THE TATA POWER CO. LTD, MUMBAI V. ACIT CIR 2(3), MUMBAI

ITA 2911/MUM/2010

• Counselvise Citation: 291119914 RSA 2010
• Duration Of Justice: 1 year(s) 5 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 12-10-2011
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Assessment Year: 2001-2002
• Appeal Filed On: 13-04-2010
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: G P TRIVEDI
• Assessee Lawyers: DINESH VYAS
• Keywords: Opportunity of being heard
• Section: 143(3); 244A; 246; 144; 154

Judgement Text

1 ITA 2911/ M/2010, THE TATA POWER CO. LTD. IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI R.S. PADVEKAR, J.M. AND SHRI R.K. PANDA , J.M. ITA NO. 2911/MUM/2010 ASSESSMENT YEAR 2001-02 THE TATA POWER CO. LTD., CORPORATE CENTER, BLOCK B, 5 TH FLOOR, 34 SANT TUKARAM ROAD, CARNAC BUNDER, MUMBAI - 400 009. PAN AAACT 0054 A VS. THE DY. CIT 2(3), AAYAKAR BHAVAN, M.K. MARG, MUMBAI 400020. APPELLANT RESPONDENT APPELLANT BY MR. DINESH VYAS RESPONDENT BY MR. G.P. TRIVEDI DATE OF HEARING 4.10.2011 DATE OF PRONOUNCEMENT 12.10.2011 ORDER PER R.K. PANDA A.M. THIS APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAI NST THE ORDER DT. 8.2.2010 OF THE CIT(A)- 6, MUMBAI RELATING TO A.Y. 2001-02. 2. FACTS OF THE CASE IN BRIEF ARE THAT THE A.O. WHI LE COMPUTING INTEREST U/S 244A, GRANTED INTEREST ON TDS AGGREGATING TO ` 32,914/- FROM THE DATE 29.12.2003 IN PLACE OF GRANTING INTEREST THEREON FR OM 1.4.2001. WHILE DOING SO, THE A.O. REDUCED THE REFUND INCLUDING INTEREST GRANTED FROM TIME TO TIME IN ORDER TO ARRIVE AT THE BALANCE AMOUNT ON WHICH INTE REST IS TO BE GRANTED. ACCORDING TO THE ASSESSEE, THERE WAS A SHORT GRANT OF INTEREST TO THE TUNE OF ` 2 ITA 2911/ M/2010, THE TATA POWER CO. LTD. 2,94,93,919/-. THE ASSESSEE FILED AN APPEAL BEFORE THE LD. CIT(A) WHO DISMISSED THE SAME ON THE GROUND THAT QUANTIFICATIO N OF INTEREST U/S 244A IS NOT ONE OF THE GROUNDS ENUMERATED U/S 246A ON WHICH AN APPEAL COULD BE FILED BEFORE THE CIT(A). ACCORDING TO HIM THE REMEDY AVA ILABLE UNDER THE INCOME-TAX ACT IS TO FILE A RECTIFICATION APPLICATION U/S 154 OF THE ACT BEFORE THE A.O. 2.1 AGGRIEVED WITH SUCH ORDER OF THE LD. CIT(A), TH E ASSESSEE IS IN APPEAL BEFORE US WITH THE FOLLOWING GROUNDS:- THE APPELLANT OBJECTS TO THE ORDER DATED 8 TH FEBRUARY, 2010 PASSED BY THE COMMISSIONER OF INCOME-TAX (APPEALS) -6, (HE REINAFTER REFERRED TO AS THE CIT(A) FOR THE AFORESAID ASSESSMENT YEAR ON THE FOLLOWING AMONG OTHER GROUNDS:- 1. THE CIT(A) ERRED IN DISMISSING THE APPEAL FILED RE. ERROR IN COMPUTATION OF INTEREST U/S 244A AND IN DECLINING T O DECIDE THE GROUND ON MERITS. 2. THE APPELLANT RESERVES THE RIGHT TO AMEND, ALTER OR ADD TO THE GROUNDS OF APPEAL. 3. THE LD. COUNSEL FOR THE ASSESSEE, AT THE OUTSET, RE FERRING TO THE DECISION OF THE HONBLE BOMBAY HIGH COURT IN THE CASE OF CALTEX OIL REFINING (INDIA) LTD. VS. CIT REPORTED IN 202 ITR 375 SUBMITTED THAT FRES H ORDER TO GIVE EFFECT TO AN APPELLATE ORDER IS ALSO AN ASSESSMENT ORDER. FOR TH IS PROPOSITION, THE LD. COUNSEL FOR THE ASSESSEE DREW THE ATTENTION OF THE BENCH TO THE SHORT NOTES WHICH READ AS UNDER:- HENCE INTEREST UNDER SECTION 214 IS A PART OF THE ASSESSMENT AND IS DEEMED TO BE TAX FOR THE PURPOSES