M/S Goverdhan Saree Centre, Kanpur vs Assessee

M/s Goverdhan Saree Centre v. ACIT 55/57, Kahu Kothi Central Circle III Kanpur Kanpur TAN/PAN:AAFG6579N (Appellant) (Respondent)

Appellant by: Shri. Rakesh Garg, Advocate Respondent by: Shri. Vivek Mishra, CIT (DR) Date of hearing: 23 02 2015 Date of pronouncement: 11 03 2015

ORDER

PER SUNIL KUMAR YADAV:

This appeal is preferred by the assessee against the order of the ld. CIT(A), inter alia, on the following grounds:-

1. That the Learned Commissioner of Income Tax (A)-I, Kanpur has been wrong in law and on facts in rejecting the application U/s 154 of the Income Tax Act, 1-961 against :-2-ging of interest U/s 158BFA of the Income Tax Act, 1961.

2. That the Assessing Officer has rejected the application U/s 154 of the Income Tax Act, 1961 against charging of interest of Rs.269640/- U/s 158BFA of the Income Tax Act, 1961 and confirmed by the Learned Commissioner of Income Tax (A)-I, Kanpur is without considering the facts of the case and is unjustified and arbitrary.

3. That the order passed by the Learned Commissioner of Income Tax (A)-I, Kanpur is bad in law, on facts and against the :-2-:

principles of natural justice.

2. During the course of hearing, the ld. counsel for the assessee has moved an application for admission of an additional ground for the reason that the said ground emerges from the order of the Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd., [2014] 367 ITR 466 (SC) wherein the Hon'ble Supreme Court has reversed its earlier decision in the case of CIT vs. Suresh N. Gupta, [2008] 297 ITR 322 (SC). The proposed additional ground is extracted hereunder for the sake of reference:-

"1. Because the authorities below have erred on facts and in law in levying surcharge of Rs.23,11,200/- while determining the tax liability for the year under consideration, which levy of surcharge is contrary to facts, bad in law keeping in view the decision of the Hon'ble Supreme Court in the case of CIT vs. Vatika Township Pvt. Ltd., 367 ITR 466 and be deleted."

3. The ld. D.R. has strongly objected to the admission of the additional ground for the reason that this additional ground does not emerges either from the order of the Assessing Officer or the ld. CIT(A). The Assessing Officer has passed an order under section 154 of the Income-tax Act, 1961 (hereinafter called in short "the Act") and re-computed interest under section 158BFA of the Act for one month as against charge for two months, having convinced that the delay in filing of the return of income was of 28 days and not of two months. The ld. D.R. has further contended that the issue of levy of surcharge of Rs.23,11,200/- while determining the tax liability for the impugned assessment year was neither before the Assessing Officer nor before the ld. CIT(A). Therefore, the proposed additional ground cannot be admitted.

4. Having carefully examined the orders of the authorities below in the light of the rival submissions, we find that the issue before the Assessing :-3-:

Officer while passing the rectification order under section 154 of the Act was only with regard to the period of delay in filing the return of income. The Assessing Officer, having examined the factual aspect, has come to a conclusion that the assessee-firm was due to file its return of income on or before 8.10.2001 as provided in the notice under section 158BC of the Act served upon the assessee on 24.8.2001. The return was, however, filed on

5.11.201 resulting into a delay of 28 days. The Assessing Officer accordingly modified his earlier order dated 7.10.2008 in which interest under section 158BFA of the Act was charged for two months, and charged interest for one month under section 158BFA of the Act. The Assessing Officer, however, rejected the contention of the assessee that the delay was attributable to the Department due to late inspection and supply of seized material and therefore interest under section 158BFA of the Act is not chargeable. Against the rejection of this contention, an appeal was filed before the ld. CIT(A), but the ld. CIT(A) was not convinced with the explanations furnished by the assessee. Therefore, the issue before the lower authorities is with regard to the charging of interest under section 158BFA of the Act. The issue relating to levy of surcharge of Rs.23,11,200/- was neither before the Assessing Officer nor the ld. CIT(A). Therefore, the proposed additional ground does not emerge either from the order of the Assessing Officer or the ld. CIT(A) and we are, therefore, of the view that the additional ground of appeal is not admissible during the hearing of second appeal on different issues. Accordingly, we reject the application for admission of additional ground.

5. So far the issues on merit is concerned, we find that the Assessing Officer himself has rectified his earlier order in which interest under section 158BFA of the Act was charged for two months and finally charged interest for one month having convinced that the delay in filing the return of income was only for 28 days. On the other aspect whether the delay is attributable to the Department due to late inspection and supply of seized material, the :-4-:

Assessing Officer was of the view that this aspect cannot be examined in rectification proceedings and he accordingly rejected this contention of the assessee, against which an appeal was filed before the ld. CIT(A) and the ld. CIT(A) was also not convinced with the explanations of the assessee. Though it was contended before us that since the delay was attributable to the Department due to late inspection and supply of seized material, therefore interest under section 158BFA of the Act cannot be charged, but we are of the view that this aspect can be examined at the initial stage where the interest under section 158BFA of the Act was charged. In the instant case, only rectification was done with regard to the period of delay in filing of the appeal. The issue of delay is attributable to the Department was already examined by the Assessing Officer in his order dated 7.10.2008. Therefore, we are of the view that in the rectification proceedings, this aspect cannot be examined and the Assessing Officer and the ld. CIT(A) has correctly rejected the contention of the assessee.

Therefore, we find no merit in the appeal filed by the assessee. Accordingly we confirm the order of the ld. CIT(A) and dismiss the appeal of the assessee.

6. In the result, appeal of the assessee stands dismissed.

Order was pronounced in the open court on the date mentioned on the captioned page.

Sd/- Sd/- [A. K. GARODIA] [SUNIL KUMAR YADAV] ACCOUNTANT MEMBER JUDICIAL MEMBER

DATED: 11th March, 2015 JJ:2402 :-5-:

Copy forwarded to: 1. Appellant 2. Respondent 3. CIT(A) 4. CIT 5. DR Assistant Registrar