DDIT (IT) 4(2), MUMBAI V. NIMBUS COMMUNICATION LTD, MUMBAI

ITA 2827/MUM/2012

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3943 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-07-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: L
• Next Hearing Date: 30-07-2013
• Assessment Year: 2009-2010
• Appeal Filed On: 26-04-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: ALOK BAIRAGRA
• Keywords: Double taxation relief
• Section: 244A; 147; 263; 144; 154

Judgement Text

, , , , , IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES L, MUMBAI . , !' #$ %& , ' #$, ! ( BEFORE SHRI B. RAMAKOTAIAH, AM AND SHRI VIJAY PAL RAO JM ITA NO.2827 /MUM/2012: ASST.YEAR 2009-2010 ASSISTANT DIRECTOR OF INCOME TAX (IT) 4(2), R.M. 11 SCINDIA HOUSE, BALLARD PIER, MUMBAI 400 038. M/S NIMBUS COMMUNICATION LTD. NIMBUS CENTER, OBEROI COMPLEX, ANDHERI (WEST), MUMBAI 400 053, MUMBAI- 400 053 PAN : AAACCN3947L ( )* / // / APPELLANT) , , , , / VS. ( -.)*/ RESPONDENT) )* / // / 0 ! 0 ! 0 ! 0 ! / APPELLANT BY : MS. NEERAJA PRADHAN -.)* / 0 ! / 0 ! / 0 ! / 0 ! / RESPONDENT BY : MR. ALOK BAIRAGRA , / 1' / / / / DATE OF HEARING : 30.07.2013 23 / 1' / DATE OF PRONOUNCEMENT : 30 .07 .2013 #!4 #!4 #!4 #!4 / O R D E R SHRI VIJAY PAL RAO ( JM) : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER DATED 17 TH JANUARY. 2012 OF CIT(A) FOR THE ASSESSMENT YEAR 200 9-10. THE ONLY ISSUE RAISED BY THE REVENUE IS AS UNDER:- WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) IS JUSTIFIED IN HOLDING THAT THE ASSESSEE IS ENTITLED TO INTEREST OF REFUND UNDER SECTION 244A OF THE INCOME TAX ACT. 2. WE HAVE HEARD THE LD. DR AS WELL AS LD. AR AND C ONSIDERED THE RELEVANT MATERIAL ON RECORD. THE LD. DR HAS RELIED UPON THE ORDER OF THE ASSESSING OFFICER, WHEREAS THE LD. AR HAS SUBMITTED THAT AN I DENTICAL ISSUE HAS BEEN CONSIDERED AND DECIDED BY THIS TRIBUNAL IN CASE OF NEO SPORTS BROADCAST PVT. LTD. VS. DDIT IN ITA NO. 7649 OF 2010 VIDE ORDER DA TED 30 TH JANUARY.2013. WE NOTE THAT THIS TRIBUNAL IN CASE OF NEO SPORTS BR OADCAST PVT. LTD. HAS ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 2 DECIDED THE ISSUE OF GRANT OF INTEREST UNDER SECTIO N 244 A IN PRARA 5 TO 9 AS UNDER:- 5. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AN D PERUSED THE BOARD CIRCULAR, ORDERS OF THE AUTHORITIES AND THE D ECISIONS OF THE COORDINATE BENCH. FIRST OF ALL, IT IS TO BE NOTED T HAT ASSESSEE WAS DIRECTED TO DEDUCT TAX AT 11.72% VIDE ORDER UNDER S ECTION 195(2) DATED, 28.03.2008 AND ACCORDINGLY ASSESSEE DEDUCTED THE SAID TAX. ASSESSEE DID NOT CLAIM ANY REFUND IN PURSUANCE TO T HE CIRCULAR DIRECTLY BUT HAS CONTESTED THE MATTER