Hukum Chand Vijendra Kumar, V. ITO Ward I,

ITA 3059/DEL/2007

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 7852 (ITAT-DELHI)
• Duration Of Justice: 4 year(s) 11 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 22-05-2012
• Assessment Year: 1993-1994
• Appeal Filed On: 21-06-2007
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: UMESH CHAND DUBE
• Keywords: Rectification of order
• Section: 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH C NEW DELHI) BEFORE SHRI R.P. TOLANI, JUDICIAL MEMBER AND SHRI T.S. KAPOOR, ACCOUNTANT MEMBER I.T.A. NO.3059 & 3060/DEL/2007 ASSESSMENT YEAR : 1993-94 & 1994-95 M/S HUKAM CHAND & CO., ITO, BAHADRABAD, WARD-1, HARDWAR. V. HARDWAR. (APPELLANT) (RESPONDENT) PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO. PAN /GIR/NO.ABHPC ABHPC ABHPC ABHPC- -- -4458 4458 4458 4458- -- -L LL L APPELLANT BY : SHRI PIYUSH KAUSHIK, ADVOCATE. RESPONDENT BY : SHRI UMESH CHAND DUBE, SR. DR. ORDER PER TS KAPOOR, AM: THESE APPEALS OF THE ASSESSEE ARE AGAINST THE TWO SEPARATE ORDER OF LD CIT(A) I, DEHRADUN BOTH DATED 27.9.200 6 IN RESPECT OF BOTH YEARS. THE GROUNDS TAKEN BY THE ASSESSEE IN BOTH YEARS AR E COMMON EXCEPT THE DIFFERENCE IN FIGURES. FOR THE SAKE OF CON VENIENCE, THE GROUNDS OF APPEAL IN RESPECT OF ASSESSMENT YEAR 1993-94 A RE REPRODUCED BELOW:- 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW THE CIT(A) HAD GROSSLY ERRED IN NOT APPRECIATING AND UNDERSTANDING THE ASSESSEES CLAIM OF REFUND LEGALLY DUE TO THE ASSESSEE COMPRISING OF PRINCIPAL AMOUNT OF TAX REFUND OF ` .3,70,364/- DUE SINCE AUGUST, 2003 AND THE UNPAID IN TEREST OF ITA NO3059 & 3060/DEL/2007 2 ` .111,090/- DUE TO THE ASSESSEE SINCE AUGUST, 2003 ALONG WITH INTEREST ON NON REFUNDED TAX AND INTEREST DUE TO THE ASSESSEE IN ACCORDANCE WITH THE PROVISIONS OF SECTION 244A OF THE ACT. 2. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAD GROSSLY ERRED IN NOT DIRECTING THE ASSESSING O FFICER TO GRANT REFUND LEGALLY DUE TO THE ASSESSEE IN RESPECT OF PRINCIPAL AMOUNT OF TAX REFUND OF ` .370,364/- DUE SINCE AUGUST, 2003 AND THE UNPAID INTEREST OF ` .111,090/- DUE TO THE ASSESSEE SINCE AUGUST, 2003 ALONG WITH INTEREST U/S 244A OF THE ACT A S CONTESTED IN DETAIL BEFORE THE ASSESSING OFFICER & CIT(A ). 3. THAT ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSEE IS LEGALLY ENTITLED TO THE REFUND OF PRINCIPAL AMOUNT OF TAX OF ` ,.370,364/- ALONG WITH INTEREST TILL THE ACTUAL DATE OF GRANT OF REFUND IN ACCORDANCE WITH THE PROVISIONS OF SECTION 244A OF THE ACT. 4. