BHARAT PETROLEUM CORPORATION LTD, MUMBAI V. DCIT CIR 2(1), MUMBAI

ITA 1734/MUM/2016

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 0297 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 10 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-02-2018
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 1999-2000
• Appeal Filed On: 23-03-2016
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: L K S DAHIYA
• Assessee Lawyers: KETAN VED SHRI N A PATADE
• Keywords: Opportunity of being heard
• Section: 244A; 246

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH D , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI MANOJ KUMAR AG G ARWAL, HON'BLE ACCOUNTANT MEMBER ITA NO . 1734 /MUM/2016 (A.Y: 1999 - 2000 ) ASSESSEE BY : SHRI KETAN VED SHRI N.A. PATADE DEPARTMENT BY : SHRI L.K.S. DAHIYA DATE OF HEARING : 23.11.2017 DATE OF PRONOUNCEMENT : 16 .02.2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL FILED BY THE ASSESSEE AGAINST THE ORDER OF THE LD.CIT(A) - 4, MUMBAI DATED 18.12.2015 FOR THE ASSESSMENT YEAR 1999 - 2000. 2. ASSESSEE HAS RAISED THE FOLLOWING GROUNDS: - 1. DISMISSING THE APPEAL AS NON - MAINTAINABLE BY HOLDING THAT NO APPEALABLE ISSUE AROSE FROM THE IMPUGNER ORDER: - 1.1 THE COMMISSIONER OF INCOME - TAX HAS ERRED IN HOLDING THE APPELLANTS APPEAL AS NON - MAINTA INABLE AND DISMISSING THE SAME. BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD BPCL TAXATION SECTION, BHARAT BHAVAN II , 4 & 6, CURRIMBHOY ROAD, BALLARD ESTATE , MUMBAI 400 001 PAN NO: AAACB 2902 M V. DY. COMMISSIONER OF INCOME TAX CIRCLE 2(1) , AAYAKAR BHAVAN, M.K. ROAD, MUMBAI - 400 020 (APPELLANT) (RESPONDENT) 2 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD 1.2 THE APPELLANT SUBMITS THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF THE CA SE AND THE LAW ON SUBJECT THE APPELLANTS APPEAL WAS MAINTAINABLE AND THE COMMISSIONER OF INCOME - TAX (APPEALS) OUGH T TO HAVE ADJUDICATED THE SAME. 1.3 THE APPELLANT SUBMITTED THAT THE ASSESSING OFFICER BE DIRECTED TO GIVE FULL AND COMPLETE EFFECT TO THE AFORESAID ORDER OF THE INCOME TAX APPELLATE TRIBUNAL. 2. NON - GRANTING OF INTEREST U/S. 244A ON THE REFUND ARISING OUT OF THE SELF - ASSESSMENT TAX PAID BY TH E APPELLANT: - 2.1 THE ASSESSING OFFICER HAS ERRED IN NOT GRANTING INTEREST U/S. 244A TO THE APPELLANT ON THE REFUND ARISING OUT OF THE SELF - ASSESSMENT TAX PAID BY IT. 2.2 THE APPELLANT SUBMITTED THAT CONSIDERING THE FACTS AND CIRCUMSTANCES OF ITS CASE AND T HE LAW PREVAILING ON THE SUBJECT IT I S ENTITLED TO INTEREST U/S.244A OF THE INCOME TAX ACT, 1961 ON THE REFUND PAYABLE TO IT ARISING OUT OF THE TAX PAID ON SELF - ASSESSMENT. 2.3 THE APPELLANT SUBMITTED THAT THE ASSESSING OFFICER BE DIRECTED GRANT INTEREST U/S. 244A TO IT IN ACCORDANCE WITH LAW AND TO COMPUTE THE AMOUNT OF REFUND ACCORDINGLY . 3. AT THE TIME OF HEARING , LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE OF GRANTING OF INTEREST U/S. 244A (1)(B) ON DELAYED REFUND OF SELF - ASSESSMENT TAX IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD V. CIT [53 TA XMAN.COM 106] , CO P Y OF THE ORDER IS PLACED ON RECORD. LEARNED C OUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2004 - 05 IN ITA.NO. 613 0 /MUM/2014 3 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD AND ITA.NO. 4268/MUM/2016 THE COORDINATE BENCH BY ORDER DATED 12.07.2017 HELD THAT ASSESSEE IS ENTITLED FOR INTEREST U/S. 244A(1) (B) ON THE DELAYED REFUND OF SELF - ASSESSMENT TAX. COPY OF THE ORDER IS PLACED ON RECORD. 