ON THE DIRECT IONS SO GIVEN BY AO. THE CIT (A) ANALYZING THE FACTUAL SITUATION AND LEGAL POSITION HELD THAT PAYMENT FOR THE LIVE TELECAST OF CRICKET MATCHES DOES NOT COME IN THE NATURE OF ROYALTY AND ACCORDINGLY THE AMOUNT WAS NOT REQUIRED TO BE DEDUCTED AND DIRECTED THE TAX PAID T O BE REFUNDED. THEREFORE, THE OBSERVATIONS OF THE CIT (A)/RELIANCE BY HIM ON THE BOARD CIRCULAR NO.007 OF 2007 DATED 23.10.2007 IS N OT CORRECT IN THE SENSE THAT IT IS NOT A DIRECT REFUND CLAIM PLAC ING RELIANCE ON THE BOARD CIRCULAR AND THE CIRCUMSTANCES STATED THEREIN . HAD ASSESSEE DEDUCTED THE TAX ON ITS OWN VOLUNTARILY AND CLAIMED THE BENEFIT OF THE CIRCULAR FOR ISSUANCE OF THE REFUND, THEN THE C IRCULAR MAY BE APPLICABLE. IN THE CIRCULAR IT WAS CLARIFIED THAT T HE AMOUNT DEDUCTED CANNOT BE CONSIDERED AS TAX AND NO INTEREST UNDE R SECTION 244A IS ADMISSIBLE ON REFUNDS TO BE GRANTED IN ACCORDANCE W ITH THIS CIRCULAR (007 OF 2007) OR ON THE REFUNDS ALREADY GR ANTED IN ACCORDANCE WITH THE CIRCULAR NOS. 769 OR 790. SINCE THE REFUND WAS GRANTED CONSEQUENT TO THE ORDER OF THE CIT (A), REL YING ON THE ABOVE CIRCULAR WHERE CLAIM OF DIRECT REFUND WAS CONSIDERE D BY THE CBDT IS NOT CORRECT. 6. THE LEARNED DR RELIED ON THE DECISION OF THE GODREJ INDUSTRIES LTD (SUPRA), WHEREIN ASSESSEE VOLUNTARILY DEDUCTED THE TAX AND SOUGHT INTEREST ON REFUND UNDER SECTION 244A, IT WA S HELD THAT REFUND OF INTEREST UNDER SECTION 244A CAN BE ALLOWE D IN THOSE CASES WHERE NOTICE OF DEMAND HAS BEEN ISSUED UNDER SECTIO N 156 AND TAX WAS PAID IN EXCESS OF SUCH DEMAND. IN THAT CASE SIN CE NO NOTICE OF ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 3 DEMAND UNDER SECTION 156 WAS ISSUED, IT WAS HELD TH AT NO INTEREST COULD BE ALLOWED. HOWEVER, IN THE VERY SAME ORDER T HE COORDINATE BENCH ALSO CONSIDERED THE DECISION OF THE TATA ENGI NEERING & LOCOMOTIVES VS. DCIT 92 ITD 111 (MUM) AND ROYAL AIR WAYS LTD VS. ADD. DIT, 98 TTJ 665 DISTINGUISHING THOSE DECISIONS FOR THE REASON THAT AO INSISTED UPON THE PAYMENT OF TDS BY ASSESSE E. THEREFORE, THE ABOVE DECISION DOES NOT APPLY TO THE FACTS OF T HE CASE AS ASSESSEE PAID THE TAX CONSEQUENT TO AN ORDER U/S 19 5 BY AO AND DID NOT CLAIM DIRECT REFUND AS PER THE BOARD CIRCUL AR. THE REFUND AROSE CONSEQUENT TO AN ORDER OF CIT(A) IN AN APPEAL . 