Dy. CIT, Circle-4(1)(2), Ahmedabad V. Zydus Wellness Ltd, Ahmedabad

ITA 1828/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 8488 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 2 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-09-2017
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Assessment Year: 2010-2011
• Appeal Filed On: 18-06-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: JIGAR M PATEL
• Keywords: Question of law
• Section: 244A; 139

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD A BENCH BEFORE: SHR I RAJPAL YADAV , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, CIRCLE - 4(1)(2), AHMEDABAD (APPELLANT) VS ZYDUS WELLNESS LTD., ZYDUS TOWER, SATELLITE CROSS ROAD, S.G. HIGHWAY, AHMEDABAD PAN: AAACC7740G (RESPONDENT) REVENUE BY : S H RI K. MADHUSUDAN , SR. D . R. ASSESSEE BY: S H RI JIGAR M. PATEL , A.R. DATE OF HEARING : 24 - 08 - 2 017 DATE OF PRONOUNCEMENT : 13 - 09 - 2 017 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS REVE NUE S APPEAL FOR A.Y. 2010 - 11 , AR IS ES FROM ORDER OF THE CIT(A) - 9, AHMEDABAD DATED 16 - 03 - 2015 , IN PROCEEDINGS UNDER SECT ION 250 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE REVENUE HAS RAISED FOLLOWING GROUND: - I T A NO . 1828 / A HD/20 15 A S SESSMENT YEAR 2010 - 11 I.T.A NO. 1828 /AHD/20 15 A.Y. 2010 - 11 PAGE NO DCIT VS. ZYDUS WELLNESS LTD. 2 1). 'WHETHER THE LD. COMMISS IONER OF INCOM E - TAX (A ) IS RIGHT IN LAW AND ON FACTS IN GRANTING INTEREST U/S.244A OF THE I.T. ACT ON EXCESS PAYMENT MADE U/S. 140A OF THE ACT. 3. IN THIS CASE, ASSESSING OFFICER HAS PASSED ORDER U/S. 250 OF THE ACT ON 12 - 06 - 2013 AND AFTER GIVING EFFECT TO THE ORDER OF THE LD. CIT(A) RESULTED IN REFUND OF RS. 2 , 50 , 69 , 410/ - . THE ASSESSEEE HAS FILED APPEAL BEFORE THE LD. CIT(A) THAT THE ASSESSING OFFICER HAS NOT GRANTED INTEREST U/S. 244A AS SUCH RE FUND AROSE OUT OF THE ADJUSTMENT TAX PAID BY THE ASSES SEE. THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: - 2.2 I HAVE CAREFULLY CONSIDERED THE SUBMISSION OF THE LD. A.R. AND THE FOLLOWING CASE LAWS RELIED UPON BY HIM FOR GRANTING INTEREST U/.S. 244A OF I.T. ACT. (I) CIT V/S. GUJAR AT STATE WAREHOUSING CORPORATION (2002) 256 ITR 596 (GUJ.) (II) CADILA HEALTHCARE LTD. IN ITA NO. 953/AHD/2012 DTD. 09 - 08 - 2012 (III) CIT V/S. SUTLEJ INDUSTRIES LTD. 325 ITR 331 (DEL) (IV) ACIT V/S. KERALA TRANSPORT CO. 42 TAXMANN.COM 83 (KER) (V) CIT V/S. MANGALAM ARTS 37 TAX MANN. COM 157 (RAJ) (VI) CIT V/S. CHOLAMANDALAM INV. & FIN. CO. LTD. 294 ITR 438 (MAD) THE APPELLANT S GRIEVANCE IS THAT A.O. HAS NOT ALLOWED INTEREST U/S. 244A ON THE REFUND DETERMINED IN THE ORDER GIVING EFFECT TO CIT(A) ORDER DTD. 27 - 05 - 2013 FOR A.Y. 2011 P ASSED ON 12/06/2013. THE APPELLANT S A.R. ALSO BROUGHT TO MY NOTICE THE ORDER OF HON BLE ITAT, BENCH; B AHMEDABAD IN THE CASE OF ACIT(OSD) V/S. CADILA HEALTHCARE LTD. WHEREIN REVENUE S APPEAL WAS DISMISSED. THE RELEVANT PARA FROM THE SAID ORDER OF HON BLE ITAT IS REPRODUCED HEREUNDER: - 6. WE FIND THAT THE LD. CIT (A) HAS FOLLOWED THE DECISION OF HON'BLE HIGH COURT OF KARNATAKA RENDERED IN THE CASE OF COMMISSIONER OF INCOME TAX VS. VIJAYA BANK (2011) 338 ITR 489 (KAR). THE SUBSTANTIAL QUESTION OF LAW FOR CONSIDERATION OF HON'BLE HIGH COURT OF KARNATAKA IN THE CASE OF CIT VS VIJAYA BANK (SUPRA) WAS, 'WHEN THE ASSESSEE PAYS TAX SUBSEQUENT TO THE IST D AY OF APRIL OF AN ASSESSMENT YEAR BUT BEFORE OR ALONG WITH THE DATE OF RETURN, IF THE TAX IS ASSESSED TO BE REFUNDED, WHAT IS THE DATE FROM WHICH INTEREST IS PAYABLE UNDER SECTION 244A'? THE HON'BLE HIGH COURT HELD AS UNDER: - I.T.A NO. 1828 /AHD/20 15 A.Y. 2010 - 11 PAGE NO DCIT VS. ZYDUS WELLNESS LTD. 3 ' IN THE INSTANT CASE, IT IS NOT DISPUTE THAT THE ASSESSEE HAS PAID A SUM OF RS. 15.5 CRORE ON 29.06.2012, EVEN BEFORE THE DATE OF FILING OF THE RETURNS. IT IS THAT AMOUNT WHICH IS AMENDED TO BE REFUNDED AS EXCESS PAYMENT. THOUGH THE OCCASION TO ORDER FOR REFUND AROSE AFTER THE ASSES SMENT ORDER IN WHICH THE PAYMENT OF TAX WAS ADJUSTED TOWARDS THE TAX LIABILITY, THE CASE DOES NOT FALL UNDER THE CLAUSE(A) OR THE EXPLANATION TO CLAUSE (B). THE SAID EXCESS PAYMENT IS TO BE REFUNDED WITH INTEREST FROM THE DATE OF PAYMENT OF SUCH TAX, THAT IS FROM 29.06.2012, TILL THE DATE OF REFUND. THIS IS PRECISELY WHAT THE APPELLATE COMMISSIONER AS WELL AS THE TRIBUNAL HAS SAID. IT IS IN ACCORDANCE WITH LAW. NO ILLEGALITY NOR ANY CASE FOR INTERFERENCE IS MADE OUT. THE SUBSTANTIAL QUESTION OF LAW IS ANSWE RED IN FAVOUR OF THE ASSESSEE AND AGAINST THE REVENUE.' AFTER CONSIDERING THE FACTS OF THE CASE, CASE LAWS RELIED UPON BY LD. A.R. OF THE APPELLANT. I AM OF THE OPINION THAT THE APPELLANT IS ENTITLED FOR INTEREST U/S. 244A OF THE I.T. ACT AGAINST REFUND DETERMINED BY THE A.O.. THE A.O. IS REQUESTED TO ALLOW INTEREST U/S. 244A ON SUCH REFUND AS PER THE PROVISIONS OF I.T. ACT. ACCORDINGLY, THIS GROUND OF APPEAL RAISED BY THE APPELLANT IS ALLOWED FOR STATISTICAL PURPOSE. 4. DURING THE COURSE OF APPELLAT E PROCEEDINGS BEFORE US, THE LD. DEPARTMENTAL REPRESENTATIVE CONTENDED THAT PROVISION OF SECTION 244A(AA) WAS NOT THERE IN THE STATUTE AT THE TIME OF DETERMINATION OF REFUND OUT OF ANY TAX PAID U/S. 140A OF THE ACT IN THE CASE OF THE ASSESSEE . LD. DEPART MENTAL REPRESENTATIVE HAS ALSO PLACED RELIANCE IN THE CASE OF CIT VS. GUJARAT FLUORO CHEMICALS (2014) TAXMAN.COM 1(SC). ON THE OTHER HAND, LD. COUNSEL HAS PLACED RELIANCE IN THE CASE OF M/S. CADILA HEALTHCARE LTD DECI DED BY THE CO - ORDINATE BENCH OF ITAT(AHMEDABAD) IN ITA 953/AHD/2012 DATED 09 - 082012 . 