DCIT 2(3), MUMBAI V. TATA SONS LTD, MUMBAI

ITA 3131/MUM/2012

• Counselvise Citation: [2014] 140 COUNSELVISE.COM (IT) 75248 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 8 month(s) 1 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-01-2014
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Next Hearing Date: 19-11-2013
• Assessment Year: 1990-1991
• Appeal Filed On: 07-05-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: M L PERUMAI
• Assessee Lawyers: B TARAPORE V ALA
• Keywords: Rectification of order
• Section: 143(3); 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH E , MUMBAI BEFORE SHRI D. KARUNAKARA RAO , ACCOUNTANT MEMBER AND SHRI SANJAY GARG , JUDICIAL MEMBER ITA NO. 3131/M/ 2012 ASSESSMENT YEAR: 1990 - 91 ACIT - 2(3), R.NO.552, 5 TH FLOOR, AAYAKAR BHAVAN, M.K. RO AD, MUMBAI - 400020 VS. M/S. TATA SONS LTD. BOMBAY HOUSE, 24, H OM I MODY STREET, FORT, MUMBAI 400 001. PAN: AAACT4060A (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI B. TARAPORE V ALA REVENUE BY : SHRI M.L. PERUMAI, D.R. DATE OF HEARING : 19.11. 2013 DATE OF PRONOUNCEMENT : 08.01.2014 O R D E R PER SANJAY GARG, JUDICIAL MEMBER: THE PRESENT APPEAL HAS BEEN FILED BY THE REVENUE AGAINST THE ORDER OF THE CIT(A) DATED 28.02.12 RELEVANT TO ASSESSM ENT YEAR 199 0 - 91 . THE FOLLOWING GROUNDS OF APPEAL HAVE BEEN TAKEN: 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING INTEREST U/S. 234D HOLDING THAT THE REFUND HAS BEEN GRANTED FOR THE FIRST TIME TO THE ASSESSEE CONSEQUENT TO ORDER U/S.143(3) AND FAILED TO APPRECIATE THE FACT THAT REFUND AROSE FOR FIRST TIME FROM ORDER U/S. 154 I.E. RECTIFICATION OF ORDER U/S. 143(1) WHICH WERE A CONTINUATION OF PROCEEDINGS U/S. 143(1). 2. ON THE FACTS AND CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE INTEREST U/S. 234D AND FAILED TO APPRECIATE THAT THE REFUND ISSUED OF RS.4,36,77,910/ - ON 28.10.2003, HAS A COMPONENT OF REFUND ARISEN OUT OF ORDER U/S. 143(1) R.W.S. 154. 3. FOR THESE AND OTHER GROUNDS THAT MAY BE URGED AT THE TIME OF HEARING, THE DECISION OF THE CIT(A) MAY BE SET ASIDE AND THAT OF THE AO RESTORED. ITA NO .3131/M/2013 M/S. TATA SONS LTD. 2 2. THE GRIEVANCE OF THE REVENUE IS RELATING TO THE DELETION OF THE INTEREST WHICH WAS LEVIED BY THE AO UNDER SECTION 234D . THE LD. CIT(A) , WHILE DELETING/SETTING ASIDE THE LEVY OF THE INTEREST UNDER SECTION 234D OF THE INCOME TAX ACT , HAS OBSERVED THAT THOUGH VIDE ORDER DATED 31.03.92 PASSED UNDER SECTION 154 BY THE AO THE CREDIT FOR THE REFUND WAS DIRECTED BUT IN FACT NO REFUND WAS GRANTED /ADJUSTED TO THE ASSESSEE. THE REFUND OF RS.16 , 4 5 ,089/ - WAS GRANTED FOR THE FIRST TIME TO THE ASSESSEE CONSEQUENT TO THE ORDER UNDER SECTION 143(3) DATED 10.03.93. HE HAS FURTHER OBSERVED THAT THE INTEREST UNDER SECTION 234D IS PAYABLE IN A CASE WHEREIN ANY REFUND IS GRANTED TO THE ASSESSEE UNDER SUB SECTION 1 OF SECTION 143 AND NO REFUND IS FOUND DUE ON REGULAR ASSESSMENT. SINCE IN THE CASE IN HAND NO REFUND HAD BEEN GRANTED TO THE ASSESSEE UNDER SECTION 143(1) , HENCE THERE WAS NO QUESTION OF LEVY OF IN TEREST UNDER SECTI O N 234D. HE , THEREFORE , ALLOWED THE APPEAL OF THE ASSESSEE AND SET ASIDE THE LEVY OF INTER E ST. 3. BEFORE US , THE LD. D.R. COULD NOT BRING OUT AS TO HOW THE ORDER OF THE LD. CIT(A) WAS NOT CORRECT. HE COULD NOT POINT OUT AS TO IF ANY RE FUND WAS WRONGLY MADE TO THE ASSESSEE WHICH WAS ENJOYED BY HIM AND WAS ULTIMATELY FOUND NOT DUE TO THE ASSESSEE. SINCE NO SUCH REFUND WAS EITHER GRANTED OR ADJUSTED IN FAVOUR OF ASSESSEE , HENCE THERE WAS NO QUESTION OF LEVY OF INTEREST UNDER SECTION 234D. WE DO NOT FIND ANY INFIRMITY IN THE ORDER OF THE LD. CIT(A). 4. THE APPEAL OF THE REVENUE IS ACCORDINGLY DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 08.01. 201 4 . SD/ - SD/ - ( D. KARUNAKARA RAO ) (SANJAY G ARG) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 08.01.2014 * KISHORE ITA NO .3131/M/2013 M/S. TATA SONS LTD. 3 COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT ( A) CONCERNED, M UMBAI THE DR C BENCH //TRUE COPY// [ BY ORDER DY/ASSTT. REGISTRAR, ITA T, MUMBAI.