7. IN FACT, THIS ISSUE WAS ALREADY CONSIDERED BY THE DECISION OF THE DDIT (INTERNATIONAL TAXATION) VS. STAR CRUISES (INDIA) TRAVEL SERVICES PVT. LTD (MUM) IN ITA NO.6498 & 6500/MUM/0 6-2009- TIOL-351 WHEREIN IT WAS ELABORATELY DISCUSSED AS UN DER: 6. IT WOULD BE RELEVANT TO REFER TO SECTION 240 OF THE ACT. SECTION 240 OF THE INCOME TAX ACT, 1961 READS AS UN DER:- SEC 240: WHERE, AS A RESULT OF ANY ORDER PASSED IN APPEAL OR OTHER PROCEEDINGS UNDER THIS ACT, REFUND OF ANY AMOUNT BECOMES DUE TO THE ASSESSEE, THE (ASSESSING) OFFICER SHALL, EXCEPT AS OTHERWISE PROVIDED IN THIS ACT, RE FUND THE AMOUNT TO THE ASSESSEE WITHOUT HIS HAVING TO MAKE A NY CLAIM IN THAT BEHALF: [PROVIDED THAT WHERE, BY THE ORDER AFORESAID,- (A) AN ASSESSMENT IS SET ASIDE OR CANCELLED AND AN ORDE R OF FRESH ASSESSMENT IS DIRECTED TO BE MADE, THE REFUND, IF A NY, SHALL BECOME DUE ONLY ON THE MAKING OF SUCH FRESH ASSESSM ENT; (B) THE ASSESSMENT IS ANNULLED, THE REFUND SHALL BE COME DUE ONLY OF THE AMOUNT, IF ANY, OF THE TAX PAID. IN EXC ESS OF THE TAX CHARGEABLE ON THE TOTAL INCOME RETURNED BY THE ASSE SSEE.)' 7. SECTION 244A WHICH PROVIDES FOR GRANT OF INTE REST TO THE ASSESSEE READS AS UNDER:- '244A. (1) [WHERE REFUND OF ANY AMOUNT BECOMES DUE TO THE ASSESSEE UNDER THIS ACT], HE SHALL, SUBJECT TO THE PROVISIONS OF THIS SECTION, BE ENTITLED TO RECEIVE, IN ADDITION T O THE SAID AMOUNT, SIMPLE INTEREST THEREON CALCULATED IN THE F OLLOWING MANNER, NAMELY:- (A) WHERE THE REFUND IS OUT OF ANY TAX [PAID U/S 11 5WJ OR [COLLECTED AT SOUSE U/S 206C OR] PAID BY WAY OF ADV ANCE TAX OR ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 4 TREATED AS PAID U/S 199, DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, SUCH INTEREST SHALL BE CALCULATED AT THE RATE OF [ONE-HALF PER CENT] FOR E VERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FROM THE 1 ST DAY OF APRIL OF THE ASSESSMENT YEAR TO THE-DATE ON WHICH T HE REFUND IS GRANTED: PROVIDED THAT NO INTEREST SHALL BE PAYABLE IF THE A MOUNT OF REFUND IS LESS THAN TEN PER CENT OF THE TAX AS DETE RMINED [UNDER [SUB-SECTION (1) OF SECTION 115WE OR] SUB-SECTION ( 1) OF SECTION 143 OR] ON REGULAR ASSESSMENT. (B) IN ANY OTHER CASE, SUCH INTEREST SHALL BE CALCULATED AT THE RATE OF 79 [ONE-HALF PER CENT] FOR EVERY MONTH OR P ART OF A MONTH COMPRISED IN THE PERIOD OR PERIODS FROM THE DATE, O R AS THE CASE MAY BE, DATES OF PAYMENT OF THE TAX OR PENALTY TO T HE DATE ON WHICH THE REFUND IS GRANTED. EXPLANATION- FOR THE PURPOSE OF THIS CLAUSE, 'DATE OF PAY MENT OF TAX OR PENALTY' MEANS THE DATE ON AND FRO-M WHICH T HE AMOUNT OF TAX OR PENALTY SPECIFIED IN THE NOTICE OF DEMAND ISSUED U/S 156 IS PAID EXCESS OF SUCH DEMAND. (2) IF THE' PROCEEDINGS RESULTING IN THE REFUND ARE DEL AYED FOR REASONS ATTRIBUTABLE TO -THE- ASSESSEE, WHETHER WHOLLY OR IN PART, THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HI M SHALL BE EXCLUDED FROM THE PERIOD FOR WHICH INTEREST IS PAYA BLE, AND WHERE ANY QUESTION ARISES AS TO THE PERIOD TO BE EX CLUDED, IT SHALL BE