DCIT (LTU) 2, MUMBAI V. UNION BANK OF INDIA, MUMBAI

CO 211/MUM/2018

• Counselvise Citation: [2018] 123 COUNSELVISE.COM (IT) 8322 (ITAT-MUMBAI)
• Duration Of Justice: 2 month(s) 17 day(s)
• Appeal Type: Cross Objection
• Pronouncement Date: 03-10-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2003-2004
• Appeal Filed On: 17-07-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: VIDISHA KARLA LD CIT DR
• Assessee Lawyers: C NARESH LD
• Section: 244A; 154

Judgement Text

ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, MUMBAI , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NOS. 1825 TO 1828/MUM/2017 ( ASSESSMENT YEARS: 2003-04, 2007-08. 2009-10, 2010-1 1) UNION BANK OF INDIA CENTRAL ACCOUNTS DEPARTMENT VI FLOOR, 239 VIDHAN BHAVAN MARG NARIMAN POINT MUMBAI 400 021 VS. DEPUTY COMMISSIONER OF INCOME TAX (LTU)-2 29 TH FLOOR, WORLD TRADE CENTER CUFFE PARADE MUMBAI 400 005 ! ' PAN/GIR NO. AAACU-0564-G ( !# APPELLANT ) : ( $%!# RESPONDENT ) & CROSS OBJECTION NOS.211 TO 214/MUM/2018 ( ASSESSMENT YEARS: 2003-04, 2007-08. 2009-10, 2010-1 1) DEPUTY COMMISSIONER OF INCOME TAX (LTU)-2 29 TH FLOOR, WORLD TRADE CENTER CUFFE PARADE MUMBAI 400 005 VS. UNION BANK OF INDIA CENTRAL ACCOUNTS DEPARTMENT VI FLOOR, 239 VIDHAN BHAVAN MARG NARIMAN POINT MUMBAI 400 021 ! ' PAN/GIR NO. AAACU-0564-G ( !# APPELLANT ) : ( $%!# RESPONDENT ) ASSESSEE BY : C.NARESH, LD. AR REVENUE BY : VIDISHA KARLA, LD. CIT DR & DATE OF HEARING : 30/07/2018 '() / DATE OF PRONOUNCEMENT : 03/10/2018 ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA 2 O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. THE CAPTIONED APPEALS BY ASSESSEE FOR ASSESSMENT YEARS [AY] 2003-04, 2007-08, 2009-10 & 2010-11 CONTEST SEPARAT E ORDERS OF LD. FIRST APPELLATE AUTHORITY. THE REVENUE HAS FILED CR OSS-OBJECTIONS AGAINST THE SAME. SINCE COMMON ISSUES ARE INVOLVED, WE DISP OSE-OFF THE SAME BY WAY OF THIS COMMON ORDER FOR THE SAKE OF CONVENI ENCE AND BREVITY. FIRST WE TAKE UP APPEAL & CROSS-OBJECTION FOR AY 20 03-04. ITA NO. 1825/MUM/2017 & CO NO.211/MUM/2018, AY 2003 -04 2.1 THE GROUNDS RAISED IN ASSESSEES APPEAL READS A S UNDER: - 1 THE LD. CIT(A) OUGHT TO HAVE DECIDED THE ISSUE ON MERITS AS PRAYED IN THE GROUNDS OF APPEAL INSTEAD OF LEAVING THE ISSUE UNDE CIDED STATING APPELLANTS PETITION FOR RECTIFICATION IS PENDING BEFORE THE AS SESSING OFFICER. 2. THE LD. CIT(A) FAILED TO NOTE THAT SINCE INTERES T U/S 244A AS COMPUTED IN THE ORDER SHEET INVOLVED ISSUES BOTH IN LAW AND ON FACT S, THE CIT(A) OUGHT TO HAVE ADJUDICATED THE ISSUE EVEN WHEN THE RECTIFICAT ION PETITION WAS PENDING. 3. THE CIT(A) FAILED TO NOTE THAT AO HAD WHILE COMP UTING INTEREST U/S 244A WRONGLY SEGREGATED THE REFUND GRANTED INTO TAX REFU ND AND INTEREST REFUND AND ADJUSTED THE TAX REFUND FROM TAX REFUND DUE AND INT EREST REFUND FROM INTEREST REFUND DUE INSTEAD OF ADJUSTING THE ENTIRE REFUND G RANTED FIRST AGAINST THE INTEREST REFUND DUE AND THEREAFTER AGAINST THE TAX REFUND DUE. THE GROUNDS RAISED BY REVENUE IN CROSS OBJECTION RE ADS AS UNDER: - THE GROUND OF APPEAL FILED BY ASSESSEE HAS BECOME I NFRUCTUOUS IN VIEW OF THE FACT THAT THE HONBLE SUPREME COURT HAS DECIDED THE ISSU E OF COMPUTATION OF INTEREST U/S 244A OF THE INCOME TAX ACT, IN THE CASE OF CIT VS G UJARAT FLOURO CHEMICALS (SPECIAL LEAVE PETITION NO.11406 OF 2008) IN FAVOUR OF THE REVENUE. 