BANK OF INDIA, MUMBAI V. DCIT 2(1), MUMBAI

ITA 3002/MUM/2014

• Counselvise Citation: [2016] 131 COUNSELVISE.COM (IT) 3712 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 3 month(s) 3 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 03-08-2016
• Appeal Filed By: Assessee
• Bench Allotted: B
• Assessment Year: 2005-2006
• Appeal Filed On: 30-04-2014
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Section: 244A; 115JB; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUMBAI BEFORE SHRI B.R. BASKARAN (AM) & RAMLAL NEGI (JM) I.T.A. NO. 3 00 2 /MUM/ 20 1 4 (ASSESSMENT YEAR 200 5 - 0 6 ) BANK OF INDIA 8 TH FLOOR, STAR HOUSE TAXATION DEPARTMENT BANDRA KURLA COMPLEX BANDRA EAST MUMBAI - 40 0 051. VS. DCIT 2(1) AAYAKAR BHAVAN M.K. ROAD MUMBAI - 400 020. ( APPELLANT ) ( RESPONDENT ) PAN NO . AAACB0472C ASSESSEE BY SHRI C. NARESH DEPARTMENT BY SHRI NEIL PHILIP DATE OF HEARING 22. 7 . 201 6 DATE OF PRONOUNCEMENT 3 .8 . 201 6 O R D E R PER B.R. BASKARAN (AM) : - THE APPEAL FILED BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 19 - 02 - 2013 PASSED BY LD CIT(A) - 4, MUMBAI AND IT RELATES TO THE ASSESSMENT YEAR 2005 - 06. 2. THIS APPEAL HAS BEEN PREFERRED BY THE ASSESSEE BEFORE THE LD CIT(A) AGAINST THE ORDER PASSED BY THE AO TO GIVE EFFECT TO THE ORDER PASSED BY THE FIRST APPELLATE AUTHORITY. AFTER GIVING EFFECT, THE TOTAL INCOME BECAME A NEGATIVE FIGURE AND HENCE THE AO ASSESSED THE TOTAL INCOME BY ADOPTING BOOK PROFIT COMPUTED U /S 115JB OF THE ACT. THE LD CIT(A) CONFIRMED THE SAME BY FOLLOWING HIS ORDER PASSED IN THE FIRST ROUND OF PROCEEDINGS. AGGRIEVED, THE ASSESSEE HAS CHALLENGED THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE. BANK OF INDIA 2 3. THE LD A.R SUBMITTED THAT THIS ISSUE HAS BE EN DECIDED IN FAVOUR OF THE ASSESSEE IN AY 2006 - 07, WHEREIN THE TRIBUNAL HAS FOLLOWED THE DECISION RENDERED IN THE ASSESSEES OWN CASE IN ITA NO.1498/MUM/2011 RELATING TO AY 2001 - 02. ACCORDINGLY HE PRAYED THAT THIS ISSUE MAY BE DECIDED IN ACCORDANCE WITH THE DECISION TAKEN BY THE CO - ORDINATE BENCHES. 4. WE HEARD LD D.R AND PERUSED THE RECORD. CONSISTENT WITH THE VIEW TAKEN IN AY 2006 - 07, WE SET ASIDE THE ORDER PASSED BY LD CIT(A) ON THIS ISSUE AND HOLD THAT THE PROVISIONS OF SEC. 115JB SHALL NOT BE AP PLICABLE FOR BOTH THE YEARS UNDER CONSIDERATION. 5. THE NEXT ISSUE CONTESTED BY THE ASSESSEE RELATES TO THE GRANTING OF INTEREST U/S 244A OF THE ACT. THE LD A.R SUBMITTED THAT THE ASSESSEE HAS BEEN RECEIVING REFUNDS UPON PASSING OF ORDERS BY THE APPEL LATE AUTHORITIES OR UPON PASSING OF ORDERS U/S 154 OF THE ACT. THE LD A.R SUBMITTED THAT THE AO HAS MADE ADJUSTMENT OF REFUND (CONSISTING OF TAX AND INTEREST) ALREADY GRANTED AGAINST THE REFUND OF TAX DUE IN EACH OF THE SUCCESSIVE ORDERS. THE LD A.R SUBM ITTED THAT THE ENTIRE AMOUNT OF REFUND (BOTH TAX AND INTEREST) GRANTED SHOULD BE FIRST ADJUSTED AGAINST THE INTEREST PORTION THAT HAS BECOME DUE AND THEN THE REMAINING AMOUNT, IF ANY, SHOULD BE ADJUSTED AGAINST THE TAX PORTION OF THE REFUND THAT HAS BECOME DUE. IN SUPPORT OF HIS CONTENTIONS, THE LD A.R PLACED RELIANCE ON THE DECISION RENDERED BY THE TRIBUNAL IN THE ASSESSEES OWN CASE IN ITA NO.5444 TO 5446/MUM/2013 DATED 22.12.2014 AND ALSO THE DECISION RENDERED BY THE TRIBUNAL IN THE CASE OF UNION BANK OF INDIA (ITA NO.571 & 574/MUM/2013 DATED 23.6.2014). 6. WE HEARD THE PARTIES ON THIS ISSUE. SINCE IT IS MATTER INVOLVING COMPUTATION OF ELIGIBLE AMOUNT OF INTEREST U/S 244A OF THE ACT, WE ARE OF THE VIEW THAT THIS ISSUE REQUIRES FRESH EXAMINATION AT TH E END OF THE AO. IN THE DECISIONS RELIED BANK OF INDIA 3 UPON BY THE ASSESSEE, THE TRIBUNAL HAS FOLLOWED THE DECISION RENDERED BY HONBLE DELHI HIGH COURT IN THE CASE OF INDIA TRADE PROMOTION ORGANISATION VS. CIT (361 ITR 646) AND ACCORDINGLY GIVEN DIRECTION TO THE AO TO FOLLOW THE SAID DECISION. CONSISTED WITH THE VIEW TAKEN BY THE TRIBUNAL, WE RESTORE THIS ISSUE TO HIS FILE WITH THE DIRECTION TO EXAMINE THIS ISSUE AFRESH BY FOLLOWING THE DECISION RENDERED IN THE CASE OF INDIA TRADE PROMOTION ORGANISATION (SUPRA). 7. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED. ORDER HAS BE EN PRONOUNCED IN THE COURT ON 3 .8 .2016 SD/ - SD/ - (RAMLAL NEGI ) (B.R.BASKARAN) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 3 / 8 / 20 1 6 COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. BY ORDER, //TRUE COPY// ( DY./ASSTT. REGISTRAR) ITAT, MUMBAI PS