DECIDED BY THE CHIEF COMMISSIONER OR COMMI SSIONER WHOSE DECISION THEREON SHALL BE FINAL. (3) WHERE, AS A RESULT OF AN ORDER UNDER 80) SUB-SE CTION (3) OF SECTION 115WE OR SECTION 115WF OR SECTION 115WG OR 8L[SUB- SECTION (3) OF SECTION 143 OR SECTION 144 OR] SECTI ON 147 OR 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 OF THE SETTLEMENT COMMISSION UNDER SUB-SECTION (4) OF SECT ION 2450, THE AMOUNT ON WHICH INTEREST WAS PAYABLE UNDER SUB-SECT ION (1) HAS BEEN INCREASED OR REDUCED, AS THE CASE MAY BE, THE INTEREST SHALL BE INCREASED OR REDUCED ACCORDINGLY, AND IN A CASE WHERE THE INTEREST IS REDUCED, THE AO SHALL SERVE ON THE ASSE SSEE A NOTICE OF DEMAND IN THE PRESCRIBED FORM SPECIFYING THE AMO UNT OF THE EXCESS INTEREST PAID AND REQUIRING HIM 'TO PAY SUCH AMOUNT; AND SUCH NOTICE OF DEMAND SHALL BE DEEMED TO BE A NOTIC E U/S 156 AND THE PROVISIONS OF THIS ACT SHALL APPLY ACCORDINGLY. (4) THE PROVISIONS OF THIS SECTION SHALL APPLY IN R ESPECT OF ASSESSMENTS FOR THE ASSESSMENT YEAR COMMENCING ON T HE 1ST DAY OF APRIL, 1989, AND SUBSEQUENT ASSESSMENT YEARS .]' 8. IN THE PRESENT CASE, THE ASSESSEE HAS BEEN FOUND ENTITLED TO REFUND IN ACCORDANCE WITH THE PROVISION S OF THE ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 5 ACT AND SECTION 244A PROVIDES FOR PAYMENT OF INTERE ST ON THE AMOUNT OF REFUND WHICH BECOMES DUE TO ASSESSEE UNDER THE ACT. SINCE THE REFUND HAD HAD BECOME DUE TO THE ASSESSEE UNDER THE ACT, WE HAVE NO DOUBT IN OUR MIN D TO HOLD THAT THE ASSESSEE IS ENTITLED TO INTEREST U/S 244A. NEEDLESS TO MENTION THAT THE INTEREST SO GRANTED IS SUBJECT TO MODIFICATION, AS A RESULT OF ANY APPELLATE ORDERS O R ORDERS, OF THE HIGHER AUTHORITIES IN ACCORDANCE WITH LAW. THE CBDT CIRCULAR NOS. 769 & 790 DATED 6.8.98 & 20.4.2000 RESPECTIVELY ARE INAPPLICABLE TO THE FACTS OF THIS CASE. THE SAID CIRCULARS HAVE BEEN ISSUED TO BENEFIT THE PERSONS WHO HAD VOLUNTARILY DEDUCTED THE TAX AT SOURCE WITHOUT ANY ORDER FROM THE AO AND THE REFUND NOT BECOMING DUE UNDER .THE PROVISIONS OF THE ACT. IN THE PRESENT CASE, THE DY. DIRECTOR OF INCOME TAX PASSED TWO ORD ERS U/S 201 READ WITH SECTION 201(LA) AND THE PAYMENT WAS MADE TO THE ASSESSEE ON THE DIRECTION OF THE DY. DIRECTOR IN ACCORDANCE WITH LAW. THIS ISSUE WAS CONSIDERED BY THE MUMBAI BENCH OF THE TRIBUNAL IN THE CASE OF TATA CHEMICALS LTD. VS. DCIT (2007) 16 SOT 481(BOM). IN THIS CASE IT HAS BEEN HELD BY THE TRIBUNAL AS UNDER: .