2.2 FACTS IN BRIEF ARE THAT THE ASSESSEE IS A PUBLIC SECTOR BANK WHO IS FINALLY ASSESSED AT RS.216.84 CRORES ON 12/12/2014 AFTER GIVING EFFECT TO THE APPELLATE ORDERS. CONSEQUENTLY, CERTAIN REFUND HAS ACCRUED TO THE ASSESSEE. THE ASSESSEE IS AGGRIEVED BY METHOD OF AD JUSTMENT OF THE REFUND GRANTED TO THE ASSESSEE FROM TIME TO TIME. A S PER THE CONTENTIONS ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA 3 OF LD. AUHTORIZED REPRESENTATIVE FOR ASSESSEE [AR], SHRI C.NARESH, THE REFUND GRANTED TO THE ASSESSEE SHOULD FIRST BE ADJU STED TOWARDS INTEREST COMPONENT AND THEREAFTER, TO PRINCIPAL COMPONENT IN TERMS OF ORDER OF THIS TRIBUNAL RENDERED IN ASSESSEES OWN CASE FOR A Y 2008-09 [72 TAXMANN.COM 348], A COPY OF WHICH HAS BEEN PLACED O N RECORD. PER CONTRA, LD. DEPARTMENTAL REPRESENTATIVE [DR], MS. V IDISHA KALRA CIT- DR, SUBMITTED THAT THE ASSESSEE IS MERELY SEEKING INTER EST ON INTEREST WHICH IS NOT MANDATED BY LAW AND SQUARELY COVERED A GAINST THE ASSESSEE BY THE DECISION OF HONBLE APEX COURT REND ERED IN CIT VS. GUJARAT FLUORO CHEMICALS [SPECIAL LEAVE PETITION NO.11406 OF 2008]. THE LD. AR HAS CONTROVERTED THE SAME ON THE STRENGTH OF A COMPUTATION CHART AS PLACED BEFORE US IN WRITTEN SUBMISSIONS DATED 03 /08/2018. 3. WE HAVE CAREFULLY CONSIDERED THE SAME AND PERUSE D RELEVANT MATERIAL ON RECORD. AT THE OUTSET, THE FINDINGS OF LD. CIT(A) ARE EXTRACTED HERE-IN-BELOW:- 3. THE ONLY GROUND RAISED IN THIS APPEAL IS THAT TH E ASSESSING OFFICER HS NOT COMPUTED CORRECT AMOUNT OF INTEREST U/S. 244A. IN T HIS REGARD, IT IS NOTED THAT THE ASSESSING OFFICER HAS NOT DISCUSSED THIS ISSUE IN T HE ORDER AND HENCE SAME DOES NOT ARISE FROM IT. HOWEVER, APPELLANT SUBMITTED THA T AN APPLICATION U/S 154 DATED 09.12.2016 RAISING THE SAME ISSUE, HAS BEEN FILED B Y IT IN THE OFFICE OF THE ASSESSING OFFICER, WHICH IS PENDING. IT WAS REQUESTED THAT SU ITABLE DIRECTIONS MAY BE ISSUED TO THE ASSESSING OFFICER IN THIS REGARD. REQUEST OF TH E APPELLANT IS QUITE REASONABLE. ACCORDINGLY, THE ASSESSING OFFICER IS DIRECTED TO D ISPOSE OF THE APPELLANTS PETITION U/S 154 EXPEDITIOUSLY. THE ISSUE, IN ASSESSEES OWN CASE FOR 2008-09 AFTER CONSIDERING THE CITED DECISION OF HONBLE APEX COURT, HAS BEEN CONC LUDED BY THIS TRIBUNAL IN THE FOLLOWING MANNER:- 'THUS, SINCE THE STATUTE ITSELF HAS ALREADY PRESCRI BED A PARTICULAR METHOD OF ADJUSTMENT IN EXPLANATION TO SECTION 140A (1), THEN JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE DEMANDS THAT SOME METHOD SHOULD BE FOLLO WED WHILE MAKING ADJUSTMENT FOR REFUND OF TAXES, ESPECIALLY WHEN NO CONTRARY PROVISION HAS BEEN ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA 4 PROVIDED. UNDER THESE CIRCUMSTANCES AND AFORESAID D ISCUSSION, WE FIND THAT THE JUDICIAL PROPRIETARY DEMANDS THAT ORDER OF THE TRIB UNAL OF EARLIER YEARS MUST BE FOLLOWED AND THEREFORE WE DIRECT THE AO TO RE-COMPU