V. Ramu, Pudukkottai V. ITO, Pudukkottai

ITA 2252/CHNY/2016

• Counselvise Citation: [2017] 128 COUNSELVISE.COM (IT) 4921 (ITAT-CHENNAI)
• Duration Of Justice: 8 month(s) 13 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-04-2017
• Appeal Filed By: Assessee
• Bench Allotted: C
• Next Hearing Date: 04-04-2017
• Assessment Year: 2004-2005
• Appeal Filed On: 28-07-2016
• Court: TRIBUNAL
• Department Lawyers: SUPRIYO PAL
• Assessee Lawyers: R M SIVA CHOCKALINGAM
• Keywords: Reasonable cause; Right to appeal; Revised return
• Section: 244A; 54; 154

Judgement Text

, .. , IN THE INCOME TAX APPELLATE TRIBUNAL , SMC C BENCH, CHENNAI . , BEFORE SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ./ I.T.A.NO.2252/MDS/2016 ( / ASSESSMENT YEAR: 2004-05) SHRI V. RAMU, PLOT NO.17, MIG FLAT, HOUSING UNIT, RAJAGOPALAPURAM, PUDUKOTTAI 622003. VS THE INCOME TAX OFFICER, WARD 1(2), PUDUKOTTAI PAN: AADPR0777J ( /APPELLANT) ( /RESPONDENT) / APPELLANT BY : SHRI R.M. SIVA CHOCKALINGAM, FCA /RESPONDENT BY : SHRI SUPRIYO PAL, JCIT /DATE OF HEARING : 04.04.2017 ! /DATE OF PRONOUNCEMENT : 11.04.2017 / O R D E R THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEA LS)-2, TIRUCHIRAPALLI DATED 22.12.2015 IN IT NO.188/2014-1 5/CIT(A)/TRY FOR THE ASSESSMENT YEAR 2004-05 PASSED U/S.154 OF T HE ACT. 2. THERE IS A DELAY OF 156 DAYS IN FILING THE APPEA L. THE ASSESSEE HAS FILED CONDONATION PETITION WHEREIN HE HAS STATED THAT THE DELAY IN FILING THE APPEAL HAD OCCURRED SI NCE THE CHARTERED ACCOUNTANT OF THE ASSESSEE WAS RELUCTANT TO FILE THE APPEAL AS THE CLAIM OF INTEREST WAS MEAGER. FURTHER HE IS A SENIOR 2 ITA NO.2252/MDS/2016 CITIZEN STAYING IN A REMOTE PLACE AND ILL ADVISED. HENCE IT WAS PLEADED THAT THE DELAY IN FILING THE APPEAL WAS NOT WILLFUL AND THEREFORE THE SAME MAY BE CONDONED. AFTER HEARING THE LD. AR, WE ARE OF THE CONSIDERED VIEW THAT WHEN MERITS OF T HE CASE ARE IN FAVOUR OF THE ASSESSEE, THE APPEAL SHOULD NOT BE DI SMISSED MERELY ON THE GROUND OF DELAY IN FILING THE APPEAL, WHEN THE ASSESSEE HAS REASONABLE CAUSE FOR DELAY IN FILING T HE APPEAL AS HELD BY THE HONBLE APEX COURT IN THE CASE COLLECT OR LAND ACQUISITION VS. MST. KATIJI & OTHERS REPORTED IN 16 7 ITR 471 AND IN THE CASE OF MANIBEN DEVRAJ SHAH VS. MANIBEN DEVRAJ SHAH VS. MUNICIPAL CORPORATION OF BRIHAN MUMBAI REPORTED IN AIR 2012 (SC) 1629. THEREFORE, IN THE INTEREST OF JUSTICE, I HEREBY CONDONE THE DELAY IN FILING THE APPEAL FOR 156 DAYS AND PRO CEED TO HEAR THE APPEAL ON MERITS. 3. THE ASSESSEE HAS RAISED THREE GROUNDS IN HIS AP PEAL, HOWEVER THE CRUX OF THE ISSUE IS THAT THE LD. CIT(A ) HAS ERRED IN UPHOLDING THE ORDER OF THE LD.AO WHO HAD NOT GRANTE D INTEREST ON THE TAX DEDUCTED AT SOURCE IN ACCORDANCE WITH THE P ROVISIONS OF SECTION 244A(A) OF THE ACT. 3 ITA NO.2252/MDS/2016 4. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS AN INDIVIDUAL AND ERSTWHILE EMPLOYEE OF ICICI BANK AVA ILED EARLY RETIREMENT OPTION SCHEME, FILED HIS RETURN OF INCOM E FOR THE ASSESSMENT YEAR 2004-05 ON 30.10.2004 AND THE RETUR N WAS PROCESSED U/S.143(1) OF THE ACT ON 05.04.2005 GRANT ING REFUND OF RS.48,180/- ALONG WITH INTEREST OF RS.2,940/- U/S.2 44A OF THE ACT. SUBSEQUENTLY THE ASSESSEE FILED A WRIT PETITION BEF ORE THE HONBLE MADRAS HIGH COURT (MADURAI BENCH). THE HONBLE MAD RAS HIGH COURT (MADURAI BENCH) VIDE ITS ORDER HELD THAT THE ASSESSEE IS ELIGIBLE FOR EXEMPTION / DEDUCTION U/S.10(10C) OF T HE ACT FOR A SUM OF RS.5 LAKHS. THE LD. ASSESSING OFFICER GAVE EFFE CT TO THE ORDER OF THE HONBLE COURT AND ISSUED A TOTAL REFUND OF R S.1,71,778/- INCLUDING RS.9,720 TOWARDS INTEREST U/S.244A OF THE ACT FOR THE PERIOD OF 12 MONTHS FROM THE DATE OF PRONOUNCEMENT OF ORDER OF THE COURT. HOWEVER THE ASSESSEE CONTENTED IN THE P ROCEEDINGS U/S.154 THAT INTEREST SHOULD BE GRANTED RIGHT FROM FIRST APRIL 2004 TILL THE DATE OF PASSING THE ORDER. THE LD.AO REJE CTED THE CLAIM OF THE ASSESSEE SINCE THERE WAS NO CLAIM OF EXEMPTION U/S.10(10C) OF THE ACT IN THE ORIGINAL RETURN OF INCOME FILED B Y THE ASSESSEE. 4 ITA NO.2252/MDS/2016 5. ON APPEAL THE LD.CIT(A) DISMISSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER 5.2 I TOO AM IN AGREEMENT WITH THE ASSESSING OFFIC ER THAT THE APPELLANT IS NOT ELIGIBLE FOR INTEREST U/S.244A OF THE ACT FROM 01/04/2004 TO 30/09/2012 FOR THE FOLLOWING REASONS: (A) AT THE OUTSET, THE DELAY IN MAKING THE CLAIM OF REFUND IS ATTRIBUTABLE TO THE APPELLANT, BUT NOT TO THE DEPAR TMENT. IF HE WAS KEEN ON GETTING INTEREST U/S.244A ON THE REFUND AMO UNT, HE SHOULD, FIRST OF ALL, HAVE MADE A CLAIM FOR EXEMPTION U/S.1 0(10C) IN HIS 'ORIGINAL RETURN' OF INCOME FILED ON 30.10.2004 OR BY FILING A 'REVISED RETURN' WITHIN THE TIME ALLOWED U/S.139(5) OF THE ACT. HE DID NEITHER. THE CLAIM FOR SUCH EXEMPTION U/S.10( 1 0C) OF THE ACT WAS MADE BEFORE THE ASSESSING OFFICER FOR THE FIRST TIME SOMETIME IN OCTOBER, 2012, BY WAY OF AN APPLICATION, ENCLOSING THEREWITH A COPY OF THE ORDER OF THE HON'BLE MADRAS HIGH COURT (MADURAI BENCH) DATED 15/10/2012. TAKING NOTE OF THE FINDING S GIVEN IN SUCH ORDER OF THE HON'BLE MADRAS HIGH COURT (MADURAI BEN CH), THE ASSESSING OFFICER GRANTED REFUND ALONG WITH INTERES T U/S.244A FROM OCTOBER, 2012. THUS, THE PROCEEDINGS RESULTING IN R EFUND HAS BEEN DELAYED DUE TO REASONS ATTRIBUTABLE TO THE APPELLAN T. SECTION 244A(2) OF THE ACT PROVIDES THAT IF THERE IS DELAY IN MAKING A CLAIM OF REFUND ON THE PART OF THE ASSESSEE, THEN INTERES T U/S.244A NEED NOT BE PAID FOR SUCH PERIOD. IT IS FOUND THAT THE APPEL LANT'S CASE IS COVERED UNDER THE PROVISIONS OF SUB-SECTION (2) OF SECTION 244A OF THE ACT, AND NOT U/S.244A(1)(A) OF THE ACT AS THE A PPELLANT CLAIMS IT TO BE. (B) MOREOVER, IN CASE THE APPELLANT IS AGGRIEVED