The Deputy Commissioner of Income Tax (Exemptions), Circle-2, Ahmedabad V. M/s. Kandla Port Trust, Gandhidham

ITA 1165/AHD/2018

• Counselvise Citation: [2019] 116 COUNSELVISE.COM (IT) 4683 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Assessment Year: 2003-2004
• Appeal Filed On: 07-05-2018
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: J P SHAH
• Keywords: TDS; Set aside
• Section: 244A; 11

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH (BEFORE SHRI MAHAVIR PRASAD, JUDICIAL MEMBER & SHRI AMARJIT SINGH, ACCOUNTANT MEMBER) ITA. NOS: 1165 & 1166/AHD/2018 (ASSESSMENT YEARS: 2003-04 & 2009-10) DY. COMMISSIONER OF INCOME-TAX (EXEMPTIONS), CIRCLE-2, AHMEDABAD V/S M/S. KANDLA PORT TRUST A.O BUILDING TAGORE ROAD, P.O. BOX NO. 50, GANDHIDHAM (APPELLANT) (RESPONDENT) PAN:AAALK0046N APPELLANT BY : SHRI MUDIT NAGPAL, SR. D. R. RESPONDENT BY : SHRI J.P. SHAH, A.R. ( )/ ORDER DATE OF HEARING : 29 -07-201 9 DATE OF PRONOUNCEMENT : 30 -07-2019 PER MAHAVIR PRASAD, JUDICIAL MEMBER 1. THESE APPEALS FILED BY THE REVENUE ARE DIRECTED AGA INST THE ORDER OF THE LD. CIT(A)-3, RAJKOT DATED 29.01.2018 PERTAINING TO A.Y S. 2003-04 & 2009-10 AND SOLELY GROUNDS HAVE BEEN TAKEN IN BOTH THE APPEALS THAT LD. CIT(A) HAS ERRED IN ITA NOS. 116 5 & 1166/AHD/2018 . A.YS. 2003-0 4 & 2009-10 2 LAW AND ON FACTS IN DIRECTING THE A.O. TO COMPUTE T HE INTEREST U/S. 244A OF THE ACT ON SELF ASSESSMENT TAX WITHOUT APPRECIATING THE FACT THAT NO INTEREST U/S. 244A OF THE ACT IS ALLOWABLE ON THE REFUND DUE TO T HE ASSESSEE ON THE SELF- ASSESSMENT TAX. 2. SINCE FACTS AND CIRCUMSTANCES AND ISSUES ARE COMMON IN BOTH THE APPEALS ONLY FIGURES AND ASSESSMENT YEARS ARE DIFFERENT, THEREFO RE, FOR THE SAKE OF CONVENIENCE, WE WOULD LIKE TO DISPOSE OF BOTH THE A PPEALS BY WAY OF A COMMON ORDER. 3. THE FACTS OF THE CASE ARE AS EMANATES FROM THE A.O. ORDER: IN THIS CASE, THE ASSESSEE HAS FILED RECTIFICATION APPLICATION DATED 18/06/2016 BY STATING THAT THERE IS REFUND OF RS,4, 35,55,33,105/- WITH INTEREST U/S 244A OF THE ACT PENDING. ON VERIFICATI ON OF THE CASE RECORDS OF THE ASSESSEE, IT WAS NOTICED THAT THE ASSESSEE H AS BEEN GRANTED ENTIRE CREDITS OF PREPAID TAXES IN THE LATEST ORDER OF HON 'BLE ITAT SET ASIDE ORDER, TAXABLE INCOME WAS RE-DETERMINED TO THE TUNE OF RS.1,52,21,90,610/-, THUS CREDIT OF PRE PAID TAXES ALLOWABLE COME TO RS.59,45,32,257/- AND TAX DEMAND RAISED COME TO RS. 59,45,32,257/-, HENCE NET TAX PAYABLE OR REFUNDABLE COME TO NIL. THEREFORE, THIS OFFICE HAS ISSUED LETTER ON 26/07/2 016 GIVING DUE OPPORTUNITY TO THE ASSESSEE BY STATING THAT AS PER THIS OFFICE RECORDS, THERE IS NO REFUND OR INTEREST PENDING TO BE ISSUED FOR THIS RESPECTIVE ASSESSMENT YEAR, IF ANY OBJECTION ON THIS ISSUE, FU RNISH YOUR REPLY ON OR BEFORE 02/08/2016. IN RESPONSE TO THE AFORE SAID LETTER DATED 26/06/20 16 THAT THE ASSESSEE HAS FILED REPLY ON 02/08/2016, THE ASSESSEE