ACIT, New Delhi V. M/s. IFFCO Ltd., New Delhi

ITA 395/DEL/2010

• Counselvise Citation: [2011] 134 COUNSELVISE.COM (IT) 4195 (ITAT-DELHI)
• Duration Of Justice: 1 year(s) 3 month(s) 7 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-05-2011
• Appeal Filed By: Department
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 05-05-2011
• Assessment Year: 2004-2005
• Appeal Filed On: 28-01-2010
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: MONA MOHANTY
• Assessee Lawyers: HARBHAJAN SINGH JT GMF A
• Keywords: Rectification of order
• Section: 143(3); 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL DELHI BENCH C, NEW DELHI BEFORE SHRI I.P. BANSAL, JUDICIAL MEMBER & SHRI K.D. RANJAN, ACCOUNTANT MEMBER ITA NO. 395/DEL/2010 ASSESSMENT YEAR: 2004-05 ACIT, VS. M/S IFFCO LTD., CIRCLE 23(1), IFFCO SADAN, ROOM NO. 190, C.R. BLDG., C-1, DISTT. CENTRE, SAK ET PLACE, I.P. ESTATE, NEW DELHI. NEW DELHI. AAAA10050M (APPELLANT) (RESPONDENT) & ITA NO. 125/DEL/2010 ASSESSMENT YEAR: 2004-05 M/S INDIAN FARMERS FERTILIZER COOPERATIVE LTD., VS . ACIT, IFFCO SADAN, C-1, DISTRICT CENTRE, SAKET PLACE, CI RCLE 23(1), NEW DELHI. C.R. BLDG., I.P. ESTATE, NEW DELHI. (APPELLANT) (RESPO NDENT) APPELLANT BY : SMT. MONA MOHANTY, SR. DR RESPONDENT BY : SHRI HARBHAJAN SINGH, JT. GM(F &A) ORDER PER I.P. BANSAL, J.M. THESE ARE CROSS APPEALS AND ARE DIRECTED AGAINST ORDER PASSED BY LD. CIT(A) DATED 5.11.2009 FOR A.Y. 2004-05. GROUN DS OF APPEALS ARE READ AS UNDER: - ITA NOS. 395 & 125/D/10 2 GROUND OF REVENUES APPEAL : 1. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CA SE THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING APPEAL OF ASSESSEE WITHOUT CONSIDERING THE ORDER DATED 13/03/2008 ISSU ED U/S 250/143(3) OF THE ACT WHEREIN REFUND OF RS. 5,07,26 ,673/- WAS DETERMINED AND WHILE DETERMINING THIS REFUND, CREDI T OF RS. 59,54,112/- WAS GIVEN. 2. ON THE FACTS AND ON THE CIRCUMSTANCES OF THE CAS E THE LD. CIT(A) HAS ERRED IN LAW AND ON FACTS IN ALLOWING INTEREST U/S 244A AMOUNTING TO RS. 59,54,112/- WHICH WAS ALREADY ALLO WED TO ASSESSEE VIDE ORDER DATED 13/03/2008 ISSUED U/S 250 /143(3) OF THE ACT. 3. THE APPELLANT CRAVES LEAVE TO ADD, ALTER OR AMEN D ANY OF THE GROUNDS OF APPEAL BEFORE OR DURING THE COURSE OF HE ARING OF THE APPEAL. GROUND OF ASSESSEES APPEAL : 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF T HE CASE, THE LD. CIT(APPEALS) HAS ERRED IN LAW AND ON FACTS THAT THE AO IS COMPETENT TO WITHDRAW THE INTEREST TO THE TUNE OF R S. 36,94,772/-. 2. THAT THE LD. CIT(APPEALS) HAS NOT GIVEN ITS FIND ING ON THE GROUND NO. 2 OF THE APPELLANTS GROUNDS OF APPEAL THAT AO HAS ERRED IN RECTIFYING THE DEBATABLE ISSUE U/S 154 OF THE INCOM E TAX ACT, 1961. THE MISTAKES WHICH ARE NOT APPARENT FROM TH E RECORDS, CANNOT BE RECTIFIED U/S 154 OF THE ACT. 3. THAT THE LD. CIT(APPEALS) HAS ERRED IN HOLDING T HAT THE ORDER WHICH HAS BEEN RECTIFIED WAS IN EXISTENCE. 4. THAT THE LD. CIT(APPEALS) FAILED TO APPRECIATE T HAT THE ORDER WHICH HAS BEEN RECTIFIED WAS PASSED ON 28 TH APRIL, 2009 WHEREAS THE RECTIFICATION HAS BEEN DONE ON 27 TH APRIL, 2009. 