The Dy.Commissioner of Income Tax.,Anand Circle, Anand V. National Dairy Development Board, Anand

ITA 2517/AHD/2015

• Counselvise Citation: [2018] 126 COUNSELVISE.COM (IT) 6049 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 5 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-02-2018
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2005-2006
• Appeal Filed On: 27-08-2015
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: OM PRAKAS PATHAK
• Section: 143(3); 244A; 234B; 147; 263; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD C BENCH BEFORE: SHR I S. S. GODARA , JUDICIAL MEMBER AND SHRI AMARJIT SINGH, ACCOUNTANT MEMBER THE DCIT, ANAND CIRCLE, ANAND (APPELLANT) VS NATIONAL DAIRY DEVELOPMENT BOARD, ANAND - 388001 PAN:AABCN2029C (RESPONDENT) REVENUE BY : S H RI OMPRAKAS PATHAK , SR. D . R. ASSESSEE BY: S H RI SANJAY R. SHAH , A.R. DATE OF HEARING : 18 - 12 - 2 017 DATE OF PRONOUNCEMENT : 21 - 02 - 2 018 / ORDER P ER : AMARJIT SINGH, ACCOUNTANT MEMBER : - THIS REVENUE S APPEAL FOR A.Y. 2005 - 06, ARIS ES FROM ORDER OF THE CIT(A) - 4, VADODARA DATED 01 - 05 - 2015 , IN PROCEEDINGS UNDER SECTION 143(3) R.W.S 254 OF THE INCOME TAX ACT, 1961; IN SHORT THE ACT . 2. THE REVENUE HAS RAISED FOLLOWING GROUNDS OF APPEAL: - 1. ON THE FACTS OF THE CASE AND ON THE CIRCUM STANCES AND IN LAW, THE CIT(A) - 4, VADODARA ERRED IN DIRECTING THE AO TO GRANT CORRECT INTEREST TO THE APPELLANT U/S. 244A OF THE ACT ON REFUND AMOUNT OF RS. 8,12,93,701/ - IGNORING THE FACT THAT THE A.O. HAD CORRECTLY GRANTED INTEREST U/S. 244A OF THE ACT ON REFUND AMOUNT OF RS. 6,94,81,798/ - , SINCE THERE IS NO PROVISION IN THE ACT TO PAY INTEREST U/S. 244A OF THE ACT ON REFUND OF INTEREST U/S. 234D OF THE ACT 3'MOUNTING TO RS. 90,32,633/ - AND ON REFUND OF RECOVERY OF INTEREST U/S. 244A OF THE ACT. AMOUNTIN G TO RS. 25,360,860/ - . I T A NO . 2517 / A HD/20 15 A SSES SMENT YEAR 200 5 - 06 I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 2 2. ON THE FACTS OF THE CASE AND ON THE CIRCUMSTANCES AND IN LAW, THE CIT(A) - 4, VADODARA ERRED IN DIRECTING THE AO TO GRANT CORRECT INTEREST TO THE APPELLANT U/S. 244A OF THE ACT ON REFUND AMOUNT OF RS. 8,12,93,701/ - , BY RELYING ON THE DECISION OF ITAT AHMEDABAD 'C' BENCH IN THE CASE OF ALEMBIC GLASS LTD. DATED 10.11.2006 REPORTED IN 111 ITD 320, WHEN THE HON'BLE SUPREME COURT, VIDE ITS DECISION DATED 18.09.2013 IN THE CASE OF CIT GUJARAT VS. GUJARAT FLUORO CHEMICALS LTD. REPORTE D IN [2014] 42 TAXMANN.COM.L(SC), WHEREIN THE HON'BLE SUPREME COURT HELD THAT 'SECTION 244A OF THE INCOME TAX ACT PROVIDES FOR INTEREST ON REFUND UNDER VARIOUS CONTINGENCIES AND IT IS ONLY THAT INTEREST PROVIDED FOR UNDER STATUTE WHICH MAY BE CLAIMED BY AN ASSESSEE FROM REVENUE AND NO OTHER INTEREST ON SUCH STATUTORY INTEREST'. RELIEF CLAIMED IN APPEAL. THE ORDER OF THE CIT(A) ON THE ISSUES RAISED IN THE AFORESAID GROUNDS BE SET ASIDE AND THAT OF THE ASSESSING OFFICER BE RESTORED. 