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TMI Blog2023 (2) TMI 355X X X X Extracts X X X X X X X X Extracts X X X X ..... ains , is received or has accrued after the due date of payments of the first or second instalments of advance tax. Such a situation does not arise in this matter as the entire consideration has not just been received but also offered to tax in the respective assessment years. That apart, the contents of a Notification cannot stand in the way of this Court, or limit its interpretation, of statutory provisions. Reliance upon the Notification is thus found to be misplaced and this argument rejected. Delay in payment of advance tax - It is an admitted position that the advance taxes relevant to AYs 2012-13 and 2013-14 have been paid in time, in the course of financial years 2011-12 and 2012-13 respectively. The re-assessments in this case transpired on 29.12.2017. The charge of interest under Section 234 B is mandatory and to compensate in delay in payment of advance tax as has been categorically settled in the case of CIT V. Anjum Ghaswala [ 2001 (10) TMI 4 - SUPREME COURT] - Thus, there is no doubt in mind that the request for waiver is to be considered strictly in light of the statutory prescription. The use of the phrase or otherwise would apply to all and any pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 2013-14, assessments had been framed that involved capital gains on the sale of a property at Uthandi Village, Shollinganallur Taluk, admeasuring 23.17 acres (in short property / property in question ). (iii) The assessee had entered into a Memorandum of Understanding (in short MOU ) on 12.12.2010 with a company by name, Shreyas Investments (in short Company ) for sale of the property in question for a total sale consideration of Rs.1,21,65,21,000/-. (iv) The sale had taken place over the course of the three assessment years in question and the petitioner had computed and paid capital gains for each of the years, prior to which advance tax had also been paid in the financial years relevant to assessment years in question. (v) The consideration received for the lands sold and the capital gains offered are tabulated as under: AY Extent of land sold Consideration received Capital gains offered 2011-12 20,471 sq. Ft (0.47 acres) Rs.2,46,70,661/- Rs.2,46,20,123/- 2012-13 8,8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for determination in these matters and are hence, not alluded to herein. (xiv) The offer of the assessee was accepted by an order passed by the Commissioner of Income Tax (Appeals) on 31.01.2019 confirming the position that transfer of the property in question for the purpose of computation of capital gains, took place in the financial year relevant to AY 2011-12. No statutory appeal has been filed as against the aforesaid order. (xv) Consequently, a portion of the same income that had been brought to tax in the subsequent two years were directed to be excluded, to avoid double taxation. (xvi) Effect was given to the order of the first appellate authority on 28.03.2019, the assessing authority passing separate orders in respect of assessment years 2011-12, 2012-13 and 2013-14. (xvii) The orders giving-effect determined the total tax and interest payable in respect of AY 2011-12 at a figure of Rs.40,78,17,870/-. (xviii) Refund of a sum of Rs.30,50,88,980/- was determined for AY 2012-13 and adjusted as against the demand for AY 2011-12. (xix) Likewise, the order giving-effect for AY 2013-14 determined a refund of a sum of Rs.1,97,23,600/- and adjusted the same as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a regular assessment is made, to the date of such regular assessment, on an amount equal to the assessed tax or, as the case may be, on the amount by which the advance tax paid as aforesaid falls short of the assessed tax. . (2) Where, before the date of determination of total income under sub-section (1) of section 143 or completion of a regular assessment, tax is paid by the assessee under section 140A or otherwise,- (i) interest shall be calculated in accordance with the foregoing provisions of this section up to the date on which the tax is so paid, and reduced by the interest, if any, paid under section 140A towards the interest chargeable under this section; (ii) thereafter, interest shall be calculated at the rate aforesaid on the amount by which the tax so paid together with the advance tax paid falls short of the assessed tax. 4. Stress is laid by the petitioner on the use of the phrase or otherwise in sub-section (2) of Section 234B to state that both self-assessment tax as well as other amounts paid by the assessee prior to completion of regular assessment under Section 143(3) can be considered for reduction from assessed tax for charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... first or second instalments of advance tax. Such a situation does not arise in this matter as the entire consideration has not just been received but also offered to tax in the respective assessment years. 9. That apart, the contents of a Notification cannot stand in the way of this Court, or limit its interpretation, of statutory provisions. Reliance upon the Notification is thus found to be misplaced and this argument rejected. Separately, he also relies on a decision in the case of Commissioner of Incometax v. Atlas Cycle Industries ((1989) 46 Taxman 315 (Punjab Haryana)), which, in his opinion, supports the impugned order. 10. It is an admitted position that the advance taxes relevant to AYs 2012-13 and 2013-14 have been paid in time, in the course of financial years 2011-12 and 2012-13 respectively. The re-assessments in this case transpired on 29.12.2017. 11. The provisions of Section 234B provide for interest in defaults in payment of advance tax. Sub-section (2) thereof, includes for the purpose of determination of the amount of advance tax paid, any amounts remitted under Section 140A as self-assessment tax, and any other amount paid, otherwise . 12. The cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vernment there was in law no vacancy. In the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem generis sought to be pressed in aid of the petitioner can possibly have no application. The legislature has been cautious and thorough-going enough to bar all avenues of escape by using the words or otherwise . Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur. Generally speaking, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment or transfer of the tenant's interest. But the legislature, when it used the words or otherwise , apparently intended to cover other cases which may not come within the. meaning of the preceding clauses, for example, a case where the tenant's occupation has ceased as a result of trespass by a third party. The legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance tax paid for the subsequent two assessment years. Needless to state, any delay in effecting such remittances would have to be duly compensated by the petitioner. 18. Applying the ratio of the above matter to the present case, the phrase or otherwise used in Section 234B(2) would encompass situations of remittances made in any other context, wherein the amounts paid stood to the credit of the petitioner. 19. Incidentally, Courts have held that adhoc parking of funds by an assessee would not satisfy the requirements under the scheme of advance tax. Payments, to be characterized as adhoc would have to be unrelated to any particular year, issue or demand and hence Courts have held that such payments cannot be taken note of by the authorities as payments towards advance tax or self-assessment tax. 20. The payments in the present case are not adhoc, and have been made specifically towards advance tax for liability towards capital gains in FYs 2011- 12 and 12-13. Moreover, the Department has been in possession of the entire amounts from FY 2011-12 and 12-13, as the assessee has long satisfied the demands for the corresponding assessment years by way of advance and selfasse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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