Appeal details
Counselvise Citation
[2015] 140 COUNSELVISE.COM (IT) 88398 (ITAT-MUMBAI)
Assessee PAN
Bench
Appeal Number
Duration Of Justice
2 year(s) 1 month(s)
Appellant
Respondent
Appeal Type
Income Tax Appeal
Pronouncement Date
11-02-2015
Appeal Filed By
Assessee
Order Result
Partly Allowed
Bench Allotted
I
Next Hearing Date
03-02-2015
Assessment Year
2000-2001
Appeal Filed On
11-01-2013
Judgement Text
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH I, MUMBAI BEFORE SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER AND SHRI AMIT SHUKLA, JUDICIAL MEMBER ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 INDIAN ALUMINIUM COMPANY LTD. (SINCE MERGED WITH HINDALCO INDUSTRIES LTD.) 3 RD FLOOR, CENTURY BHAVAN DR. ANNIE BESANT ROAD, WORLI, MUMBAI- 400 030 PAN:-AAACH 1201 R VS. ASST. CIT 6(3) R. NO. 522, 5 TH FLOOR, AAYAKAR BHAVAN M.K. ROAD MUMBAI (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI NARESH JAIN & MS. SHILPI JAIN REVENUE BY : SH RI ASGHAR ZAIN DATE OF HEARING : 03. 0 2 .2015 DATE OF ORDER : 11 .02.2015 O R D E R PER AMIT SHUKLA, JM: THE AFORESAID APPEALS HAVE BEEN FILED BY THE ASSES SEE, AGAINST SEPARATE IMPUGNED ORDERS PASSED BY LD.CIT(A)-12 MUM BAI, FOR THE A.Y. 1996-97, 2000-01 & 2001-02. SINCE THE ISSUES INVOLV ED IN ALL THE AFORESAID APPEALS ARE COMMON, THEREFORE, SAME WERE HEARD TOGETHER AND ARE BEING DISPOSED OFF BY THIS CONSOLIDATED ORD ER. ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 2 2. WE WILL FIRST TAKE UP APPEAL FOR A.Y. 1996-97, WHEREIN FOLLOWING GROUNDS HAVE BEEN RAISED:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS GROSSLY ERRED IN CONFIRMING THE ORDER PASSED BY AO, IN WHICH AO HAD NOT GRANTED INTEREST ON INTEREST U/S 244A TO THE TUNE OF RS.4,6 1,73,146/-. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN IGN ORING THE FACT THAT DEPARTMENT HAD WRONGLY WITHHELD INTEREST AND ACCORDINGLY THE APPELLANT IS ENTITLED FOR INTEREST ON INTEREST. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN IGN ORING THE FACT THAT THE REFUND GRANTED BY DEPARTMENT FROM TIM E TO TIME SHOULD BE ADJUSTED WITH INTEREST DUE ON DATE OF GRA NT OF REFUND INSTEAD OF SAME BEING ADJUSTED WITH PRINCIPAL REFUN D DUE. INTEREST UNDER THE ACT BE COMPUTED AND ALLOWED ACCO RDINGLY. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN AFF IRMING THE DECISION OF THE AO FOR LEVYING INTEREST U/S 220(2) AMOUNTING TO RS.19,17,846/-. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN CON TENDING THAT NO APPEAL UNDER THE IT ACT CAN ARISE OUT OF THE ORD ER LEVYING INTEREST U/S 220(2). 3. BESIDES THIS, THE ASSESSEE HAS RAISED FOLLOWING AS ADDITIONAL GROUND:- ON THE FACTS AND CIRCUMSTANCES THE DEPARTMENT HAS ERRED IN ADJUSTING VARIOUS REFUNDS GRANTED FROM TIME TO TIME AGAINST THE PRINCIPAL TAX TO BE REFUNDED AT THAT TIME INSTEAD O F ADJUSTING IT WITH INTEREST OUTSTANDING AND PAYABLE TO APPELLANT AT THE TIME OF GRANT OF REFUND. ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 3 4. AT THE OUTSET, LEARNED COUNSEL SUBMITTED THAT, S O FAR AS THE ISSUE RAISED IN GROUND NO. 1 AND 2 ARE CONCERNED, THE SAM E ARE COVERED AGAINST THE ASSESSEE BY THE ORDER OF THE TRIBUNAL, IN ASSESSEES OWN CASE HAVE DECIDED VIDE ORDER DATED 26.02.2014. 5. THUS, RESPECTFULLY FOLLOWING THE ITAT ORDER IN P ASSED ITA NO. 6923/MUM/2011, FOR A.Y. 1986-87, WE HOLD THAT ASSES SEE IS NOT ELIGIBLE FOR INTEREST ON INTEREST ON THE REFUND GRANTED U/S 244A. ACCORDINGLY GROUND NO. 1 AND 2 TREATED AS DISMISSED. 6. IN GROUND NO. 3, THE ASSESSEE HAS CHALLENGED THA T, REFUND GRANTED BY THE DEPARTMENT FROM TIME TO TIME SHOULD HAVE BEE N FIRST ADJUSTED WITH THE INTEREST DUE ON DATE OF GRANT OF REFUND, I NSTEAD OF BEING ADJUSTED WITH THE PRINCIPAL REFUND DUE. SIMILAR GRO UND HAS BEEN RAISED IN THE ADDITIONAL GROUNDS ALSO. 7. AT THE OUTSET, LEARNED COUNSEL SUBMITTED THAT TH IS ISSUE CAN BE DECIDED IN VIEW OF THE PRINCIPAL LAID DOWN BY THE D ELHI HIGH COURT IN THE CASE OF INDIA TRADE PROMOTION ORGANIZATION VS. CIT REPORTED IN (2014) 361 ITR 646 . 8. ON THE OTHER HAND, LD. DR STRONGLY RELIED UPON T HE ORDER OF THE AO. 9. AFTER CONSIDERING THE IMPUGNED ORDER AND ALSO TH E ORDER OF THE HONBLE DELHI HIGH COURT, IT IS SEEN THAT THE HONB LE HIGH COURT AFTER DETAIL ANALYSIS AND DISCUSSION HAS HELD THAT, WHEN THE REVENUE DOES NOT PAY FULL AMOUNT OF REFUND, BUT PART OF AMOUNT IS PA ID, THEY WILL BE LIABLE TO PAY INTEREST ON THE BALANCE OUTSTANDING AMOUNT, WHICH CONSIST, OF TAX PAID ON THE INTEREST, WHICH IS PAYABLE TILL THE PAY MENT OF THE PART AMOUNT AND INTEREST PAYABLE ON THE PRINCIPAL AMOUNT , WHICH REMAINED ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 4 OUTSTANDING THEREAFTER. THE HONBLE HIGH COURT AFTE R ANALYZING THE VARIOUS DECISIONS AND ALSO THE RELEVANT SECTION 244 A, HAD OBSERVED AND HELD AS UNDER:- THE WORDS USED IN SECTION 244A ARE WHERE REFUND OF ANY AMOUNT BECOMES DUE AND PAYABLE TO THE ASSESSEE UNDE R THE ACT, THE ASSESSEE SHALL BE ENTITLED TO RECEIVE IN ADDITION TO THE SAID AMOUNT SIMPLE INTEREST CALCULATED IN THE MANNE R STIPULATED. THE LEGISLATURE HAS NOT USED THE WORDS TAX PAID O R THE PRINCIPAL AMOUNT OF TAX PAID. THE WORDS USED BY TH E LEGISLATURE ARE ANY AMOUNT AND SAID AMOUNT. THE WORDS ARE, THEREFORE, MUCH WIDER AND BROADER THAN THE TAX AMOUNT, WHICH I S TO BE REFUNDED. THE WORDS ANY AMOUNT WOULD INCLUDE WITH IN ITS SCOPE AND AMBIT THE INTEREST ELEMENT, WHICH HAS ACCRUED A ND IS PAYABLE ON THE DATE OF THE REFUND. THUS, WHEN THE REVENUE D OES NOT PAY FULL AMOUNT OF REFUND BUT PART AMOUNT IS PAID, THEY WILL BE LIABLE TO PAY