JCIT, Bangalore V. M/s Canara Bank, Bangalore

ITA 287/BANG/2014

• Counselvise Citation: 28721114 RSA 2014
• Duration Of Justice: 1 year(s) 4 month(s) 28 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 24-07-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: A
• Next Hearing Date: 08-07-2015
• Assessment Year: 2005-2006
• Appeal Filed On: 26-02-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: G R REDDY
• Assessee Lawyers: G SARANGAN
• Keywords: Revision of order; Rectification of order; Double taxation relief
• Section: 143(3); 244A; 263; 90; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI , JUDICIAL MEMBER A ND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER ITA NO. 287 / BANG/20 14 (ASSESSMENT YEAR: 20 0 5 - 06 ) JOINT COMMISSIONER OF INCOME - TAX, LTU, BANGAL ORE. APPELLANT VS. M/S.CANARA BANK, ACCOUNTS SECTION (HO), 112, JC ROAD, BANGALORE. RESPONDENT PAN: AAACC6106G APPELLANT BY: SHRI G.R.REDDY, CIT(DR). RESPONDENT BY: SHRI G.SARANGAN, ADVOCATE. DATE OF HEARING : 08/07/2015 DATE OF PRONOUNCEMENT: 24 /07/2015 O R D E R PER SMT.P.MADHAVI DEVI, JM: THIS APPEAL BY THE REVENUE IS AGAINST THE ORDER OF THE CIT(A) , LTU, BANGALORE, DATED 25/11/2013 FOR THE ASSESSMENT YEAR 2005 - 06 . THE REVENUE HAS RAISED THE FOLLOWING GR OUNDS OF APPEAL: 1. THE ORDER OF LD.CIT(A) IS OPPOSED TO LAW AND FACTS OF THE CASE. 2. THE LD CIT(A) ERRED IN ALLOWING THE ASSESSEE S CLAIM ON THE ISSUE OF RELIEF U/S 90, EVEN THOUGH ITA NO . 287 /BANG/20 1 4 M/S. CANARA BANK PAGE 2 OF 6 THE SAME WAS NOT GIVEN TO ASSESSEE IN THE ASSESSMENT ORDER AND THE ASSE SSEE S RECTIFICATION APPLICATION ON THE ISSUE HAD BEEN REJECTED FOR WANT OF EVIDENCE. 3. THE LD CIT(A) ERRED IN COMPUTING INTEREST U/S 244A PAYABLE TO THE ASSESSEE BY CHARGING INTEREST ON INTEREST, WHICH IS NOT ENVISAGED IN THE INCOME - TAX ACT. 4. FOR THESE AND SUCH OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING. 2. GROUNDS OF APPEAL NO.1 AND 4 ARE GENERAL IN NATURE AND NEED NO ADJUDICATION. AS REGARDS THE OTHER GROUNDS ARE CONCERNED, BRIEF FACTS OF THE CASE ARE THAT THE ASSESSMENT ORDE R PASSED U/S 143(3) OF THE INCOME - TAX ACT, 1961 [HEREINAFTER REFERRED TO AS 'THE ACT' FOR SHORT] AGAINST WHICH AN APPEAL WAS FILED BEFORE CIT(A) WHILE THE APPEAL WAS PENDING, THE ASSESSMENT ORDER WAS REVISED U/S 263 OF THE ACT VIDE ORDER DT.03/02/2011. ON APPEAL , THE ITAT HAS QUASHED THE ORDER U/S 263 CONSEQUENT TO WHICH THE CIT(A) ,LTU ORDER DATED 17/03/2010 GOT REVIVED. WHILE GIVING EFFECT TO THE ORDER OF THE CIT(A),LTU DATED 17/03/2010 THE AO DID NOT ALLOW RELIEF U/S 90 FOR DOUBLE TAXATION RELIEF OF R S.4,70,79,728/ - U/S 90 OF THE ACT, WHICH WAS ALLOWED IN EARLIER ORDERS. FURTHER, AS REGARDS THE CALCULATION OF INTEREST U/S 244A ALSO, ACCORDING TO THE ASSESSEE, AO DID NOT ALLOW INTEREST U/S 244A CORRECTLY. 