TATA COMMUNICATION LTD (FORMERLY VIDESH SANCHAR NIGAM LTD., MUMBAI V. ACIT RG 1(3), MUMBAI

ITA 3757/MUM/2010

• Counselvise Citation: [2013] 120 COUNSELVISE.COM (IT) 3708 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 11 month(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 08-05-2013
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: F
• Next Hearing Date: 29-11-2012
• Assessment Year: 1997-1998
• Appeal Filed On: 10-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DINESH VYAS
• Keywords: Rectification of order; Audit objection
• Section: 143(3); 244A; 234B; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL IN THE INCOME TAX APPELLATE TRIBUNAL F BENCH, F BENCH, F BENCH, F BENCH, MUMBAI MUMBAI MUMBAI MUMBAI , ! !! ! . ' ' ' ' , #$ #$ #$ #$ BEFORE BEFORE BEFORE BEFORE SHRI SHRI SHRI SHRI VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM VIJAY PAL RAO, JM & SHRI D KARUNAKARA RAO, AM & SHRI D KARUNAKARA RAO, AM & SHRI D KARUNAKARA RAO, AM & SHRI D KARUNAKARA RAO, AM ./ I.T.A. NO. I.T.A. NO. I.T.A. NO. I.T.A. NO.3757 3757 3757 3757/MUM/201 /MUM/201 /MUM/201 /MUM/2010 00 0 ( % % % % & & & & / ASSESSMENT YEAR : 1997-98) TATA COMMUNICATIONS LTD (FORMERLY VIDESH SANCHAR NIGAM LTD) (FORMERLY VIDESH SANCHAR NIGAM LTD) (FORMERLY VIDESH SANCHAR NIGAM LTD) (FORMERLY VIDESH SANCHAR NIGAM LTD) VIDESH SANCHAR BHAVAN M G ROAD, FORT, MUMBAI % % % % / VS. THE ASST COMMR OF INCOME TAX RANGE 1(3), MUMBAI ' #$ ./ ( ./ PAN/GIR NO. : AAACV2808C ( ') / APPELLANT APPELLANT APPELLANT APPELLANT) .. ( *+') / RESPONDENT RESPONDENT RESPONDENT RESPONDENT) ') ') ') ') , , , , # ## # / APPELLANT BY : APPELLANT BY : APPELLANT BY : APPELLANT BY : SHRI DINESH VYAS *+') *+') *+') *+') - -- - , , , , # ## # /RESPONDENT /RESPONDENT /RESPONDENT /RESPONDENT BY BYBY BY : : : : SHRI A P SINGH % % % % - -- - .$ .$ .$ .$ / DT. OF HEARING : DT. OF HEARING : DT. OF HEARING : DT. OF HEARING : 29 TH APRIL 2013 /0& /0& /0& /0& -.$ -.$ -.$ -.$ / // / DT.OFPRONOUNCEMENT: DT.OFPRONOUNCEMENT: DT.OFPRONOUNCEMENT: DT.OFPRONOUNCEMENT: 8 TH MAY 2013 #1 #1 #1 #1 / O R D E R PER : , . . / VIJAY PAL RAO, JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 11.2.2010 OF THE COMMISSIONER OF INCOME TAX(APPEALS ) ARISING FROM THE ORDER PASSED U/S 154 DATED 28.7.2008 FOR THE ASSESS MENT YEAR 1997-98. 2 THE ASSESSEE HAS RAISED THE FOLLOWING GROUNDS IN THIS APPEAL. 