3 . BOTH THE GROUNDS OF T HE REVENUE ARE INTERCONNECTED THEREFORE FOR THE SAKE OF CONVENIENCE THESE ARE DECIDED TOGETHER AS UNDER. 4. THE BRIEF FACTS OF THE CASE IS THAT THE ASSESSEE HAS FILED RETURN OF INCOME DECLARING LOSS OF RS. - 14 , 91 , 86 , 946/ - . THEREAFTER, ORIGINAL ASSESSMENT WAS FINALIZED U/S. 143(3) OF THE ACT ON 31 ST DECEMBER, 2007 AND TOTAL INCOME WAS DETERMINED AT RS. 27 , 34 , 06 , 560/ - . SUBSEQUENTLY, AFTER GIVING APPE AL EFFECT TO THE ORDER OF THE IT AT, AHMEDABAD ON 28 TH FEB, 2014, THE ASSESSING OFFICER HAS DETERMINED TOTAL L OSS OF RS. 9 , 54 , 92 , 945/ - . THE ASSESSEE PREFERRED APPEAL AGAINST THE IMPUGNED ORDER OF APPEAL EFFECT BEFORE T H E LD. CIT(A) THAT ASSESSING OFFICER HAS ERRED IN GRANTING INTEREST U/S. 244A (I)(B) OF THE ACT. DURING THE COU R SE OF APPELLATE PROCEEDINGS BEFOR E THE LD. CI T(A), THE ASSESSEE HAS GIVEN WORKING OF INTER EST U/S. 244A REPRODUCED AS UNDER : - TAX CALCULATION CORRECT WORKING AS PER ASSESSING OFFICER PARTICULARS AMOUNT AMOUNT AMOUNT INCOME AS PER NORMAL PROVISIONS OF THE ACT (9,5 4,92,945) (9,54,92,945) TAX PAYABLE (35%) - - - I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 3 ADD: SURCHARGE PAYABLE (2.5%) - - - ADD: EDUCATION CESS - - - NET TAX PAYABLE NIL NIL LESS: ADVANCE TAX PAID ON 15.12.2004 6,00,00,000 ADVANCE TAX PAID ON 14.03.2005 6 ,00,00,000 120,000,000 LESS: TDS 6,122,778 LESS TAX PAID AS PER ORDER DT. 15.7.2008 6,94,81, 798 BALANCE PAYABLE / (REFUNDABLE) (12,61,22,778) (6,94,81,798) ADD: REFUND GRANTED AS PER INTIMATION U/S. 143(1) DATED 17.11.05 (EXCLUDING INTEREST U/S. 244 A OF RS. 50,43,770) 12,60,94,300 12,60,94,300/ - BALANCE REFUNDABLE (28,478) ADD: INTEREST PAID U/S. 234D TO BE REFUNDED NOW 90,32,633 ADD: INTEREST RECOVERED U/S 244A TO BE R EFUNDED NOW 1 27,79,270 BALANCE REFUNDABLE (28,478) 178,12,93,701 ). ADD: REFUND ADJUSTED ON 31.01.2008 AGAINST EARLIER ASSTT. YEAR TO BE REFUNDED NOW 10,38,09,173 BALANCE REFUNDABLE (10,38,37,651) (8,12,93,701) LESS: REFUND GRANTED ON 15.7.08 AND ADJUSTED AGAINST DEMAND OF AY 06 - 07 ON 27.01.2009 2,24,93,469 2,24,93,469 BALANCE REFUNDABLE (8,13,44, 81) (8,12,93,701) I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 4 ADD: INTEREST U/S. 244A FREOM 01.02.2008 TO 28.02.2014 ON RS. 8, 12, 93, 701/ - 2,96,72,200 FROM 01.02.2008 TO 28.02.2014 ON RS. 6, 94, 8 1,798/ - 2,53,60,856 (1,110,34,809) (10,66,564,55 7) INTEREST U/S.244A(1)(B) GRANTED SHORT BY RS.43,11,3407 - 5 . THE LD. CIT(A) HAS ALLOWED THE APPEAL OF THE A SSESSEE AFTER STATING THAT IN A.Y.2007 - 08 THE ISSUE WAS DECIDED IN FAVOUR OF THE ASSESSEE . THE LD. DEPARTMENTAL REPRESENTATIVE HAS SUPPORTED THE ORDER OF ASSESSING OFFICER. HE CONTENDED THAT T HE CIT(A ) HAS ERRED IN DIRECTING THE AO TO GRANT CORRECT INT EREST TO THE ASSESSEE IGNORING THE FACT THAT THE A.O. HAD CORRECTLY GRANTED INTEREST U/S. 244A OF THE ACT. HE HAS FURTHER CONTENDED THAT THERE IS NO PROVISION IN THE ACT TO PAY INTEREST U/S. 244A OF THE ACT ON REFUND OF INTEREST U/S. 234D AND ON REFUND OF RECOVERY OF INTEREST U/S. 244A OF THE ACT. HE HAS ALSO PLACED RELIANCE ON THE DECISION OF THE HON'BLE SUPREME COURT, IN THE CASE OF CIT GUJARAT VS. GUJARAT FLUORO CHEMICALS LTD. REPORTED IN [2014] 42 TAXMANN.COM.L(SC), WHEREIN THE HON'BLE SUPREME COURT HEL D THAT 'SECTION 244A OF THE INCOME TAX ACT PROVIDES FOR INTEREST ON REFUND UNDER VARIOUS CONTINGENCIES AND IT IS ONLY THAT INTEREST PROVIDED FOR UNDER STATUTE WHICH MAY BE CLAIMED BY AN ASSESSEE FROM REVENUE AND NO OTHER INTEREST ON SUCH STATUTORY INTEREST . DURING THE COURSE OF APPELLATE PROCEEDINGS BEFORE US, THE LD. COUNSEL HAS SUBMITTED PAPER BOOK GIVING DETAIL OF JUDICIAL PRONOUNCEMENTS AND DECISION OF THE ITAT AHMEDABAD IN THE CASE OF THE ASSESSE ITSELF FOR ASSESSMENT YEAR 2007 - 08 . I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 5 6 . WE HAVE HEARD B OTH THE SIDES AND PERUSED THE MATERIAL ON RECORD CAREFULLY. T HE ASSESSMENT U/S . 143(3) OF THE ACT WAS COMPLETED AFTER MAKING CERTAIN ADDITIONS. T HE LD. CIT(A) HAD CONFIRMED PART OF THE ADDITION MADE BY THE ASSESSING OFFICER. THE ITAT HAD SET ASIDE THE ISSUE REGARDING DEDUCTION U/S. 36( 1)(XII) OF THE ACT TO THE FILE O F ASSESSING OFFICER FOR VERIFICATION BEFORE GRANTING DEDUCTION WHICH RESULTED IN ARISING REFUND TO THE ASSESSEE. AGAINST THE COMPUTATION OF INTEREST U/S 244A OF THE ACT BY THE ASSESSING OF FICER THE ASSESSEE PREFERRED APPEAL BEFORE THE LD.CIT(A). THE GRIEVANCE OF THE ASSESSEE WAS THAT THE ASSESSING OFFICER HAS GRANTED I NTEREST OF R S. 2 , 53 , 60 , 860/ - UNDER SECTION 244A(I)(B) HOWEVER, THE AS S ESSEE HAD CLAIMED IT AT RS. 2 , 96 , 72 , 200/ - . THE ASS ESSEE POINTED THAT THE ASSESSING OFFICER HAS NOT GRANTED INTEREST ON INTEREST RECOVERED UNDER SECTION 234D AS EXCESS AMOUNT OF REFUND RECOVERED AND INTEREST ON THE INTEREST WITHDRAWN UNDER SECTION 244 A OF THE ACT. ON PERUSAL OF THE ORDER OF THE CIT(A) W E OBSERVE THE LD.CIT(A) HAS SIMPLY STATED THAT ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE AS DECIDED IN ITS OWN CASE FOR ASSESSMENT YEAR 2007 - 08. THE RELEVANT PART OF THE DECISION OF THE LD.CIT(A) IS REPRODUCED AS UNDER: - 6.4 SINCE THE FACTS OF THE PRE SENT CASE ARE EXACTLY SIMILAR TO THE CASE DECIDED BY CIT(A) IN CAB - 1/165/13 - 14, FOLLOWING THE DECISION OF CIT(A) IN ASSESSEE'S OWN CASE IN A.Y. 2007 - 08, THE ASSESSING OFFICER IS DIRECTED TO GRANT