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE ASSESSEE IS LEGALLY ENTITLED TO THE REFUND OF ` .111,090/- OUTSTANDING SINCE AUGUST, 2003 ALONG WITH INTEREST ON U NPAID INTEREST OF ` .111,090/- TILL THE ACTUAL DATE OF GRANT OF REFUND AS PER THE DECISION OF APEX COURT IN THE CASE OF SANDVIK ASIA LTD. V CIT 280 ITR 643 & THE CBDT INSTRUCTION NO.2/2007 DAT ED 28.3.2007 ON GRANT OF INTEREST ON REFUNDS U/S 244A OF THE ACT. THE ABOVE GROUNDS ARE INDEPENDENT AND WITHOUT PREJU DICE TO EACH OTHER. THAT THE APPELLANT CRAVES LEAVE TO ADD TO AND / OR A MEND MODIFY OR WITHDRAW THE GROUNDS OUTLINED ABOVE BEFORE OR AT THE TIME OF HEARING OF THE APPEAL. ITA NO3059 & 3060/DEL/2007 3 2. THE BRIEF FACTS OF THE CASE ARE THAT THE APPELLANT IS A LIQUOR VENDOR AND HAD FILED RETURN OF INCOME FOR THE ASSESSMEN T YEARS 1993- 94 & 1994-95 CLAIMING REFUND IN BOTH YEARS. THE DEPA RTMENT ISSUED REFUND IN BOTH THE YEARS. HOWEVER, THE ASSESSEE WAS NOT S ATISFIED WITH THE AMOUNT OF REFUND AND THEREFORE MOVED AN APPLICA TION U/S 154 FOR RECTIFICATION OF MISTAKE IN BOTH YEARS. THE ASSESSING OF FICER VIDE ORDER DATED 31.3.2005 PASSED RECTIFICATION ORDER U/S 154 IN RESPECT OF BOTH YEARS. HOWEVER, THE APPLICATION FOR RECTIFICATION W AS DISPOSED OFF BY STATING THAT THERE IS NO MISTAKE APPARENT FROM RECORD AND THEREFORE, THE ASSESSEES APPLICATION FOR RECTIFICATION IS REJECTED. WHILE DISPOSING OFF ORDER U/S 154, THE ASSESSING OFFICER REFERRED TO THE HON'BLE SUPREME COURT JUDGMENT IN THE CASE OF CIT V. AMALGAM ATION LTD. REPORTED IN 232 ITR 318 AND STATED IN THE ORDER THAT INTEREST WAS ALLOWED TO ASSESSEE TO THE DATE OF ORIGINAL ASSESSMENT. 3. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE LD CIT(A ) AND MADE FOLLOWING SUBMISSIONS:- 1) THAT THE JUDGMENT OF APEX COURT QUOTED BY THE LD AS SESSING OFFICER IS RELATED TO LAW BEFORE ASSESSMENT YEAR 1989-90 AND HENCE INAPPLICABLE. SECTION 244 A IS APPLICABLE IN T HE CASE OF APPELLANT WHICH WAS INSERTED IN THE ACT W.E.F. 1989- 90. 2) THAT THE PAYMENT OF INTEREST ON INCOME TAX REFUND IS COVERED ONLY BY SECTION 244A AND THE SECTION DOES NOT BEAR ANY AMBIGUITY AND SCOPE OF DEBATE. 3) THAT APPELLANT HAD MOVED APPLICATION FOR RECTIFICAT ION ON 22 ND AUGUST, 2003 AND IT WAS DISPOSED OFF ON 31.3.2005 WHERE AS IT SHOULD HAVE BEEN DISPOSED OFF WITHIN SIX MONTHS. THEREFO RE, THE ORDER PASSED BEYOND THE TIME LIMIT DOES NOT HAVE ANY FORCE IN LAW AND HENCE SHOULD BE SET ASIDE. ITA NO3059 & 3060/DEL/2007 4 4. THE LD CIT(A) AFTER HEARING THE SUBMISSIONS OF LD A R REJECTED THE APPEAL OF THE ASSESSEE. THE RELEVANT PORTION OF LD CIT( A)S ORDER IS REPRODUCED BELOW:- I HAVE GONE THROUGH THE ORDER OF ASSESSING