5. THAT THE LD. CIT(APPEALS) HAS NOT ADJUDICATED TH E GROUND NO. 5 OF THE GROUNDS OF APPEAL OF THE APPELLANT THAT THE ASS ESSING OFFICER HAS ERRED IN RECTIFYING THE ORDER U/S 143(3)/250/15 4 TO NULLIFY THE ITA NOS. 395 & 125/D/10 3 ORDER OF THE APPELLANT AUTHORITY APPLYING THE PRINC IPLE OF DOCTRINE OF MERGER. 6. THAT THE LD. CIT(APPEALS) HAS ERRED IN HOLDING T HAT THE ISSUE OF WITHDRAWING THE INTEREST U/S 244A WAS DIFFERENT FRO M THE FIRST APPEAL. 7. THAT THE LD. CIT(APPEALS) HAS FAILED TO APPRECIA TE THAT TWO REMEDIES CANNOT BE AVAILED SIMULTANEOUSLY BY THE AO ON THE SAME ISSUE. 8. THAT THE APPELLANT CRAVES LEAVE TO RESERVE ITSEL F THE RIGHT TO ADD, ALTER AND/OR VARY ANY GROUND(S) AT OR BEFORE THE TI ME OF HEARING. 2. THE IMPUGNED ORDER IS DATED 27 TH APRIL, 2009 PASSED UNDER THE PROVISIONS OF SEC. 250/154/143(3). IT HAS BEEN MEN TIONED BY THE AO THAT IN THE ORDER PASSED ON 13.3.2008 U/S 143(3)/250 THE INTEREST U/S 244A WAS NOT WITHDRAWN BY MISTAKE AND THE SAID INTEREST WAS WITHDRAWN BY THE IMPUGNED ORDER. 3. BEFORE CIT(A), IT WAS THE CASE OF THE ASSESSEE T HAT THE SAID DEMAND IS WRONGLY CREATED. FIRSTLY, ASSESSEE OBJECT ED THAT ORDER WHICH IS NOT EXISTED CANNOT BE RECTIFIED. SECONDLY, TWO REM EDIES CANNOT BE AVAILED ON THE SAME ISSUE AND THIRDLY ONCE AN ORDER ISSUED BY THE APPELLATE AUTHORITY IT CANNOT BE RECTIFIED ON THE SAME ISSUE. FOURTHLY, THERE IS NO MISTAKE APPARENT FROM HIS RECORD AND LASTLY, INTERE ST ALREADY WITHDRAWN CANNOT BE WITHDRAWN AGAIN. ON THESE CONTENTIONS OF THE ASSESSEE, LD. CIT(A) HAS RETURNED A FINDING THAT EARLIER INTEREST TO THE EXTENT OF RS. 59,54,112/- WAS WITHDRAWN U/S 244A IN THE ORDER U/S 143(3) ON 27 TH DECEMBER, 2006 AND TO THAT EXTENT CREDIT SHOULD HAV E BEEN GIVEN TO THE ASSESSEE OUT OF TOTAL AMOUNT OF RS. 96,48,884/- AND HE HELD THAT AO WAS ITA NOS. 395 & 125/D/10 4 COMPETENT ONLY TO WITHDRAWN THE INTEREST TO THE TUN E OF RS. 36,94,772/-. WITH THESE FINDINGS OF LD. CIT(A) BOTH PARTIES ARE AGGRIEVED, HENCE IN APPEAL. 4. LD. DR HAS SUBMITTED BEFORE US, A CHRONOLOGY OF THE EVENTS AS SUBMITTED BY THE CONCERNED AO. SHE HAS ALSO SUBMIT TED BEFORE US A COPY OF APPLICATION FILED BY THE CONCERNED AO TO THE COM MISSIONER OF INCOME TAX (APPEALS) WHICH IS DATED 1.2.2010 AND WHICH IS AN APPLICATION FOR RECTIFICATION U/S 154(1A) AGAINST THE IMPUGNED ORDE R OF CIT(A) IN WHICH AFTER MENTIONING THE CHRONOLOGY OF EVENTS IT HAS BE EN POINTED OUT BY THE AO THAT THE IN-TERM EVENT OF PASSING RECTIFICATION ORDER DATED 13.3.2008 WAS NOT PLACED BEFORE CIT(A) AND, THEREFORE, THE FA CTS COULD NOT BE PROPERLY APPRECIATED BEFORE ADJUDICATING THE ISSUE. IT WAS SUBMITTED THAT VIDE ORDER DATED 13.3.2008 A REFUND OF RS. 5,07,26, 673/- WAS DETERMINED AND WHILE DETERMINING SUCH REFUND, CREDIT OF RS. 4, 81,92,378/- PAID BY THE ASSESSEE WAS ALREADY GIVEN. THEREFORE, ACCORDING T O AO WITHDRAWAL OF INTEREST AMOUNTING TO RS. 96,48,884/- WAS CORRECTLY MADE VIDE ORDER DATED 27 TH APRIL, 2009 SINCE THE AMOUNT