M/s. Kale Khan Mohd. Hanif, Bhopal V. The ACIT 2(1), Bhopal

ITA 147/IND/2014

• Counselvise Citation: [2016] 133 COUNSELVISE.COM (IT) 5760 (ITAT-INDORE)
• Duration Of Justice: 1 year(s) 11 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-02-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 2010-2011
• Appeal Filed On: 24-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: R A VERMA
• Keywords: Opportunity of being heard
• Section: 244A

Judgement Text

M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 1 IN THE INCOME TAX APPELLATE TRIBUNAL SMC BENCH, INDORE BEFORE SHRI D.T. GARASIA, HONBLE JUDICIAL MEMBER ITA NO. 147/IND/2014 A.Y. 2010-11 ::: APPELLANT M/S KALE KHAN MOHD. HANIF BHOPAL PAN AADFK1421A VS ASSTT. COMMISSIONER OF INCOME TAX 2(1),BHOPAL ::: RESPONDENT APPELLANT BY WRITTEN SUBMISSIONS RESPONDENT BY SHRI R.A. VERMA DATE OF HEARING 16.12.2015 DATE OF PRONOUNCEMENT 8 . 2 .2016 O R D E R THIS APPEAL HAS BEEN FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LEARNED CIT(A)-I, BHOPAL, DATED 24.1.201 4. M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 2 2. THE SUM AND SUBSTANCE OF THE GROUNDS OF APPEAL IS THAT THE LEARNED CIT(A) WAS NOT JUSTIFIED IN GIVING DI RECTION TO THE ASSESSING OFFICER TO GRANT INTEREST U/S 244A OF THE ACT ON THE REFUND AMOUNT DETERMINED U/S 143(1) AS THE SAID DIRECTION IS CONTRARY TO THE PROVISIONS OF SECTI ON 244A AND THE LAW ENUNCIATED BY THE HON'BLE SUPREME COURT I N THE CASE OF CIT VS. HEG LIMITED; 324 ITR 331 (SC) AND INDIA TRADE PROMOTION ORGANISATION; 263 CTR (DEL) 18. 2. NONE ATTENDED ON BEHALF OF THE ASSESSEE. HOWEVER, WRITTEN SUBMISSIONS WERE FILED. THE LEARNED DR WAS H EARD. 3. THE FACTS, IN BRIEF, ARE THAT THE ASSESSEE FILED RET URN OF INCOME ON 15.10.2010 DECLARING TAXABLE INCOME OF RS.36,130/-. THE RETURN WAS PROCESSED U/S 143(1) OF THE ACT ON 24.2.2011 BY ACIT(CPC), BANGALORE DETERMINING THE TAXABLE INCOME AT THE AMOUNT OF RS.36,130/- AS RETURNE D M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 3 BY THE ASSESSEE AND WORKED OUT THE REFUND PAYABLE AT RS.7,88,836/- AND INTEREST U/S244A OF RS.47,328/- ON THE REFUND RESULTING INTO TOTAL REFUND OF RS.8,36,164/-. HOWEVER, THE OUTSTANDING DEMAND FOR A.Y. 2002-03 OF RS.60,489/- AND INTEREST U/S 220(2) OF RS.604/- WAS ADJUSTED AND THE BALANCE REFUND OF RS.7,75,067/- WAS DETERMINED ON 24.2.2011 BUT WAS ISSUED ON 24.2.2012 OF RS.7,75,067/- TO THE ASSESSEE FOR THE ASSESSMENT YEAR 2010-11. WITH THIS ACTION OF THE ASSESSING OFFICER, THE ASSESSEE FELT AGGRIEVED AND APPEALED BEFORE THE LEARNED CIT(A) WHO DIRECTED THE ASSESSING OFFICER TO GRANT I NTEREST UPTO THE DATE OF ISSUE OF THE REFUND I.E. FOR THE RE MAINING PERIOD. AGAINST THIS DIRECTION OF THE LEARNED CIT(A) , THE ASSESSEE IS IN APPEAL BEFORE THE TRIBUNAL. 