OFFICER AND THE SUBMISSIONS OF AR VERY CAREFULLY. I HAVE ALSO GONE THROU GH THE CASE RECORD. I HAVE ALSO GONE THROUGH THE CASE LAWS CIT ED BY THE APPELLANT IN THE CASE OF MODI INDUSTRIES V. CIT IN CIV IL APPEAL NO.5550 & 5551 OF 1990. DURING THE COURSE OF APPEAL PROCEEDINGS, THE LD AR ALSO BROUGHT TO OUR NOTICE THE DECISION OF MY PREDECESSOR IN THE CASE OF ONGC AS REPRESENTATIVE ASS ESSEE OF M/S HALLIBURTON ENERGY SERVICES FOR ASSESSMENT YEAR 19 97-98 ORDER DATED 10.4.2003. I AM HOWEVER ENABLE TO AGRE E WITH THE SUBMISSION OF APPELLANT. I FIND THAT THERE IS MARKED DI FFERENCE IN THE PHRASEOLOGY OF SECTION 244 OF THE INCOME TAX ACT, 1961 WHICH WAS APPLICABLE IN RESPECT OF ASSESSMENT FOR ASSESSME NT YEAR UP TO AND INCLUDING ASSESSMENT YEAR 1988-89 AND T HAT OF SECTION 244A OF THE ACT APPLICABLE IN RESPECT OF ASSESSME NT YEAR 1989-90 AND THEREAFTER. ------------------ ------------------ THE UNPAID INTEREST U/S 244A OF THE ACT THEREFORE CAN NOT QUALIFY FOR GETTING FURTHER INTEREST UNDER THAT SECTION. 5. AGGRIEVED, THE ASSESSEE FILED APPEAL BEFORE THIS TRIB UNAL. 6. THE LD AR ARGUED THAT ASSESSMENT ORDER U/S 154 DATED 31.3.2005 FOR BOTH THE YEARS CLEARLY STATES THAT ASSESSEE WAS GRANTED INTEREST UP TILL THE DATE OF ORIGINAL ASSESSMENT IN ACC ORDANCE WITH ITA NO3059 & 3060/DEL/2007 5 DECISION OF SUPREME COURT IN THE CASE OF CIT V. AMALG AMATION (SUPRA). HE FURTHER ARGUED THAT THE SAID DECISION OF THE HON'B LE SUPREME COURT PERTAIN TO GRANT OF INTEREST U/S 214 WHICH WAS APPLICA BLE UP TILL ASSESSMENT YEAR 1988-89 ONLY WHEREAS THE ASSESSEES CASE IS CO VERED BY SECTION 244A WHICH PROVIDES FOR INTEREST OR REFUND WHICH IS PENDING TILL THE ACTUAL DATE OF GRANT OF REFUND. HE FURTHE R ARGUED THAT HIS ONLY SUBMISSION BEFORE LD CIT(A) WAS FOR GETTING REFUND IN B OTH THE YEARS AS PER PROVISIONS OF SECTION 244A OF THE ACT WHEREAS LD CIT(A) IN BOTH YEARS PROCEEDED TOTALLY DIFFERENTLY BY OBSERVING THAT ASSESSEE IS CLAIMING INTEREST ON INTEREST. HOWEVER, HE ARGUED THA T ASSESSEE CAN CLAIM INTEREST ON INTEREST IN VIEW OF RULING OF HON'B LE SUPREME COOURT. THE LD AR TOOK US TO PAGE 7 OF PAPER BOOK WHERE A JU DGMENT OF HON'BLE SUPREME COURT IN THE CASE OF SANDVIK ASIA LTD. V. CIT 280 ITR 643 WAS PLACED. HE INVITED OUR ATTENTION TO THE HIGHLIGHTED PORTION WHICH READ AS UNDER:- ONCE THE INTEREST BECOMES DUE IT TAKES THE SAME COLOUR AS THE EXCESS AMOUNT OF TAX WHICH IS REFUNDABLE ON REGULAR ASSESSMENT. 7. THE LD DR ARGUED THAT DUE REFUND WAS GIVEN TO ASSESSE E AND THERE IS NO PENDING REFUND AND HE RELIED UPON THE OR DER OF LD CIT(A). 