CAPGEMINI BUSINESS SERVICES (I) LTD ( FORMERLY UNILEVER INDIA SHARED SERVICES LTD/ INDIGO LEVER SHARED SERVICED LTD), MUMBAI V. DCIT RG 1(2), MUMBAI

ITA 1164/MUM/2010

• Counselvise Citation: [2010] 119 COUNSELVISE.COM (IT) 6351 (ITAT-MUMBAI)
• Duration Of Justice: 9 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-11-2010
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Assessment Year: 2006-2007
• Appeal Filed On: 12-02-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MAYANK PRIYADARSHI
• Keywords: Depreciation; Right to appeal; Unabsorbed depreciation
• Section: 143(3); 246; 90

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C, MUMBAI BEFORE SHRI R.S.SYAL, AM AND SHRI VIJAY PAL RAO, JM ITA NO.1164/MUM/2010 : ASST.YEAR 2006-2007 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LIMITED, (FORMERLY KNOWN AS UNILEVER INDIA SHARED SERVICES LTD./INDIGO LEVER SHARED SERVICES LTD.) SEP-2, B-3, GODREJ INDUSTRIES COMPLEX EASTERN EXPRESS HIGHWAY, VIKHROLI (EAST) MUMBAI 400 079. PA NO.AABCI1046A. VS. THE DY.COMMISSIONER OF INCOME-TAX RANGE 1(2) MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : S/SHRI M.M.GOLVALA AND AKRAM KHAN RESPONDENT BY : SHRI MAYANK PRIYADARSHI O R D E R PER R.S.SYAL, AM : THIS APPEAL BY THE ASSESSEE ARISES OUT OF THE ORDER PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) ON 23.11.2009 IN RELATION TO THE ASSESSMENT YEAR 2006-2007. 2. FOLLOWING GROUNDS HAVE BEEN RAISED IN THIS APPEA L:- THIS APPEAL IS AGAINST THE ORDER PASSED BY COMMISS IONER OF INCOME TAX (APPEALS)-2 MUMBAI DATED 23 RD NOVEMBER, 2009, AND RELATES TO ASSESSMENT YEAR 2006-2007. 1. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) ERRED IN HOLDING THAT THE SAID APPEAL WAS NOT MAINTAINABLE. 2. THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS ) ERRED IN HOLDING THAT THE GROUNDS OF APPEAL FILED BY THE APP ELLANT DID NOT SURVIVE AS VALID GROUNDS UNDER ANY OF THE CLAUSES O F SECTION 246A. 3. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, THE APPELLANT SUBMITS THAT THE LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) BE DIRECTED TO ENTERTAIN THE SAID APPEAL, AND DECIDE THE SAME ON MERITS. ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 2 4. THE APPELLANT SUBMITS THAT THE ASSESSING OFFICE R BE DIRECTED TO GRANT CREDIT AMOUNTING TO RS.8,38,764/- UNDER SECTI ONS 90 AND 91 OF THE INCOME TAX ACT AS CLAIMED IN THE RETURN OF INCO ME. 3. THE FACTUAL MATRIX OF THE CASE IS THAT THE ASSES SEE WAS ENGAGED IN THE BUSINESS OF PROVIDING I.T. ENABLED SERVICES AND BPO SERVICES. RETURN DECLARING TOTAL INCOME OF RS.98,90,146 WAS E-FILED ON 29.11.2 006 