- ' UNDER THE 'PROVISIONS OF SECTION 195(2}, THE ASSESSEE IS EMPOWERED TO MAKE AN APPLICATION TO THE AO FOR NON-DEDUCTION TAX ON SUCH SUMS REMI TTED TO A NON-RESIDENT WHICH ACCORDING TO THE ASSESSEE ARE NOT SUBJECT TO T AX .AT SOURCE. IN VIEW OF THE PROVISIONS OF DTAA BETWEEN THE TWO COUNTRIES UND ER THE SAID SUB-SECTION (2) OF SECTION 195, THE AO IS EMPOWERED TO DETERMINE SUCH SUMS WHICH ARE DEDUCTIBLE OUT OF REMITTANCE TO BE SENT TO THE RECIP IENT AND ONLY 'AFTER DEDUCTION AND PAYMENT OF SUCH SUMS, THE BALANCE AMOUNT IS TO BE REMITTED TO THE NON- RESIDENT. IN THE INSTANT CASE, IN COMPLIANCE OF THE ORDER OF THE AO, THE ASSESSEE HAD DEDUCTED THE TAX A T SOURCE BEFORE REMITTING THE AMOUNTS TO GERMANY AND DENMARK. THE ORDER U/S 195(2) IS APPEALABLE UNDER THE PROVISIONS OF SECTION 248. SECTION 248. SECTION 248 CLEARLY PROVIDES THAT AFTER DE DUCTION AND PAYMENT OF TAX IN ACCORDANCE WITH THE PROVISIONS OF SEC TIONS 195 AND 200, IF THE ASSESSEE DENIES HIS LIABILITY TO MAKE SUCH DEDUCT ION, HE IS EMPOWERED TO FILE AN APPEAL BEFORE THE CIT(A) IN OR D.ER TO G.ET A DECLARATION THAT HE IS NO LIABLE TO MAKE SUCH DEDUCTI ON. IN THE INSTANT CASE, CIT(A) GRANTED RELIEF TO THE ASSESSEE HOLDING THAT NO TAX WAS DEDUCTIBLE OUT OF THE REMITTANCES MADE TO DENMARK AND GERMANY AN D DIRECTED THE AO TO REFUND THE AMOUNT OF TAX SO DEPOSITED BY IT. FURTHER THE PROVISIONS OF SECTION 240 VERY CATEGORICALLY PROVIDED THAT WHERE AN ORDER IS PASSED IN APPEAL, OR OTHER PROCEED INGS UNDER THE ACT, THE AO IS DUTY BOUND TO REFUND AMOUNT DUE TO THE ASSESS EE EVEN WITHOUT THE ASSESSEE MAKING ANY CLAIM IN THAT BEHALF. IN ADDITIO N TO THE REFUND OF AMOUNT DUE, THE ASSESSEE IS ALSO ENTITLED TO INTEREST ON SUCH REFUND UNDER THE PROVISIONS 'OF SECTION 244A. ONCE THE PROVISIONS OF S ECTION 240 ARE APPLICABLE TO THE AMOUNT PAID BY THE ASSESSEE AS TAX, T HEN THE PROVISIONS OF SECTION 244A WILL APPLY THEREAFTER. IN THE INSTANT CASE, THE REFUND BECAME DUE TO THE AS SESSEE PURSUANT TO THE ORDER OF THE CIT(A); WHEREIN IT WAS HELD THAT AS SESSEE WAS NOT TO DEDUCT TAX AT SOURCE ON THE AMOUNTS REMITTED TO THE R ECIPIENT OUTSIDE ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 6 INDIA. THE REFUND OF MONEY PAID BY THE ASSESSEE BECAME DUE TO IT ON THE PASSING OF THE APPELLATE ORDER IN APPEAL AS PER THE PR OVISIONS OF SECTION 240. THE ASSESSEE WAS NOT TO MAKE ANY CLAIM' IN THIS RE GARD FOR THE ISSUE OF REFUND AS PER THE PROVISIONS OF SECTION - 240, WHICH PROVIDES THAT REFUND IS AUTOMATICALLY DUE TO THE ASSESSEE AFTER THE ORDER IS PASSED IN APPEAL OR ANY OTHER PROCEEDINGS UNDER THE ACT. SECTION 244A (1) FURTHER' PROVIDES THAT' IN ADDITION TO REFUND OF ANY AMOUNT BECOMING DU E TO THE ASSESSEE' UNDER THE ACT, THE ASSESSEE IS ALSO ENTITLED TO' REC EIVE INTEREST ON SUCH REFUNDS WHICH HAVE BECOME DUE TO THE ASSESSEE UNDER THE ACT. THE REFUND IN THE INSTANT CASE WAS