CORRECT INTEREST TO THE APPELLANT U/S 244A OF THE ACT ON REF UND AMOUNT OF RS. 8,12,93,701/ - , FOR THE PERIOD FOR WHICH IT IS ELIGIBLE IN ACCORDANCE WITH THE LAW. THE ASSESSEE SUCCEEDS ON THIS GROUND OF APPEAL. T HE LD. CIT(A) HAD NOT ADJUDICATED THE ISSUE IN APPEAL WITH SPECIFIC FINDINGS ON THE IMPUGNED CLAIM OF I NTEREST AS IT WAS NOT SUBSTANTIATED WITH RELEVANT MATERIAL THAT HOW THE MATERIAL FACTS INDEED EXISTING IN THE ASSESSMENT YEAR 2007 - 08 WERE SIMILAR TO THE FACTS FOUND TO BE EXISTED DURING THE YEAR UNDER CONSIDERATION. I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 6 THE RELEVANT PART OF THE DECISI ON OF LD.CIT(A) PERTAINING TO ASSESSMENT YEAR 2007 - 08 IS REPRODUCED AS UNDER: - I HAVE CONSIDERED THE FACTS AND CIRCUMSTANCES OF THE CASE, OBSERVATIONS OF THE ASSESSING OFFICER, SUBMISSIONS OF THE ASSESSEE, THE MATERIAL AVAILABLE ON THE RECORD AND THE RELEVANT JUDICIAL PRONOUNCEMENTS ON THE SUBJECT. THE ISSUE IS COVERED IN FAVOUR OF THE ASSESSEE IN ITS OWN CASE IN A.Y. 2007 - 08 BY THE ORDER DATED 14.02.2014 OF CIT(A) IN CAB - 1/165/13 - 14, WHEREBY, CIT(A) HAS HELD AS UNDER ON THE ISSUE - '3 THE ABOVE SUBMISSION OF A R OF THE APPELLANT IN CONNECTION WITH GROUNDS OF APPEAL AS FILED BY THE APPELLANT ALONG WITH FORM NO. 35 HAS BEEN CONSIDERED. THE FIRST GROUND OF APPEAL OF THE APPELLANT IS THAT THE ORDER PASSED BY THE ASSESSING OFFICER IS ERRONEOUS AND CONTRARY TO THE PRO VISIONS OF LAW AND FACTS AND THEREFORE REQUIRES TO BE SUITABLY MODIFIED. IT IS SUBMITTED THAT IT BE SO DONE NOW. THIS GROUND OF APPEAL OF THE APPELLANT IS OF GENERAL NATURE AND THEREFORE THE SAME IS NOT ADJUDICATED UPON. THE GROUND OF APPEAL NO. 2 OF THE A PPELLANT IS THAT THE LD. ASSESSING OFFICER ERRED IN COMPUTING INTEREST U/S 244A AT RS. 1,05,01,836/ - AS AGAINST RS. 1,38,56,037/ - ON THE REFUND DETERMINED OF RS. 17,56,65,904/ - . IT IS SUBMITTED THAT THE ASSESSING OFFICER BE DIRECTED TO GRANT FURTHER INTERE ST OF RS. 33,54,201/ - . WITH REGARD TO THIS GROUND OF APPEAL THE ABOVE SUBMISSION DATED 11/02/2014 OF THE AR OF THE APPELLANT IS FOUND TO BE TENABLE. THE MAIN CONTENTION OF AR OF THE APPELLANT IS THAT IT IS ENTITLED TO INTEREST U/S 244A OF THE ACT ON THE AM OUNT OF INTEREST PAID U/S 2348 OF RS. 2,68,33,606/ - WHICH WAS REFUNDED BACK TO IT. IT IS SUBMITTED BY THE AR THAT THE REFUND ON THE INTEREST IS A/SO A REFUND OF AMOUNT PAID OR COLLECTED FROM APPELLANT AND HENCE APPELLANT IS ENTITLED TO INTEREST U/S 244A OF THE ACT. THE APPELLANT HAS RELIED UPON THE DECISION OF HON'BLE ITAT AHMEDABAD IN THE CASE OF ALEMBIC GLASS INDUSTRIES LTD. 111 ITD 320. THE HON'BLE ITAT AHMEDABAD IN THIS REFERRED DECISION HAS MAINLY HELD THAT SECTION 244A GRANTS INTEREST ONLY ON THAT AMO UNT OF REFUND, I.E. OUT OF THE PAYMENTS OF TAX OR