CLAIMING TAX REFUND AT RS.22,76,152. THE ASSESSING OFFICER FINALIZED THE A SSESSMENT U/S.143(3) ACCEPTING THE TOTAL INCOME OF RS.98,90,150 AS DETERMINED VIDE ITNS-150A. TAX ON TOTAL INCOME WAS WORKED OUT AT RS.33.29 LAKHS. THE A.O. C ONSIDERED THE AMOUNT OF TDS AT RS.30,66,412 AND ADVANCE TAX AT RS.17,00,000. AF TER CHARGING INTEREST U/S.234C AND ALLOWING INTEREST U/S.244A, HE ISSUED REFUND FO R RS.16,62,165. THE ASSESSEE PREFERRED APPEAL BEFORE THE LEARNED CIT(A) ON THE F OLLOWING TWO GROUNDS:- 1. THE APPELLANT OBJECTS TO THE TAX DETERMINED REF UNDABLE. 2. THE ASSESSING OFFICER ERRED IN NOT GRANTING TAX CREDIT UNDER SECTIONS 90 & 91 OF THE INCOME TAX ACT, 1961 AMOUNT ING TO RS.8,38,764/-, AS CLAIMED IN THE RETURN OF INCOME. HAVING REGARD TO THE FACTS AND CIRCUMSTANCES OF THE CASE, AND THE PR OVISIONS OF LAW, THE APPELLANT SUBMITS THAT THE ASSESSING OFFICER BE DIRECTED TO GRANT THE SAID CREDIT. 4. THE LEARNED CIT(A), ON THE PERUSAL OF THE LANGUA GE OF SECTION 246A, NOTED THAT THE GROUNDS RAISED BY THE ASSESSEE WERE NOT VA LID INASMUCH AS SECTION 246A DID NOT PERMIT SUCH ISSUES WITHIN ITS AMBIT. TO BE MORE SPECIFIC, HE CONSIDERED THE PROVISIONS OF CLAUSE B OF SUB-SECTION (1) OF SECTIO N 246A WHEREIN THE REFERENCE IS MADE TO TAX ONLY FOR CALCULATION OF TAX ON TOTAL INCOME AND NOT BEYOND THAT. THEN HE PROCEEDED TO REFER TO THE DEFINITION OF TA X CONTAINED IN SECTION 2(43) OF THE ACT TO MEAN ANY INCOME CHARGEABLE UNDER THE PRO VISIONS OF THIS ACT. IT WAS OPINED THAT THE QUESTION OF WHAT IS TAX SHOULD BE R ESTRICTED TO THE AMOUNT OF INCOME-TAX CHARGEABLE UNDER THE PROVISIONS OF THIS ACT WHICH WAS NOTHING BUT TAX ON TOTAL INCOME. AS THE ASSESSEE WAS NOT CHALLENGIN G THE CALCULATION OF TAX ON TOTAL ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 3 INCOME, THE LEARNED CIT(A) HELD THAT THE GROUNDS R AISED WERE SEVERAL STEPS BEYOND THIS CALCULATION. HE FURTHER NOTED THAT THE ISSUE O F GRANTING OF CREDIT FOR ADVANCE TAX OR TDS COULD NOT BE AGITATED IN APPEAL FOR TWO REA SONS, VIZ., FIRST, THERE WAS NO SPECIFIC PROVISION DEALING WITH IT U/S.246A AND SEC ONDLY, THE APPELLATE AUTHORITY DID NOT HAVE ACCESS TO THE FACTUAL POSITION OF EITH ER THE PAYMENTS OF TAXES BY WAY OF ADVANCE TAX OR DEDUCTION OF TAXES BY WAY OF TDS. HE FURTHER HELD THAT IT COULD NOT BE CONSIDERED AS REFUND ORDER U/S.237 FOR WHICH THE RE WAS A SPECIFIC MENTION IN SECTION 246A. AS THE APPEAL WAS NOT REVOLVING AROUN D THE REFUND, HE HELD THAT SUCH AN ISSUE COULD NOT BE AGITATED IN APPEALS. RESULTAN TLY THE APPEAL OF THE ASSESSEE WAS DISMISSED AS NOT MAINTAINABLE. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE RELEVANT MATERIAL ON RECORD. IT IS SEEN THAT THE ASSESSEE FILED ITS RETU RN DECLARING TOTAL INCOME OF RS.98,90,150 AFTER SETTING OFF BROUGHT FORWARD BUSI NESS LOSSES AND UNABSORBED DEPRECIATION FOR ASSESSMENT YEARS 2003-2004 TO 2005 -2006. THE TOTAL TAX PAYABLE INCLUDING SURCHARGE AND EDUCATION CESS WAS DETERMIN ED AT RS.33.39 LAKHS. THEREAFTER THE ASSESSEE REDUCED THE AMOUNT OF TDS U /S.194J AT RS.30,66,412; WITHHOLDING TAX U/SS. 90 / 91 AT RS.8,38,764; AND ADVANCE TAX PAID AMOUNTING TO RS.17 LAKHS. IN THIS WAY TAX REFUNDABLE WAS DETERMI NED AT RS.22,76,152. THE COPY OF COMPUTATION OF INCOME FILED ALONG WITH THE RETUR N OF INCOME HAS BEEN PLACED AT PAGE 1 OF THE PAPER BOOK DEPICTING THE ABOVE CALCUL ATION. THE ASSESSING OFFICER, IN ASSESSMENT U/S.143(3) ACCEPTED THE ASSESSEES COMPU TATION OF TOTAL INCOME AT RS.98.90 LAKHS WITHOUT MAKING ANY ADDITION AND A LSO THE CALCULATION OF TAX PAYABLE AT RS.33.29 LAKHS. HOWEVER WHILE GRANTING R EFUND, HE ONLY CONSIDERED THE AMOUNT OF TDS AT RS.30.66 LAKHS AND THAT OF ADVANCE TAX AT RS.17 LAKHS. THE AMOUNT OF WITHHOLDING TAX U/SS. 90 / 91 AT RS.8,38, 764 WAS NOT CONSIDERED BY THE A.O. THE DETAIL OF FOREIGN TAX CREDIT AMOUNTING TO RS.8.38 LAKHS IS AVAILABLE AT PAGE 20 OF THE PAPER BOOK. THE ASSESSING OFFICER DI D NOT MENTION ANY REASON IN ITNS-150A FOR NOT ALLOWING CREDIT FOR THE WITHHOLDI NG TAX U/SS.90 / 91. IT IS ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 4 NOTWITHSTANDING THE FACT THAT COLUMN NO.18 OF ITNS -150A SPECIFICALLY PROVIDES FOR DIT RELIEF U/SS.90 / 91, WHICH HAS BEEN LEFT BLANK BY THE A.O. IN THE AFORESAID INCOME-TAX COMPUTATION FORM. WHEN THE ASSESSEE CHAL LENGED THE NON-GRANTING OF CREDIT FOR WITHHOLDING TAX BEFORE THE LEARNED CIT(A ), HE CAME TO HOLD THAT THE APPEAL ON THIS ASPECT WAS NOT MAINTAINABLE U/S.246A . 6. IN ORDER TO APPRECIATE THE RIVAL CONTENTIONS IT WOULD BE APPROPRIATE TO TAKE STOCK OF THE RELEVANT PORTION OF PROVISIONS OF SEC TION 246A AT THE MATERIAL TIME, WHICH IS AS UNDER:- 246A. APPEALABLE ORDERS BEFORE COMMISSIONER (APPEAL S). - (1) ANY ASSESSEE AGGRIEVED BY ANY OF THE FOLLOWING ORDERS ( WHETHER MADE BEFORE OR AFTER THE APPOINTED DAY) MAY APPEAL TO TH E COMMISSIONER (APPEALS) AGAINST (A) [AN ORDER PASSED BY A JOINT COMMISSIONER UNDER CLAUSE (II) OF SUB-SECTION (3) OF SECTION 115VP OR AN ORDER AGAINS T THE ASSESSEE] WHERE THE ASSESSEE DENIES HIS LIABILITY TO BE ASSES SED UNDER THIS ACT OR AN INTIMATION UNDER SUB-SECTION (1) OR SUB-SECTI ON (1B) OF SECTION 143, WHERE THE ASSESSEE OBJECTS TO THE MAKING OF AD JUSTMENTS, OR ANY ORDER OF ASSESSMENT UNDER SUB-SECTION (3) OF SECTIO N 143 OR SECTION 144, TO THE INCOME ASSESSED, OR TO THE AMOUNT OF TAX DETERMINED , OR TO THE AMOUNT OF LOSS COMPUTED, OR TO THE STATUS UN DER WHICH HE IS ASSESSED; .. (I) AN ORDER MADE UNDER SECTION 237; (E MPHASIS SUPPLIED BY US) 7. THE LEARNED A.R. MADE TWO FOLD SUBMISSIONS CLAIM ING THAT THE CASE OF THE ASSESSEE WAS COVERED UNDER CLAUSE (A) OF SECTION 24 6A(1) AND IN THE ALTERNATIVE UNDER CLAUSE (I). ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 5 8. BEFORE PROCEEDING FURTHER IT WOULD B E APT TO NOTE THAT THE LEARNED CIT(A), WHILE NOT ACCEPTING THE ASSESSEES CONTENTION, REL IED ON CLAUSE B OF SUB-SECTION (1) OF SECTION 246A, AS REFERRING TO CALCULATION O F TAX ON TOTAL INCOME ONLY. THERE APPEARS TO BE SOME TYPOGRAPHICAL ERROR IN THE IMPUG NED ORDER INASMUCH AS THERE IS NO CLAUSE B OF SECTION 246A(1). IT APPEARS THAT THE LEARNED CIT(A), IN FACT, REFERRED TO CLAUSE (A) OF SECTION 246A(1) WHICH WAS INADVERT ENTLY TYPED AS CLAUSE B OF SECTION 246A(1). 9. ON GOING THROUGH THE MANDATE OF CLAUSE (A) OF SE CTION 246A(1), IT IS MANIFEST THAT AN ASSESSEE HAS BEEN GIVEN RIGHT TO A PPEAL TO THE COMMISSIONER (APPEALS) AGAINST INTER ALIA, ANY ORDER OF ASSESSMENT UNDER SUB-SECTION (3) OF SECTION 143 , TO THE INCOME ASSESSED, OR TO THE AM OUNT OF TAX DETERMINED, OR TO THE AMOUNT OF LOSS COMPUTED, OR TO THE STATUS UNDER WHI CH HE IS ASSESSED. THE LEARNED A.R. ARGUED THAT HIS CASE FALLS UNDER THE SECOND PA RT VIZ. TO THE AMOUNT OF TAX DETERMINED . WE FIND THAT THIS CASE CAN BE POSSIBLY CONSIDERE D ONLY UNDER THE SECOND PART VIZ. TO THE AMOUNT OF TAX DETERMINED AND NOT UNDER THE REMAINING PARTS AS THE NON-GRANTING OF BENEFIT IN RESPECT OF THE WITHHOLDING TAX U/SS. 90/91 CAN NEITHER BE CONSIDERED AS THE INCOME ASSESSED NOR THE LOSS COMPUTED NOR THE STATUS UNDER WHICH HE IS ASSESSED. WE, THEREF ORE, NEED TO EXAMINE AS TO WHETHER THE NON-GRANTING OF REFUND IN RESPECT OF TH E WITHHOLDING TAX U/SS.90/91 AMOUNTING TO RS.8.38 LAKHS CAN BE CONSIDERED UNDER THE EXPRESSION AMOUNT OF TAX DETERMINED. 10. THERE IS NO DISPUTE THAT THE ASSESSMENT IN THIS CASE WAS MADE U/S.143(3) OF THE ACT. THE FINALIZATION OF ASSESSMENT INVOLVES V ARIOUS STAGES STARTING WITH THE FILING OF RETURN AND ENDING WITH THE ISSUANCE OF NO TICE OF DEMAND U/S.156 OF THE ACT. THE AMOUNT OF TAX CAN BE DETERMINED ONLY ON TH E CONCLUSION OF ASSESSMENT. WHEN WE SEE THE EXPRESSION AMOUNT OF TAX DETERMINE D IN JUXTAPOSITION TO ANY ORDER U/S.143(3), IT BECOME MANIFEST THAT THE REFE RENCE IN THE PROVISION IS TO ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 6 DETERMINATION OF THE FINAL AMOUNT OF TAX WHICH IS D ISTINCT FROM INCOME ASSESSED OR THE AMOUNT OF LOSS COMPUTED OR THE STATUS UNDER WHI CH THE ASSESSEE IS ASSESSED. 