The Commissioner of Income Tax and the Assistant Commissioner of Income-tax Vs. Samson Distilleries Pvt. Ltd. - Court Judgment

Excerpt:
- [ subhash b. adi, j.] specific relief act, 1963 - suit for specific performance of contract - decretal of - execution of registered sale deed by the executing court in favour of the decree holder - delivery of possession - application filed by the judgment debtor - direction sought to the decree holder to put up construction demolished illegally and for possession - grant of prayer in favour of judgment debtor - challenge to - held, if the decree is lawfully executed, there is no reason for the executing court to set aside the order of execution for delivery of possession and to issue a direction to the decree holder to deliver the possession and construct the structure. - the executing court having found that the order of status quo was not in existence as on the date of issue of delivery warrant and also on the date of delivery of possession, the decree holder was not prevented in law and rightly the decree has been executed. filing suit or miscellaneous case itself does not prevent the executing court from executing the decree. -further held, there is admittedly no dispute as to the decree granted in favour of the decree holder. it is also not in dispute that the executing court has executed sale deed in favour of the decree holder, despite the sale deed, and after the delivery of possession the executing court has passed the impugned order for redelivery of possession to the judgment debtor that to by constructing the structure, that to on an application under section 151 of c.p.c. - even in case of execution of decree which is set aside by the appellate court at later stage; the judgment debtor requires to file an application under section 144 for restoration of possession. but in this case, the decree is not reserved nor decree is executed in violation of interim order, still the decree holder is directed to deliver possession to judgment debtor. this only shows that the executing court has either failed to consider the relevant procedure or has acted in derogance to the provisions of law and procedure. it must also be mentioned, that obtaining of decree is much easier than the getting of the fruits of the decree. on account of irrelevant procedure the execution proceedings are made more complicated. - impugned order is set aside - civil procedure code, 1908 - section 151 and section 144 - discussed. (para 11) writ petition is allowed. n.k. patil, j.1. this appeal by the revenue arises out of the impugned order dated 23rd november 2006 passed in i.t.a. no. 3/ bang/2007 by the income tax appellate tribunal, bangalore bench 'a', for consideration of the following substantial questions of law:1) whether, analogy applied for interpreting section 115j can be applied for interpreting the provisions of section 115ja?2) whether sub-section (4) of section 115ja encompasses itself within its scope 234b and 234c?3) what would be the effect of circular no. 13 dated 9-11-2001 issued by the board would have the effect of charging the interest under 234b and 234c in respect of the assessment shown under section 115ja?4) whether section 234b and 234c are not attracted if the income is computed by applying the provisions of section 115ja?5) whether while levying interest under section 234b and 234c. the mat credit is to be considered or not ?6) whether the tribunal was right in holding that interest under section 234b is not leviable ignoring the fact as per sub-section (4) of section 115ja, all other provisions of the act apply to companies mentioned in the said section ?2. the facts in brief are that, the assessee has been carrying on the business of manufacture of industrial alcohol, indian made liquors and allied products. the assessee filed return of income, declaring 'nil' income and minimum alternative tax (mat) income of rs. 30,76,960/-. the return of income was processed under section 143(1) of the act on 30th march 2001. thereafterwards, a rectification order under section 154 came to be passed on 16th july 2004 charging interest under sections 234b and 234c. subsequently, notice under section 148 came to be issued to the assessee and thereafter the assessment was re-opened and taken up for scrutiny. after hearing the assessee, the assessing officer passed an order dated 14th march 2005, determining deemed income under section 115ja at rs. 30,76,960/- and tax was demanded under section 115ja at rs. 30,76,960/- thereon together with interest under sections 234b and 234c of the act. aggrieved by the same, the assessee filed an appeal before the commissioner of income tax (appeals), the first appellate authority, in i.t.a. no. 57/cit(a)/dvg/2004-05, contending that under corresponding section 115j, interest on the income determined under mat cannot be levied. the first appellate authority, by its order dated 23rd september 2004, dismissed the appeal, holding that the assessing officer is justified in distinguishing the case of kwality biscuits ltd. case 253 itr 519 and thus the assessee ought to have paid advance tax relevant to assessment year 2000-01 even on the tax liability under section 115ja and failure to do so would attract levy of interest under sections 234b and 234c. assailing the correctness of the said order passed by the first appellate authority, the assessee herein filed an appeal before the income tax appeal tribunal, bangalore bench 'a' (for short 'tribunal') in i.t.a. no. 3/bang/2007 for the assessment year 2000-01. the said matter came up for consideration before the tribunal and the tribunal allowed the appeal, holding that interest under section 234b of the act is not leviable in the case of assessee. being aggrieved by the said order passed by tribunal, the revenue is in appeal before this court, to consider the aforesaid substantial questions of law.3. we have heard learned counsel appearing for revenue as well as the learned counsel appearing for the respondent - assessee, for quite sometime.4. during the course of submission, learned counsel appearing for both the parties submitted that, the subject matter involved in this case is directly covered by the judgment of the division bench of this court dated 30th september 2009 in i.t.a. no. 320/2004 and connected matters (the commissioner of income tax and anr. v. brindavan beverages ltd.), in so far as it relates to substantial questions of law nos. (1) to (4) and (6), raised in the appeal, and extracted above. therefore, they submitted that, following the said judgment, the instant appeal may also be disposed of.5. further, they submitted that, in so far as substantial question of law no. (5) raised in this appeal, which is extracted above, is concerned, the said question may be kept open since the matter is pending consideration before the hon'ble apex court in s.l.p. (c) nos. 8158-8160/2010 filed by m/s. brindavan beverages ltd. against the commissioner of income tax and another.6. they also submitted that, in view of the interim order passed by the hon'ble supreme court in the aforesaid special leave petitions, this court may be pleased to stay the recovery of interest and not stay of recovery of taxes, till the disposal of the said special leave petitions by the hon'ble apex court.7. the submission made by learned counsel appearing for both the parties, as stated supra, is placed on record.8. in the light of the aforesaid submission made by learned counsel for both parties, following the judgment of the division bench of this court dated 30th september 2009 in i.t.a. no. 320/2004 and connected matters (the commissioner of income tax and anr. v. brindavan beverages ltd.), and for the reasons stated therein, the appeal filed by the appellants is disposed of in so far as it relates to substantial questions of law nos. (1) to (4) and (6) raised in this appeal.9. however, in so far as the substantial question of law no. (5) raised in this appeal is concerned, it is open for the parties to redress their grievance, after disposal of the aforesaid special leave petitions, that are pending before the supreme court.10. in view of the interim order passed by the apex court in the aforesaid special leave petitions, there shall be stay of recovery of interest and no stay on recovery of taxes, pending disposal of the said special leave petitions.with these observations, the appeal filed by revenue stands disposed of.