PENALTY, MADE BY THE ASSESSEE OR COLLECTED FROM HIM. AS PER THE HON'BLE ITAT IN THE INSTANT CASE, THE ASSESSEE HAD MADE PAYMENT OF INTEREST U/S 234B WHICH WAS TO BE REFUNDED AS THE SAME WAS FOUND TO BE NOT CHARGEABLE. AS PER THE HON'BLE ITAT THEREFORE, THE CONDITION, THAT REFUND WAS OUT OF AMOUNT PAID OR COLLECTED FROM THE ASSESSEE WAS SATISFIED FOR GRANTING THE INTEREST. AS PER THE HON'BLE ITAT, AHMEDABAD A LITERAL MEANING GIVEN TO THE EXPRESSION 'TAX OR PE NALTY' FOUND IN CLAUSE (B) OF THE LATER PART OF SECTION 244A(1) WOULD CREATE AN ANOMALOUS SITUATION RESULTING IN EXCLUSION OF THE CONCEPT OF THE INTEREST. THEREFORE, IN THE CONTEXT OF SECTION 244A(1)(B), THE EXPRESSION 'TAX' WOULD INCLUDE INTEREST ALSO AND THE DEFINITION OF TAX IN SECTION 2(43) MEANING 'INCOME - TAX' MAY NOT BE APPLICABLE IN THE CONTEXT OF SECTION 244A(1). AS PER THE HON'BLE ITAT CONSEQUENTLY, THE INTEREST PAID IN PURSUANCE OF AN ORDER UNDER SECTION 2348 HAS TO BE REGARDED AS FORMING PART OF TAX OR AN ADJUNCT TO INCOME - TAX. AS PER THE HON'BLE ITAT, THE RESULT WAS THAT THE ASSESSEE WOULD BE ENTITLED TO INTEREST ON THE REFUND OF INTEREST PAID UNDER SECTION 234B ALSO. IN VIEW OF THIS DECISION OF HON'BLE ITAT, IT IS HELD THAT THE APPELLANT IS ENT ITLED TO INTEREST U/S 244A OF THE IT ACT ON THE AMOUNT OF INTEREST OF RS. 2,68,33,606/ - AS PAID BY IT U/S 234B OF THE IT ACT. IN VIEW OF THIS THE AO IS DIRECTED TO GRANT INTEREST TO THE APPELLANT ON AMOUNT OF 2,68,33,606/ - U/S 244A OF THE IT ACT FOR THE PER IOD FOR WHICH IT IS ELIGIBLE IN ACCORDANCE WITH THE LAW. THUS THE APPEAL OF THE APPELLANT IS ALLOWED.' IT IS CLEARLY DEMONSTRATED FROM THE FINDINGS OF THE LD. CIT(A) AS SUPRA THAT I NTER ALIA ISSUE FOR ASSESSMENT YEAR 2007 - 08 RELATE S TO GRANTING OF I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 7 INTE REST U/S. 244A OF THE ACT ON THE AMOUNT OF INTEREST PAID U/S. 234 B OF THE ACT. THE PAYMENT OF INTEREST U/S 234B OF THE ACT WAS CONSIDERED TO BE A PART OF TAX AND INTEREST U/S 244A OF THE ACT WAS GRANTED WHILE ADJUDICATING THE SAME IN THE CASE OF THE ASSE SSEE FOR ASSESSMENT YEAR 2007 - 08 . THAT WAS DECIDED BY THE LD. CIT(A) AFTER PLACING RELIANCE ON THE DECISION OF THE ITAT AHMEDABAD IN THE CASE OF ALEMBIC GLASS INDUSTRIES LTD 111 ITD 320. NEVERTHELESS THE MATERIAL FACTS D U RING THE A.Y. 2007 - 08 ARE DISTING UISHABLE FROM FACTS FOUND TO BE EXISTING DURING THE YEAR UNDER CONSIDERATION AS THE IMPUGNED CLAIM OF INTEREST PERTAINS TO RECOVERY OF EXCESS REFUND UNDER T HE PROVISION O F SECTION 234D OF THE ACT AND CLAIM OF INTEREST ON RECOVERY OF INTEREST U/S. 244 A OF THE ACT. DURING T HE COURSE OF APPELLATE PROCEEDINGS BEFORE US , THE LD. COUNSEL HAS PLACED RELIANCE ON THE DECISION OF CO - ORDINATE BENCH OF THE ITAT IN ASSESSEE OWN CASE FOR