WI TH REGARD TO THE PERIOD FOR WHICH INTEREST SHOULD BE ALLOWED U/S.244 A, THE REMEDY FOR SUCH GRIEVANCE SHOULD BE SOUGHT BY FILING AN AP PLICATION BEFORE THE PRINCIPAL CHIEF COMMISSIONER OF INCOMETAX OR CH IEF COMMISSIONER OF INCOMETAX OR PRINCIPAL COMMISSIONER OF INCOMETAX OR COMMISSIONER OF INCOMETAX (ADMINISTRAT ION). THIS IS 5 ITA NO.2252/MDS/2016 EVIDENT FROM THE LANGUAGE OF SUB-SECTION (2) OF SEC TION 244A, WHICH IS REPRODUCED HEREUNDER: 75[ INTEREST ON REFUNDS. 76 244A. 76A (2) IF THE PROCEEDINGS RESULTING IN THE REFUND ARE DELAYED FOR REASONS ATTRIBUTABLE TO THE ASSESSEE, W HETHER WHOLLY OR IN PART, THE PERIOD OF THE DELAY SO ATTRI BUTABLE TO HIM SHALL BE EXCLUDED FROM THE PERIOD FOR WHICH INT EREST IS PAYABLE, AND WHERE ANY QUESTION ARISES AS TO THE PA LED TO BE EXCLUDED, IT SHALL BE DECIDED BY THE 86 [PRINCIPAL CHIEF COMMISSIONER OR] CHIEF COMMISSIONER OR 86 [PRINCIPAL COMMISSIONER OR] COMMISSIONER WHOSE DECISION THEREO N SHALL BE FINAL. ' A READING OF THE ABOVE PROVISION WOULD SHOW THAT TH E REMEDY FOR THE GRIEVANCE OF THE APPELLANT, IF ANY, LIES BE FORE THE ADMINISTRATIVE COMMISSIONER OF INCOMETAX OR PRINCIP AL COMMISSIONER OF INCOMETAX OR CHIEF COMMISSIONER OF INCOMETAX OR PRINCIPAL CHIEF COMMISSIONER OF INCOMETAX, WHOSE DECISION THEREON SHALL BE FINAL BUT INSTEAD OF MOVING THE AP PLICATION BEFORE ANY OF THOSE AUTHORITIES, HE HAS FILED THE APPEAL B EFORE THE UNDERSIGNED, WHICH AMOUNTS TO KNOCKING AT THE WRONG DOOR. IN MY HUMBLE OPINION, ON THIS GROUND ALONE, IN VIEW OF TH E SPECIFIC PROVISIONS OF SECTION 244A(2), THIS APPEAL IS NOT M AINTAINABLE, AS THE UNDERSIGNED HAS NO JURISDICTION OVER THE MATTER . (C) IT IS A TRITE LAW THAT THE REMEDIAL RIGHT OF AP PEAL IS A CREATURE OF THE STATUTE AND IN THE ABSENCE OF SPECIFIC MENTION OF THE RIGHT IN A PARTICULAR LEGISLATION, IT CAN NEITHER BE CLAIMED A S AN INHERENT RIGHT NOR IT BE IMPLIED. TIME AND AGAIN SUCH AN ISSUE HAS IN THE PAST COME UP BEFORE THE VARIOUS HIGH COURTS AND THE SUPR EME COURT AND IT HAS INVARIABLY BEEN HELD BY EVERY HIGH COURT THAT UNLESS THE RIGHT IS EXPRESSLY GRANTED IN THE STATUTE, THE EXIS TENCE OF THE RIGHT OF APPEAL CANNOT BE IMPLIED. THE SUPREME COURT IN CIT V. ASHOKA ENGINEERING CO.(1992) 194 ITR 645(SC), REITERATING THE 6 ITA NO.2252/MDS/2016 PROPOSITION, HELD THAT THERE IS NO INHERENT RIGHT O F APPEAL TO ANY ASSESSEE AND THAT IT HAS TO BE SPECIFICALLY SPELT F ROM THE WORDS OF THE STATUTE, IF ANY PROVIDING FOR AN APPEAL. (D) AN ARGUMENT CAN BE TAKEN FROM THE APPELLANT'S S IDE THAT SINCE THE APPEAL IS AGAINST AN ORDER MADE U/S.154 OF THE ACT, THE SAME IS AN 'APPEALABLE ORDER' IN TERM OF SECTION 246A(1)(C) , WHICH READS AS UNDER: 'APPEALABLE ORDERS BEFORE COMMISSIONER(APPEALS) 246A. (1) ANY ASSESSEE 39 [OR ANY DEDUCTOR] 39A [OR ANY COLLECTOR] AGGRIEVED BY ANY OF THE FOLLOWING ORDERS (WHETHER M ADE BEFORE OR