DETERMINED ON ACCOUNT O F THE ORDER GIVING EFFECT TO THE ORDER IN APPEAL PASSED BY THE CIT(A). CLAUSE {A) OF SECTION 244A(1) COVERS THE INSTANCE OF PAYMENT OF SUMS OF MONEY BY WAY OF ADVANCE- TAX OR TDS. CLAUSE (B) OF SECTION 244A( 1) COVERS ALL OTHER CASES WHEREIN REFUND HAS BECOME DUE TO THE ASSESSEE. THE PHRASE USED IN CLAUSE (B) OF SECTION 244A( 1), IS 'IN ANY OTHER CASE', THE EXPLANATION TO CLAUSE (B) OF SECTION 244A(1) FUR THER PROVIDES THAT 'DATE OF PAYMENT OF TAX OR PENALTY' MEANS THE DATE ON WHICH THE AMOUNT OR TAX OR PENALTY SPECIFIED IN THE NOTICE OF DEMAND ISSUED U/S 156 IS PAID. THE EXPLANATION ATTACHED TO THE MAIN SECTION DOES NOT IN ANY WAY OBLITERATE THE MEANING OF THE SECTION. SECTION 156 TALKS OF SERVICE OF A NOTICE OF DEMAND IN THE PRESCRIBED FORM WHERE ANY TAX, INTEREST, PENALTY, FINE OR ANY OTHER' SUM IS PAYABLE IN CONSEQUENCE OF ANY ORDER PASSED UNDER THIS ACT. THE ORDER U/S 195(2) H AD BEEN PASSED UNDER THE PROVISIONS OF THE ACT AND ANY NOTICE OF DEMAND, FOR THE SAID AMOUNT DUE PURSUANT TO ORDER PASSED U/S 195(2) WAS BOUND TO BE ISSUED U /S 156. THE PROVISIONS OF CLAUSE(B) OF SECTION 244A( 1) VERY CATEGORICALLY PR OVIDE INTEREST, ON ANY REFUND, ARISING BECAUSE OF PAYMENT OF TAX 'IN ANY OTHER CAS E' WHICH SHALL INCLUDE THE PAYMENT MADE BY ASSESSEE PURSUANT TO ORDER U/S 195( 2), BY WHICH THE AO REQUISITIONED THE ASSESSEE TO DEDUCT THE TAX AND DE POSIT THE SAME IN TREASURY BEFORE REMITTING THE AMOUNTS DUE TO THE RECIPIENTS OUTSIDE INDIA. ACCORDINGLY, THE ASSESSEE WAS ENTITLED TO RECEIVE INTEREST U/S 244A( 1)(B) ON AMOUNT DEPOSITED PURSUANT TO ORDER PASSED U/S 195(2), WHICH IN TURN HAD BECOME DUE TO THE ASSESSEE BECAUSE OF THE ORDER PASSED IN APPEAL AGAI NST THE SAID ORDER U/S 195(2). THE BOARD BY WAY OF CIRCULAR NO. 769 DATED 6.8.98 AND CIRCULAR NO. 790 DATED 2.0.42.000 PROVIDED THAT THE ASSESSEE SHALL B E ENTITLED TO REFUND OF SUCH PAYMENTS MADE U/S 195, BUT THE AMOUNT PAID- INTO TH E GOVERNMENT ACCOUNT IN SUCH CASES IS NO LONGER TAX. IN VIEW OF THIS. NO, I NTEREST U/S 244A IS ADMISSIBLE ON REFUNDS TO BE GRANTED IN ACCORDANCE WITH THESE CIRC ULARS. THE CIRCUMSTANCES MENTIONED IN THE AFORESAID CIRCULARS WERE DIFFERENT FROM THE FACTS AND CIRCUMSTANCES OF THE INSTANT CASE. IN THE CIRCUMSTANCES REFERRED TO IN THE CIRCULARS, THE TAX WAS DEPOSITED BY THE PERSONS ON THEIR OW N AND VOLUNTARILY WITHOUT ANY DEMAND BEING MADE BY THE AO OR ANY OTHER AUTHORITY UNDER THE ACT. BUT, IN THE INSTANT CASE, THE AMOUNT WAS PAID PURSUANT TO AN ORDER PASSED BY THE AO UNDER THE PROVISIONS OF SECTION 195(2) AGAINST WHIC H THE ASSESSEE FILED AN APPEAL BEFORE THE CIT (A). IN THE ORDER GIVING APPEAL EFFECT