TE THE AMOUNT OF INTEREST U/S. 244A BY FIRST ADJUSTING THE AMOUNT OF REFUND ALREAD Y GRANTED TOWARDS THE INTEREST COMPONENT AND BALANCE LEFT IF ANY SHALL BE ADJUSTED TOWARDS THE TAX COMPONENT' UPON DUE CONSIDERATION, WE FIND THAT THE ISSUE HAS ALREADY BEEN ADJUDICATED BY THE TRIBUNAL IN ASSESSEES OWN CASE. THEREFORE, WITHOUT DELVING MUCH DEEPER INTO THE ISSUE, LD. AO IS DIREC TED TO RE-COMPUTE THE AMOUNT REFUNDABLE TO THE ASSESSEE IN TERMS OF THE D ECISION OF THIS TRIBUNAL FOR AY 2008-09 BY DISPOSING-OFF APPLICATIO N U/S 154 FILED BY THE ASSESSEE. THE ASSESSEE IS DIRECTED TO FILE THE NECE SSARY COMPUTATIONS / DETAILS IN THIS REGARD. NEEDLESS TO ADD THAT THE AS SESSEE SHALL NOT BE ENTITLE FOR ANY INTEREST ON INTEREST, WHATSOEVER, I N TERMS OF THE CITED DECISION OF HONBLE APEX COURT. 4. THE APPEAL AS WELL AS CROSS-OBJECTIONS STANDS AL LOWED FOR STATISTICAL PURPOSES. ITA NOS. 1826 TO 28/MUM/2017 & CO NOS.212-14/MUM/20 18, AYS 2007-08, 2009-10 & 2010-11 5.1 THE ASSESSEE AND REVENUE ARE SIMILARLY AGGRIEVE D IN THESE TWO AYS AND RAISED IDENTICAL WORDED GROUNDS. THERE BEIN G NO CHANGE IN FACTS OR CIRCUMSTANCES, TAKING THE SAME VIEW, THE L D. AO IS DIRECTED TO DISPOSE-OFF THE SAME ON SIMILAR LINES. THE GROUNDS RAISED IN THIS RESPECT UNDER THE APPEAL AS WELL AS CROSS-OBJECTIONS STANDS ALLOWED FOR STATISTICAL PURPOSES. 5.2 THE ASSESSEE, IN AYS 2007-08 & 2010-11, BY WAY OF GROUND NUMBER 4.1 & 3.1 RESPECTIVELY, IS ALSO AGGRIEVED BY THE FACT THAT INTEREST U/S 244A FOR THE MONTH OF PAYMENT OF TAX OR GRANTI NG OF REFUND HAS NOT ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA 5 BEEN PROVIDED TO THE ASSESSEE AS AGAINST SPECIFIC P ROVISIONS FOR THE SAME IN RULE 119A. ACCORDINGLY, THE LD. AO IS DIREC TED TO CONSIDER THE SAME IN THE LIGHT OF RULE 119A. THIS GROUND FOR BOT H THE YEARS STAND ALLOWED FOR STATISTICAL PURPOSES. 6. THE ASSESSEE, IN AY 2007-08, BY WAY OF GROUND NU MBER 3, IS ALSO AGGRIEVED BY THE FACT THAT LD. AO HAS NOT SET OFF C ORRECT AMOUNT OF BROUGHT FORWARD LOSSES AS FINALLY ASCERTAINED CONSE QUENTIAL TO THE ORDERS OF APPELLATE AUTHORITIES. WE FIND THAT THE ASSESSEE HAS ALREADY FILED RECTIFICATION APPLICATION DATED 13/12/2016 AGAINST THE SAME. WE FIND THE ADJUSTMENT TO BE CONSEQUENTIAL IN NATURE AND THEREF ORE DIRECT THE LD. AO TO CONSIDER THE SAME IN THE LIGHT OF APPLICATION U/ S 154 FILED BY THE ASSESSEE. THIS GROUND STAND ALLOWED FOR STATISTICAL PURPOSES. 7. RESULTANTLY, THE APPEALS AS WELL AS CROSS OBJECT IONS FOR ALL THESE THREE YEARS STANDS ALLOWED FOR STATISTICAL PURPOSES . CONCLUSION 8. RESULTANTLY, ALL THE APPEALS AS WELL AS CROSS OB JECTIONS STANDS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT ON 03 RD OCTOBER, 2018. SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGG ARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER *& MUMBAI; DATED : 03.10.2018 SR.PS:-THIRUMALESH ITA NOS.1825 TO 1828/MUM/2017 CO.NOS.211 TO 214/MUM/2018 UNION BANK OF INDIA 6 ! COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - -) *& / DR, ITAT, MUMBAI 6. , ./0 & GUARD FILE ' / BY ORDER, # '$% (DY./ASSTT.REGISTRAR) *& / ITAT, MUMBAI