HAS FUR NISHED WRITTEN REPLY WITHOUT SUPPORTING DOCUMENTS WHICH READ AS UNDER: - 'ITAT VIDE ORDER DATED 28/05/2015 ISSUED THE DIRECTI ON TO AO TO EXAMINE THE CLAIM OF DEDUCTION U/S 11 TO 13 OF IT ACT IN VI EW OF THE RETROSPECTIVE ITA NOS. 116 5 & 1166/AHD/2018 . A.YS. 2003-0 4 & 2009-10 3 GRANT OF REGISTRATION IN JUNE 2008 BY CIT-RAJKOT. T HE AO HAS TO GIVE THE APPEAL EFFECT OF THE ORDER OF THE ITAT WHICH IS A/R EADY DELAYED AS KPT HAS ALREADY SUBMITTED THE FORM NO. 10 AND AUDIT REPORT IN FORM NO.WB AND OTHER DETAILS TO JUSTIFY THE DEDUCTION U/S 11 TO 13 . AS THE TAX PAYABLE IS NIL IN VIEW OF THE ABOVE ENTIRE AMOUNT OF ADVANCE T AX, TDS, SELF ASSESSMENT TAX AND DEMAND OF TAX PAID BECOMES REFUN DABLE ALONG WITH INTEREST AS PER THE CALCULATION ALREADY SUBMITTED.' THE SUBMISSION OF THE ASSESSEE IS DULY VERIFIED AND FOUND INCORRECT, HON'BLE ITAT'S ORDER EFFECT ALREADY GRANTED ON 17/0 7/2015 AND REVISED TAXABLE INCOME RE-DETERMINED TO THE TUNE OF RS.1,15 ,21,90,610/-. THE SAID APPEAL EFFECT ALSO DULY SERVED UPON THE ASSESS EE ON 31/07/2015. THEREFORE, RECTIFICATION APPLICATION FILED IS HEREB Y REJECTED AND TREATED AS FILED FOR THE FOLLOWING GROUNDS:- > THE ASSESSEE HAS NOT FURNISHED ANY SPECIFIC CRE DITS WHICH ARE PENDING TO BE GRANTED > THE HON'BLE ITAT'S ORDER EFFECT ALREADY GRANTED AND COPY OF ORDER SERVED UPON THE ASSESSEE ON 31/07/2015. > THERE IS NO PRE-PAID TAXES OR TDS PENDING TO BE GRANTED > APPLICABLE INTEREST U/S 244A OF THE ACT ALREADY GRANTED IN THE ORDER APPEAL EFFECT DATED 27/12/2004. > THE ASSESSEE HAS BEEN GRANTED REASONABLE OPPORT UNITY TO FURNISH EVIDENCES IN SUPPORT OF THIS RECTIFICATION APPLICAT ION. AS SUCH, THERE IS NO APPARENT MISTAKE ON RECORDS TO RECTIFY, THEREFORE APPLICATION FOR RECTIFICATION FILED IS HEREBY REJEC TED AND TREATED AS FILED. 4. AGAINST THE ORDER OF THE LD. A.O., ASSESSEE PREFERR ED FIRST STATUTORY APPEAL BEFORE THE LD. CIT(A) WHO ALLOWED THE APPEAL OF THE ASSESSEE. 5. NOW BY WAY OF SECOND STATUTORY APPEAL, REVENUE HAS COME BEFORE US. 6. THE QUESTION IS BEFORE US IS WHETHER ASSESSEE IS LI ABLE TO GET REFUND ON INTEREST OF SELF-ASSESSMENT TAX U/S. 244A OF INCOME TAX ACT IS OR NOT. SECTION 244 IS ITA NOS. 116 5 & 1166/AHD/2018 . A.YS. 2003-0 4 & 2009-10 4 SPEAKS ABOUT INTEREST ON REFUND WHEREIN IT IS MENTI ONED THAT WHERE REFUND OF ANY AMOUNT BECOME DUE TO THE ASSESSEE UNDER THIS ACT, H E SHALL, SUBJECT TO THE PROVISION OF SECTION, BE ENTITLED TO RECEIVE, IN ADDITION TO SAID AMOUNT SIMPLE INTEREST THEREON. 7. SEVERAL HIGH COURTS AND THE HONBLE SUPREME COURT H AD DECIDED THESE KIND OF MATTER IN FAVOUR OF ASSESSEE: A) CIT VS HEG LTD 324 TAXMAN 331 (SC) SECTION 244A OF THE INCOME-TAX ACT, 1961 - REFUNDS - INTEREST ON -ASSESSMENT YEAR 1993-94 - DURING ASSESSMENT YEAR 1993-94 AMOUN T PAID BY ASSESSEE TOWARDS TDS WAS RS. 45,73,528 - TAX PAID AFTER ORIG INAL ASSESSMENT WAS RS. 1,70,00,320 - ASSESSEE WAS ENTITLED TO REFUND OF RS . 