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TMI Blog2004 (6) TMI 284X X X X Extracts X X X X X X X X Extracts X X X X ..... After hearing the parties, we have allowed, in the interest of justice, the additional grounds of appeal to be taken by the assessee. 2. Grounds of appeal Nos. 1, 4 and 5 are general and the same are covered by subsequent grounds of appeal. 3. Grounds of appeal Nos. 2 and 3 are directed against the order of the CIT(A) not allowing the assessee's claim of deduction on account of warranty obligation. During the course of hearing before us, the learned Authorised Representative fairly conceded that these grounds are covered against the assessee by the order of the Tribunal (Delhi 'E' Bench) dt. 28th Dec., 1990, in the case of the assessee in ITA Nos. 5515 and 5519/Del/1987 for asst. yrs. 1983-84 and 1984-85. Following the aforesaid order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) should have cancelled the same. The learned Departmental Representative, on the other hand, argued that charging of interest under s. 234C was mandatory as held by the Hon'ble Supreme Court in their judgment in CIT vs. Anjum M.H. Ghaswala & Ors. (2001) 171 CTR (SC) 1 : (2001) 252 ITR 1 (SC). Non-mentioning of charging of interest in the body of the assessment order was merely a mistake apparent from record which could be rectified. During the course of hearing, we suggested that the matter may be restored to the file of the AO for decision afresh after application of mind as to whether or not interest under s. 234C should be charged in the case of the assessee and for that purpose, if necessary, the AO may allow the assessee a reasonable ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oresaid circular issued by CBDT under s. 119(2)(a) cannot be exercised by any other authority in any other manner. In view of this judgment of the Hon'ble Supreme Court, we are clearly of the opinion that in a case where interest under ss. 234A, 234B and 234C is chargeable but not charged, that would be a mistake apparent from record which can be rectified by the AO under the provisions of s. 154 of the Act. However, in the instant case, the facts are that interest under s. 234C has been charged in the notice of demand under s. 156 but not in the body of assessment order. According to the learned Authorised Representative of the assessee, the action of the AO is hit by the judgment of Hon'ble Supreme Court reported in (2000) 164 CTR (SC) 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. Insilco Ltd. In that judgment also there is no verdict by the Hon'ble jurisdictional High Court that omission of an order for charging interest in the body of assessment order is an incurable defect. As to the decision of the Tribunal (Delhi 'A' Bench) reported in V.V. Industries vs. Asstt. CIT (2003) 78 TTJ (Del) 758, in that case again there is no decision that omission on the part of the AO to pass an speaking order is an incurable defect. 10. We may mention here that the view being taken by us finds ample support from the judgment of the Hon'ble Punjab and Haryana High Court in the case of Vinod Khurana vs. CIT (2001) 170 CTR (P&H) 383 : (2002) 253 ITR 578 (P&H) which in turn has been based on the judgment of the Hon'ble Supreme Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nable opportunity of being heard in the matter and after passing an speaking order. We order accordingly. 11. In passing, we may mention that the provisions of s. 292B of the IT Act are to the effect that no assessment shall be deemed to be invalid merely by reason of any mistake, defect or omission in such assessment, if such assessment is in substance and effect in conformity with or according to the intent and purpose of the IT Act. The Hon'ble Supreme Court has clearly held in the case of Anjum M.H. Ghaswala that the expression "shall" in the provisions of ss. 234A, 234B and 234C has been deliberately employed by the legislature and the intent of the provisions is to levy interest in all cases where such levy is attracted. 12. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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