OF RS. 59,54,112/- BE ING INTEREST U/S 244A WAS ALREADY REFUNDED TO THE ASSESSEE VIDE ITNS -150 DATED 13.3.2008. IT WAS SUBMITTED THAT THE ONLY COURSE O F RECOVERY OF INTEREST OF RS. 96,48,884/- WRONGLY PAID TO THE ASSESSEE, WAS R ECTIFICATION OF ORDER U/S 154/250/143(3) DATED 13.3.2008 SINCE ASSESSEES APPEAL AGAINST EARLIER RECTIFICATION ORDER DATED 10.3.2008 WAS ALL OWED BY CIT(A)S ORDER DATED 23.2.2009. ITA NOS. 395 & 125/D/10 5 5. REFERRING TO THESE DOCUMENTS IT WAS SUBMITTED BY LD. DR THAT AO HAS ALREADY FILED AN APPLICATION FOR RECTIFICATION BEFORE CIT(A) FOR AMENDING HIS ORDER AS CIT(A) HAS FAILS TO TAKE INTO CONSIDER ATION THE RECTIFICATION ORDER DATED 13.3.2008. THEREFORE, SHE SUBMITTED TH AT RELIEF HAS WRONGLY BEEN GRANTED TO THE ASSESSEE BY THE IMPUGNED ORDER OF CIT(A). IN THE ALTERNATIVE SHE SUBMITTED THAT THE MATTER MAY BE RE STORED BACK TO THE FILE OF AO FOR CORRECT COMPUTATION OF THE REFUND OR AMOU NT PAYABLE BY THE ASSESSEE AS PER PROVISIONS OF LAW. 6. ON THE OTHER HAND, LD. AR OF THE ASSESSEE SUBMIT TED THAT MATTER REGARDING CORRECT WORKING OUT OF AMOUNT PAYABLE BY THE ASSESSEE OR REFUNDED TO THE ASSESSEE IS BEING CONSIDERED BY CIT (A). HOWEVER, HE SUBMITTED THAT IT WILL BE APPROPRIATE IF THE MATTER IS RESTORED BACK TO THE FILE OF AO FOR CORRECTLY COMPUTING THE AMOUNT PAYABLE/RE FUNDABLE FROM AND TO THE ASSESSEE. 7. WE HAVE CAREFULLY CONSIDERED THE RIVAL SUBMISSIO NS IN THE LIGHT OF MATERIAL PLACED BEFORE US. BECAUSE THERE IS A ORDE R OF CIT(A) WHICH HAS QUANTIFIED THE AMOUNT OF WITHDRAWAL OF REFUND, THE AO CANNOT DIFFER FROM THAT AMOUNT AND WILL FEEL BOUND BY THAT ORDER. HOW EVER, CORRECT AMOUNT PAYABLE BY THE ASSESSEE OR REFUNDABLE TO ASSESSEE H AS TO BE WORKED OUT AS PER PROVISIONS OF LAW. THEREFORE, KEEPING IN V IEW THE INTEREST OF JUSTICE AND ALSO TO REMOVE SUCH DIFFICULTY, WE ARE OF THE O PINION THAT COMMON CONTENTION OF THE PARTIES SHOULD BE ACCEPTED AND MA TTER IN THIS REGARD SHOULD BE RESTORED BACK TO THE FILE OF AO TO WORK O UT THE CORRECT AMOUNT ITA NOS. 395 & 125/D/10 6 EITHER PAYABLE BY THE ASSESSEE OR REFUNDABLE TO THE ASSESSEE UNDER THE PROVISIONS OF LAW AFTER GIVING THE ASSESSEE A REASO NABLE OPPORTUNITY OF HEARING AND AFTER PROVIDING SUCH OPPORTUNITY HE WIL L WORK OUT EITHER THE AMOUNT PAYABLE BY THE ASSESSEE OR REFUNDABLE TO THE ASSESSEE IN ACCORDANCE WITH PROVISIONS OF LAW. LD. AR OF THE A SSESSEE HAD AGREED TO APPEAR BEFORE AO ON 15.6.2011 TO RECONCILE THE EXAC T AMOUNT EITHER PAYABLE BY THE ASSESSEE OR REFUNDABLE TO THE ASSESS EE. THEREFORE, THE AO WILL DO THE NEEDFUL ON 15.6.2011 WHEN LD. AR OF THE ASSESSEE WILL APPEAR BEFORE HIM. WITH THESE DIRECTIONS WE DISPOS E OFF BOTH THE APPEALS AND BOTH THE APPEALS ARE CONSIDERED TO BE ALLOWED F OR STATISTICAL PURPOSES. ORDER WAS PRONOUNCED IN THE OPEN COURT ON 5.5.11 SD/- SD/- (K.D. RANJAN) (I.P. BANSAL) ACCOUNTANT MEMBER JUDI CIAL MEMBER DATED: 5.5.11 *KAVITA CHOPRA COPY FORWARDED TO: - 1. APPELLANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT TRUE COPY BY ORDER, DEPUTY REGISTRAR