ASSESSMENT YEAR 2007 - 08 AND THE DECISION OF AHMEDABAD ITAT IN CASE OF ALEMBIC G LASS INDUSTRIE S LTD AND DECISION OF HON BLE DELHI HIGH CO URT IN THE CASE OF PREETI AGRAWAL. WE HAVE PERUSED THE AFORESAID JUDICIAL PRONOUNCEMENTS. THE FACTS OF THE AFORESAID JUDICIAL PRONOUNCEMENTS ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE OF THE ASS ESSEE. THE CO - ORDINATE BENCH OF THE IT AT IN THE CA S E OF ASSESSEE ITSELF FOR ASSESSMENT YEAR 2007 - 08 VIDE ITA 1384/AHD/2014 HAS DECIDED THE ISSUE OF PAYMENT OF INTEREST U/S. 244A OF THE ACT ON REFUNDING OF INTEREST PAID U/S. 234B OF THE AC T AFTER FOLLOWI NG THE DECISION OF ALEMBIC GLASS INDUSTRIES LTD. BECAUSE INTER ALIA T HE FACTS WERE IDENTICAL T O THE CASE OF ALEMBIC GLASS INDUSTRIES LT D. 111 ITD 320 IN WHICH THE ITAT AHMEDABAD HAS HELD TH AT THE INTEREST PAID IN PURSUANCE OF AN ORDER UNDER SECTION 234B HAS TO BE REGARDED AS FORMING PART OF TAX OR AN A DJUNCT TO INCOME TAX AND THE AS SESSEE WOULD BE E N TITLED TO INTEREST ON THE REFUND OF INTEREST PAID UNDER SECTION 234B . THE DECISION OF THE HON BLE C OURT OF DELHI IN THE CASE OF PREETI N. AGARWAL V S . CCIT8 2 I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 8 TAXMANN.CO M IS PERTAIN ED TO PAYMENT OF INTEREST U/S. 244A ON AMOUNT OF INTEREST AS A RESULT OF WAIVE R OF INTEREST U/S. 220(2A) OF T HE ACT. NOTWITHSTANDING THAT THE IMPUGNED CLAIM OF THE ASSESSEE FOR THE YEAR UNDER CONSIDERATION IS GR AN T ING OF INTE RE ST ON RECOVERY OF EXCESS INTEREST ON REFUND UNDER SE C TION 234D AND INTER E ST ON RECOVERY OF EXCESS INTEREST UNDER SECTION 244A OF THE ACT. THE PROVISION O F SECTION 234D PERTAINS TO INTEREST ON EXCESS REFUN D IS REPRODUCED AS UNDER: - '234D. INTEREST ON E XCESS REFUND. (1) SUBJECT TO THE OTHER PROVISIONS OF THIS ACT, WHERE ANY REFUND IS GRANTED TO THE ASSES SEE UNDER SUB - SECTION (1) OF SECTION 143, AND (A) NO REFUND IS DUE ON REGULAR ASSESSMENT; OR (B) THE AMOUNT REFUNDED UNDER SUB - SECT ION (1) OF SECTION 143 EXCEEDS THE AMOUNT REFUNDABLE ON REGULAR ASSESSMENT, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF TWO - THIRD PER CENT ON THE WHOLE OR THE EXCESS AMOUNT SO REFUNDED, FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FROM THE DATE OF GRANT OF REFUND TO THE DATE OF SUCH REGULAR ASSESSMENT. (2) WHERE, AS A RESULT OF AN ORDER UNDER SECTION 154 OR SECTION 155 OR SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 OR AN ORDER O F THE SETTLEMENT COMMISSION UNDER SUB - SECTION (4) OF SECTION 245D, THE AMOUNT OF REFUND GRANTED UNDER SUB - SECTION (1) OF SECTION 143 IS HELD TO BE CORRECTLY ALLOWED, EITHER IN WHOLE OR IN PART, AS THE CASE MAY BE, THEN, THE INTEREST CHARGEABLE, IF ANY, UND ER SUB - SECTION (1) SHALL BE REDUCED ACCORDINGLY. EXPLANATION. WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN AS SESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 OR SECTION 153A, THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PU RPOSES OF THIS SECTION.'