INTEREST ON THE BALANCE OUTSTANDING AMOUNT. THE BALANCE OUTSTANDING AMOUNT MAY CONSIST OF THE TAX PAID OR T HE INTEREST, WHICH IS PAYABLE TILL THE PAYMENT OF THE PART AMOUN T AND INTEREST PAYABLE ON THE PRINCIPAL AMOUNT, WHICH REMAINED OUT STANDING THEREAFTER 15 A READING OF THE AFORESAID PASSAGE FROM THE DEC ISION OF THE SUPREME COURT IN R.E.G. LTD. (SUPRA) INDICATES THAT IT WOULD BE INCORRECT AND IMPROPER TO REGARD PAYMENT OF INTERES T WHEN PART PAYMENT IS MADE AS INTEREST ON INTEREST. WHAT HAS B EEN ELUCIDATED AND CLARIFIED BY THE SUPREME COURT IS TH AT WHEN REFUND ORDER IS ISSUED, THE SAME SHOULD INCLUDE THE INTERE ST PAYABLE ON THE AMOUNT, WHICH IS REFUNDED. IF THE REFUND DOES N OT INCLUDE INTEREST DUE AND PAYABLE ON THE AMOUNT REFUNDED, TH E REVENUE WOULD BE LIABLE TO PAY INTEREST ON THE SHORTFALL. T HIS DOES NOT AMOUNT TO PAYMENT OF INTEREST ON INTEREST. AN EXAMP LE WILL CLARIFY THE SITUATION AND HELP US TO UNDERSTAND WHAT IS DUE AND PAYABLE UNDER SECTION 244A OF THE ACT. SUPPOSE THE REVENUE IS LIABLE TO REFUND RS.1 LAKH TO AN ASSESSEE WITH EFFECT FROM AP RIL 1, 2010, THE SAID AMOUNT IS REFUNDED ALONG WITH INTEREST DUE AND PAYABLE UNDER SECTION 244A ON MARCH 31, 2013, THEN NO FURTH ER INTEREST IS PAYABLE. HOWEVER, IF ONLY RS. 1 LAKH IS REFUNDED BY THE REVENUE ON MARCH 31, 2013, AND THE INTEREST ACCRUED ON RS. 1 LAKH UNDER SECTION 244A IS NOT REFUNDED, THE REVENUE WOULD BE LIABLE TO PAY INTEREST ON THE AMOUNT DUE AND PAYABLE BUT NOT REFU NDED. INTEREST WILL NOT BE DUE AND PAYABLE ON THE AMOUNT REFUNDED BUT ONLY ON THE AMOUNT WHICH REMAINS UNPAID, I.E, THE I NTEREST ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 5 ELEMENT, WHICH SHOULD HAVE BEEN REFUNDED BUT IS NOT PAID. IN ANOTHER SITUATION WHERE PART PAYMENT IS MADE, SECTI ON 244A WOULD BE STILL APPLICABLE IN THE SAME MANNER. FOR E XAMPLE, IF RS. 60,000 WAS PAID ON MARCH 31, 2013, THE REVENUE WOUL D BE LIABLE TO PAY INTEREST ON RS. 1 LAKH FROM APRIL 1, 2010, T ILL MARCH 31, 2013, AND THEREAFTER ON RS.40,OOO. FURTHER, INTERES T PAYABLE ON RS. 60,000, WHICH STANDS PAID, WILL BE QUANTIFIED O N MARCH 31, 2013, AND ON THIS AMOUNT, I.E., INTEREST AMOUNT QUA NTIFIED, THE REVENUE WOULD BE LIABLE TO PAY INTEREST UNDER SECTI ON 244A TILL PAYMENT IS MADE. THE AFORESAID MANNER OF COMPUTATION IS NOT ONLY APP LICABLE TO CASES WHERE THE REVENUE HAS TO PAY INTEREST ON REFU ND, BUT IS EQUALLY APPLIED WHEN AN ASSESSEE IS IN DEFAULT AND INTEREST IS PAYABLE UNDER SECTION 220(2) OF THE ACT. INTEREST P AYABLE UNDER SECTION 234B AND SECTION 234C BECOME PART OF THE DE MAND NOTICE ISSUED UNDER SECTION 156 AND IT IS ON THIS AMOUNT, I.E., THE TAX PAYABLE PLUS INTEREST PAYABLE UNDER SECTIONS 234B A ND 234C THAT INTEREST UNDER SECTION 220(2) IS CALCULATED FROM TH E DATE MENTIONED