Gujarat Urja Vikas Nigam Ltd., Baroda V. The ACIT.,Circle-1(1), Baroda

ITA 356/AHD/2011

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 63101 (ITAT-AHMEDABAD)
• Duration Of Justice: 1 year(s) 9 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-11-2012
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Next Hearing Date: 12-10-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 10-02-2011
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: D C PATWARI
• Assessee Lawyers: J P SHAH
• Section: 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, C BENCH, AHMEDABAD BEFORE SHRI D. K. TYAGI, JUDICIAL MEMBER AND SHRI ANIL CHATURVEDI, ACCOUNTANT MEMBER I.T.A. NO.356 / AHD/2011 (ASSESSMENT YEAR 2001-02) GUJARAT URJA VIKAS NIGAM LTD., (ERSTWHILE GUJARAT ELECTRICITY BOARD), SARDAR PATEL VIDYUT BHAVAN, RACE COURSE CIRCLE, BARODA VS. ACIT CIRCLE 1(1), BARODA PAN/GIR NO. : AAACG8540N (APPELLANT) .. (RESPONDENT) APPELLANT BY: SHRI J P SHAH, AR RESPONDENT BY: SHRI D C PATWARI, CIT DR DATE OF HEARING: 12.10.2012 DATE OF PRONOUNCEMENT: 30.11.2012 O R D E R PER SHRI D. K. TYAGI, JM:- THIS IS ASSESSEES APPEAL DIRECTED AGAINST THE ORD ER OF LD. CIT(A) I, BARODA DATED 27.12.2010 FOR THE ASSESSMENT YEAR 200 1-02. THE ONLY GROUND OF THE ASSESSEE IS AS UNDER: THE LD. CIT(A) ERRED IN LAW AND ON FACTS THAT HE H AS CONFIRMED THE REJECTION OF CLAIM OF INTEREST UNDER SECTION 24 4A OF THE INCOME TAX ACT, 1961 ON REFUND FOR THE PERIOD FORM DATE OF ISSUE OF ORIGINAL REFUND, NOT RECEIVED BY THE APPELLANT TILL THE DATE OF FRESH REFUND ORDER. 2. THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSE E IS ENGAGED IN THE BUSINESS OF GENERATION AND DISTRIBUTION OF ELECTRIC ITY. THE ASSESSEE FIELD I.T.A.NO.356 /AHD/2011 A.Y.2001-02 2 ITS RETURN OF INCOME ON 31.10.2001 AND SUBSEQUENTLY REVISED IT ON 19.06.2002. THIS REVISE RETURN OF INCOME WAS PROCE SSED U/S 143(1) OF THE ACT ON 27.11.2002 RESULTING INTO A REFUND OF RS.3,4 3,88,944/-. THIS REFUND INCLUDED INTEREST OF RS.44,75,110/- U/S 244A OF THE ACT FOR THE PERIOD FROM APRIL 2001 TO NOVEMBER 2002 IN RESPECT O EXCESS TAXES PAID BY THE ASSESSEE. THE REFUND ORDER WAS ISSUED BY TH E A.O. ON 13.12.2002 AND SUBSEQUENTLY, THE ASSESSEE APPEALED BEFORE THE A.O. ON 21.02.2004 CLAIMING THAT IT HAD NOT RECEIVED ANY REFUND FOR TH E YEAR. IN SUPPORT OF ITS CLAIM, THE ASSESSEE SUBMITTED THE INDEMNITY BOND AL ONG WITH BANKS LETTER CONFIRMING THEREIN THAT THE ORIGINAL REFUND ORDER W AS NOT ENCASHED. SUBSEQUENTLY, THE A.O. ISSUED CASH REFUND ORDER OF RS.3,43,88,944/- ON 29.04.2005. AFTER RECEIVING THIS REFUND ORDER, THE ASSESSEE AGAIN APPLIED U/S 154 OF THE ACT ON 24.05.2005 CLAIMING THAT IT S HOULD BE PAID INTEREST FOR THE ENTIRE PERIOD I.E. FROM APRIL 2001 TO APRIL 2005 WHICH ACCORDING TO HIM WORKED OUT TO RS.92,73,288/- AGAINST RS.44,7 5,110 PAID TO IT. THE A.O. VIDE ORDER DATED 21.07.2005, PASSED U/S 154 OF THE ACT, REJECTED THIS CLAIM OF THE ASSESSEE STATING THAT THE ORIGINAL REF UND WAS DULY GRANTED TO THE ASSESSEE ON 13.12.2002 AND WAS IMMEDIATELY SENT IT THROUGH RPAD. THE ASSESSEE FAILED TO ENCASH IT ALTHOUGH THE BANK ADVICE ISSUED FOR REFUND WAS RECEIVED BY THE BANK ON 20.12.2002. THU S, THE DELAY IN GRANTING THE REFUND WAS NOT ON THE PART OF REVENUE BUT IT WAS ATTRIBUTABLE TO THE ASSESSEE. AGAINST THIS ORDER OF THE A.O., A SSESSEE FILED APPEAL BEFORE IST APPELLATE AUTHORITY. 