5. WE HAVE HEARD BOTH THE SIDES AND PERUSED THE MATERIAL ON RECORD . T HE LD DR HAS PLACED RELIANCE ON THE DECISION CIT VS. GUJARAT FLUORO CHEMICALS (2014) TAXMAN.COM 1(SC), WE OBSERVED THAT FACTS OF T HIS CASE ARE DISTINGUISHABLE FROM THE CASE OF THE I.T.A NO. 1828 /AHD/20 15 A.Y. 2010 - 11 PAGE NO DCIT VS. ZYDUS WELLNESS LTD. 4 ASSESSEE AS IN THAT CASE THE HON BLE APEX COURT HAS DECIDED THE ISSUE OF PAYMENT OF INTEREST ON INTEREST. THE PROVISION S OF SECTION 244A ARE REPRODUCED AS UNDER: - 24 4A. 1) WHERE REFUND OF ANY AMOUNT BECO MES DUE TO THE ASSESSEE UNDER THIS ACT, HE SHALL, SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ENTITLED TO RECEIVE, IN ADDITION TO THE SAID AMOUNT, SIMPLE INTEREST THEREON CALCULATED IN THE FOLLOWING MANNER, NAMELY : 91 [(A) WHERE THE REFUND IS OUT OF ANY TAX COLLECTED AT SOURCE UNDER SECTION 206C OR PAID BY WAY OF ADVANCE TAX OR TREATED AS PAID UNDER SECTION 199 , DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, SUCH INTEREST SHALL BE CALCULATED AT THE RATE OF ONE - HALF PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD, (I) FROM THE 1ST DAY OF APRIL OF THE ASSESSMENT YEAR TO THE DATE ON WHICH THE REFUND IS GRANTED, IF THE RETURN OF INCOME HAS BEEN FURNISHED ON OR BEFORE THE DUE DATE SPECIFIED UNDER SUB - SECTION (1) OF SECTION 139 ; OR (II) FROM THE DATE OF FURNISHING OF RETURN OF INCOME TO THE DATE ON WHICH THE REFUND IS GRANTED, IN A CASE NOT COVERED UNDER SUB - CLAUSE (I); (AA) WHERE THE R EFUND IS OUT OF ANY TAX PAID UNDER SECTION 140A , SUCH INTEREST SHALL BE CALCULATED AT THE RATE OF ONE - HALF PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD, FROM THE DATE OF FURNISHING OF RETURN OF INCOME OR PAYMENT OF TAX, WHICHEVER IS LATER, TO THE DATE ON WHICH THE REFUND IS GRANTED: PROVIDED THAT NO INTEREST UNDER CLAUSE (A) OR CLAUSE (AA) SHALL BE PAYABLE, IF THE AMOUNT OF REFUND IS LESS THAN TEN PER CENT OF THE TAX AS DETERMINED UNDER SUB - SECTION (1) OF SECTION 143 OR ON REGULAR ASSESSMENT;] (B) IN ANY OTHER CASE, SUCH INTEREST SHALL BE CALCULATED AT T HE RATE OF ONE - HALF PER CENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD OR PERIODS FROM THE DATE OR, AS THE CASE MAY BE, DATES OF PAYMENT OF THE TAX OR PENALTY TO THE DATE ON WHICH THE REFUND IS GRANTED. WE FIND THAT PROVISION OF SECTION 244A 1 ( B ) FOR GRANTING OF REFUND IN ANY OTHER CASE WAS THERE IN THE STATUTE BEFORE THE INCORPORATION OF THE S PECIFIC PROVISION OF SECTION 24 4A 1(AA) IN THE STATUTE FOR DETERMINATION OF REFUND OUT OF ANY TAX PAID U/S. 140A OF THE ACT . I.T.A NO. 1828 /AHD/20 15 A.Y. 2010 - 11 PAGE NO DCIT VS. ZYDUS WELLNESS LTD. 5 RESPECTFULLY FOLLOWIN G THE DECISION OF T HE COORDINATE BENCH OF THE ITAT IN THE CASE OF ACIT V M/S CADILA HEALTH CARE LTD. ITA NO.953/AHD/2012 AS ELABORATED IN THE FINDING OF THE LD. CIT(A) AS SUPRA WE ARE OF THE VIEW THAT ASSESSEE IS ENTITLED FOR INTEREST U/S. 244A OF THE ACT, THEREFORE , WE DO NOT FIND ANY REASON TO INTERFERE IN THE FINDING OF THE LD. CIT(A). 6. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMISSED. ORDER PR ONOUNCED IN THE OPEN C OURT ON 13 - 09 - 201 7 SD/ - SD/ - ( RAJPAL YADAV ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 13 /09 /2017 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,