IN THE NOTICE OF DEMAND TILL THE DATE OF ACTUAL PAYMENT. UNDER THE EXPLANATION TO SECTION 140A(1), IT IS STIPULATED WHERE THE AMOUNT PAID BY AN ASSESSEE UND ER SELF- ASSESSMENT FALLS SHORT OF THE AGGREGATE AMOUNT OF T AX AND INTEREST AFORESAID, THE AMOUNT PAID SHALL FIRST BE ADJUSTED TOWARDS THE INTEREST PAYABLE AND THE BALANCE, IF ANY, SHALL BE ADJUSTED TOWARDS THE TAX PAYABLE. THE INTERPRETATION GIVEN B Y US FOLLOWS THE SAME PRINCIPLE, WHEN THE REVENUE DEFAULTS AND M AKES PART PAYMENT OF THE AMOUNT REFUNDABLE. THE AFORESAID INT ERPRETATION ALSO ENSURES THAT THE ASSESSING OFFICER/REVENUE REF UND THE ENTIRE AMOUNT, WHICH IS DUE AND PAYABLE, INCLUDING INTERES T PAYABLE UNDER SECTION 244A. IT DISCOURAGES PART PAYMENT. TH ERE IS NO OTHER PROVISION UNDER THE ACT UNDER WHICH AN ASSESS ING OFFICER/REVENUE CAN BE MADE LIABLE TO PAY INTEREST WHEN PART PAYMENT IS MADE AND THE ENTIRE AMOUNT, WHICH IS REF UNDABLE IS NOT PAID TO THE ASSES- SEE. OTHERWISE THE ASSESSING OFFICER/REVENUE CAN REFUND THE PRINCIPAL AMOUNT AND NOT PAY THE INTEREST COMPONENT UNDER SECTION 244A FOR AN UNLIMI TED PERIOD WITH IMPUNITY AND WITHOUT ANY SANCTION, WHICH WOULD AMOUNT TO GRANTING PREMIUM TO A NON-COMPLIANCE WITH LAW. ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 6 THUS, RESPECTIVELY FOLLOWING THE AFORESAID PRINCIPL E WE DIRECT THE AO TO ADJUST THE REFUND IN LINE OF THE PRINCIPLE LAID DOW N BY THE HONBLE DELHI HIGH COURT. ACCORDINGLY, ASSESSEES GROUND NO. 3 AN D ADDITIONAL GROUND IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOS E. 10. IN GROUND NO. 4 AND 5 THE ASSESSEE HAS CHALLENG ED THE LEVY OF INTEREST U/S 220(2). LEARNED COUNSEL SUBMITTED THAT THE LD.CIT(A) HAS NOT DECIDED THE ISSUE ON MERITS AND AS HELD THAT AS SESSEE HAD NO RIGHT TO PREFER AN APPEAL FROM THE ORDER LEVYING INTEREST U/S 220(2). HE SUBMITTED THAT HERE-IN-THIS CASE, THE ASSESSING OFF ICER WHILE GIVING EFFECT TO THE APPELLANT ORDER HAS CHARGED INTEREST U/S 220 (2) AS PER THE ORIGINAL DEMAND NOTICE EVEN WHEN THE ASSESSEE HAD PAID THE E NTIRE TAXES AND INTEREST. THE SAID DEMAND WAS REDUCED AND REFUND HA S BEEN GRANTED. THEREAFTER, AGAIN THE AO HAS CHARGED INTEREST U/S 2 20(2), EVEN WHEN THERE WAS NO DEFAULT IN PAYMENT OF DEMAND. THIS ISS UE IS ARISING OUT OF ORDER U/S 154, WHEREIN THIS ISSUE WAS SPECIFICALLY RAISED BEFORE THE AO. HE FURTHER SUBMITTED THAT, ITAT CHENNAI BENCH IN CA SE OF PRECOT MERIDIAN LTD. VS. DICT HAS HELD THAT IF LEVY OF INT EREST U/S 220(2) HAS BEEN CHARGED IN THE ORDER GIVING EFFECT, THEN APPEA L IS MAINTAINABLE. 