1 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN REJECTING THE PLEA OF THE APPELLANT TH AT THE RECTIFICATION ORDER DATED JULY 28, 2008 PASSED BY THE LEARNED ASSESSING OFFICER IS BARRED BY LIMITATION OF TIME UNDER SECTION 154(7) AND IS THUS WITHOUT JURISDICTION, INVALID AND BAD IN LAW. 2 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN REJECTING THE PLEA OF THE APPELLANT TH AT THE LEARNED ASSESSING OFFICER ERRED IN ASSUMING THE JURISDICTION UNDER SE CTION 154 IN RESPECT OF A DEBATABLE ISSUE. ITA NO. 3757/M/2010. . 2 3 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT DIRECTING THE LEARNED ASSESSING OF FICER TO GRANT INTEREST U/S 244A ON REFUND DUE, IN ACCORDANCE WITH THE LA W. 4 ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE CIT(A) HAS ERRED IN NOT ACCEPTING THE PLEA OF THE APPELLAN T THAT THE ADDITIONAL INTEREST OF RS 1.14 CRORES LEVIED UNDER SECTION 220 (2) IS UNLAWFUL AND/OR EXCESSIVE SINCE THE SAME IS COMPUTED AFTER EXCLUDIN G THE INTEREST GRANTED U/S 244A. 3 THE BRIEF FACTS LEADING TO CONTROVERSY ARE THAT T HE ASSESSMENT ORDER U/S 143(3) WAS PASSED ON 27 TH MARCH 2000 WHEREBY THE ASSESSING OFFICER RAISED A DEMAND OF ` 368.28 CRORES. THE ASSESSEE CHALLENGED THE ASSESSMENT ORDER DATED 27.3.2000 BEFORE THE COMMISS IONER OF INCOME TAX(APPEALS). IN THE MEANTIME THE ASSESSING OFFICER ADJUSTED THE REFUND DUE TO THE ASSESSEE FOR THE ASSESSMENT YEAR 2000-01 OF ` 91.96 CRORES IN DEC 2000 AND FOR THE ASSESSMENT YEAR 1995-96 OF ` 191.35 CRORES IN JAN 2001. THE APPEAL OF THE ASSESSEE WAS DECIDED B Y THE COMMISSIONER OF INCOME TAX (APPEALS) VIDE ORDER DATED 7.3.2003. THE ASSESSING OFFICER PASSED THE ORDER GIVING EFFECT TO THE COMMI SSIONER OF INCOME TAX(APPEALS) ORDER ON 3.4.2003, ACCORDING TO WHICH THE TAX LIABILITY OF THE ASSESSEE WITH INTEREST WAS DETERMINED AT ` 35.29 CRORES. SINCE THE ASSESSING OFFICER HAS ALREADY ADJUSTED THE REFUND F OR THE ASSESSMENT YEAR 2000-01 OF ` 91.96 CRORES; THEREFORE, THERE WAS AN EXCESS ADJUSTMENT TO THE EXTENT OF ` 56.67 CRORES RETAINED BY THE DEPARTMENT, WHICH WAS RETAINED AND REFUNDED AT THE TIME OF PASS ING THE ORDER GIVING EFFECT TO THE COMMISSIONER OF INCOME TAX(APPEALS) O RDER IN APRIL 2003. ITA NO. 3757/M/2010. . 3 THE ASSESSING OFFICER HAS ALSO GRANTED INTEREST OF ` . 12.16 CRORES U/S 244A(1)(B) OF THE I T ACT TO THE ASSESSEE. 3.1 APART FROM THIS, THE ASSESSING OFFICER HAS ALSO GRANTED REFUND OF ` 191.35 CRORES ADJUSTED IN JAN 2001 ALONG WITH THE INTEREST OF ` 38.91 CRORES U/S 244A(1)(B) OF THE ACT, THOUGH THERE IS N O DISPUTE IN RESPECT OF THE SAID REFUND AND INTEREST. 