4. LD.DR PLAC ING RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT FLUORO CHEMICALS [358 ITR 291] SUBMIT TED THAT ASSESSEE IS ENTITLED FOR INTEREST ONLY IF IT IS PROVIDED FOR UNDER THE STATUTE AS WAS HELD BY THE HON'BLE SUPREME COURT AND SINCE NO INTEREST WAS PROVIDED ON REFUND OF SELF - ASSESSMENT TAX , NO INTEREST IS LIABLE TO BE PAID TO THE ASSESSEE AND THE DECIS ION RELIED ON BY THE ASSESSEE IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD V. CIT (SUPRA) IS NO LONGER GOOD LAW IN VIEW OF THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT FLUORO CHEMICALS (SUPRA) . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW AND THE CASE LAWS RELIED ON. AT THE OUTSET, WE FIND THAT THE LD.CIT(A) REJECTED THE CLAIM OF THE ASSESSEE HOLDING THAT THE APPEAL IS NOT MAINTAINABLE AS THE ASSESSEE CHALLENG ED THE ORDER GIVING EFFECT TO THE TRIBUNAL BEFORE THE LD.CIT(A) WHEREIN INTEREST U/S. 244A(1)(B) WAS NOT GRANTED BY THE LEARNED ASSESSING OFFICER. THE LD. COUNSEL FOR THE ASSESSEE DID NOT ARGUE T HIS ISSUE BEFORE US. I.E. MAINTAINABILITY OF APPEAL 4 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD BEFORE THE LD.CIT(A). HOWEVER, WE FIND THAT THE MAINTAINABILITY OF APPEAL BEFORE THE LD.CIT(A) AGAINST THE CONSEQUENTIAL ORDER PASSED BY THE APPELLATE AUTHORITIES AND NON - GRANTING OF INTEREST IN THOSE CASES CAME UP BEFORE THE HON'BLE JURISDICTIO NAL HIGH COURT IN THE CASE OF CALL TEX OIL REFINING (INDIA) LTD V. CIT [202 ITR 375] WHEREIN IT WAS HELD THAT APPEAL IS MA INTAINABLE BEFORE THE LD.CIT(A) AGAINST NON - GRANTING OF INTEREST. 6. WE ALSO FIND THAT T HE COORDINATE BENCH IN THE CASE OF TATA COMMUNICA TION S LTD V. ACIT IN ITA.NO.8592/ MUM/ 2010 DATED 24.07.2013 CONSIDERED AN ALMOST A SIMILAR SITUATION WHERE THE ASSESSEE FILED APPEAL BEFORE THE LD.CIT(A) AGAINST THE CONSEQUENTIAL ORDER PASSED BY THE ASSESSING OFFICER WHILE GIVING EFFECT TO THE LD.CIT(A) ORDER WHEREIN INTEREST U/S.244A(1)(B) WAS NOT GRANTED. THE APPEAL WAS NOT ENTERTAINED BY THE LD.CIT(A) ON THE GROUND THAT IT IS NOT MAINTAINABLE. T HE COORDINATE BENCH CONSIDERED THE ISSUE AS TO WHETHER AN APPEAL IS MAINTAINABLE BEFORE THE LD.CIT(A) AGAIN ST NOT GRANTING OF INTEREST U/S. 244A AND TAKING NOTE OF THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF CALLTEX OIL REFINING (INDIA) LTD V. CIT (SUPRA), IT WAS HELD THAT AN APPEAL IS MAINTAINABLE BEFORE THE LD.CIT(A). HOWEVER, THE ITAT RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PLEAD ITS CASE WITH REFERENCE TO GRANT OF INTEREST U/S. 244A(1)(B) AS THE 5 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD APPEAL IS NOT MAINTAINABLE. WHILE HOLDING SO THE COORDINATE BENCH OBSERVED AS U NDER: 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATERIAL ON RECORD. THE ISSUE ARISING FOR DETERMINATION IN THE INSTANT CASE IS A PURE LEGAL ISSUE, I.E., WHETHER THE ASSESSEE COULD, DE HORS ITS LIABILITY TO TAX, CONTEST AN ORDER OF ASSESSMENT IN APPEA L ON THE GROUND OF NON - GRANT OF OR OTHERWISE THE QUANTUM OF THE INTEREST GRANTED U/S.244A OF THE ACT. THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT IN THE CASE OF CALTEX OIL REFINING (INDIA) LTD. (SUPRA) RELIED