3. AGGRIEVED, ASSESSEE PREFERRED AN APP EAL BEFORE THE CIT(A) WHO ALLOWED THE SAME AND THE REVENUE IS IN APPEAL BEFORE US. ITA NO . 287 /BANG/20 1 4 M/S. CANARA BANK PAGE 3 OF 6 4. AS REGARDS GROUND NO.2 RELATING TO THE RELIEF U/S 90 OF THE ACT, THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITTED THAT THE ASSESSEE WAS NOT ELIGIBLE FOR THE SAID RELIEF AND THEREFORE THE AO, WHILE GIVING EFFECT TO THE ORDER OF THE CIT(A), HAS NOT GIVEN SUCH RELIEF AND THE CIT(A) HAS ERRONEOUSLY GRANTED RELIEF WHICH HAS TO BE ASIDE . THE LEARNED COUNSEL FOR THE ASSESSEE, ON THE OTHER HAND, SUBMITTED THAT THE AO, WHI LE GIVING EFFECT TO THE CIT(A) S ORDER DATED 31/12/2009 AGAINST THE ASSESSMENT ORDER U/S 143(3) DATED 24/12/2008, HAD GRANTED RELIEF OF RS.4,70,79,728/ - U/S 90 OF THE ACT AND FURTHER EVEN WHILE GIVING EFFECT TO THE ORDER U/S 263 OF THE ACT, THE SAID RELIE F WAS AND WHILE RECTIFYING THE ORDER OF GIVING EFFECT TO THE ORDER OF THE CIT(A) DATED 15/2/2011 ALSO THE RELIEF U/S 90 WAS GIVEN. HE SUBMITTED THAT INADVERTENTLY, THE AO, WHILE GIVING EFFECT TO THE ORDER OF THE CIT(A), LTU, CONSEQUENT TO THE QUASHING OF THE ORDER U/S 263, HAS FAILED TO GIVE SUCH RELIEF TO THE ASSESSEE AND THE CIT(A) AFTER VERIFYING THE RECORDS HAS ALLOWED DEDUCTION TO THE ASSESSEE HOLDING THAT THE AO HAS NOT GIVEN ANY REASONS FOR WITHHOLDING IT WHILE GIVING EFFECT TO THE ITAT S ORDER. C OPIES OF THE EARLIER ORDERS OF THE AO GIVING EFFECT TO THE ORDERS OF THE CIT(A) AND RECTIFICATION ORDER ARE FILED. 5. UPON CONSIDERING THE CONTENTIONS OF BOTH THE PARTIES, WE FIND THAT THE AO HAS NOT DISALLOWED RELIEF U/S 90 OF THE ACT IN THE ASSESSM ENT ORDER THOUGH HE HAD GIVEN RELIEF TO THE ASSESSEE WHILE GIVING EFFECT TO THE ORDER OF THE CIT(A), ORDER U/S 263 AS WELL AS U/S 154 OF THE ACT. AS RIGHTLY OBSERVED BY THE CIT(A), THE ITA NO . 287 /BANG/20 1 4 M/S. CANARA BANK PAGE 4 OF 6 AO HAS NOT GIVEN ANY REASONS FOR NOT ALLOWING THE SAID RELIEF OF DOUBL E TAXATION U/S 90 OF THE ACT TO THE ASSESSEE WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL. THEREFORE, WE ARE SATISFIED THAT THE CIT(A) HAS RIGHTLY GRANTED RELIEF TO THE ASSESSEE. THEREFORE, WE DO NOT SEE ANY REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AND GROUND NO.2 OF THE REVENUE IS REJECTED. 