3.2 THE TAX LIABILITY OF ` 35.29 CRORES DETERMINED BY THE ASSESSING OFFICER WHILE PASSING THE ORDER GIVING EFFECT TO TH E COMMISSIONER OF INCOME TAX(APPEALS) ORDER AFTER CHARGING THE ADDITI ONAL TAX OF ` .31 LACS. THE ASSESSEE FILED A RECTIFICATION PETITION U/S 154 ON WHICH THE ASSESSING OFFICER PASSED AN ORDER DATED 2.7.2007 AND ACCEPTE D THE CLAIM OF THE ASSESSEE THAT THE ADDITIONAL TAX WAS NOT CHARGEABLE . ACCORDINGLY, THE DEMAND WAS REDUCED TO ` 34.43 CRORES. CONSEQUENTLY, THE INTEREST PAYABLE U/S 244A(1)(B) WAS REVISED TO ` 12.27 CRORES FROM ` 12.16 CRORES. 3.3 IN THE MONTH OF JAN 2008, THE AUDIT PARTY RAIS ED AN AUDIT OBJECTION REGARDING THE GRAND AND CALCULATION OF INTEREST U/S 244A(1)(B) ON THE REFUND AMOUNT OF ` 57,53,10,029/-, WHICH INCLUDES INTEREST OF ` 9,52,06,230/-. THE AUDIT PARTY THUS RAISED THE OB JECTION THAT WHILE CALCULATING THE INTEREST FOR THE PERIOD FROM 1.4.19 97 TO 31.3.1998, THE ASSESSING OFFICER CONSIDERED THE TAX REFUND AS WELL AS INTEREST WHEREAS THE INTEREST WAS TO BE WORKED OUT ONLY ON THE REFUN D OF TAX. IN PURSUANT TO THE AUDIT OBJECTION, THE ASSESSING OFFICER PROPO SED TO MODIFY THE ORDER ITA NO. 3757/M/2010. . 4 U/S 154 BY ISSUING AN NOTICE DATED 10.3.2008 WHERE BY THE ENTITLEMENT OF THE INTEREST DUE TO THE ASSESSEE WAS PROPOSED TO REDUCED TO ` 9.99 CRORES INSTEAD OF ` . 12.27 CRORES. THE ASSESSEE OBJECTED TO THE SHOW CAUSE NOTICE VIDE LETTER DATED 11.3.2008. THE ASSES SING OFFICER PASSED THE IMPUGNED ORDER U/S 154 WHEREBY THE INTEREST GRA NTED U/S 244A(1)(B) WAS REVISED AND THEREBY THE AMOUNT OF ` 2,03,10,663/- WAS HELD AS GRANTED IN EXCESS TO THE ASSESSEE. 3.4 ON APPEAL, THE COMMISSIONER OF INCOME TAX(APPEA LS) HELD THAT NEITHER THE INTEREST CHARGED U/S 234B OF THE ACT NO R GRANTING OF INTEREST U/S 244A HAVE BEEN CORRECTLY DONE BY THE ASSESSING OFFICER. ACCORDINGLY, THE ASSESSING OFFICER WAS DIRECTED TO ADOPT THE PRI NCIPLES AS ENUMERATED AND SUGGESTED BY THE COMMISSIONER OF INCOME TAX(APP EALS) FOR CALCULATING THE INTEREST. 4 FIRST WE TAKE UP THE GROUND NO.2 REGARDING JURISD ICTION OF THE ASSESSING OFFICER U/S 154 OF THE ACT IN RESPECT OF THE DEBATABLE ISSUE. SHRI DINESH VYAS, THE LD SR COUNSEL FOR THE ASSESSE E HAS CONTENDED THAT RECTIFICATION U/S 154 CAN BE ONLY FOR AN OBVIOUS AN D PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DR AWN PROCESS OF REASONING OR/ON POINTS ON WHICH THERE MAY BE CONCEI VABLY BE TWO OPINIONS. THE LD SR COUNSEL HAS SUBMITTED THAT GR ANT OF INTEREST ON THE COMPOSITE AMOUNT OF REFUND PLUS INTEREST ON PARTICU LAR DATE IS AN ALLOWABLE CLAIM IN VIEW OF VARIOUS DECISIONS OF THE HONBLE SUPREME COURT AS WELL AS THE HIGH COURTS. HE HAS RELIED UPON THE FOLLOWING DECISIONS: ITA NO. 3757/M/2010. . 5 I) ACIT VS TATA POWER CO LTD (ITA NO. 6863/M/2011(MUM )(TRIB) II) CIT VS HEG LTD 324 ITR 331 (SC)(LB) III) CIT VS NARENDRA DOSHI 254 ITR 606 (SC) IV) SANDVIK ASIA LTD VS CIT &ORS 280 ITR 643 (SC) V) LOHIA STARLINGER LTD VS CIT 209 TAXMAN 484 (ALL) VI) ETERNIT EVEREST LTD VS DCIT 12 SOT 40 (MUM) VII) ABU DHABI COMML BANK LTD V ADIT(INT) TAXN) 78 DTR 234 (MUM) VIII) CIT VS GOODYEAR INDIA LTD 249 ITR 527 (DEL) 4.1 THUS, THE LD SR COUNSEL FOR THE ASSESSEE HAS CO NTENDED THAT WHEN THE INTEREST ON INTEREST IS PERMITTED AND ALLOWABLE CLAIM IN VIEW OF SERIES OF DECISIONS, THEN THE SAID ISSUE CANNOT BE DECIDED U/S 154 OF THE ACT. SINCE THIS POINT INVOLVES INTERPRETATION OF LAW AS WELL AS A DEBATABLE ISSUE WHICH CANNOT BE A SUBJECT MATTER OF RECTIFICATION U /S 154 OF THE ACT. 4.2 HE HAS FORCEFULLY ARGUED THAT SECTION 154 MAINL Y ENABLES THE RECTIFICATION OF THE MISTAKES WHICH ARE ABSOLUTE OB JECTIVE IN NATURE AND IN WHICH THERE ARE NO TWO VIEW POSSIBLE. THE POINT OF GRANT OF INTEREST ON INTEREST U/S 244A(1)(B) IS A HIGHLY DEBATABLE AND CONTROVERSIAL ISSUE AND HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE H ONBLE SUPREME COURT IN VARIOUS DECISIONS. THUS, THE LD SR COUNS EL HAS SUBMITTED THAT THE ASSESSING OFFICER HAS GONE BEYOND HIS JURISDICT ION U/S 154 WHILE PASSING THE IMPUGNED ORDER WHEREBY THE INTEREST GRA NTED U/S 244A (1)(B) HAS BEEN WITHDRAWN ON THE BASIS OF AUDIT OBJECTION. 4.3 ON THE OTHER HAND, THE LD DR HAS RELIED UPON TH E ORDERS OF THE AUTHORITIES BELOW AND SUBMITTED THAT THE ASSESSING OFFICER DID NOT APPLY HIS MIND AT THE TIME OF GRANTING THE INTEREST U/S 2 44A(1)(B) AND WHEN THE AUDIT PARTY HAS POINTED OUT A MISTAKE IN THE CALCUL ATION OF THE WORKING OF INTEREST, THE ASSESSING OFFICER ACCORDINGLY, RECTIF IED THE SAID MISTAKE. ITA NO. 3757/M/2010. . 6 THUS, THE RECTIFICATION OF THE MISTAKE IN THE CALCU LATION OF THE INTEREST IS VERY MUCH AN ERROR APPARENT WITHIN A SUBJECT MATTER OF SEC. 154. 5 WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND CARE FULLY PERUSED THE RELEVANT MATERIAL ON RECORD. AS WE HAVE DISCUSSED A BOVE WHILE NARRATING THE FACTS LEADING TO THE CONTROVERSY, THE ISSUE IN THE ORDER PASSED U/S 154, IS REGARDING THE GRANT OF INTEREST U/S 244A(1) (B). THE AUDIT PARTY HAS RAISED THE OBJECTION IN RESPECT OF GRANT OF EXCESS INTEREST IS AS UNDER: ON ON ON ON GOING THROUGH THE TAX CALCULATION, IT IS SENT H AT THE INTEREST U/S 244A(1)(B) IS GOING