9911796707
TMI Blog2000 (12) TMI 221X X X X Extracts X X X X X X X X Extracts X X X X ..... 13-2-1997 in RA No. 294(Coch.)/ 95: 1. Whether on the facts and in the circumstances of the case, the ITAT is justified in law and facts in directing that interest under section 234B is to be calculated in the status of 'Registered Firm'? 2. Whether on the facts and in the circumstances of the case, the ITAT is justified in setting aside the direction of the Commissioner (Appeals) to treat the assessee-firm as unregistered-firm for the levy of interest under section 234B, particularly when the ITAT has upheld the refusal of registration in the assessee's appeal challenging the status? 3. Whether on the facts and in the circumstances of the case, the ITAT is right in holding that interest under section 234B is to be calculated up to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) and certain adjustments were made and in the said intimation interest was levied under section 234B in an amount of Rs. 53,847. Subsequently the assessment was completed on the assessee-firm under section 143(3) on 29-3-1994 and in this assessment order interest under section 234B was levied at an amount of Rs. 6,94,634. Aggrieved by the levy, of interest under section 234B in the assessment under section 143(3), the assessee appealed to the Commissioner (Appeals). The Commissioner (Appeals) observed that the prima facie adjustments made under section 143(1)(a) were deleted and accordingly there is no variation between the income brought to tax in the intimation under section 143(1)(a) and in the assessment under section 143(3), and accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he status of the firm should be treated as unregistered firm. Under the circumstances, the Assessing Officer is directed to charge the interest under section 234B after calculating the tax on the firm as unregistered firm. 8. In the result, the appeal is allowed." Aggrieved by the above order of the Commissioner (Appeals), the assessee is in appeal before us and has taken the ground, which we have extracted hereinabove. The Revenue is not in appeal before us. Section 234B after its amendment by Finance Act, 1995 with retrospective effect from 1-4-1989 reads as under: "234B. (1) Subject to the other provisions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable to an unregistered firm which is altogether a different issue. it may be mentioned that the order of the Assessing Officer refusing registration has been upheld by the Tribunal vide its order dated 21-7-1995 in ITA No. 755 (Coch.)/94, but such refusal of registration is consequent to or in the course of the assessment framed under section 143(3) and it is not relatable to the intimation sent under section 147(1)(a). The finding of the Commissioner (Appeals) is that the interest is to be levied only up to the date of intimation under section 143(1)(a) in terms of the provisions of section 234B, as they stood prior to the above mentioned amendment by Finance Act, 1995 with retrospective effect from 1-4-1989. The subsequent amendmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntimation under section 143(1)(a), the Commissioner (Appeals) has held, to our mind, somewhat inconsistently, that it should be levied on the tax as applicable to an unregistered firm. There is no reference to the refusal of registration in the intimation under section 143(1)(a). So we are of the view that the direction of the Commissioner (Appeals) in this regard is erroneous because while levying the interest up to the date of intimation under section 143(1)(a), the revenue cannot be allowed to anticipate an event of the future, i.e. refusal of registration in the assessment under section 143(3). To our mind, the revenue has missed the bus by not filing an appeal against the order of the Commissioner (Appeals) before the Tribunal. Having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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