Sudesh Pathania, Noida V. ITO, New Delhi

ITA 1262/DEL/2010

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 3963 (ITAT-DELHI)
• Duration Of Justice: 2 month(s) 2 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-05-2010
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: G
• Assessment Year: 2004-2005
• Appeal Filed On: 22-03-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: NAMITA
• Assessee Lawyers: PRANAV AGGARWAL
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH G : NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO.1262/DEL./2010 (ASSESSMENT YEAR : 2004-05) MS. SUDESH PATHANIA, VS. ITO, WARD 43 (2), A 903, SHRAM DEEP APARTMENTS, NEW DELHI. B-9/1-B, SECTOR 62, NOIDA (U.P.) (PAN : AAGPP5773P) (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI PRANAV AGGARWAL, CA REVENUE BY : SHRI NAMITA PANDEY, SENIOR DR ORDER PER R.P. TOLANI, JUDICIAL MEMBER : THE ASSESSEE HAS FILED THIS APPEAL AGAINST THE ORDE R OF CIT (APPEALS) FOR THE ASSESSMENT YEAR 2003-04. SOLE GROUND RAIS ED IS AS UNDER :- 1. THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS )- XXX, NEW DELHI [LD. CIT (A)] HAS ERRED BOTH ON FACT S OF THE CASE AND IN LAW IN NOT ALLOWING INTEREST UNDER SECT ION 244A OF THE ACT ON THE REFUND OF RS.165,000 GRANTED TO THE APPELLANT. A. THAT ON FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE APPELLANT CRAVES TO THE HONOURABLE ITAT TO ALLO W INTEREST ON THE ABOVE SAID INTEREST UNDER SECTION 244A, AS D ECIDED BY THE HONOURABLE SUPREME COURT IN THE CASE OF SANDVIK ASI A LTD. VS. CIT (150 TAXMAN 591 SC) SINCE THERE IS DELAY IN GRA NT OF THAT INTEREST. ITA NO.1262/DEL./2010 2 2. LEARNED COUNSEL FOR THE ASSESSEE RELIES ON VARIO US ITAT ORDERS HOLDING THAT OPTIONAL EARLY RETIREMENT BENEFITS RECEIVED BY THE ASSESSEE ARE EXEMPT U/S 10(10C). CONSEQUENTLY, THE ASSESSEE IS ELIGIBLE TO INTEREST ON REFUND GRANTED TO THE ASSESSEE QUA THE TAXES PAID. 3. LEARNED DR, ON THE OTHER HAND, RELIES ON SECTION 244A(2), WHICH IS AS UNDER : IF THE PROCEEDINGS RESULTING IN THE REFUND ARE DE LAYED FOR REASONS ATTRIBUTABLE TO THE ASSESSEE, WHETHER WHOLL Y OR IN PART, THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HIM SHAL L BE EXCLUDED FROM THE PERIOD FOR WHICH INTEREST IS PAYABLE, AND WHERE ANY QUESTION ARISES AS TO THE PERIOD TO BE EXCLUDED, IT SHALL BE DECIDED BY THE CHIEF COMMISSIONER OR COMMISSIONER W HOSE DECISION THEREON SHALL BE FINAL. IT IS PLEADED THAT THE CIT (A) HAS GIVEN A CLEAR FI NDING THAT THE DELAY IN GRANTING OF REFUND IS ATTRIBUTABLE TO THE ASSESSEE SINCE SHE HAD GIVEN A LETTER WITHDRAWING THE CLAIM OF EXEMPTION U/S 10(10C) DURI NG ASSESSMENT PROCEEDINGS. AS PER MANDATE OF SECTION 244A, THE P OWER TO DECIDE THE ISSUE IN THIS BEHALF LIES WITH CCIT OR CIT WHOSE DECISION SHOULD BE FINAL. IT IS PLEADED THAT THE APPEAL OF THE ASSESSEE IS NOT MAIN TAINABLE. 4. WE HAVE HEARD THE RIVAL CONTENTIONS AND PERUSED THE MATERIAL ON RECORD. THE PROVISIONS OF LAW ON THIS ISSUE ARE CLEARLY LAI D DOWN BY SECTION 244A(2), REFERRED TO ABOVE, AND THE JURISDICTION TO DECIDE T HE ISSUE ABOUT DELAY ITA NO.1262/DEL./2010 3 ATTRIBUTABLE TO ASSESSEE LIES WITH CCIT OR CIT. IN THIS VIEW OF THE MATTER, WE HOLD THAT THE ASSESSEES APPEAL IS NOT MAINTAINABLE BEFORE US AND IS ACCORDINGLY DISMISSED AS INFRUCTUOUS. 5. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS DIS MISSED AS INFRUCTUOUS. ORDER PRONOUNCED IN OPEN COURT ON THIS 24 TH DAY OF MAY, 2010 AFTER THE CONCLUSION OF THE HEARING. SD/- SD/- (K.D. RANJAN) (R.P. TOLANI) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED THE 24 TH DAY OF MAY, 2010 TS COPY FORWARDED TO: 1.APPELLANT 2.RESPONDENT 3.CIT 4.CIT(A)-XXX, NEW DELHI. 5.CIT(ITAT), NEW DELHI. AR, ITAT NEW DELHI.