11. THE HONBLE SUPREME COURT IN AUTO AND METAL ENGINEERS AND OTHERS VS. UNION OF INDIA AND OTHERS [(1998) 229 ITR 399 ( SC)] HAS HELD THAT THE PROCESS OF ASSESSMENT INVOLVES (I) FILING OF RETURN OF INCO ME U/S.139 OR U/S.142 IN RESPONSE TO NOTICE ISSUED U/S.142(1); (II) INQUIRY BY THE A. O. IN ACCORDANCE WITH THE PROVISIONS OF SECTIONS 142 AND 143; (III) MAKING OF ORDER OF ASSESSMENT BY THE A.O. U/S.143(3) OR 144; AND (IV) ISSUING OF THE NOTICE O F DEMAND U/S.156 ON THE BASIS OF THE ORDER OF ASSESSMENT. IT HAS BEEN LAID DOWN THAT THE PROCESS OF ASSESSMENT THUS COMMENCES WITH THE FILING OF THE RETURN OR WHEN A R ETURN IS NOT FILED, BY THE ISSUANCE BY THE A.O. OF THE NOTICE TO FILE THE RETU RN U/S.142(1) AND IT CULMINATES WITH THE ISSUANCE OF THE NOTICE OF DEMAND U/S.156. 12. IN AN EARLIER JUDGEMENT, THE HONBLE A PEX COURT IN KALYANKUMAR RAY VS. CIT [(1991) 191 ITR 634 (SC)] CONSIDERED THE MEANING OF THE WORDS ASSESSMENT ORDER AS NOT ONLY THE ASSESSMENT OF THE TOTAL INCO ME BUT ALSO THE DETERMINATION OF TAX. IN THIS CASE IT HAS BEEN HELD THAT ITNS-150 IS ALSO A FORM FOR DETERMINATION OF TAX PAYABLE AND WHEN IT IS SIGNED OR INITIALED BY T HE ITO IT IS CERTAINLY AN ORDER IN WRITING BY THE ITO DETERMINING THE TAX PAYABLE. 13. FROM THE RATIO DECIDENDI OF THE ABOVE REFERRED TWO APEX COURT JUDGEMENTS, IT IS DISCERNIBLE THAT THE `DETERMINAT ION OF TAX REFERS TO FINDING OUT THE AMOUNT FINALLY PAYABLE BY THE ASSESSEE FOR WHIC H NOTICE OF DEMAND IS ISSUED. WHEN WE CLOSELY EXAMINE THE EXPRESSION AMOUNT OF T AX DETERMINED IN SECTION 246A(1)(A), THERE REMAINS NO DOUBT WHATSOEVER THAT IT ALSO REFERS TO THE DETERMINATION OF THE SUM FINALLY PAYABLE BY THE ASS ESSEE. IT DOES NOT REFER TO MERE CALCULATION OF INCOME TAX ON THE AMOUNT OF TOTAL IN COME BY APPLYING THE RATES OF TAX. CALCULATION OF THE AMOUNT OF TAX PAYABLE ON TH E TOTAL INCOME IS A PART OF THE OVERALL PROCESS OF DETERMINING THE SUM FINALLY PAYA BLE BY THE ASSESSEE. IT IS THIS ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 7 FIRST CALCULATION WHICH IS TAKEN FURTHER FOR ADJUST ING THE AMOUNT OF TAX PAID BY THE ASSESSEE AS PRE OR POST THE CLOSING OF THE PREVIOUS YEAR. AFTER ADJUSTING THE TAXES PAID BY THE ASSESSEE AS ADVANCE TAX OR SELF-ASSESSM ENT TAX AND ALLOWING CREDIT FOR THE AMOUNT OF TAX DEDUCTED AT SOURCE OR WITHHELD U/ SS.90 / 91, THE SUM FINALLY PAYABLE BY THE ASSESSEE IS DETERMINED FOR WHICH NOT ICE OF DEMAND IS ISSUED U/S 156. WHEN WE CONSIDER THE MEANING OF TAX DETERMINED AS REFERRING TO THE DETERMINATION OF THE SUM PAYABLE BY THE ASSESSEE, I T BECOMES VIVID THAT NOT ONLY THE CALCULATION OF TAX ON THE TOTAL INCOME BUT ALSO THE ADJUSTMENT OF TAXES PAID BY OR ON BEHALF OF THE ASSESSEE, IS ALSO COVERED WITH IN THE DETERMINATION OF SUM PAYABLE BY THE ASSESSEE U/S.156 OF THE ACT. 14. THE HONBLE BOMBAY HIGH COURT IN CALTEX OIL REFINING (INDIA) LTD. VS. CIT [(1993) 202 ITR 375 (BOM.)] CONSIDERED A CASE IN WHICH INTERPRETATION OF SECTI ON 246 WAS INVOLVED. IN THIS CASE THE ITO ASSESSED TOT AL INCOME OF THE ASSESSEE AT RS.82.72 LAKHS AND ALLOWED INTEREST U/S.214 OF THE ACT. THE TRIBUNAL REDUCED THE TOTAL INCOME TO RS.80.70 LAKHS. WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE ITO OBSERVED THAT THE INTEREST PAYABLE TO THE ASSES SEE U/S.214 WOULD REMAIN UNCHANGED. THE ASSESSEE WENT IN APPEAL BEFORE THE A PPELLATE ASSISTANT COMMISSIONER ALLEGING THAT THE INTEREST OUGHT TO HA VE BEEN RECALCULATED U/S.214 OF THE ACT. THE APPEAL WAS DISMISSED BY THE AAC AS NO T MAINTAINABLE ON THE GROUND THAT NO APPEAL WAS PROVIDED FOR IN RESPECT OF INTER EST U/S.214 OF THE ACT. WHEN THE MATTER FINALLY CAME UP BEFORE THE HONBLE BOMBAY HI GH COURT, IT CONSIDERED THE PROVISIONS OF SECTION 246 AS WERE APPLICABLE IN RES PECT OF THE FIRST APPEAL AT THE MATERIAL TIME. CLAUSE (C) OF SECTION 246 IS IN PARI MATERIA WITH SECTION 246A(1)(A) (AS RELEVANT TO THE YEAR UNDER CONSIDERATION). IT W AS NOTED THAT THERE WAS A RESTRICTION THAT AN APPEAL AGAINST SUCH ORDER LIES ONLY WHERE THE ASSESSEE OBJECTS INTER ALIA (II) TO THE AMOUNT OF TAX DETERMINED. IT WAS HELD THAT THE QUESTION OF INTEREST U/S.214 SHALL FALL UNDER THIS PART OF SECT ION 246 AS AN OBJECTION TO THE AMOUNT OF TAX DETERMINED. CONSIDERING THE JUDGEMENT OF THE HONBLE SUPREME ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 8 COURT IN M.CHOCKALINGAM AND M.MEYYAPPAN VS. CIT [1963) 48 IT R 34 (SC)], THE HONBLE JURISDICTIONAL HIGH COURT HELD THAT THERE W AS NO SCOPE FOR DOUBT : THAT AN ASSESSMENT U/S.143(3) WOULD INCLUDE NOT ONLY THE DE TERMINATION OF AMOUNT OF TAX CALCULATED AT THE RATE PRESCRIBED UNDER THE FINANCE ACT BUT ALSO INTEREST OR ANY OTHER THING WHICH HAS THE EFFECT OF REDUCING OR ENHANCING THE T OTAL AMOUNT PAYABLE BY THE ASSESSEE UNDER SUCH ASSESSMENT . ON A FAIR READING OF THIS JUDGEMENT, IT BECOMES PALPABLE THAT THE SAME EXPRESSION, VIZ, AMOUNT OF TAX DETERMINED AS EMPLOYED IN SECTION 246A(1)(A), ENCOMPASSES NOT ONLY THE DET ERMINATION OF THE AMOUNT OF TAX ON THE TOTAL INCOME BUT ALSO ANY OTHER THING WHICH HAS THE EFFECT OF REDUCING OR ENHANCING THE TOTAL AMOUNT PAYABLE BY THE ASSESSEE. AS THE QUESTION OF NOT ALLOWING RELIEF IN RESPECT OF WITHHOLDING TAX U/SS. 90/91, HAS THE DIRECT EFFECT OF REDUCING THE REFUND OR ENHANCING THE AMOUNT OF TAX PAYABLE, IN OUR CONSIDERED OPINION, SUCH AN ISSUE IS SQUARELY COVERED WITHIN T HE AMBIT OF SECTION 246A(1)(A). 