3. BEFORE LD. CIT(A), THE ASSESSEES CONTENTION WAS THAT THE A.O. HAS NOT MENTIONED ANYTHING ABOUT THIS SERVICE O ORIGINA L REFUND ORDER DATED 13.12.2002 THROUGH RPAD WHICH CLEARLY ESTABLISHES T HAT THE ASSESSEE HAD NOT RECEIVED THE SAME AND, THEREFORE, THE DELAY WAS NOT ATTRIBUTABLE TO THE ASSESSEE. SECONDLY, THE ASSESSEE SHOULD BE PAID IN TEREST TILL THE DATE OF I.T.A.NO.356 /AHD/2011 A.Y.2001-02 3 FRESH REFUND ORDER I.E. 29.04.2005. LD. CIT(A) DIR ECTED THE A.O. TO VERIFY THE RECORDS AND INTIMATE THE DATE OF SERVICE OF ORI GINAL REFUND ORDER I.E. 13.12.2002. THE A.O. REPLIED THAT THE SERVICE OF T HE SAME WAS NOT TRACEABLE IN THIS CASE. HOWEVER, HE SUBMITTED A CO PY OF THE REFUND REGISTER OF THAT PERIOD MAINTAINED BY HIS OFFICE IN ALL THE CASES OF REFUND MENTIONING THEREIN THAT THE ASSESSEE WAS ISSUED REF UND ORDER NO.009592 ON 13.12.2002 FOR RS.3,43,88,944/-. THE A.O. ALSO SUBMITTED A COPY OF THE DESPATCH REGISTER OF HIS OFFICE MENTIONING THER E IN THAT THIS REFUND ORDER NO.009592 WAS DISPATCHED THROUGH RPAD ON 20.1 2.2002. IN RESPONSE TO THE REPLY OF THE A.O., THE ASSESSEES C ONTENTION WAS THAT THE COPY OF REFUND REGISTER AND COPY OF THE DISPATCH RE GISTER CANNOT BE CONSIDERED AS GOOD EVIDENCE IN ABSENCE OF RPAD ACKN OWLEDGEMENT. IT WAS ALSO REITERATED THAT HE COULD NOT RECEIVE THE R EFUND ORDER DATED 13.12.2002 AND, THEREFORE, DELAY WAS NOT ATTRIBUTAB LE TO IT. AFTER TAKING INTO CONSIDERATION ALL THESE FACTS LD. CIT(A) DISMI SSED THE APPEAL OF THE ASSESSEE BY OBSERVING AS UNDER: 4.6 I HAVE CAREFULLY CONSIDERED THE FACTS OF THE C ASE, THE SUBMISSIONS OF THE APPELLANT. I HAVE ALSO GONE THRO UGH THE REFUND REGISTER AND THE DISPATCH REGISTER. IT IS NOTICED T HAT THERE ARE NO INTERPOLATIONS IN BOTH THESE REGISTERS. IT IS ALSO NOTICED THAT THE DEPARTMENT HAS INDICATED THAT REFUND ADVICE WAS REC EIVED BY BANK ON 20.12.J02. IT IS ALSO SURPRISING THAT RIGHT FROM PROCESSING OF RETURN ON 27.11.02 TILL FEB 04 THE APPELLANT DID NO T MAKE ANY CORRESPONDENCE TO INQUIRE ABOUT THE REFUND ORDER AN D THE MATTER WAS RAISED BY THE ASSESSEE ONLY IN FEB.04. IT IS A LSO OBSERVED THAT IN ITS LETTER DATED 6-12-04 TO SBI, MANDVI BRANCH I T IS INFORMED BY APPELLANT THAT THE REFUND ORDER NO. 9592 IS NOT TRA CEABLE IN THEIR OFFICE AND THAT A NON-PAYMENT CERTIFICATE BE ISSUED . UNDER THE CIRCUMSTANCES IT DOES NOT APPEAR THAT THE DELAY IN ISSUING THE REFUND IS ATTRIBUTABLE TO THE DEPARTMENT AND THEREF ORE THE REQUEST OF THE APPELLANT TO GRANT INTEREST U/S 244A FOR THE PE RIOD 13.12.02 TO 20.9.05 IS REJECTED. I.T.A.NO.356 /AHD/2011 A.Y.2001-02 4 4. BEFORE US, LD. COUNSEL FOR THE ASSESSEE REITERAT ED THE SUBMISSIONS MADE BEFORE THE LOWER AUTHORITIES AND PRAYED THAT T HE BALANCE INTEREST AMOUNT OF RS.47,98,178.54 U/S 244 A OF THE ACT MAY BE GRANTED TILL THE DATE OF FRESH REFUND ORDER I.E. 29.04.2005 BY THE D EPARTMENT. FOR MAKING THIS SUBMISSION RELIANCE WAS PLACED ON THE DECISION OF DELHI HIGH COURT IN THE CASE OF CIT VS. SATLAZ INDUSTRIES LTD. 325 I TR 331 AND ON THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F JADEJA JITENDRASINGH CHANDRASINGH VS. TAX RECOVERY OFFICER RANGE 3 & 2 I N SPECIAL CIVIL APPLICATION NO.4600 OF 2002. LD. D.R. ON THE OTHER HAD RELIED ON THE ORDERS OF AUTHORITIES BELOW. 