THROUGH THE TAX CALCULATION, IT IS SENT HAT THE INTEREST U/S 244A(1)(B) IS GOING THROUGH THE TAX CALCULATION, IT IS SENT HAT THE INTEREST U/S 244A(1)(B) IS GOING THROUGH THE TAX CALCULATION, IT IS SENT HAT THE INTEREST U/S 244A(1)(B) IS CALCULATED ON INTEREST U/S 244A OF CALCULATED ON INTEREST U/S 244A OF CALCULATED ON INTEREST U/S 244A OF CALCULATED ON INTEREST U/S 244A OF ` `` `. 9,52,06,230/ . 9,52,06,230/ . 9,52,06,230/ . 9,52,06,230/- -- - CALCULATED FOR THE PERIOD CALCULATED FOR THE PERIOD CALCULATED FOR THE PERIOD CALCULATED FOR THE PERIOD 1.4.1997 TO 31.3.1998 WHICH IS EXPLAINED AS UNDER: 1.4.1997 TO 31.3.1998 WHICH IS EXPLAINED AS UNDER: 1.4.1997 TO 31.3.1998 WHICH IS EXPLAINED AS UNDER: 1.4.1997 TO 31.3.1998 WHICH IS EXPLAINED AS UNDER: INTEREST WORKING AS PER CALCULATION SHEET INTEREST WORKING AS PER CALCULATION SHEET INTEREST WORKING AS PER CALCULATION SHEET INTEREST WORKING AS PER CALCULATION SHEET INTEREST WORKING TO BE ADOPTED INTEREST WORKING TO BE ADOPTED INTEREST WORKING TO BE ADOPTED INTEREST WORKING TO BE ADOPTED 575310029 X 1% X 5 2,87,65,501 48 0103799 X 1% X 5 = 2,40,05,190 575310029 X 1% X 5 2,87,65,501 48 0103799 X 1% X 5 = 2,40,05,190 575310029 X 1% X 5 2,87,65,501 48 0103799 X 1% X 5 = 2,40,05,190 575310029 X 1% X 5 2,87,65,501 48 0103799 X 1% X 5 = 2,40,05,190 575310029 X 0.75% X 12 = 5,17,77,903 4801037 99 X 0.75X12 = 4,32,09,341 575310029 X 0.75% X 12 = 5,17,77,903 4801037 99 X 0.75X12 = 4,32,09,341 575310029 X 0.75% X 12 = 5,17,77,903 4801037 99 X 0.75X12 = 4,32,09,341 575310029 X 0.75% X 12 = 5,17,77,903 4801037 99 X 0.75X12 = 4,32,09,341 575310029 X 2/3% X 11 4,21,89,402 4801 0379 575310029 X 2/3% X 11 4,21,89,402 4801 0379 575310029 X 2/3% X 11 4,21,89,402 4801 0379 575310029 X 2/3% X 11 4,21,89,402 4801 03799 X 2/3%X 11 3,52,07,612 9 X 2/3%X 11 3,52,07,612 9 X 2/3%X 11 3,52,07,612 9 X 2/3%X 11 3,52,07,612 TOTAL 12,27,32,806 TOTAL 10,24,22 ,143 TOTAL 12,27,32,806 TOTAL 10,24,22 ,143 TOTAL 12,27,32,806 TOTAL 10,24,22 ,143 TOTAL 12,27,32,806 TOTAL 10,24,22 ,143 INTEREST LEVIED 1 2,27,32,806 INTEREST LEVIED 1 2,27,32,806 INTEREST LEVIED 1 2,27,32,806 INTEREST LEVIED 1 2,27,32,806 EXCESS 2,03,10,663 EXCESS 2,03, 10,663 EXCESS 2,03, 10,663 EXCESS 2,03, 10,663 THEREFORE, THERE IS A REVENUE LOSS OF THEREFORE, THERE IS A REVENUE LOSS OF THEREFORE, THERE IS A REVENUE LOSS OF THEREFORE, THERE IS A REVENUE LOSS OF ` `` ` 2,03,10,663/ 2,03,10,663/ 2,03,10,663/ 2,03,10,663/- -- - SAME MAY PLEASE BE LOOKED INTO. SAME MAY PLEASE BE LOOKED INTO. SAME MAY PLEASE