15. THIS CASE CAN BE EXAMINED FROM ANOTHER ANGLE AS WELL. FROM THE PRESCRIPTION OF CLAUSE (A) OF SECTION 246A(1) IT IS NOTICED THAT THE ASSESSEE HAS BEEN EMPOWERED TO FILE APPEAL AGAINST ALL THE FACET S OF DETERMINATION OF TAX IN AN ASSESSMENT U/S.143(1), 143(3) OR 144. IT NOT ONL Y INCLUDES A CASE WHERE THE ASSESSEE DENIES HIS LIABILITY TO TAX, BUT ALSO COVE RS ALL OTHER ISSUES WHICH HAVE THE EFFECT OF REDUCING THE REFUND OR ENHANCING THE TAX LIABILITY OF THE ASSESSEE SUCH AS THE AMOUNT OF INCOME ASSESSED, THE AMOUNT O F LOSS COMPUTED, THE STATUS UNDER WHICH THE ASSESSEE IS ASSESSED OR THE AMOUNT OF TAX DETERMINED. THIS PROVISION HAS BEEN WORDED VERY WIDELY FOR THE REDRESSAL OF GRIEVANCES OF THE ASSESSEE ON ANY ASPECT OF DETERMINATION OF THE AMOUNT OF TAX. IF THE EXPRESSION `AMOUNT OF TAX DETERMINED IS NARROWLY C ONSTRUED AS CABINING TO THE CALCULATION OF TAX ASPECT ONLY BY APPLYING THE RELEVANT RATES, AS HAS BEEN DONE BY THE LEARNED CIT(A) , IT WOULD SET TO NAUGHT THE LANGUAGE OF SECTION. ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 9 16. IT IS NOTICED THAT A PROVISION, IN TH E SHAPE OF SECTION 246A, HAS BEEN EMBODIED IN THE ACT GIVING RIGHT TO THE ASSESSEE T O FILE APPEAL BEFORE THE COMMISSIONER (APPEALS). THE LANGUAGE OF THE SECTION IS SUCH AS TO ENVISAGE DIFFERENT ASPECTS OF ASSESSMENT WHICH HAVE THE EFFE CT OF DETERMINING THE TAX LIABILITY OF THE ASSESSEE. IF WE ACCEPT THE VIEW PO INT OF THE LEARNED CIT(A), THAT THE APPEAL IS NOT MAINTAINABLE IN RESPECT OF NON-ALLOWI NG OF RELIEF FOR TAX WITHHELD U/SS.90 / 91, IT WOULD AMOUNT TO VIOLATING THE LANG UAGE OF THIS SECTION, WHICH HAS OTHERWISE GIVEN THE RIGHT TO THE ASSESSEE TO APPEAL BROADLY AGAINST ON ANY ASPECT OF THE AMOUNT OF TAX DETERMINED. 17. WE ARE REMINDED OF THE JUDGEMENT OF THE HONBLE SUPREME COURT IN CIT VS. ASHOKA ENGINEERING CO. [(1992) 194 ITR 645 (SC) ] IN WHICH THE QUESTION OF RIGHT OF APPEAL WAS CONSIDERED. IT WAS HELD THAT AL THOUGH THERE IS NO INHERENT RIGHT OF APPEAL TO ANY ASSESSEE, IT HAS TO BE SPELT FROM THE WORDS OF THE STATUE, IF ANY, PROVIDING FOR AN APPEAL, YET IT IS EQUALLY A SETTLE D PROPOSITION OF LAW THAT : IF THERE IS A PROVISION CONFERRING A RIGHT OF APPEAL, IT SHO ULD BE READ IN A REASONABLE, PRACTICAL AND LIBERAL MANNER. SIMILAR VIEW WAS TAK EN EARLIER IN GOPI LAL VS. CIT [(1967) LXV ITR 477 (PUNJAB)] . IN THIS CASE ALSO IT WAS HELD THAT STATUTE PERTAI NING TO RIGHT OF APPEAL SHOULD BE