OF THIS ACT INCLU DING CLAUSE OF SECTION 246. THE APPEAL BY AN ASSESSEE, AGGRIEVED BY AN ORDER OF ASSESSMENT MADE UNDER SECTION 143(3) OR SECTION 144 , EITHER ORIGINALLY OR IN CONSEQUENCE OF AN APPELLATE ORDER WITH A VIEW TO GIVING EFFECT TO THE DIRECTIONS CONTAINED THEREIN, OBJECTING TO THE AMOUNT OF INTEREST PAYABLE BY THE GOVERNMENT UNDER SECTION 214 TO THE ASSESSEE AS DETERMINED BY THE INCOME-TAX OFFICE R IS, THEREFORE, MAINTAINABLE UNDER CLAUSE OF SECTION 246 (SEE PP. 387H, 388A). 3 ITA 2911/ M/2010, THE TATA POWER CO. LTD. 3.1 REFERRING TO THE ORDER OF THE LD. CIT(A) FOR A. Y. 1997-98, HE SUBMITTED THAT THE LD. CIT(A) HAS HELD THAT WHILE DEDUCTING T HE REFUND ISSUED EARLIER, THE TAX ELEMENT OF REFUND ONLY IS TO BE DEDUCTED AND NO T THE INTEREST ELEMENT. REFERRING TO THE CHART FILED BY THE ASSESSEE ALONG WITH THE APPEAL MEMO WHEREIN THE CALCULATION OF INTEREST SHORT GRANTED T O THE TUNE OF ` 2,94,93,919/- HAS BEEN DETERMINED, HE SUBMITTED THAT A PROPER DIR ECTION MAY BE GIVEN TO ALLOW THE INTEREST TO THE TUNE OF ABOVE AMOUNT. 4. THE LD. D.R., ON THE OTHER HAND, SUBMITTED THAT THE DECISION OF THE HONBLE JURISDICTIONAL HIGH COURT AS RELIED ON BY T HE LD. COUNSEL FOR THE ASSESSEE IS U/S 214 WHEREAS THE PRESENT ISSUE IS U/ S 244A. THEREFORE, THE FACTS OF THE CASE ARE DIFFERENT. SECONDLY, THE LD. CIT(A ) HAS NOT VERIFIED THE QUANTIFICATION AND HAS DISMISSED THE APPEAL AS NOT MAINTAINABLE. THEREFORE, IF THE BENCH DEEMS IT PROPER TO RESTORE THE ISSUE TO T HE FILE OF THE LD. CIT(A), THEN THE SAME SHOULD BE RESTORED WITH A DIRECTION TO GIV E AN OPPORTUNITY TO THE A.O. TO VERIFY THE QUANTIFICATION. 4.1 THE LD. COUNSEL FOR THE ASSESSEE, IN HIS REJOIN DER, SUBMITTED THAT PROVISIONS OF SECTION 214 ARE IDENTICAL TO PROVISIO NS OF SECTION 244A. 5. WE HAVE CONSIDERED THE RIVAL ARGUMENTS MADE BY B OTH THE SIDES, PURSUED THE ORDERS OF THE ASSESSING OFFICER AND THE CIT(A) AND THE DECISION RELIED ON BY THE LEARNED COUNSEL FOR THE ASSESSEE. IN VIEW OF TH E DECISION OF THE JURISDICTIONAL HIGH COURT IN THE CASE OF CALTEX OIL REFINING (INDIA) LTD., A FRESH ORDER TO GIVE EFFECT TO AN APPELLATE ORDER IS ALSO AN ASSESSMENT ORDER AND WHILE GIVING EFFECT TO THE DIRECTIONS CONTAINED THEREIN, OBJECTING TO THE AMOUNT OF INTEREST PAYABLE BY THE GOVERNMENT U/S 214 TO THE A SSESSEE AS DETERMINED BY THE A.O. IS MAINTAINABLE UNDER CLAUSE (C) OF SECTIO N 246. WE, THEREFORE, ARE OF THE OPINION THAT THE APPEAL FILED BY THE ASSESSEE B EFORE THE LD. CIT(A) IS MAINTAINABLE. ACCORDINGLY, WE RESTORE THE ISSUE TO THE FILE OF THE LD. CIT(A) FOR 4 ITA 2911/ M/2010, THE TATA POWER CO. LTD. DECIDING THE ISSUE ON MERIT AND IN ACCORDANCE WITH LAW AFTER GIVING DUE OPPORTUNITY OF BEING HEARD TO THE ASSESSEE. WE HOL D AND DIRECT ACCORDINGLY. THE GROUND RAISED BY THE ASSESSEE IS ACCORDINGLY AL LOWED FOR STATISTICAL PURPOSE. 6 . IN THE RESULT, APPEAL FILED BY THE ASSESSEE IS AL LOWED FOR STATISTICAL PURPOSE. ORDER PRONOUNCED ON 12.10.2011. SD/- SD/- (R.S. PADVEKAR) (R.K. PANDA) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 12.10.2011. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 6, MUMBAI 4. THE CIT 2, MUMBAI 5. THE DR BENCH, E 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI