DCIT, Circle - 8, Kolkata, Kolkata V. M/s. ITC Limited, Kolkata

ITA 2050/KOL/2009

• Counselvise Citation: [2010] 136 COUNSELVISE.COM (IT) 7947 (ITAT-KOLKATA)
• Duration Of Justice: 3 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 31-03-2010
• Appeal Filed By: Department
• Bench Allotted: B
• Assessment Year: 2004-2005
• Appeal Filed On: 03-12-2009
• Court: TRIBUNAL
• Department Lawyers: B R PURKAYASTHA
• Assessee Lawyers: RAHUL KR MITR A
• Section: 143(1)

Judgement Text

INCOME TAX APPELLATE TRIBUNAL B BENCH, KOLKA TA (BEFORE SMT. DIVA SINGH, JM & SHRI C.D.RAO,AM) I.T.A.NO.2050/KOL/2009 ASSESSMENT YEAR : 2004-05 D.C.I.T., CIRCLE-8, -VS- M/S. I.T.C. LIMITED KOLKATA, KOLKATA PAN : AAACI 5950 L (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI B.R.PURKAYASTHA RESPONDENT BY : SHRI RAHUL KR.MITR A O R D E R PER SMT. DIVA SINGH, JUDICIAL MEMBER THIS APPEAL IS FILED BY THE REVENUE AGAINST THE OR DER DATED 07.09.2009 OF THE CIT- (A)-VI, KOLKATA PERTAINING TO 2004-05 ASSESSMENT YE AR WHEREIN THE SOLE ISSUE AGITATED BY THE REVENUE READS AS UNDER :- 1. THAT LD. CIT(A) ERRED ON FACTS AND CIRCUMSTANCE S OF THE CASE AND IN LAW BY HOLDING THAT INTEREST UNDER SECTION 220(2) OF INCOM E TAX ACT, 1961 IS NOT CHARGEABLE IN THE CASE OF THE ASSESSEE. 2. THE UNDISPUTED RELEVANT FACTS AVAILABLE ON RECO RD ARE THAT THE ASSESSEE FILED ITS RETURN ON 30.10.2004 WHERE ON THE SCRUTINY ASSESSMENT WAS COMPLETED ON 22.12.2006. THE SAID ORDER WAS RECEIVED BY THE ASSESSEE ON 16.01.2007 WH EREIN THERE WAS A DEMAND U/S 156 OF THE ACT FOR RS.43,43,60,509 PAYABLE WITHIN 30 DAYS FROM THE DATE OF RECEIPT. ON RECEIPT OF THE SAID NOTICE OF DEMAND, THE APPELLANT COMPANY HAD WR ITTEN TO THE ASSESSING OFFICER VIDE LETTER DATED 9.2.2007 FOR ADJUSTMENT OF THE SAID DEMAND WI TH THE PENDING REFUNDS OF RS.105,51,40,420 (FOR A.Y. 2005-06) COPY OF THE SAI D LETTER IT IS SEEN IS FOUND AT PAGE 2 OF THE PAPER BOOK. THE ASSESSING OFFICER PASSED THE ORDER U/S 151/143(1) ON 14.2.2007 FOR A.YR.2005-06 (COPY OF WHICH IS FOUND PLACED AT PAGE 3 OF THE PAPER BOOK FILED BEFORE THE BENCH) . 2.1. AGGRIEVED BY THIS THE ASSESSEE WENT IN APPEAL BEFORE THE LD. CIT(A) AGITATING THAT THE AO HAS UNLAWFULLY IMPOSED INTEREST U/S 220(2) DUE T O DELAY ON HIS PART IN ADJUSTING REFUNDS WITHOUT ANY FAILURE ON THE PART OF THE APPELLANT CO MPANY. IN THIS CONNECTION THE LD. AR RELIED ON THE DECISION OF HONBLE ITAT IN THE APPELLANT CO MPANYS CASE FOR A.Y. 1997-98 AND A.Y.2003-04 WHEREIN IT WAS HELD THAT SUCH INTEREST CANNOT BE IMPOSED BY THE AO WHERE THERE WAS NO FAULT ON THE PART OF THE ASSESSEE AND THE D ELAY AROSE ON THE PART OF THE AO IN ADJUSTING THE REFUNDS. CONSIDERING THESE SUBMISSIONS THE CIT( A) CAME