8. WE HAVE HEARD THE RIVAL SUBMISSIONS OF BOTH THE PAR TIES AND HAVE GONE THROUGH THE MATERIAL AVAILABLE ON RECORD. FROM THE FACTS OF THE CASE, IT APPEARS TO BE A SIMPLE CASE OF CALCULATION OF INTEREST ON REFUND DUE AS PER THE PROVISIONS OF LAW. WE HAVE NOTED THAT ASSESSING OFFICER HAS NOT MADE ANY SPEAKING ORDER INSTEAD HE HAS FOLLOWED SUPREME COURT VERDICT IN THE CASE OF CIT V. AMALGAMA TION (SUPRA) WHICH IS BASED UPON SECTION 214 AND HAS CALCULATED THE INTEREST UP TO ITA NO3059 & 3060/DEL/2007 6 COMPLETION OF ORIGINAL ASSET WHICH IS NOT CORRECT AS W .E.F. 1.4.,1989, THE REFUND HAS TO BE PAID IN ACCORDANCE WITH SECTION 244A OF THE ACT WHICH READS AS UNDER:- A) WHERE THE REFUND IS DUE OF ANY TAX PAID U/S 115WJ OR COLLECTED AT SOURCE U/S 206C OR PAID BY WAY OF ADVANC E TAX OR TREATED AS PAID U/S 199 DURING THE FINANCIAL YEAR IMMEDIATELY PRECEDING ASSESSMENT YEAR SUCH INTEREST SHALL BE CALCULATED @ ----FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FROM THE IST DAY OF APRIL OF ASSESSMENT YEAR TO THE DATE ON WHICH THE REFUND IS GRANT ED. B) IN ANY OTHER CASE SUCH INTEREST SHALL BE CALCULATED @ -----FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERI OD OR PERIOD FROM THE DATE OR AS THE CASE MAY BE FROM THE D ATES OF PAYMENT OF TAX OR PENALTY TO THE DATE ON WHICH T HE REFUND IS GRANTED. THEREFORE, KEEPING IN VIEW THESE PROVISIONS FOR ASSESSMENT YEARS 1993-94 & 1994-95, THE ASSESSEE WAS ENTITLED FOR INTEREST ON REFUND AMOUNT DUE TO TDS FROM 1.4.1993 AND 1.4.1994 RESPECT IVELY TO DATE OF GRANT OF REFUND AND IN THE CASE OF TAX PAID AFTER ASSE SSMENT FROM THE DATE OF PAYMENT OF SUCH TAX TO THE DATE OF GRANT OF REFUND. THE CIT(A) IN HIS ORDER HAS BEEN DISCUSSING ALL THIS VIDE PARA 3.4. OF HIS ORDER BUT IN THE CONCLUDING PART HE UPHELD THE DECISION OF ASSESSI NG OFFICER. 9. IN VIEW OF THE ABOVE, WE REMIT THE CASE TO THE FI LE OF THE ASSESSING OFFICER WITH THE DIRECTION TO CALCULATE THE I NTEREST AND ISSUE REFUND ACCORDINGLY DUE TO ASSESSEE IN BOTH YEARS AS PER P ROVISIONS OF SECTION 244A OF THE ACT. ITA NO3059 & 3060/DEL/2007 7 10. IN THE RESULT, THE APPEALS FILED BY THE ASSESSEE ARE ALLOWED FOR STATISTICAL PURPOSES. 11. ORDER PRONOUNCED IN THE OPEN COURT ON THE 15TH DAY OF JUNE, 2012. SD/- SD/- (R.P. TOLANI) (T.S. KAP OOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DT. 15.6.2012. HMS COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). DATE OF HEARING 22.5.2012 DATE OF DICTATION 8.6.2012 DATE OF TYPING 8.6.2012 DATE OF ORDER SIGNED BY 15.6.2012 BOTH THE MEMBERS & 25.6.2012 PRONOUNCEMENT. DATE OF ORDER UPLOADED ON NET 25.6.2012 & SENT TO THE BENCH CONCERNED.