TaxTMI 
TaxTMI 
2020 (2) TMI 729
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....lated payment of Rs. 670 lakhs to the petitioner by the said developer with built up area of 75,000 ft². The agreement also contemplated deadlines and timelines for payment of the aforesaid amount of Rs. 670 lakhs to the petitioner. The amounts were to be paid from 3.5.1987 to 31.12.1992 in 8 instalments. It appears over a period amounts were also paid but the developer took time to get approval from the CMDA to commence the construction. 4. Meanwhile, the petitioner and the developer signed a Memorandum of Understanding(MOU) dated 7.3.1992 which party altered the arrangement under the Joint Venture Agreement on 13.8.1996. The petitioner had filed income tax returns under section 139 of the Income Tax Act, 1961 the respective assessment years. For the assessment years 1988-89 and 1989-90 scrutiny assessments were completed on 12.3.1991 and on 26.3.1992 respectively. In these two assessment years, the petitioner had declared a total loss of Rs. 56,51,991/- and Rs. 47,27,993/- and accordingly claimed depreciation loss and business loss. 5. Meanwhile, for the assessment years 1990-91, 1991-92 and 1992- 93 regular returns were filed and scrutiny assessment orders were passed....
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....er the 1st respondent has rejected the application filed by the petitioner with the following observations:- 9.. In the waiver petitions the assessee company also submitted that interest unde Section 234A and that under Section 234B were incorrectly levied. This contention was made on the basis of the following case laws: 164 CTR 200 217 ITR 72 In its petition for waiver the assesseecompany did not specify as to hoiw the above mentioned case laws supported its case. However, I assume that the petitioner company intended to put forward the argument that since the income returned by it for each of the two assessment years, 1991-92 & 1992-93, was nil there was no liability to pay advance tax and, therefore,no interest should have been charged, basis of charge being the returned income (as decided in the two cases referred to by the petitioner). I am unable to accept this contention of the assessee for the reason that these Court decisions had been pronounced on the basis of Explanation 4 to Section 234A which has since been deleted by Finance Act, 2001 with restropective effect from 01.04.1989. Therefore, the decisions cited by the assessee-co....
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....the Income Tax Act, 1961 has been wrongly denied by the 1st respondent herein. 21. The respondents in their counter have defended the impugned order stating that the petitioner had failed to elaborate how the 1st respondent had not considered the Board circular while rejecting their application. It is further submitted that the appeal filed by the petitioner for the respective assessment years were decided against the petitioner and no further appeal was preferred by the petitioner. Having accepted the assessment made by the 2nd respondent for the respective assessment years, it is not open for the petitioner to seek waiver of interest payable under Section 234B and C of the Income Tax Act, 1961. 22. It is further submitted that as per clause 23 of the JV agreement, payments were made to be made through deposit certificates which were issued for every subsequent instalment after due date of the earlier instalment and that "the developer shall make the stipulated payments fully and promptly on the specified date to the owner (petitioner herein) irrespective of whether the commercial complex is put up and/or completed as scheduled and programmed above". 23. I have considered....
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....emaining instalment or instalments and the Chief Commissioner or Director- General is satisfied on the facts and circumstances of the case that this is a fit case for reduction or waiver of interest chargeable under Section 234C of the Income Tax Act. (d) Where any income which was not chargeable to income-tax on the basis of any order passed in the case of an assessee by the High Court within whose jurisdiction he is assessable to income-tax in relation to such income in any previous year and subsequently, in consequence of any retrospective amendment of law or, as the case may be, the decision of the Supreme Court in his own case, which event has taken place after the end of any such previous year, in any assessment or reassessment proceedings the advance tax paid by the assessee during the financial year immediately preceding the relevant assessment year is found to be less than the amount of advance tax payable on his current income, the assessee is chargeable to interest under Section 234B or Section 234C and the Chief Commissioner or Director-General is satisfied that this is a fit case for reduction or waiver of such interest. (e) Where a return of income c....
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....hs for the year 1992 and the petitioner agreed to vacate the place by 30/04/1992 by which time the developer was required to obtain the permit from the Madras Metropolitan and Development Authority. 31. The petitioner was required to transfer approximately 25% of the UDS to the nominees of developer on before 31.3.1992 as and when the aforesaid amount of Rs. 210 lakh was received by the petitioner. The MOU also acknowledged that with the payment of Rs. 2 lakhs on the date of MOU, the petitioner would have received Rs. 434 lakhs and the developer was to ensure that the joint venture nature of the agreement was maintained by taking all precautions while carrying out documentation. The MOU further records that the developer would pay the entire balance before 30/03/1992. 32. With reference to the delay and consequential interest accruing, it was agreed that the petitioner and the developer will refer to an arbitrator. 33. Under Section 145 of the Income Tax Act, 1961 income chargeable under the head of "Profit and gains of business or professional" or " Income from other sources" shall be subject to the provisions of sub-section (2) and be computed in accordance with either c....
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....here were further payments made by the developer to the petitioner and therefore there was accrual of income in the books of account of the petitioner and therefore the petitioner was liable to that extent. 39. The assessments for the assessment years 1988-89 to 1990-91 were reopened/rectified as the petitioner had wrongly claimed business loss and depreciation loss. The re-assessments were completed for the assessment years 1991-92 and 1992-93 on 22.11.1996 and on 22.3.1999 which resulted in the increase of the positive income of the petitioner. 40. The petitioner had however failed to pay advance tax by wrongly claiming business loss/depreciation loss during the assessment years 1988-89 to 1990-91. Therefore it cannot be stated that the petitioner was entitled to the benefit of the above notification issued under section 119 (2) (a) of the Income Tax Act, 1961. None of the situation contemplated under the attracted the CBDT Notification dated 23.05.1996 41. The decision cited in Prime Securities Ltd versus The Asst Commissioner of Income Tax(2011) 333 ITR 464 cited on behalf of the petitioner deals with the situation where the assessee could not anticipate increase. Ther....