4. IN THE WRITTEN SUBMISSIONS, THE LEARNED COUNSEL FOR THE ASSESSEE HAS SUBMITTED AS UNDER :- M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 4 1. THAT SEQUENCE OF EVENTS FOR THE SUBJECT YEAR I.E AY 2010-11 ARE AS UNDER : DATE PARTICULARS 24.02.2011 NET AMOUNT REFUNDABLE QUANTIFIED AS PER INTIMATION U/S 143(1) [ COPY ENCLOSED AT PAGE NO. 4 ] SHOWS REFUND QUANTIFIED AT RS. 7,75,067 24.02.2012 REFUND QUANTIFIED AT RS. 7,75,067 ON 24.02.2011 AND REFUND GRANTED BY STATE BANK OF INDIA ON 24.02.2012 [ COPY ENCLOSED AT PAGE NO. 5 ] 2. THE ASSESSEE SUBMITS THAT AS LAID DOWN BY HONBLE M P HIGH COURT IN THE CASE OF OMPRAKASH AGARWAL VS UOI , (2013) 21 ITJ 85 (MP) TH AT A CITIZEN CANNOT BE DEPRIVED OF HIS MONEY WHEN HE IS NOT LIABLE TO PAY TO THE REVENUE AND IF THE MONEY OF A CITIZEN/ASSESSEE HAS BEEN RETAINED BY THE DEPA RTMENT/CENTRAL GOVT. IS LIABLE TO MAKE PAYMENT OF INTEREST. 3. HENCE THE CALCULATION OF REFUND BY THE ASSESSEE IS AS UNDER :- PARTICULARS AMOUNT [IN RS] PRINCIPAL AMOUNT REFUNDABLE ON 24.02.2011 BUT REFUNDED ON 24.02.2012 I.E AFTER DELAY OF 12 MONTHS 7,75,087 INTEREST ON RETAINED AMOUNT FROM 24.02.2011 TO 24.02.2012 FOR 12 MONTHS 46,505 TOTAL 8,21,592 4. THE ASSESSEE THEREFORE SUBMITS THAT THE LEARNED CIT (A) FAILED TO APPRECIATE THAT THE AFORESAID REFUND DUE TO THE ASSESSEE HAD TWO COMPO NENTS. FIRST BEING OF RS. 7,75,085 WHICH BECAME QUANTIFIED IN INTIMATION U/S 143(1) AND DUE ON 24.2.2011 BUT REFUNDED TO THE ASSESSEE ON 24.2.2012 AS EVIDENT FROM THE REFUND CHEQUE ISSUED BY THE STATE BANK OF INDIA [ COPY ENCLOSED A T PAGE NO. 5 ] WITHOUT PAYMENT OF INTEREST AND THE SECOND COMPONENT WAS OF RS. 46, 505 BECOMING DUE ON 24.2.2012 FOR INTEREST ACCRUING FROM 24.2.2011 TO 24.2.2012 ON DELAYED REFUND OF FIRST COMPONENT. 5. THE ASSESSEE FURTHER SUBMITS THAT THE AFORESAID SUM OF RS. 46,505 PAR TOOK THE CHARACTER OF REFUND AND NOT GRANTED AFTER 24.2.201 2 . IT IS THEREFORE REQUESTED THAT FURTHER REFUND OF RS. 46,505 BE DIRECTED TO BE ALLO WED TILL THE DATE OF ITS REFUND FOR FOLLOWING REASONS :- M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 5 (A) THE APEX COURT AFFIRMING THE DECISION OF M P HIGH COURT IN THE CASE OF CIT VS HEG LTD., REPORTED IN (2009) 310 ITR 341 (MP) H ELD IN ITS JUDGMENT REPORTED (2010) 324 ITR 331 (SC) THAT THE INTEREST COMPONE NT WILL PARTAKE THE CHARACTER OF THE AMOUNT DUE U/S 244A . RELIANCE IS ALSO PLACED ON THE DECISION IN THE CASE OF INDIA TRADE PROMOTION ORGANISATION VS CIT , REPORTED IN 361 ITR 646 (DEL). IN CIRCUMSTANCES WHEN THE AFORESAID SUM OF RS. 46,505 WHICH AMOUNT BECOME DUE IS READ WITH SEC. 244A(1) ALONGWITH SEC . 244 IT WILL ENSURE INTEREST ALSO FROM 24.2.2012 TILL IT IS REFUNDED. HENCE IT IS PRAYED THAT THE LEARNED AO BE KINDLY DIRECTED TO GRANT THE REFUND ALONGWITH THE INTEREST FROM 24.2.2012 TO THE DATE OF THE REFUND IS GRANTED. 5. AFTER CONSIDERING THE WRITTEN SUBMISSIONS OF THE ASSESSEE AND THE ARGUMENTS OF THE LEARNED DR, I AM OF TH E VIEW THAT THE SUBMISSIONS OF THE ASSESSEE ARE REQUIRED TO BE CONSIDERED AT THE LEVEL OF THE ASSESSING OFFICER. I, THEREFORE, IN THE INTEREST OF JUSTICE AND FAIR PLAY, DIRECT THE ASSESSING OFFICER TO CONSIDER THE ABOVE SUBMISSIONS OF THE ASSESSEE AND THEREAFTER ISSUE REFUND OF THE DUE AMOUNT AND INTEREST THEREON TILL THE DATE OF ISSUE OF REFUND , AFTER ALLOWING THE ASSESSEE AN OPPORTUNITY OF BEING HEARD. 6. IN THE RESULT, THE APPEAL OF THE ASSESSEE STANDS ALLO WED FOR STATISTICAL PURPOSES. M/S KALE KHAN MOHD. HANIF,BHOPAL ITA NO. 147/IND/2014 6 PRONOUNCED IN OPEN COURT ON 8 TH FEB., 2016 SD/- (D.T. GARASIA) ACCOUNTANT MEMBER 8 TH FEB., 2016 DN/-