TO THE ORDER OF THE CIT (A), REFUND BECOME DUE TO THE ASSESSEE WHICH IN FACT AROSE BECAUSE OF THE PROVISIONS OF SECTION 240. THE PROVISIONS OF TH E ACT PREVAIL OVER THE INSTRUCTIONS ISSUED BY THE BOARD BY WAY OF CSDT CIRCULARS. THE SUPREME COURT IN SANDVIK ASIA LTD. VS. CIT (2006) 280 ITR 643 = (2006-TIOL-07-SC-IT ) HAS HELD THAT WHERE EXCESS AMOUNT OF TAX IS COLLECTED FROM ASSESSEE, THE REVENUE MUST COMPENSATE ASSESSEE AND THE COMPENSATION IN, THE INSTANT CASE WAS BY WAYS OF INTEREST U/S 244A FOR THE PERIOD WHEN THE AMOUNT WAS WITHHELD. ACCORDINGLY, AO WAS, TO BE DIRECTED TO ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 7 ALLOW INTEREST U/S 244A(1)(B) ON THE AMOUNT DUE TO ASSESSEE PURSUANT TO THE ORDER PASSED GIVING EFFECT TO CIT (A)S ORDER IN APPEAL. 9. THE DECISION OF THE TRIBUNAL IN THE CASE OF GODR EJ INDUSTRIES LTD VS. DCIT (SUPRA) IS DISTINGUISHABLE ON FACTS. I N THAT CASE ASSESSEE HAD VOLUNTARILY DEDUCTED THE TAX AT SOURCE AND THERE WAS NO ORDER PASSED BY AO UNDER SECTION 201 OR UNDE R SECTION 195(2). IN SUCH CASES, THE REFUND IS NOT GRANTED TO THE DEDUCTOR BY VIRTUE OF PROVISIONS OF THE ACT, AS THERE IS NO SUCH PROVISIONS CONTAINED IN THE STATUTE FOR GRANT OF REFUND IN RES PECT OF THE TAX DEDUCTED AT SOURCE TO THE DEDUCTOR, THE TAX HAVING BEEN DEDUCTED VOLUNTARILY AT SOURCE AND DEPOSITED WITH THE GOVT. IN THE PRESENT CASE ASSESSEE DID NOT DEDUCT THE TAX VOLUNTARILY. T HE DY. DIRECTOR OF INCOME TAX (INTERNATIONAL TAXATION (2)(1) HAS HE LD ASSESSEE TO BE AN ASSESSEE IN DEFAULT AND THE SAID ORDER WAS CH ALLENGED BY ASSESSEE BEFORE THE CIT (A) UNDER THE ACT. THE CIT (A) ON APPEAL FOUND THE ORDER MADE BY THE DY. DIRECTOR OF INCOME TAX TO BE CONTRARY TO LAW AND ASSESSEE WAS HELD NOT TO BE TRE ATED AN ASSESSEE IN DEFAULT. IT WAS AS A RESULT OF THE ORDE R OF THE CIT (A), ASSESSEE WAS ENTITLED TO REFUND. THE PAYMENT MADE B Y ASSESSEE WAS ON DEMAND UNDER THE PROVISIONS OF THE ACT AND R EFUND ALSO BECAUSE DUE TO ASSESSEE UNDER THE PROVISIONS OF THE ACT. THEREFORE, IT CANNOT BE SAID THAT THE REFUND WAS NO T GRANTED TO ASSESSEE UNDER THE ACT. THE DECISIONS OF THE CIT (A ) TO THIS EFFECT IN OUR VIEW, DOES NOT WARRANT ANY INTERFERENCE. THE APPEALS OF THE REVENUE ARE ACCORDINGLY DISMISSED. 8. AS CAN BE SEEN FROM THE ABOVE, THE DECISIO N IN THE CASE OF TATA CHEMICALS LTD VS. DCIT 16 SOT 481 AND THE DECI SION OF THE GODREJ INDUSTRIES LTD 8 SOT 417 WERE ALSO CONSIDERED. SIMILAR VIEW WAS ALSO TAKEN BY THE COORDINATE BENCH IN THE CASE OF ADIT VS. TAJ TV LTD (SUPRA) WHEREIN ON SIMILAR FACTS IT WAS HELD AS UNDER: 3.19. IN VIEW OF THE DECISION OF THE HON'BLE SUPRE ME COURT IN THE CASE OF ITO VS. DELHI