11. AFTER CONSIDERING THE IMPUGNED ORDER AND ALSO T HE DECISION OF THE ITAT CHENNAI BENCH IT IS SEEN THAT THE TRIBUNAL HAS CONSIDERED THE SIMILAR ISSUE IN THE FOLLOWING MANNERS:- 8. WE HAVE PERUSED THE ORDERS AND HEARD THE RIVAL SUBMISSIONS. FIRST QUESTION BEFORE US IS WHETHER THE GIVING-EFFE CT ORDER IN WHICH DEMAND FOR INTEREST UNDER SECTION 220(2) HAS BEEN MADE, IS AN APPEALABLE ONE OR NOT. THE GIVING-EFFECT ORDE RS FOR BOTH THE YEARS ARE TYPICALLY WORDED EXCEPT IN CHANGE OF DATE AND AMOUNTS. THE FIRST TOP PARA READS AS UNDER:- 'GIVING EFFECT TO THE ORDER OF THE COMMISSIONER OF INCOME TAX (APPEALS)-I, COIMBATORE'S NO.1 07/09-10 DATED 28-03 -2011, THE TOTAL INCOME DETERMINED IN THE REVISION ORDER DATED 05.09.2005 ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 7 BY GIVING EFFECT TO THE ORDER OF THE HIGH COURT, MA DRAS FOR THE A.Y. 1995-96 IS REVISED AS UNDER:- ** ** THE LAST ITEM IS THE INTEREST UNDER SECTION 220(2) IN THE REVISED DETERMINATION OF TOTAL INCOME. THE SECTION UNDER WH ICH GIVING- EFFECT ORDERS WERE PASSED BY THE ASSESSING OFFICER HAS NOT BEEN MENTIONED. IT IS NOT AS THOUGH THESE ARE ORDERS PAS SED ONLY FOR LEVYING INTEREST UNDER SECTION 220(2) OF THE ACT. T HE ORDERS SHOW REVISED COMPUTATION OF TOTAL INCOME BASED ON APPELL ATE ORDERS. NO DOUBT, IF THESE WERE SIMPLY ORDERS LEVYING INTER EST UNDER SECTION 222(2) OF THE ACT, IT MIGHT NOT HAVE BEEN A PPEALABLE. BUT, THIS PARTICULAR LEVY OF INTEREST UNDER SECTION 220( 2) IS ONLY ONE OF THE MANY ITEMS CONSIDERED IN THESE ORDERS. IT CAN T HEREFORE BE DEEMED EITHER AS AN ORDER PASSED UNDER SECTION 154 OR PASSED UNDER SECTION 143(3) READ WITH SECTION 250 AND 251 OF THE ACT. BE THAT AS IT MAY, IT DEFINITELY FALLS WITHIN THE A PPEALABLE ORDERS UNDER SECTION 246(1) OF THE ACT. NO DOUBT, CIT(APPE ALS) HAS RELIED ON THE DECISION OF CALCUTTA HIGH COURT IN TH E CASE OF ANZ GRINDLAYS BANK PLC V. CIT [2000] 241 ITR 269/108 TA XMAN 328, WHICH HELD THAT AN ORDER CHARGING INTEREST UNDER SE CTION 220(2) WAS NOT APPEALABLE. NEVERTHELESS, IN THE CASE OF CI T V. CHIKA OVERSEAS (P.) LTD. [2012] 209 TAXMAN 456/23 TAXMANN .COM 315, BOMBAY HIGH COURT HAD CONSIDERED A TAX-APPEAL ASSAI LING LEVY OF INTEREST UNDER SECTION 220(2) OF THE ACT. SINCE THE RE ARE CONFLICTING DECISIONS ON THIS ISSUE, WE ARE OF THE OPINION THAT CIT(APPEALS) OUGHT HAVE CONSIDERED THE APPEALS OF T HE ASSESSEE AND DISPOSED THEM OF ON MERITS, ESPECIALLY SO, SINC E ASSESSEE APPEAR TO BE SUPPORTED BY THE CIRCULAR NO.334 DATED 3.4.1982 OF CBDT. WE, THEREFORE, SET ASIDE THE ORDERS OF CIT(AP PEALS) AND REMIT THE ISSUE OF LEVY OF INTEREST UNDER SECTION 2 20(2) OF THE ACT BACK TO HIS FILE FOR CONSIDERATION AFRESH, IN ACCOR DANCE WITH LAW. ACCORDINGLY, WE SET ASIDE THIS ISSUE TO THE FILE OF THE LD.CIT(A), TO DECIDE THIS ISSUE ON MERITS AND IN ACCORDANCE WITH THE PRO VISIONS OF LAW. ACCORDINGLY, THE APPEAL OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE. ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 8 12. NOW, WE WILL TAKE UP THE APPEAL FOR A.Y. 2000-0 1, ITA NO. 342/MUM/2013, WHEREIN FOLLOWING GROUNDS HAVE BEEN R AISED:- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS GROSSLY ERRED IN CONFIRMING THE ORDER U/S 154 PASSED BY AO, IN WHICH AO HAD NOT GRANTED INTEREST ON INTEREST U/S 244A TO THE TUNE O F RS.74,21,805/- ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN IG NORING THE FACT THAT DEPARTMENT HAD WRONGLY WITHHELD INTEREST ON INTEREST FOR WHICH YOUR APPELLANT IS LEGALLY ENTITLED. 13. BESIDES THIS FOLLOWING GROUND HAS BEEN RAISED A S ADDITIONAL GROUND:- ON THE FACTS AND CIRCUMSTANCES THE DEPARTMENT HAS ERRED IN ADJUSTING VARIOUS REFUNDS GRANTED FROM TIME TO TIME AGAINST THE PRINCIPAL TAX TO BE REFUNDED AT THAT TIME INSTEAD O F ADJUSTING IT WITH INTEREST OUTSTANDING AND PAYABLE TO APPELLANT AT THE TIME OF GRANT OF REFUND. 14. AT THE OUTSET, LEARNED COUNSEL SUBMITTED THAT G ROUND NO. 1 AND 2 HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUN AL AND IS ALSO THE SIMILAR TO GROUNDS RAISED IN A.Y. 1996-97. 15. AS ADMITTED BY THE LEANED COUNSEL AND ALSO THAT , SIMILAR GROUND HAVE BEEN RAISED IN A.Y. 1996-97, WHEREIN THIS ISSU E HAS BEEN DECIDED AGAINST THE ASSESSEE, FOLLOWING ITAT ORDER FOR THE EARLIER YEAR IN ASSESSEES OWN CASE. THUS, RESPECTFULLY FOLLOWING T HE SAME, WE DISMISS THE GROUNDS RAISED BY THE ASSESSEE. 16. SO FAR AS THE ISSUE RAISED IN ADDITIONAL GROUND , WE FIND THAT SIMILAR GROUND WAS RAISED IN A.Y. 1996-97, WHEREIN THIS ISS UE HAS BEEN SET ASIDE TO THE FILE OF THE AO WITH THE DIRECTION TO F OLLOW THE PRINCIPLE LAID DOWN BY THE HONBLE DELHI HIGH COURT (SUPRA). ACCOR DINGLY, ADDITIONAL ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 9 GROUND AS RAISED BY THE ASSESSEE IS TREATED AS PART LY ALLOWED FOR STATISTICAL PURPOSE. 17. NOW, WE WILL TAKE UP THE APPEAL FOR A.Y. 2001-0 2, ITA NO. 343/MUM/2013 WHEREIN FOLLOWING GROUNDS HAVE BEEN RA ISED:- 1. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS GROSSLY ERRED IN DISMISSING THE APPEAL FOR GRANT OF INTEREST U/S 244 A AMOUNTING TO RS.8,62,69,794/- FOR THE ALLEGED REASON THAT APPELL ANT HAD NOT RAISED SPECIFIC GROUND THAT MAT CREDIT IS TO BE ADJ USTED FROM TAX LIABILITY BEFORE ADJUSTING TDS OR ADVANCE TAX FOR C OMPUTING INTEREST, COMPLETELY IGNORING THE FACT THAT APPELLA NT HAD RAISED AS GROUND OF APPEAL IN FORM 35 FOR NON GRANT OF INTER EST BY AO WHICH SQUARELY COVERS THE ABOVE GROUND OF PRIORITY OF ADJUSTMENT OF MAT CREDIT FROM TAX LIABILITY. 2. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) ERRED IN DIS REGARDING, THE RULING OF HONBLE APEX COURT IN CIT VS. TULSYAN NEC LTD. [237 CTR 105] & HONBLE JURISDICTIONAL HIGH COURT IN APA R INDUSTRIES LIMITED [231 ITR 313] THAT MAT CREDIT WAS AVAILABLE FOR ADJUSTMENT ON THE FIRST DAY OF ASSESSMENT YEAR AND AFTER THE ADJUSTMENT, REFUND IF ANY ARISES, IS ENTIRELY ON AC COUNT OF EXCESS TDS/ ADVANCE TAX, FOR WHICH THE ASSESSEE IS LEGALLY ENTITLED TO INTEREST U/S 244A. 3. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS GROSSLY ERRED IN FACT IN STATING [IN PARA 7] THAT APPELLANT WAS GRANTED I NTEREST U/S 244A COMPLETELY IGNORING THE FACT THAT NO INTEREST U/S 2 44A WAS GRANTED TO THE APPELLANT BY THE AO. 4. ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND I N LAW, THE LEARNED COMMISSIONER OF INCOME TAX (A) HAS GROSSLY ERRED IN IGNORING THAT YOUR APPELLANT WAS LEGALLY ENTITLED F OR INTEREST U/S 244A OF RS.862,69,794/- ON 25.09.2009 (WHICH THE DE PARTMENT HAD WRONGLY WITHHELD) AND HENCE ELIGIBLE FOR INTERE ST ON INTEREST WRONGLY WITHHELD SINCE 25.09.2009 ON THE SUM OF RS.8,62,69,794/- TILL THE DATE THE INTEREST IS ACTU ALLY GRANTED. ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 10 BESIDES THIS FOLLOWING ADDITIONAL GROUND HAS ALSO RAISED:- ON THE FACTS AND CIRCUMSTANCES THE DEPARTMENT HAS ERRED IN ADJUSTING VARIOUS REFUNDS GRANTED FROM TIME TO TIME AGAINST THE PRINCIPAL TAX TO BE REFUNDED AT THAT TIME INSTEAD O F ADJUSTING KIT WITH INTEREST OUTSTANDING AND PAYABLE TO APPELLANT AT THE TIME OF GRANT OF REFUND. 18. AT THE OUTSET, LEARNED COUNSEL SUBMITTED THAT G ROUND NO. 1 AND 2 IS NOT PRESSED. ACCORDINGLY, THE SAME ARE TREATED A S DISMISSED AS NOT PERUSED. 19. REGARDING GROUND NO. 3, LEARNED COUNSEL SUBMITT ED THAT THE SAID GROUND HAS BEEN DECIDED AGAINST THE ASSESSEE BY THE TRIBUNAL IN THE EARLIER YEARS. 20. SINCE THIS ISSUE HAS BEEN DECIDED AGAINST THE A SSESSEE AND ALSO IT IS SIMILAR TO GROUND NO. 1 AND 2 AS RAISED IN ASSES SEES APPEAL FOR THE A.Y. 1996-97 & 2000-01 AND THEREFORE, FOLLOWING THE SAME, WE DISMISS THE AFORESAID GROUNDS. 21. REGARDING GROUND NO. 4, AND THE ADDITIONAL GROU ND, WE FIND THAT THIS ISSUE IS SIMILAR TO THE GROUNDS RAISED IN THE EARLIER YEARS, WHEREIN THE MATTER HAS BEEN SET ASIDE TO THE FILE OF THE AO TO FOLLOW THE PRINCIPLE LAID DOWN BY THE HONBLE DELHI HIGH COURT. ACCORDIN GLY THIS GROUND IS SET ASIDE TO THE FILE OF THE AO WITH SIMILAR DIRECT ION. THUS, THESE GROUNDS ARE TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPO SE. 22. IN THE RESULT, ALL THE THREE APPEALS OF THE ASSESSEE IS TREATED AS PARTLY ALLOWED FOR STATISTICAL PURPOSE . ORDER PRONOUNCED IN THE OPEN COURT ON THIS 11 TH DAY OF FEBRUARY, 2015. SD/- SD/- (N.K. BILLAIYA) (AMIT SHUKLA) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED: 11.02.2015 ITA NOS. 2080, 342 & 343/MUM/2013 ASSESSMENT YEAR: 1996-97, 2000-01 & 2001-02 11 *SRIVASTAVA COPY TO: THE APPELLANT THE RESPONDENT THE CIT, CONCERNED, MUMBAI THE CIT(A) CONCERNED, MUMBAI THE DR I BENCH //TRUE COPY// BY ORDER DY/ASSTT. REGISTRAR, ITAT, MUMBAI.
