccount of interest u/s 220(2)/143(4)? 3. Whether the Tribunal was justified in deleting theinterest levied contrary to the provisions of law?” 3.1The first question which has been raised for consideration is covered by the decision of this court in D.B. ITA No.65/2008decided on 3.5.2017 wherein it has been held as under:- “Taking into account the judgment in appealNo.65/2008 the issues No.1 & 2 of fluctuation loss aredecided in favour of the assessee, in view of thedecision of Supreme Court in the case ofCommissioner of Income Tax vs. Woodward GovernorIndia (P) Ltd. (supra). The issues No.3 & 4 are alsodecided in favour of the assessee and issue no.5, inview of the decision of this Court in the case ofCommissioner of Income Tax vs. Dr. A.M. Singhi(supra) and in the case of Commissioner of IncomeTax vs. Lake Palace Hotels and Motels Pvt. Ltd.(supra), is decided in favour of the assessee.“ 3.2In that view of the matter, the issue no.1 is already decidedin favour of the assessee and against the department. 4.1Regarding issue no.2 & 3, the tribunal while considering thematter observed as under:- “After perusal of record we find that interest u/s 220 isleviable only when the amount specified in the noticeof demand is not paid within 30 days of the service ofthe notice. In present case the demand notice is raisedon 26.3.2003 and in the ITNS 150, interest u/s 220 ischarged at Rs. 12,00,982/-. When demand is raisedfor the first time on 26.3.2003, question of levyinginterest u/s 220 do not arise. Section 143(4) referredby the AO do not lay down any proposition by whichinterest u/s 220 can be charged. In view of the aboveprovisions of the Act, the order of ld. CIT (A) directingAO to charge interest u/s 220 as per the provisions ofthe Act is not as per law. The findings lf ld. CIT (A) onthis issue is therefore reversed. Thus ground no.5 ofthe assessee is allowed.” 4.2Taking into consideration the fact and while considering the matter the tribunal has found that notice was not served, the viewtaken by the authority is required to be reversed. 5.We are in complete agreement with the view taken by thetribunal. No case is made out for interference. 6.Hence, both the issues are answered in favour of theassessee and against the department. The appeal stands dismissed. (VIJAY KUMAR VYAS),J. (K.S. JHAVERI),J. Brijesh 53.