TaxTMI 
TaxTMI 
2014 (7) TMI 685
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....ismissing the appeal on the basis of the judgement of the ITAT and ignoring the judgement of higher court in case of CIT Vs Shri b. Lakshmikanthan and CIT Vs Sego Restaurant & Amp wherein Hon'ble court held specifically that whether assessment is made u/s 143(1) or 143(3) for the purpose of charging interest u/s 234B(3), no difference can be made on the baiss of original assessment completed u/s 143(1) or 143(3). 2. Ld. CIT(A) is erred in law and facts and circumstances of the case particularly in the circumstances hewn there is difference of opinion in interpreting the section the view which is favorable to the assessee should be adopted. In this case there is only one case of Bombay ITAT while other 3 cas....
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....(1). In support of such contention, the assessee had placed reliance on the decisions of Hon'ble Kerala High Court in the case of CIT Vs B Lakshmikanthan, 198 Taxman 485 dated 20.01.2011 and CIT Vs M/s. Sago Restaurant & Others I.T.A. No. 1022 of 2009 dated 14.12.2001. 3. Ld. CIT(A) considered the arguments of the assessee but did not accept the plea of the assessee and relied upon the order of ITAT Mumbai Bench in the case of Barbar Ship Management India (P) Ltd. Vs ITO, - 2009-TIOL-824-ITAT-Del and by reproducing the relevant portion from the said order in his order, has concluded to dismiss the appeal as under: "Perusal of the above order of the Hon'ble jurisdictional ITAT shows that....
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.... Ld. DR and perused the material on record and have gone through the orders of authorities below. We have also gone through the provisions as contained in Section 234B(1) and u/s. 234B(3) as well and the case law as cited by rival sides. There is no dispute about the facts that consequent upon the original return filed, the same was processed u/s 143(1) and intimation was received by the assessee. Subsequently, a survey u/s 133A was conduced on the premises of the assessee and notice u/s 148 was issued. Thereafter, the assessee filed return in response thereto and had also gone before the Settlement Commission, assessment u/s 143(3) read with sections 147 and 245D(iv) in pursuance to order of Settlement Commission, was completed on 13.06.20....
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....visions of this section, where, in any financial year, an assessee who is liable to pay advance tax under section 208 has failed to pay such tax or, where the advance tax paid by such assessee under the provisions of section 210 is less than ninety per cent of the assessed tax, the assessee shall be liable to pay simple interest at the rate of [one] per cent for every month or part of a month comprised in the period from the 1st day of April next following such financial year [to the date of determination of total income under subsection (1) of section 143 [and where 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 pa....
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....3(1), the interest is to be charged u/s 234B(1) and the same is for the period commencing from first day of the financial year following the previsions year during which, advance tax was paid. According to Ld. D.R., pursuant to survey, notice u/s 148 was issued to the assessee, by virtue of operation of relevant provision, return filed pursuant to the notice under the said provisions will be treated as return filed u/s 139. So much so, the department is entitled to process the return u/s 143(1) and issue of the proceedings which has entitled the A.O. to levy interest in terms of section 234B(1) of the Act. It was further clarified by Ld. D.R. that intimation issued u/s 143(1) is not an assessment and so much so, section 234B(1) to apply eve....