6. AS REGARDS GROUND NO.3, BRIEF FACTS ARE THAT WHILE GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE AO HAS CALCULATED INTEREST U/S 244A AT RS.46,48,72,322/ - . AGGRIEVED, ASSESSEE PREFERRED AN APP EAL BEFORE THE CIT(A) STATING THAT THE CALCULATION IS INCORRECT. THE CIT(A) RECALCULATED THE INTEREST U/S 244A AND DIRECTED THE AO TO ALLOW THE REFUND AFTER VERIFYING THE CORRECTNESS OF THE DATES FROM THE RECORD. THE CIT(A) ALSO OBSERVED THAT THE DECISIO N OF THE HON BLE SUPREME COURT IN THE CASE OF SANDVIK ASIA LTD. REPORTED IN 280 ITR 643 HAS BEEN CLARIFIED BY THE HON BLE SUPREME COURT IN SLP(C) NO.11406 OF 2008 IN THE CASE OF CIT VS. GUJARAT FLURO CHEMICALS & OTHERS HOLDING THAT THE DECISION OF THE APEX COURT IN THE CASE OF SANDVIC ASIA HAD BEEN MIS - INTERPRETED AND ONLY INTEREST PROVIDED UNDER THE STATUTE U/S 244A HAS TO BE ALLOWED ON REFUND AND NOT INTEREST ON INTEREST IN CASE OF DELAY. WHILE THE LEARNED DEPARTMENTAL REPRESENTATIVE SUPPORTED THE ORDER OF THE AO GIVING EFFECT TO THE ORDER OF THE TRIBUNAL, THE LEARNED COUNSEL FOR THE ASSESSEE SUPPORTED THE ORDER OF THE CIT(A) AND ALSO PLACED RELIANCE UPON THE DECISION OF THE CO - ITA NO . 287 /BANG/20 1 4 M/S. CANARA BANK PAGE 5 OF 6 ORDINATE BENCH OF THE TRIBUNAL IN THE CASE OF SYNDICATE BANK IN ITA NOS.1700 T O 1704/BANG/2013 DATED 30/06/2015. IT IS SUBMITTED THAT THIS TRIBUNAL, IN THE CASE OF SYNDICATE BANK HAS CONSIDERED VARIOUS JUDICIAL PRECEDENTS ON THE ISSUE TO HOLD THAT ADJUSTMENT OF THE TAX REFUND SHOULD BE MADE FIRST TO THE INTEREST DUE AND THEREAFTER TO THE TAX REFUND. COPY OF THE SAID ORDER IS FILED BEFORE US. 7. HAVING REGARD TO THE RIVAL CONTENTIONS AND THE MATERIAL ON RECORD, WE FIND THAT THE CIT(A) ALSO HAS TAKEN NOTE OF THE JUDGMENT OF THE APEX COURT IN THE CASE OF GUJARAT FLURO CHEMICALS & OTHERS (CITED SUPRA) AND COMPUTED THE INTEREST ACCORDINGLY AND HAS DIRECTED THE AO TO ALLOW REFUND AFTER VERIFYING THE CORRECTNESS OF THE DATES. WE, THEREFORE, SEE NO REASON TO INTERFERE WITH THE ORDER OF THE CIT(A) AND DIRECT THE AO TO ALLOW THE REFUN D BY FIRST ADJUSTING REFUND TO THE INTEREST DUE AND THEREAFTER TO THE TAX REFUND. ACCORDINGLY, GROUND NO.3 IS ALSO REJECTED. 8. IN THE RESULT, THE REVENUE S APPEAL IS DISMISSED. PRON OUNCED IN THE OPEN COURT ON 24 TH JU LY , 201 5 . S D/ - S D/ - ( ABRAHAM P GEORGE ) ( SMT. P.MADHAVI DEVI) ACCOUNTANT MEMBER JUDICIAL MEMBER EKSRINIVASULU ITA NO . 287 /BANG/20 1 4 M/S. CANARA BANK PAGE 6 OF 6 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUARD FILE BY ORDER ASSISTANT REGISTRAR INCOME - TAX APPELLATE T RIBUNAL BANGALORE