. WE HAVE ALSO PERUSED THE DECISION OF THE HON BLE SUPREME COURT IN THE CASE OF COMMSSIONER OF IT V S . GUJARAT FLURO CHEMICALS (2014) 42 TAXMANN.CO M IN WHICH IT IS HELD THAT SECTION 244A PROVIDES FOR INTEREST ON REFUNDS UNDER VARI OUS CONTINGENCIES AND IT IS ONLY THAT INTEREST PROVIDED FOR UNDER STATUTE WHICH MAY BE CLAIMED BY AN ASSESSEE FROM REVENUE AND NO OT H ER INTEREST ON SUCH STATUTORY INTEREST . THE LD. CIT(A) IN THE CASE OF THE ASSESSEE HAS SIMPLY STATED THAT THE FACTS OF THE PRESENT CASE ARE EXACTLY SIMILAR TO THE CASE DECIDED BY CIT(A) IN CAB - 1/165/13 - 14 FOLLOWING THE DECISION OF CIT(A) IN ASSESSEE OWN CASE IN ASSESSMENT YEAR 2007 - 08 WITHOUT ANY SPECIFIC DISCUSSION ON T H E SIMILARIT Y OF T H E FAC T S OF THESE CASES. I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 9 HOWEVER, A S DEMONSTRAT ED SUPRA THE FAC T S OF THE CASE OF THE ASSESSE DURING THE YEAR ARE DISTINGUISHABLE FROM THE FACTS OF THE CASE OF ASSESSMENT YEAR 2007 - 08 . THE ABOVE FACTS AND FINDINGS DEMONSTRATE THAT THE LD. CIT (A) HAS NOT TAK EN INTO CONSIDERATION THE VARI OUS CONTINGENCIES AND THE CIRCUMSTANCES THAT GRANTING OF INTEREST U/S 244A ON INTEREST RECOVERED UNDER SECTION 234D A ND INTEREST WITHDRAWN UNDER SECTION 244 A OF THE ACT ARE ANALOGOUS TO INTEREST PAID IN PURSUANCE OF AN INTEREST PAID U NDER SECTION 234B WHI CH WAS REGARDED AS FORMING PART OF TAX OR AN ADJUNCT TO INCOME TAX . W E OBSERVE THAT THERE IS DEFICIENCY OF INFORMATION AND INCOMPLETE APPRAISAL OF COMPUTATION OF REFUND AND INARTICULATE FINDINGS IN THE ORDER OF THE LD. CIT(A) ON THE ISSUE OF GRANTING IMPU GNED INTEREST U/S. 244A . BECAUSE OF ABOVE INFIRMITIES IT IS INFEASIBLE TO ADJUDICATE THE IMPUGNED ISSUE IN FAIR AND EQUITABLE MANNER . T HEREFORE , WE CONSIDER IT APPROPRIATE TO RESTORE THIS CASE TO THE FILE OF T HE LD. CIT(A) TO RE - ADJUDICA T E IT DE - N OVO AFTE R REMOVING THE ABOVE ANOMALY AND PASS A SPEAKING ORDER AS PER LAW AFTER TAKING INTO CONSIDERATION THE FACTS AND JUDICIAL FINDINGS AS SUPRA. ACCORDINGLY, THE APPEAL OF THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES . 7. IN THE RESULT, THE APPEAL O F THE REVENUE IS ALLOWED FOR STATISTICAL PURPOSES. ORDER PR ONOUNCED IN THE OPEN C OURT ON 21 - 02 - 201 8 SD/ - SD/ - ( S.S. GODARA ) ( AMARJIT SINGH ) JUDICIAL MEMBER ACCOUNTANT MEMBER AHMEDABAD : DATED 21 /02 /2018 I.T.A NO. 2517 /AHD/20 15 A.Y. 2005 - 06 PAGE NO DCIT VS. NATIONAL DAIRY DEVELOPMENT 10 / COPY OF ORDER FORWARDED TO: - 1. ASSESSEE 2. REVENUE 3. CONCERNED CIT 4. CIT (A) 5. DR, ITAT, AHMEDABAD 6. GUARD FILE. BY ORDER/ , / ,