UPON BY THE ASSESSEE HAS BEEN PERUSE D BY US. IN OUR VIEW, THE SAME SQUARELY COVERS THE ISSUE AT HAND. THE DECISION BY THE APEX COURT IN THE CASE OF CENTRAL ITA NO.8592/MUM/2010 (A.Y. 2001 - 02) TATA COMMUNICATIONS LIMITED VS. ASST. CIT PROVINCES MANGANESE ORE CO. LTD. VS. CIT [1986] 160 ITR 96 1 (SC), WHEREIN THE ISSUE INVOLVED WAS THE DENIAL TO LIABILITY AND/OR CHARGE OF INTEREST U/S.215 AT A LESSER AMOUNT, STANDS DULY CONSIDERED AND DISTINGUISHED BY THE HONBLE HIGH COURT. IT IS IN THIS CONTEXT THAT ITS STANDS EXPLAINED THAT CLAUSE (C) OF SECT ION 246 IS IN TWO PARTS, SO THAT THE ASSESSEE'S APPEAL WOULD FALL IN THE SECOND PART, I.E., DISPUTING THE TAX AS DETERMINED VIDE THE ASSESSMENT ORDER. IN VIEW OF OUR FINDING AFORESAID, I.E., OF THE ISSUE UNDER REFERENCE AS BEING SQUARELY COVERED BY THE SAI D DECISION, WE DO NOT CONSIDER IT NECESSARY TO DWELL ON THE OTHER DECISIONS IN THE MATTER SOUGHT TO BE RELIED UPON BY THE ASSESSEE. THE ASSESSEE HAD, THUS, PREFERRED A VALID APPEAL, WARRANTING ADJUDICATION. THE LD. CIT(A) HAVING NOT ADJUDICATED THE MATTER, HOLDING THE SAME AS NOT APPEALABLE, THE MATTER WOULD WARRANT BEING RESTORED BACK TO HIS FILE FOR THE PURPOSE. SO, HOWEVER, AS NOTED EARLIER, IT IS THE ASSESSING AUTHORITY WHO HAS TO GRANT THE SAID INTEREST, AND WHOSE ORDER CONTAINS NO REFERENCE TO ANY REA SON FOR THE NON - GRANT OF THE MANDATORY INTEREST U/S.244A; THE LAW CLEARLY PRESCRIBING THE SAME FOR BEING GRANTED ALONG WITH THE REFUND. UNDER THE CIRCUMSTANCES, WE ONLY CONSIDER IT FIT AND PROPER TO, SETTING ASIDE THE IMPUGNED ORDER, RESTORE THE MATTER BACK TO THE FILE OF THE A.O. TO ALLOW THE ASSESSEE AN OPPORTUNITY TO PLEAD ITS CASE WITH REFERENCE TO GRANT OF INTEREST U/S.244A; WE HAVING NOT EXAMINED THE ISSUE ON MERITS AT ALL, AND WHO SHALL DECIDE THE SAME PER A SPEAKING ORDER; THE MATTER BEING APPEAL ABLE. WE DECIDE ACCORDINGLY. 6 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD 7. RESPECTFULLY FOLLOWING THE SAID DECISION, WE HOLD THAT AN APPEAL IS MAINTAINABLE BEFORE THE LD.CIT(A) AGAINST NOT GRANTING OF INTEREST U/S.244A IN ORDER GIVING EFFECT TO ITAT ORDER. 8. COMING TO THE MERITS OF THE CASE , AS THE LD .CIT(A) DID NOT GO INTO THE MERITS OF THE CASE , WE ARE OF THE CONSIDERED VIEW THAT, IT IS APPROPRIATE TO RESTORE THIS MATTER TO THE FILE OF THE LD.CIT(A) WHO SHALL DECIDE THE ISSUE ON MERITS KEEPING IN VIEW THE DECISION OF THE COORDINATE BENCH IN ASSESSEE S OWN CASE FOR THE ASSESSMENT YEAR 2004 - 05 AND ALSO THE DECISION OF T HE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD V. CIT (SUPRA) WHEREIN IT HAS BEEN HELD THAT INTEREST IS PAYABLE FROM THE DATE OF PAYMENT OF TAX ON SELF - ASSESSMENT TO DATE OF REFUND OF AMOUNT U/S. 244A OF THE ACT. THUS, WE RESTORE THIS MATTER TO THE FILE OF THE LD.CIT(A) TO DECIDE THE ISSUE ON MERITS, AFTER PROVIDING ADEQUATE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. 9. IN THE RESULT, APPEAL OF T HE ASSESSEE IS PARTLY ALLO WED. ORDER PRON OUNCED IN THE OPEN COURT ON THE 16 TH FEBRUARY, 2018 . SD/ - SD/ - ( MANOJ KUMAR AG G ARWAL ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 16 / 02/2018 GIRIDHAR , SPS 7 ITA NO.1734/MUM/2016 (A.Y: 1999 - 2000) BHARAT PETROLEUM CORPORATION LIMITED TO KOCHI REFINERIES LTD COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASST. REGISTRAR) ITAT, MUM