TaxTMI 
TaxTMI 
2010 (1) TMI 774
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....ilities. 3. The Learned Counsel fairly stated that in view of the decision of the larger Bench in case of B.T. Patil and Sons Belgaum Construction Private Limited vs ACIT in ITA Nos 1408 and 1409/PN/2003 vide order dated 26th October 2009, the issue is liable to be decided against the assessee. 4. Briefly stated the facts of the case are that the Assessing Officer noticed that these assessees were engaged in the business of civil contracts for construction of roads, highways etc. It was seen by him that they are not engaged in the business of developing any infrastructure facility. Since these assessees were executing works contract taken from National Highways Authority of India (NHAI). The Assessing Officer found that these assessee wer....
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....- respectively u/s 234B. 6. The Assessing Officer charged interest u/s 234B on the basis of assessed income. The CIT (A) also confirmed the levy of interest by observing that this is consequential in nature. 7. The Learned Counsel for the assessee who appeared before the Tribunal stated that these assessees claimed deduction in view of the decision of the Tribunal in case of M/s Patel Engineering Ltd (94 ITD 411). It was submitted by Learned AR that this decision was rendered on 22.06.2004, these assessees have filed their returns on 30.10.2005. Thereafter, the decision of the M/s Patel Engineering Ltd was followed by various Benches of the Tribunal for allowing the claim of deduction u/s 80IA(4). The decision of the larger Bench came onl....
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.... case of Upper India Steel Manufacturing Engineering Co 279 ITR 123. Further reliance was placed on the decision of Special Bench in the case of Glaxo reported in 18 ITD 226 (SB). It was submitted that under the provision of law the word is 'impossibility' is not added. In the present case, there was no impossibility in paying the advance tax on the amount of deduction claimed. In reply, the Learned Counsel for the assessee stated that the issue before the Hon'ble P and H High Court was for the purpose of limitation of jurisdiction u/s 143(1) and not on the issue of impossibility of payment of advance tax and the aforesaid reasons explained. Attention of the Bench was drawn to the relevant finding of the Tribunal, which has been reversed by....
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....llowed by various Benches of the Tribunal and allowed the claim u/s 80IA(4) and thereafter there was a divergent view among the Benches of the Tribunal. Accordingly, the Hon'ble President constituted larger Bench to decide the issue. The larger Bench decided the issue against assessee vide order dated 26.10.2009. In view of these facts and circumstances, it is seen that the assessees were under bona fide belief that there was no need to pay advance tax as the deduction u/s 80IA(4) is allowable. 10. In case of Express Newspaper Ltd (103 TTJ 122) by which the Chennai Bench of the Tribunal has held that: "assessee having received intimation regarding the adjustment of income-tax refund only after the last installment of advance tax was paid ....
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....ecause the decision was reversed by the Supreme Court liability to pay advance tax could not be fastened on the assessee. At the relevant point of time it was impossible on the part of the assessee to foresee the decision of the Supreme Court on the point. The assessee was not liable to make the payment of advance tax. The case of the assessee fell beyond the ken of section 208 of the Act. As such, it was not within the ambit of section 234B. Interest could not be levied under section 234B." 11. Similarly, the Hon'ble Karnataka High Court in case of Kwality Biscuits Ltd 243 ITR 519 has held that levy of interest u/s 234B and C is not justified as determination of tax u/s 115J is only after end of the relevant year. Accordingly, interest ca....
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....igh Court were that while making prima facie adjustment u/s 143(1)(a) interest u/s 234B/C can be charged or not. The CIT (A) and the Tribunal has held that while completing the assessment u/s 143(1)(a) interest u/s 234B/C cannot be charged. However, on second appeal by the Department, Hon'ble P and H High Court has said since the charging of interest is mandatory, therefore, while completing the assessment u/s 143(1), interest u/s 234B/C can be charged. Here before us, the facts are totally different. In the present case, the assessee did not pay advance tax on the amount of deduction claimed because of the decision of the Tribunal in the case of Patel Engineering by which deduction u/s 80IA(4) was held allowable. This decision was rendered....