2,16,73,848 (CONSISTING OF RS. 1,71,00,320 AND RS. 45,73,528) WHICH PAYMENT WAS MA DE AFTER 57 MONTHS - IT CLAIMED STATUTORY INTEREST FOR DELAYED REFUND OF RS . 45,73,528 FOR 57 MONTHS BETWEEN 1-4-1993 AND 31-12-1997 IN TERMS OF SECTION 244A - DEPARTMENT CONTENDED THAT WORDS 'ANY AMOUNT' WOULD NOT INCLUDE INTEREST WHICH ACCRUED TO RESPONDENT FOR NON-REFUNDING OF RS.45,73,528 FOR 57 MONTHS - WHETHER ARGUMENT OF DEPARTMENT COULD NOT BE ACCEPTED, AS INTEREST CO MPONENT PARTAKES OF CHARACTER OF 'AMOUNT DUE' UNDER SECTION 244A - HELD , YES - WHETHER, THEREFORE, ASSESSEE WOULD BE ENTITLED TO INTEREST FOR 57 MONTH S ON RS.45,73,528 - HELD, YES B) HIGH COURT OF GUJARAT AJANTA MANUFACTURING LTD. VS. THE DEPUTY COMMISSION ER OF INCOME - TAX, [2016] 72 TAXMANN.COM 148 (GUJARAT) JULY 27, 2016 IT: WHERE ISSUE OF REFUND ORDER WAS NOT DELAYED FOR ANY PERIOD ATTRIBUTABLE TO ASSESSEE, ASSESSEE WOULD BE ENTITLED TO INTEREST IN TERMS OF SECTION 244A(1)(A) SECTION 244A, READ WITH SECTION 154, OF THE INCOME- TAX ACT, 1961 - REFUNDS - INTEREST ON (ILLUSTRATION) - ASSESSMENT YEAR 2008-0 9 - DURING RELEVANT YEAR ITA NOS. 116 5 & 1166/AHD/2018 . A.YS. 2003-0 4 & 2009-10 5 ASSESSEE RECEIVED INCENTIVE SUBSIDY WHICH WAS ERRON EOUSLY OFFERED TO TAX IN ITS RETURN -COMMISSIONER (APPEALS), HOWEVER, DELETED SU CH RECEIPT FROM ASSESSEE'S TOTAL INCOME RESULTING IN REFUND CLAIM - SUBSEQUENT LY, UNDER RECTIFICATION PROCEEDINGS, ASSESSING OFFICER WITHDREW INTEREST ON REFUND UNDER SECTION 244A(2) ON GROUND THAT ASSESSEE RAISED A BELATED CLAIM DURI NG ASSESSMENT PROCEEDINGS, AND SUCH ACTION WAS FURTHER AFFIRMED BY COMMISSIONE R - WHETHER INTEREST ON REFUND COULD BE WITHHELD IN TERMS OF SUB-SECTION (2 ) OF SECTION 244A, ONLY IF IT WAS FOUND THAT ASSESSEE WAS RESPONSIBLE FOR CAUSING ANY DELAY IN PROCEEDINGS WHICH RESULTED INTO REFUND - HELD, YES - WHETHER MERE FAC T THAT ASSESSEE MADE A CLAIM DURING COURSE OF ASSESSMENT PROCEEDINGS WHICH WAS A LLOWED AT APPELLATE STAGE WOULD NOT IPSO FACTO IMPLY THAT ASSESSEE WAS RESPON SIBLE FOR CAUSING DELAY IN PROCEEDINGS RESULTING INTO REFUND - HELD, YES - WHE THER SINCE ISSUE OF REFUND ORDER WAS NOT DELAYED FOR ANY PERIOD ATTRIBUTABLE TO ASSE SSEE, HE WOULD BE ENTITLED TO INTEREST IN TERMS OF SECTION 244A(1)(A) - HELD, YES [PARAS 16 & 17] [IN FAVOUR OF ASSESSEE] 8. AS MATTERS ARE SQUARELY COVERED BY THE ORDERS OF TH E HONBLE SUPREME COURT AND HONBLE DIFFERENT HIGH COURTS AS WELL AS INCOME TAX ACT PROVISIONS ARE ALSO IN FAVOUR OF ASSESSEE. IN OUR CONSIDERED OPINI ON, LD. CIT(A) HAS PASSED REASONED ORDER AND SAME DOES NOT REQUIRE ANY KIND O F INTERFERENCE AT OUR END. 9. IN THE RESULT, BOTH THE APPEALS FILED BY THE REVENU E ARE DISMISSED. ORDER PRONOUNCED IN OPEN COURT ON 30 - 07- 2019 SD/- SD/- (AMARJIT SINGH) (MAHAVIR PRASAD) ACCOUNTANT MEMBER TRUE COPY JUDICIAL MEMBER AHMEDABAD: DATED 30/07/2019