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TMI Blog2015 (1) TMI 1252X X X X Extracts X X X X X X X X Extracts X X X X ..... llowing disallowances :- (i) Disallowance of excess depreciation claimed on vehicles : Rs. 4,04,220. (ii) Disallowance under Section 40(a)(ia) : Rs. 1,02,279. 2.2 Aggrieved by the order of assessment for Assessment Year 2009-10 dt.29.11.2011, on the issue of interest charged under Section 234B of the Act, the assessee applied for rectification thereof to the Assessing Officer vide letter dt.15.12.2011. The Assessing Officer vide order under Section 154 of the Act dt.18.5.2012 rejected the assessee's application. 3. Aggrieved by the rejection of rectification application by order under Section 154 of the Act dt.18.5.2012, the assessee filed an appeal before the learned CIT(A) against the quantum of interest charged under Section 234A and 234B of the Act, his case for Assessment Year 2009-10 which it was contended was excessive and that the Assessing Officer had not followed the decision of the Hon'ble Apex Court in the case of CIT V Pranay Roy reported in 309 ITR 231. The learned CIT(A) dismissed the assessee's appeal by the impugned order dt.2.12.2013. 4. Aggrieved by the order of the CIT (Appeals) - II, Bangalore dt.2.12.2013 for Assessment Year 2009-10, the asses ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gs. It was pleaded that in view of the above, the assessee's working of interest chargeable under Section 234A and 234B of the Act at Rs. 34,116 and Rs. 4,99,921 respectively ought to be followed and the assessee's appeal allowed. 6.2 Per contra, the learned Departmental Representative supported and placed reliance on the impugned order of the learned CIT(A). The learned D.R. submitted that whatever arguments have been put forth by the assessee in the grounds of appeals have been addressed in detail in the impugned order of the learned CIT(A). The learned Departmental Representative referring to the impugned order of the learned CIT(A), pointed out that the learned CIT(A) before dismissing the assessee's appeal has considered both the assessee's working of interest chargeable under Section 234A and 234B of the Act vis-a-vis that of the Assessing Officer's computation thereof in the order of assessment, as well as distinguishing the judicial pronouncements cited by the assessee viz. Prannoy Roy (supra) and Bharatbhai B Shah (supra). It was contended by the learned Departmental Representative that since the grounds and the arguments raised on behalf of the assessee a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the decision of Gujarat High Court in the case of Bharatbhai B. Shah Vs. ITO reported in (2013) 31 taxmann.com 34. Let us look at the factual matrix of this case in terms of relevant dates and payment : Tax Deducted at Source 21,05,330 Advance Tax on 14.3.2009 25,00,000 Self Assessment Tax on 29.7.2009 10,00,000 29.08.2009 20,00,000 29.09.2009 10,00,000 3.11.2009 10,00,000 50,00,000 Tax on Regular Assessment 9,60,000 It can be seen from the above that the assessee has paid 10 lakhs on 3.11.2009 much after the due date of filing return of income during the year under question. This cardinal factum distinguishes the assessee's case form that of Prannoy Roy (supra). In the case of Prannoy Roy, though the assessee filed the return of income late, he had taken care to pay the due taxes well before the due date of filing return of income thereby fulfilling the statutory stipulation. As noted above, in the present case, the assessee has not only filed the return of income late but also paid the taxes late. Thus ground No.2 & 3 is dismissed as the said decision is not applicable in the present case. That leaves the decision of Gujara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to in that section; (v) Any deduction, from the Indian Income Tax payable, allowed under Section 91, on account of tax paid in a country outside India, and (vi) Any tax credit allowed to be set off in accordance with the provisions of section 115JAA (or section 115JD). (ii) Once the assessee has not paid taxes and not filed return of income in due time, the assessee cannot choose a working that is most suitable to him overriding the statutory provisions. (iii) Observing the principle of cassus omissus wherein what is not present in the law cannot be read into it, the assessee's calculation is unacceptable as the assessee is reading an intent that is absent in the Act itself which is to calculate 234A only on certain payments. (iv) In fiscal policy, interest is charged to compensate the loss of revenue to the exchequer. To that extent by not paying his taxes in time, the assessee has to bear the consequences in terms of compensatory interest. This cannot be treated as penal in nature but only compensatory. In Supreme Court's order in this case of CIT Vs. Anjum M H Ghoswala and others delivered on 18.10.2001 in Apex Court had an occasion to deliberate on the levy of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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