DCIT CC 6(1), MUMBAI V. APAR INDUSTRIES LTD, MUMBAI

ITA 1798/MUM/2017

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 0675 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 16-11-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2011-2012
• Appeal Filed On: 15-03-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 244A; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH A , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA NO. 1798 /MUM/201 7 (A.Y: 2011 - 12 ) D.C.I.T, CENTRAL CIRCLE 6(1) ROOM NO. 1905, 19 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI 400 021 V. M/S. APAR INDUSTRIES LTD., BLDG. NO . 5, SION, TROMBAY ROAD, CHEMBUR, MUMBAI 400 071 PAN: AAACG 1840 M (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI VIJAY MEHTA SHRI ANUJ KISNADWALA DEPARTMENT BY : SHRI ANOOP HIWASE DATE OF HEARING : 23.08.2018 DATE OF PRONOUNCEMENT : 16 .11 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) 54, MUMBAI [HEREINAFTER IN SHORT LD.CIT(A)] DATED 28.12.2016 FOR THE ASSESSMENT YEAR 2011 - 12. 2. THE REVENUE HAS RAISED THE FOLLOWINGS GROUND IN ITS APPEAL: - 1. ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE SHALL BE ENTITLED TO INTEREST UNDER SECTION 244A OF THE INCOME TAX ACT, 1961 IN RESPECT OF EXCESS SELF - ASSESSMENT TAX PAID WITHOUT APP RECIATING THAT ON THE BARE PERUSAL OF SECTION 244A OF THE INCOME TAX ACT, IT BECOMES CLEAR THAT THAT THE SELF - ASSESSMENT TAX PAID U/S 140A DOES NOT FIND MENTION IN SECTION 244A WHILE THE PAYMENT OF TAX MADE IN OTHER SECTIONS I.E. 2 ITA NO.1798/MUM/2017 (A.Y: 2011 - 12) M/S. APAR INDUSTRIES LTD., 115WJ (FRINGE BENEFIT TAX) , 206C (TAX COLLECTED AT SOURCE) AND 199 (ADVANCE TAX) ARE DULY MENTIONED.' 2. 'ON FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN HOLDING THAT THE ASSESSEE SHALL BE ENTITLED TO INTEREST UNDER SECTION 244A OF THE INCOME TAX ACT, 1961 IN RESPECT OF EXCESS SELF - ASSESSMENT TAX PAID WITHOUT APPRECI ATING THE JUDGMENT OF HON BLE DELHI COURT IN THE CASE OF CIT VS ENGINEERS INDIA LTD. WHEREIN, IT HAS BEEN HELD THAT THERE CANNOT BE A GENERAL RULE THAT WHENEVER A REFUND OF INCOME TAX P AID IN EXCESS IS TO BE MADE, THE REVENUE MUST NECESSARILY PAY INTEREST ON THE REFUNDED AMOUNT AND T HE LETTER AND SPIRIT OF THE LAW ON THE SUBJECT IS THAT THE PARTY WHICH COMMITTED THE ERROR IN PROPER CALCULATION (OR DELAY IN PROPER ASSESSMENT) MUST BEAR TH E BURDEN.' 3. AT THE OUTSET, THE LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ISSUE IN APPEAL IS AS TO WHETHER ASSESSEE IS ENTITLED FOR INTEREST U/S. 244A OF THE ACT ON THE SELF - ASSESSMENT TAX PAID AND THE ISSUE IS SQUARELY COVERED BY THE DECISION OF T HE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD V CIT [373 ITR 283]. 