BE LOOKED INTO. SAME MAY PLEASE BE LOOKED INTO. 5.1 IT IS EVIDENT FROM THE OBJECTION RAISED BY THE AUDIT PARTY THAT ORIGINALLY THE ASSESSING OFFICER CALCULATED THE INT EREST U/S 244A(1)(B) ON A SUM OF ` 57,53,10,029/ WHICH INCLUDES A SUM OF ` 9, 52,06,230/- AS INTEREST COMPONENT. THE AUDIT PART WAS OF THE VIEW THAT INT EREST FOR THE PERIOD 1.4..1997 TO 31.3.1998 SHOULD HAVE BEEN CALCULATED ONLY ON THE REFUNDED TAX AMOUNT EXCLUSIVE OF INTEREST AND THERE AFTER EXCLUDING A SUM OF ` 9,52,06,230/- , THE INTEREST SHOULD HAVE BEEN GRANTED ON ` 48,01,03,799.-. THEREFORE, THE AUDIT PARTY ARRIVE D AT TO THE CONCLUSION THAT THERE IS A REVENUE LOSS OF ` 2,03,10,663/-. T HE ASSESSING OFFICER ISSUED SHOW CAUSE NOTICE U/S 154 FOR RECTIFYING TH E MISTAKE IN RELATION TO ITA NO. 3757/M/2010. . 7 EXCESS GRANT OF INTEREST U/S 244A(1)(B) AMOUNTING T O `2,03,10,663/- AND PASSED THE IMPUGNED ORDER U/S 154 AS UNDER: ORDER UNDER SECTION 154 OF THE I T ACT, 1961 IN THIS CASE, AN ORDER U/S 154 WAS PASSED ON 2.7.20 07 WHEREBY A REFUND OF ` 97,50,733/- WAS DETERMINED. THEREAFTER, AN AUDIT OBJECTION WAS RAISED VIDE AUDIT MEMO NO.11/2007-08 DTD 9.1.2008, STATING THAT INTEREST U/S 244A(1)(B) AMOUNTING TO ` 2,03,10,663/- WAS GRANTED IN EXCESS TO THE ASSESSEE. ON VERIFICATION OF RECORDS, THE OBJECTION RAISED W AS FOUND TO BE CORRECT AND THE SAME IS NOW BEING SETTLED VIDE THIS RECTIFICATI ON. TOTAL INCOME REMAINS THE SAME AT ` 75,23,56,887/- ISSUE REVISED DB./CHALLAN SD/- PREMANAND. J ASST COMMISSIONER OF INCOME TAX 1(3) MUMBAI 5.2 THE ASSESSEE HAS RAISED THE OBJECTION VIDE ITS LETTER DATED 11.3.2008 AGAINST THE PROPOSED REVISION OF GRANT OF INTEREST U/S 244A(1)(B) BY INVOKING THE PROVISIONS OF SEC 154 O F THE ACT. THE ASSESSEE HAS RAISED THE ISSUE OF JURISDICTION OF TH E ASSESSING OFFICER ON THE GROUND THAT THIS POINT IS HIGHLY DEBATABLE AND INVOLVED INTERPRETATION OF LAW. THEREFORE, IT WAS CONTENDED THAT THE ASSES SING OFFICER HAS EXCEEDED HIS JURISDICTION U/S 154 TO DEICIDE SUCH A DEBATABLE ISSUE INVOLVING INTERPRETATION OF LAW AND FURTHER WHEN T HE ISSUE OF INTEREST ON INTEREST HAS BEEN DECIDED BY THE HONBLE SUPREME CO URT AS WELL AS VARIOUS HIGH COURTS IN FAVOUR OF THE ASSESSEE. IN SUPPORT OF HIS CONTENTION, THE DECISIONS AS RELIED BEFORE US WERE ALSO REFERRED AND RELIED IN THE SAID LETTER DATED 11.3.2008. 6 IT IS SETTLED PROPOSITION OF LAW THAT A MISTAKE A PPARENT FROM THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NO T SOMETHING WHICH ITA NO. 3757/M/2010. . 