5. AFTER HEARING BOTH THE PARTIES, PERUSING THE REC ORD AND GOING THROUGH THE ORDER OF AUTHORITIES BELOW, WE FIND THA T THERE IS NO DISPUTE ON THE FACT THAT REFUND ORDER NO.009592 OF RS.3,43,88, 944/- DATED 13.12.2002 WAS DISPATCHED THROUGH RPAD ON 20.12.2002. IT IS A LSO NOT IN DISPUTE THAT THE BANK ADVICE ISSUED FOR REFUND WAS RECEIVED BY THE BANK ON 20.12.2002. IT IS ALSO NOT IN DISPUTE THAT THE ASS ESSEE CAME TO KNOW ONLY ON 21.02.2004 THAT IT HAD NOT RECEIVED ANY REFUND D UE TO HIM. THE ONLY ISSUE BEFORE US TO BE DECIDED IS WHETHER THE INTERE ST SHOULD BE GRANTED TO THE ASSESSEE TILL THE DATE OF GRANT OF REFUND ON 13 .12.2002 OR TILL THE DATE OF FRESH REFUND ORDER I.E. ON 29.04.2005. WE FIND THAT THE RELEVANT PROVISIONS IN THIS REGARD IS CLAUSE (A) OF SUB-SECT ION (1) OF SECTION 244A OF THE ACT WHICH READS AS UNDER: 244A(1)(A) WHERE THE REFUND IS OUT OF ANY TAX PAID UNDER SECTION 115WJ OR COLLECTED AT SOURCE UNDER SECTION 206C OR PAID BY WAY OF ADVANCE TAX OR TREATED AS PAID UNDER SECTION 199, D URING THE FINANCIAL YEAR IMMEDIATELY PRECEDING THE ASSESSMENT YEAR, SUCH INTEREST SHALL BE CALCULATED AT THE RATE OF ONE HAL F PERCENT FOR EVERY MONTH OR PART OF A MONTH COMPRISED IN THE PERIOD FO RM THE 1 ST DAY OF APRIL OF THE ASSESSMENT YEAR TO THE DE ON WHICH THE REFUND IS GRANTED. I.T.A.NO.356 /AHD/2011 A.Y.2001-02 5 6. IT IS CLEAR FROM THE ABOVE THAT IN CLAUSE (A) TH E WORDS HAVE BEEN USED REFUND IS GRANTED. IN OUR CONSIDERED OPINIO N, THE REFUND IS GRANTED THE MOMENT THE A.O. HAS SIGNED THE ORDER REGARDING PAYMENT OF INTEREST U/S 244A OF THE ACT WHICH, IN THIS CASE, HAS BEEN D ONE BY THE A.O. ON 13.12.2002 AND, THEREFORE, INTEREST U/S 244A IS TO BE GRANTED TILL THIS DATE ONLY AND NOT UP TO THE DATE OF FRESH ORDER. THIS V IEW OF OURS GETS SUPPORT FROM THE DECISION OF HONBLE RAJASTHAN HIGH COURT I N THE CASE OF RAJASTHAN ELECTRICITY BOARD VS CIT AS REPORTED IN 2 81 ITR 274 (RAJ.). IN THE CASE OF SATLAZ INDUSTRIES (SUPRA) RELIED BY ASS ESSEE HONBLE DELHI HIGH COURT ALSO HELD THAT INTEREST WILL BE PAID UP TO DATE ON WHICH REFUND WAS ACTUALLY GRANTED. IN VIEW OF THESE DIRECT DECI SIONS ON THE ISSUE THE DECISION OF JURISDICTIONAL HIGH COURT IN THE CASE O F JADEJA JITENDRASINGH CHANDRASINGH (SUPRA) WAS NOT CONSIDERED AS THE SAME DOES NOT RELATE TO THE INCOME TAX PROCEEDINGS. IN VIEW OF ABOVE WE FI ND NO INFIRMITY IN THE ORDER OF LD. CIT(A) AND THE SAME IS HEREBY UPHELD. 7. IN THE RESULT, APPEAL OF THE ASSESSEE IS DISMISS ED. 8. ORDER PRONOUNCED IN THE OPEN COURT ON THE DATE M ENTIONED HEREINABOVE. SD/- SD/- (ANIL CHATURVEDI) (D.K. TYAGI) ACCOUNTANT MEMBER JUDICIAL MEMBER SP COPY OF THE ORDER FORWARDED TO: 1. THE APPLICANT 2. THE RESPONDENT 3. THE CIT CONCERNED 4. THE LD. CIT (APPEALS) 5. THE DR, AHMEDABAD BY ORDER 6. THE GUARD FILE AR,ITAT,AHMEDABAD