GIVEN A LIBERAL CONSTR UCTION SINCE THEY ARE REMEDIAL. A RIGHT OF APPEAL SHOULD NOT BE RESTRICTED OR DENIED UNLESS SUCH A CONSTRUCTION IS UNAVOIDABLE. THE HONBLE COURT WENT FURTHER TO HOL D THAT : IN CASE OF DOUBT THE APPEAL SHOULD ALSO BE ALLOWED RATHER THAN DENIED. IN THE LIGHT OF THE ABOVE PRECEDENTS FAVOURING A REASONABLE, PRACTICAL AND LIBERAL INTERPRETATION TO A PROVISION CONFERRING A RIGHT OF APPEAL, WE ARE OF T HE CONSIDERED OPINION THAT THE EXPRESSION AMOUNT OF TAX DETERMINED USED IN SECTI ON 246A(1)(A) SHOULD BE WIDELY CONSTRUED AS COVERING ALL ASPECTS UPTO THE D ETERMINATION OF FINAL TAX LIABILITY. IT SHOULD NOT BE LIMITED ONLY TO THE CALCULATION OF TAX ON THE TOTAL INCOME AS PER THE PRESCRIBED RATES OF TAXATION. IN THAT VIEW OF THE MATTER, THE ADJUDICATION BY THE LD. CIT(A) ON THE QUESTION OF NOT GRANTING R ELIEF IN RESPECT OF TAXES PAID BY ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 10 THE ASSESSEE OR TAX DEDUCTED AT SOURCE OR TAX WITHH ELD U/SS 90/91 ON BEHALF OF THE ASSESSEE, HAS TO BE CONSTRUED AS THE PART OF THE PR OCESS OF DETERMINATION OF TAX, COVERED UNDER CLAUSE (A) OF SECTION 246A(1). 18. WE, THEREFORE, HOLD THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN DISMISSING THE APPEAL OF THE ASSESSEE AS NOT MAINTAINABLE ON T HE ASPECT OF NOT ALLOWING OF CREDIT BY THE AO OF TAX WITHHELD ON BEHALF OF THE A SSESSEE U/SS 90 AND 91. AS THERE IS NO DISPUTE REGARDING THE QUANTUM OF SUCH TAX WI THHELD AT RS.8,38,764, WHICH WAS CLAIMED IN THE COMPUTATION OF TOTAL INCOME AND DETAILS HAVE BEEN MADE AVAILABLE AT PAGE 20 OF THE PAPER BOOK, WE HOLD THA T THE ASSESSING OFFICER OUGHT TO HAVE INCLUDED THIS AMOUNT IN ITNS-150A FOR THE PUR POSES OF COMPUTING THE AMOUNT REFUNDABLE TO THE ASSESSEE. WE, THEREFORE, SET ASIDE THE IMPUGNED ORDER AND DIRECT THE ASSESSING OFFICER TO MODIFY ITNS-150 A AND GRANT THE CONSEQUENTIAL REFUND DUE WHICH HAS NOT BEEN ALLOWED. 19. IN VIEW OF OUR ABOVE CONCLUSION THAT THE APPEAL LIES TO THE LEARNED CIT(A) U/S.246A(1)(A), THERE IS NO NEED TO EMBARK UPON TH E APPLICABILITY OR OTHERWISE OF CLAUSE (I) OF SECTION 246A(1), WHICH WAS ARGUED BY THE LEARNED A.R. IN ALTERNATIVE. 20. IN THE RESULT, THE APPEAL IS ALLOWED. ORDER PRONOUNCED ON THIS 26 TH DAY OF NOVEMBER, 2010. SD/- SD/- ( VIJAY PAL RAO ) ( R.S.SYAL ) JUDICIAL MEMBER ACC OUNTANT MEMBER MUMBAI : 26 TH NOVEMBER, 2010. DEVDAS* ITA NO.1164/MUM/2010 M/S.CAPGEMINI BUSINESS SERVICES (INDIA) LTD. 11 COPY TO : 1. THE APPELLANT. 2. THE RESPONDENT. 3. THE CIT CONCERNED 4. THE CIT(A) - II, MUMBAI. 5. THE DR/ITAT, MUMBAI. 6. GUARD FILE. TRUE COPY. BY ORDER ASSISTANT REGISTRAR, ITAT, MUMBAI.