TO THE FOLLOWING CONCLUSION : 2 I HAVE GONE THROUGH THE SUBMISSIONS OF THE APPELLA NT. THE APPELLANTS LETTER FOR ADJUSTMENT OF DEMAND FOR A.Y. 2004-05 WITH PENDING REFUND FOR A.Y. 2005-06 WAS RECEIVED IN THE OFFICE OF THE DEPUTY COMMISSIONER O F INCOME TAX ON 09.02.2007. THE AO PASSED THE ORDER U/S 154/143(1) OF THE IT ACT FO R A.Y 2005-06 ON 14..02.2007. THE ORDER U/S 143(1) FOR A.Y. 2005-06 WAS PASSED ON 29.12.2006 DETERMINING REFUND. THE AO SHOULD HAVE ADJUSTED THE REFUND FOR A.Y. 200 5-06 AGAINST THE APPELLANT. ON GOING THROUGH THE FACTS, I FIND THAT THE DELAY AROS E ON THE PART OF ASSESSING OFFICER IN ADJUSTING THE REFUNDS AND THERE WAS NO FAULT ON THE PART OF THE ASSESSEE. RESPECTFULLY FOLLOWING THE DECISION OF HONBLE ITAT IN ITA NO.17 95/KOL/2006 IN THE CASE OF APPELLANT. I DIRECT THE ASSESSING OFFICER TO DELETE THE INTEREST LEVIED U/S 220(2). THIS GROUND OF APPEAL IS ALLOWED. AGGRIEVED BY THIS THE REVENUE IS IN APPEAL BEFORE U S. 3. WE HAVE HEARD THE SUBMISSIONS OF THE PARTIES BEF ORE THE BENCH WHEREIN THE LD. DR CONTENDED THAT THE DELAY IS VERY MINOR. HOWEVER, N O FURTHER ARGUMENTS EITHER DISPUTING THE FACT OR CANVASSING ANY CONTRARY LEGAL PROPOSITION I N SUPPORT OF THE DEPARTMENT WAS BROUGHT TO THE NOTICE OF THE BENCH. 4. THE LD. AR, ON THE OTHER HAND, HEAVILY RELIED UP ON THE ARGUMENTS MADE BEFORE THE LD. CIT(A). THE FACTS TAKEN INTO CONSIDERATION DULY SUP PORTED BY RELEVANT DOCUMENTS FILED IN THE PAPER BOOK WERE RELIED UPON. ATTENTION OF THE BENCH WAS ALSO INVITED TO THE COPY OF THE ORDER OF THE COORDINATE BENCH IN ITS OWN CASE FOR A.YR. 1 997-98 IN ITA NO.1795/KOL/2006 WAS ALSO HEAVILY RELIED UPON WHICH HAD BEEN TAKEN INTO CONSIDERATION IN THE IMPUGNED ORDER. 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE MATERIAL AVAILABLE ON RECORD. ON A CAREFUL CONSIDERATION OF THE SAME AS HAS BEEN OBS ERVED IN THE EARLIER PART OF THIS ORDER THAT SO FAR AS THE FACTS ARE CONCERNED THERE IS NO DISPUTE. ACCORDINGLY IN THE UNDISPUTED FACTS WHICH HAVE BEEN DISCUSSED AT LENGTH IN THE EARLIER PART O F THIS ORDER, WE FIND NO INFIRMITY IN THE FINDING ARRIVED AT IN THE IMPUGNED ORDER. BEING SAT ISFIED BY THE REASONING AND THE FINDING ARRIVED AT THEREIN THE SAME IS UPHELD BY US. 6. IN THE RESULT THE DEPARTMENTAL APPEAL IS DISMISS ED. ORDER PRONOUNCED IN THE COURT ON 31.03.2010. SD/- SD/- (C.D.RAO) (DIVA SINGH) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 31.03.2010. 3 COPY OF THE ORDER IS FORWARDED TO :- 1. M/S. ITC LIMITED, 37, J.L.NEHRU ROAD, KOLKATA-70 0071. 2. D.C.I.T.CIRCLE-8, KOLKATA. 3. C.I.T.(APPEALS)-VI, KOLKATA 4) C.I.T. KOLKA TA 5. D.R., ITAT, KOLKATA BY ORDER ASSISTANT REGISTRAR I.T.A.T., KOLKATA R.G./P.S. TRUE COPY