8 CAN BE ESTABLISHED BY LONG DRAWN PROCESS OF REASONI NG CAN BE RECTIFIED U/S 154. DECISION ON A DEBATABLE POINT OF LAW IS NO T A MISTAKE APPARENT FROM THE RECORD. MERELY OVERLOOKING OF CERTAIN FAC TS OR MANDATORY PROVISIONS OF LAW WHICH DOES NOT ALLOW ANY DISCRETI ON TO THE TAXING AUTHORITIES IS A MISTAKE APPARENT FROM THE RECORD. BUT A DECISION ON A DEBATABLE POINT OF LAW OR WHEN THE LAW CONFERS ON T HE TAXING AUTHORITY A DISCRETION, THEN SUCH DISCRETION CANNOT BE CORRECTE D UNDER THE PROVISIONS OF SEC. 154 OF THE ACT. THUS, A MISTAKE CANNOT BE RECTIFIED U/S 154 OF THE ACT WHEN THERE IS A DEBATABLE POINT OF FACT OR LAW. 7 IN THE CASE OF HEG LTD, (SUPRA), THE HONBLE SUP REME COURT HAS HELD THAT INTEREST COMPONENT IN THE REFUND WILL PA RTAKE THE CHARACTER OF AMOUNT DUE U/S 244A, IT BECAME AN INTEGRAL PART O F THE REFUND AMOUNT WHICH IS NOT PAID AFTER THE SAID AMOUNT BECOME DUE AND PAYABLE. 7.1 SIMILARLY, IN THE CASE OF SANDVIK ASIA LTD (SUP RA), THE HONBLE SUPREME COURT HAS HELD THAT ONCE THE INTEREST BECA ME DUE IT TAKES THE SAME COLOUR AS THE EXCESS AMOUNT OF TAX WHICH IS R EFUNDABLE ON REGULAR ASSESSMENT. 8 IN VIEW OF THE SERIES OF DECISIONS OF THE HONBLE SUPREME COURTS AS WELL AS HONBLE HIGH COURTS, THE ISSUE OF GRANT OF INTEREST ON INTEREST IS A HIGHLY DEBATABLE AND RATHER ALLOWABLE CLAIM IN FAVO UR OF THE ASSESSEE. THEREFORE, A DECISION ON SUCH A DEBATABLE ISSUE CAN NOT BE PASSED UNDER THE PROVISIONS OF SEC. 154 OF THE ACT. ACCORDINGLY , WE SET ASIDE THE ITA NO. 3757/M/2010. . 9 IMPUGNED ORDER PASSED U/S 154 BEING BEYOND JURISDIC TION OF THE ASSESSING OFFICER IN THE PECULIAR FACTS AND CIRCUMS TANCES OF THE CASE. 9 SINCE THE ORDER PASSED U/S 154 HAS BEEN SET ASID E; THEREFORE, THE OTHER ISSUES RAISED BY THE ASSESSEE HAVE BECOME OTI OSE AND ACADEMIC IN NATURE. 10 EVEN OTHERWISE, THE LD SR COUNSEL FOR THE ASSESS EE HAS STATED THAT IF THE ISSUE OF JURISDICTION IS DECIDED IN FAVOUR OF T HE ASSESSEE, THEN IN THAT CASE, THE ASSESSEE WOULD NOT PRESS THE OTHER GROUND S. ACCORDINGLY, THE OTHER GROUNDS OF APPEAL OF THE ASSESSEE ARE DISMISS ED AS BECOME OTIOSE. 11 IN THE RESULT, THE APPEAL OF THE ASSESSEE IS ALL OWED. 2 .3 % 2. - 4 . 5 - . 78 ORDER PRONOUNCED IN THE OPEN COURT ON THIS DAY OF 8 TH MAY 2013 . #1 - 0& $# 4 9%3 8 TH 8 0 - : SD/- SD/- ( ! !! ! . ' ' ' ' ) #$ ( D KARUNAKARA RAO ) ACCOUNTANT MEMBER ( ) (VIJAY PAL RAO ) JUDICIAL MEMBER PLACE: MUMBAI : DATED: 8 TH MAY 2013 RAJ* ITA NO. 3757/M/2010. . 10 COPY FORWARDED TO: 1 APPELLANT 2 RESPONDENT 3 CIT 4 CIT(A) 5 DR /TRUE COPY/ BY ORDER DY /AR, ITAT, MUMBAI