4. THE LD. DR STRONGLY PLACED RELIANCE ON THE ORDER OF THE ASSESSING OFFICER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHOR ITIES BELOW AND THE CASE LAWS RELIED ON. THE ONLY ISSUE IN THE APPEAL IS AS TO WHETHER THE ASSESSEE IS ELIGIBLE FOR INTEREST U/S. 244A OF THE ACT ON THE EXCESS SELF - ASSESSMENT TAX PAID. WE FIND THAT THIS ISSUE IS SQUARELY COVERED BY THE DECISION OF THE H ON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD V CIT (SUPRA). WE ALSO FIND THAT FOLLOWING THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT THE COORDINATE BENCH IN THE CASE OF DCIT V. STATE BANK OF INDIA IN ITA. NO. 3356/MUM/ 2016 DATED 21.03.2018 HELD THAT ASSESSEE IS ENTI TLED FOR 3 ITA NO.1798/MUM/2017 (A.Y: 2011 - 12) M/S. APAR INDUSTRIES LTD., INTEREST U/S. 244 A (1 ) (B) OF THE ACT ON THE SELF - ASSESSMENT TAX PAID. WHILE HOLDING SO THE COORDINATE BENCH HELD AS UNDER: - 6. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. THE ONLY ISSUE TO BE DECIDED IS WHETHER THE ASSESSEE SHALL BE ENTITLED TO INTEREST U/S. 244A IN RESPECT OF EXCESS SELF - ASSESSMENT TAX PAID. WE FIND THAT THE ISSUE IS SQUARELY COVERED BY THE DECISION OF THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LIMITED V. CIT (SUPRA) WHEREIN THEIR LORDSHIPS AFTER CONSIDERING VARIOUS DECISIONS OF THE HON'BLE SUPREME COURT AND HON'BLE HIGH COURTS HELD THAT ASSESSEE IS ENTITLED FOR INTEREST U/S. 244A(1)( B) OF THE ACT ON THE EXCESS AMOUNT PAID TOWARDS SELF - ASSESSMENT TAX. 7. IN SO FAR AS THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT FLOURO CHEMICALS (SUPRA) IS CONCERNED, WE FIND THAT THE HON'BLE SUPREME COURT HAS NOT LAID DOWN ANY RATIO ON THE ISSUES. THE HON'BLE SUPREME COURT SET ASIDE THE ENTIRE BATCH OF APPEALS TO HIGH COURTS CLARIFYING THE CIRCUMSTANCES UNDER WHICH THE VIEW TAKEN BY THEIR LORDSHIPS IN SANDVIK ASIA LTD V. CIT [280 ITR 643] THAT ASSESSEE IS ENTITLED FOR INTEREST ON THE INTEREST FOR THE INORDINATE DELAY ON THE PART OF THE REVENUE IN GRANTING INTEREST REFUND. THE HON'BLE SUPREME COURT, FURTHER CLARIFIED THAT ONLY THAT INTEREST PROVIDED IN THE STATUTE SHOULD BE ALLOWED BUT NOT INTEREST ON INTEREST. WITH THESE OBSE RVATIONS/CLARIFICATION ALL THE APPEALS WERE RESTORED TO THE FILE OF THE HIGH COURTS TO CONSIDER EACH CASE INDEPENDENTLY AND TAKE AN APPROPRIATE DECISION. HENCE THE DECISION OF THE HON'BLE SUPREME COURT IN THE CASE OF CIT V. GUJARAT FLOURO CHEMICALS (SUPRA ) CANNOT BE APPLIED TO THE FACTS OF THE ASSESSEES CASE. 8. ON THE OTHER HAND, THE HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD. (SUPRA) IT HAS BEEN HELD THAT TAX PAID ON SELF - ASSESSMENT WOULD FALL UNDER SECTION 244A(1)(B) I.E. A RESIDUARY CLAUSE COVERING REFUNDS OF AMOUNT NOT FALLING U/S. 244A(1) AND THEREFORE INTEREST IS PAYABLE U/S. 244A(1)(B) ON REFUND OF EXCESS AMOUNT PAID ON SELF - ASSESSMENT TAX. THEREFORE, RESPECTFULLY FOLLOWING THE BINDING DECISION OF THE H ON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD. V. CIT (SUPRA), WE UPHOLD THE ORDER OF THE LD.CIT(A) AND REJECT THE GROUND OF THE REVENUE ON THIS ISSUE. 6. RESPECTFULLY FOLLOWING THE SAID DECISION, WE UPHOLD THE ORDER OF THE LD.CIT(A) AND REJECT THE GROUNDS RAISED BY THE REVENUE . 7. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON THE 16 TH NOVEMBER , 2018 SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 16 / 11 / 2018 GIRIDHAR , SR. PS 4 ITA NO.1798/MUM/2017 (A.Y: 2011 - 12) M/S. APAR INDUSTRIES 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 (ASSTT. REGISTRAR) ITAT, MUM