DEVELOPMENT AUTHORITY (SUPRA) AND THE DECISION OF A COORDINATE BENCH OF THIS TRIBUNAL IN THE CASE OF TATA CHEMICALS (SUPRA), WE HOLD THAT ONCE THE REFUND BECOMES DUE A S PER THE PROVISIONS OF THIS ACT, THE INTEREST IS PAYABLE AS PER THE PROVISIONS OF SECTION 244A AND ACCORDINGLY ASSESSEE IS ENTITLED F OR THE INTEREST. HENCE WE DO NOT FIND ANY ERROR OR ILLEGALITY IN THE ORDER OF THE LEARNED CIT (A). WE CONFIRM THE SAME. 9. THE PRINCIPLES LAID DOWN IN THE ABOVE D ECISIONS ARE THAT IN A CASE WHERE ASSESSEE VOLUNTARILY DEDUCTED TAX AND CLAIMED REFUND DIRECTLY, GRANT OF INTEREST UNDER SECTION 244A MAY NOT ARISE AND THE BOARD CIRCULARS ON THIS ISSUE ARE APPLICABLE, WHERE AS IN A CASE WHERE AO DEMAND THE TAX / INTEREST CONSEQUENT TO AN ORDER UNDER SECTION 195/201 OR 201A, AND THE REFUND AROSE CONSE QUENT TO THE ITA NO .2827/ MUM/2012 M/S NIMBUS COMMUNICATION LTD. . 8 ORDERS OF THE CIT (A)/ITAT, THEN INTEREST UNDER SEC TION 244A HAS TO BE GRANTED. IN THE PRESENT CASE, THE ASSESSEE HAS BEEN FOUND ENTITLED TO REFUND IN ACCORDANCE WITH THE PROVISION S OF THE ACT AND SECTION 244A PROVIDES FOR PAYMENT OF INTEREST O N THE AMOUNT OF REFUND WHICH BECOMES DUE TO ASSESSEE UNDE R THE ACT. WE HAVE NO DOUBT IN OUR MIND TO HOLD THAT THE ASSESSEE IS ENTITLED TO INTEREST U/S 244A. NEEDLESS TO MENTION THAT THE INTEREST SO GRANTED IS SUBJECT TO MODIFICATION, AS A RESULT OF ANY APPELLATE ORDER OR ORDERS OF THE HIGHER AUTHORITIES IN ACCORDANCE WITH LAW. WE THEREFORE, SET ASIDE THE ORDERS OF AO AND THE CIT (A) ON THIS ISSUE AND DIRECT AO TO CALCULAT E THE INTEREST FROM THE PERIOD FROM 31.03.2008 TO 30.07.2009 AS PER THE PROVISIONS OF THE LAW AND GRANT THE SAME TO ASSESSEE. FOLLOWING THE EARLIER ORDERS OF THE TRIBUNAL AS WEL L AS THE VIEW TAKEN BY US IN THE CASE OF NEO SPORTS BROADCAST PVT. LTD. IN ITA N O. 2826 VIDE ORDER EVEN DATED WE DECIDE THIS ISSUE AGAINST THE REVENUE AND IN FAVOUR OF ASSESSEE. 3. IN THE RESULT, THE APPEAL OF THE REVENUE IS DISMIS SED. ORDER PRONOUNCED IN OPEN COURT ON CONCLUSION OF HEA RING ON THIS 30 TH DAY OF JULY, 2013. #!4 / 23 5#,6 30.07.2013 / 7 SD/- SD/- ( B. RAMAKOTAIAH ) ( VIJAY PAL RAO, ) !' #$ / ACCOUNTANT MEMBER ' #$ ' #$ ' #$ ' #$ / JUDICIAL MEMBER MUMBAI ; 5#, DATED : 30 TH JULY, 2013. ASHISH * #!4 / -'18% 9!%31 #!4 / -'18% 9!%31 #!4 / -'18% 9!%31 #!4 / -'18% 9!%31/ COPY OF THE ORDER FORWARDED TO : 1. )* / THE APPELLANT 2. -.)* / THE RESPONDENT. 3. : () / THE CIT, MUMBAI. 4. : / CIT(A)-41, MUMBAI 5. %=7 -'1', , , / DR, ITAT, MUMBAI 6. 7> ? / GUARD FILE. #!4, #!4, #!4, #!4, / BY ORDER, .%1 -'1 //TRUE COPY// @ @ @ @/ // /A & A & A & A & ( DY./ASSTT. REGISTRAR) , , , , / ITAT, MUMBAI