AFTER THE APPOINTED DAY) MAY APPEAL TO THE COMMI SSIONER (APPEALS) AGAINST- (C)AN ORDER MADE UNDER SECTION 154 OR SECTION 155 H AVING THE EFFECT OF ENHANCING THE ASSESSMENT OR REDUCING A RE FUND OR AN ORDER REFUSING TO ALLOW THE CLAIM MADE BY THE ASSES SEE UNDER EITHER OF THE SAID SECTIONS 54 [***] 55 [EXCEPT ON ORDER REFERRED TO IN SUB-SECTION (12) OF SECTION 144BA];' HOWEVER, THE PROVISIONS OF SECTION 246A(1)(C) HAVE TO BE READ ALONG WITH SECTION 244A(2). IF BOTH THESE PROVISION S ARE READ HARMONIOUSLY, IT IS CRYSTAL CLEAR THAT WHEN THE SUB JECT MATTER OF ORDER U/S. 154 RELATES TO THE PERIOD FOR WHICH INTE REST U/S.244A HAS TO BE DENIED TO THE APPELLANT ON ACCOUNT OF THE DEL AY ATTRIBUTABLE TO HIM, SUCH ORDER U/S.154 WOULD NOT FALL WITHIN THE P URVIEW OF AN APPEALABLE ORDER U/S.244A(2) AS A 'SPECIAL PROVISIO N' LIKE SECTION 244A(2) WILL HAVE PRECEDENCE OVER A 'GENERAL PROVIS ION' SUCH AS SECTION 246A(1). 6. IN THE LIGHT OF THE ABOVE DISCUSSION, IT IS HELD THAT THE APPELLANT'S APPEAL IS DEVOID OF ANY MERIT. HENCE, THE SAME IS D ISMISSED. 7 ITA NO.2252/MDS/2016 6. BEFORE US THE LD. AR PRODUCED THE CIRCULAR NO.11 /2016 OF THE CBDT, WHEREIN THE REVENUE AUTHORITIES WERE DIRE CTED TO FOLLOW THE DECISION OF THE HONBLE APEX COURT IN TH E CASE TATA CHEMICALS LIMITED (2014)-LL-0226-164 NJRS CITATION. IN THAT CASE IT WAS CATEGORICALLY HELD THAT THE REVENUE HAS TO GRANT INTEREST ON THE AMOUNT OF TAX DEDUCTED FROM THE FIR ST DAY OF APRIL OF THE ASSESSMENT YEAR TILL THE DATE ON WHICH THE REFU ND IS GRANTED. THE LD.DR COULD NOT CONFRONT TO THE SUBMISSION OF T HE LD.AR. 7. I HAVE HEARD THE RIVAL SUBMISSION AND CAREFULLY PERUSED THE MATERIALS AVAILABLE ON RECORD. AS POINTED OUT BY T HE LD.AR, CIRCULAR NO.11 OF 2016 IN F.NO.279/MISC./M-140/2015 -ITJ HAS DIRECTED THE REVENUE AUTHORITIES THAT IF ASSESSEE I S ENTITLED FOR REFUND OF TAX DEPOSITED U/S.195 OF THE ACT; THEN IT HAS TO BE REFUNDED WITH INTEREST U/S.244A OF THE ACT. THE CIR CULAR NO.11 OF 2016 OF THE CBDT IS REPRODUCED HEREIN BELOW FOR REF ERENCE: 8 ITA NO.2252/MDS/2016 9 ITA NO.2252/MDS/2016 FURTHER SECTION 244A(1)(A) OF THE ACT SPECIFICALLY PROVIDES THAT SUCH INTEREST SHALL BE CALCULATED AT THE PRESCRIBED RATE FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FR OM THE FIRST DAY OF APRIL OF THE ASSESSMENT YEAR TO THE DATE ON WHIC H THE REFUND IS GRANTED. THEREFORE, I HEREBY DIRECT THE LD.AO TO G RANT INTEREST TO THE ASSESSEE FROM 1 ST APRIL 2004 TILL THE DATE ON WHICH THE REFUND IS GRANTED AND AS PER THE OTHER RELEVANT PROVISIONS OF THE ACT. 8. IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. ORDER PRONOUNCED IN THE COURT ON THE 11 TH APRIL, 2017. SD/- ( . ) (A. MOHAN ALANKAMONY ) / ACCOUNTANT MEMBER '# /CHENNAI, $% /DATED 11 TH APRIL, 2017 JR % '( )( /COPY TO: 1. /APPELLANT 2. /RESPONDENT 3. , ( )/CIT(A) 4. , /CIT 5. (-. / /DR 6. .0 /GF