Gujarat State Fertilizers & Chemicals Ltd., Vadodara V. The Dy.CIT, Circle-1(1), Baroda

ITA 2572/AHD/2015

• Counselvise Citation: [2017] 127 COUNSELVISE.COM (IT) 7985 (ITAT-AHMEDABAD)
• Duration Of Justice: 2 year(s) 3 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-12-2017
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: Not Allotted
• Assessment Year: 2009-2010
• Appeal Filed On: 02-09-2015
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: O P PATHAK JOINT
• Keywords: Rectification of order
• Section: 143(3); 154

Judgement Text

ITA NO .2572/AHD/2015 A.Y. 2009 - 10 PAGE 1 OF 3 IN THE INCOME TAX APPELLATE TRIBUNAL AHMEDABAD B BENCH, AHMEDABAD BEFORE SHRI N.K. BILLAIYA , ACCOUNTANT MEMBER AND SHRI MAHAVIR PRASAD , JUDICIAL MEMBER I TA NO. 2572 /AHD /201 5 ASSESSMENT YEAR: 2009 - 10 GUJARAT STATE FERTILIZERS & VS. DY. COMMISSIO NER OF INCOME TAX, CHEMICAL S LIMITED, CIRCLE 1(1), BARODA. P.O. FERTILIZERNAGAR 391 750 DIST. VADODARA [PAN A A ACG 7996 C ] (APPELLANT ) (RESPONDENT) APPELLANT BY : SHRI SANJAY R. SHAH, A.R. RESPONDENT BY : SHRI O.P. PATHAK, JOI NT CIT DATE OF HEARING : 2 9 . 11 . 20 17 DATE OF PRONOUNCEMENT : 13 . 12 .2017 O R D E R PER N.K. BILLAIYA, ACCOUNTANT MEMBER TH IS APPEAL BY THE ASSESSEE IS PREFERRED AGAINST THE ORDER OF CIT(A) - 1, VADODARA DATED 10.06.2015 PERTAINING TO ASSESSMENT YEAR 2009 - 10. 2. THE SUM AND SUBSTANCE OF THE GRIEVANCE OF THE ASSESSEE IS THAT THE CIT(A) ER R ED IN CONFIRMING THE ACTION OF THE ASSESSING O FFICER CHARGING INTEREST OF RS.50.01 LAKHS UNDER SECTION 22 0 (2) OF THE INCOME TAX ACT, 1961 ( THE ACT HEREINAFTER). 3. BRIEFLY S TATED, THE FACTS OF THE CASE ARE THAT NOTICE OF DEMAND UNDER SECTION 156 OF THE ACT WAS ISSUED RAISING A DEMAND OF RS.26.61 CRORES. IT WAS BROUGHT TO THE NOTICE OF THE ASSESSING OFFICER THAT THE ASSESSEE HA D PREFERRED RECTIFICAT ION APPLICATION FOR EARLIER ASSESSMENT YEA R S AS P E R WHICH SUBSTANTIAL REFUND WOULD BECOME DUE TO THE ASSESSEE. THE ASSESSEE REQUESTED THE ASSESSING O FFICER TO ADJUDICATE THE PENDING RECTIFICATION APPLICATION AND DETERMIN E THE REFUND DUE TO THE COMPANY AND ADJUST THE SAME AGAINST OUTSTANDING DEMAND FOR THE YEAR UNDER CONSIDERATION. 4 . THE ASSESSING OFFICER DID NOT CONSIDER THE REQUEST MADE BY THE ASSESSEE AND LEVIED INTEREST UNDER SECTION 220(2) OF THE ACT AT RS.50,01,200/ - . ITA NO .2572/AHD/2015 A.Y. 2009 - 10 PAGE 2 OF 3 5 . ASSESSEE CARRIED THE MATTER B EFORE THE CIT(A) BUT WITHOUT ANY SUCCESS. BEFORE US LEARNED COUNSEL FOR THE ASSESSEE REITERATED WHAT HAS BEEN STATED BEFORE THE LOWER AUTHORITIES . P ER CONTRA, LEARNED DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE FINDINGS OF TH E R EVENUE AUTHORITIES. 6 . WE HAVE GIVEN A THOUGHTFUL CONSIDERATION TO THE O R D E RS OF THE AUTHORITIES BELOW. WE FIND THAT THE ASSESSMENT ORDER IS FRAMED UNDER SECTION 143(3) OF THE ACT VIDE ORDER DATED 3 0 .12.2011. T HE NOTICE OF DEMAND WAS SERVED UPON THE ASSESSEE ON 04.01.2012 WHICH MEANS THAT DUE DATE FOR PAYMENT OF DEMAND EXPIRED AFTER 30 DAYS FROM THE DATE OF RECEIPT OF THE ORDER. WE FURTHER FIND THAT WHILE GIVING EFFECT TO THE ORD E R OF CIT ( A ) FOR ASSESSMENT YEAR 2007 - 08, THE ASSESSING O FFICER HAS ALSO GIVEN EFFECT TO THE R ECTIFICATION APPLICATION PREFERRED UND E R SECTION 154 OF THE ACT FOR ASSESSMENT YEAR 2006 - 07. WE FIND THAT THE ORDER WAS PASSED BY THE ASSESSING OFFICER ON 23.02.2012. T HE APPLICATION FOR RECTIFICATION WAS MADE ON 31.05.2011 AND THE ASSESSING OFFICER SHOU LD HAVE PASSED THE RECTIFICATION ORDER WITHIN SIX MONTHS. BUT THE SAM E WAS PASSED AFTER EIGHT MONTHS. IN OUR CONSIDERED OPINION, THE DELAY OF TWO MONTHS IN PASSING THE RECTIFICATION ORDER CANNOT BE ATTRIBUTED TO THE ASSESSEE . IT IS A FACT THAT THE ASSES SEE WAS ALLOWED REFUND OF RS.46.54 CORES. HAD THE RECTIFICATION WAS DONE ON TIME, THE REFUND OF RS.46.54 CRORES COULD HAVE BEEN ADJUSTED AGAINST THE DEMAND WHICH BECOME DUE ON 02.02.2012. 7 . CONSIDERING THE FACTS IN TOTALITY, WE DO NOT FIND ANY REASON WH Y THE ASSESSEE SHOULD BE CHARGED INTER EST FOR THE DELAY OF TWO MONTHS WHICH IS NOT ATTRIBUTABLE TO THE ASSESSEE AT ALL. WE ACCORDINGLY DIRECT THE ASSESSING O FFICER TO DELETE THE LEVY OF INTEREST FOR TWO MONTHS. APP E AL FILED BY THE ASSESSEE IS ACCORDINGLY ALLOWED. 8 . IN THE RESULT, APPEAL IS ALLOWED. ( OR DER PRONOUNCED IN THE OPEN COURT ON THIS 13 TH DAY OF DECEMBER , 2017 ) SD/ - SD/ - MAHAVIR PRASAD N.K. BILLAIYA ( JUDICIAL MEMBER) ( ACCOUNTANT MEMBER) AHMEDABAD, THE 13 TH DAY OF DECEMBER , 201 7 PBN/* ITA NO .2572/AHD/2015 A.Y. 2009 - 10 PAGE 3 OF 3 COPIES TO: (1) THE APPELLANT (2) THE RESPONDENT (3) CIT (4) CIT(A) (5) DEPARTMENTAL REPRESENTATIVE (6) GUARD FILE BY ORDER E COPY ASSISTANT REGISTRAR INCOME TAX APPELLATE TRIBUNAL AHMEDABAD BENCHES, AHMEDABAD