Income Tax Appellate Tribunal - Mumbai
Schreiber Dynamix Dairies Ltd , Mumbai vs Assessee
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES "E", MUMBAI.
BEFORE SHRI P.M. JAGTAP, ACCOUNTANT MEMBER AND SHRI V. DURGA RAO, JUDICIAL MEMBER ITA No.5132 & 5133/Mum/2009 (Assessment Years : 2006-07 & 2007-08) M/s. Schreiber Dynamix Dairies Vs. Dy. Commissioner of Income Tax, Ltd., A-306/307, DynastyBusiness Central Circle 6, Aayakar Bhavan, Park, 58 Andheri Kurla Road, Mumbai.
Andheri, Mumbai-400028 PAN AAACD37433 (Appellant) (Respondent) Appellant By : Smt. Arati Vissanji.
Respondent By : Shri D.Songate.
These two appeals filed by the assessee against the common order of the learned Commissioner of Income Tax (Appeals), Central-II, Mumbai Dt.19.6.2009. Since the issues are common, a consolidated order is being given for the sake of convenience and brevity.
2. The facts in brief are that the assessee is engaged in the business of manufacturer of dairy and ultra heat treated products. For the A.Y. 2006-07, the assessee filed return of income declaring NIL income as per normal provisions of the Income Tax Act, 1961 (the Act) and income of ` 36,99,05,734 as per the provisions of section 115JB of the Act. In computing the tax liability of the year, the assessee itself calculated tax payable as per the provisions of section 115JB of the Act including surcharge and education cess aggregating to ` 2,85,09,969. The assessee also calculated interest under section 234C as per the calculation sheet enclosed with the return of income as Annexure A at `.11,54,654 and calculated the 2 ITA Nos.5132 & 5133/Mum/10 refund due at ` 18,35,378. The Assessing Officer has accepted the interest calculation made by the assessee under section 234C of the Act. The assessee did not file any appeal against the search assessment order under section 143(3) r.w.s. 153A of the Act dt.31.12.2008 whereby interest under section 234C was levied at ` 11,61,951. Subsequently, the assessee filed rectification petition dt.27.1.2009 requesting the Assessing Officer to rectify the interest charged under section 234C of the Act for the Assessment Year 2006-07 on the basis of decision given in the case of CIT Vs. Kwality Biscuits Ltd. (284 ITR 434) (SC). The Assessing Officer has not agree with the submission made by the assessee that the case relied upon by the assessee is not applicable and rejected the rectification petition filed by the assessee on the ground that in the case of Kwality Biscuits Ltd. (supra), the Hon'ble Supreme Court decided the issue relating to profits under section 115J of the Act and in the present case, the assessee computed the book profits under section 115JB of the Act. The judgement relied upon by the assessee has no application to the facts of the case. On appeal, the CIT(A) confirmed the view of the Assessing Officer and dismissed the appeal filed by the assessee before him.
3. We have heard both the sides, perused the material and gone through the orders of the authorities below. The only issue involved in this appeal is whether the interest u/s. 234C are leviable in case of the assessment order under section 115JB of the Act. In this regard, Hon'ble jurisdictional High Court in the case of ACIT Vs. Natural Gems Ltd. (2010) (327 ITR269) by following the decision in the case of CIT Vs. Kwality Biscuits Ltd. (supra), has 3 ITA Nos.5132 & 5133/Mum/10 held that the Tribunal was correct in law in directing the Assessing Officer to delete the amount charged as interest under section 234B and 234C of the Act on the minimum alternate tax levied under section 115JB on the book profits.
Respectfully following the jurisdictional High Court decision in the case of Natural Gems Ltd. (supra), both the appeals filed by the assessee are allowed.
In the result the appeals filed by the assessee are allowed. Pronounced in the open Court on 10-12-2010.
Sd/- Sd/-
(P.M. JAGTAP) (V. DURGA RAO)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai,
Dt.10-12-2010.
*Gpr,
Copies of the order forwarded to :
(1) The Appellant
(2) The Respondent
(3) CIT, Mumbai
(4) CIT(A), Mumbai
(5) DR,
(6) Guard File
True Copy
By Order
Assistant Registrar
Income Tax Appellate Tribunal
Mumbai Benches
4 ITA Nos.5132 &
5133/Mum/10
Date Initials
1. Draft dictated on
2. Draft placed before author
3. Draft proposed & placed
before second member
4. Draft discussed & approved
by second member
5. Approved draft comes to
Sr.PS/PS
6. Kept for pronouncement on
7. File sent to Bench Clerk
8. Date on which file goes to the
Head Clerk
9. Date of dispatch of order.