DDIT(IT) 1(2), MUMBAI V. DEUSTCHE BANK AG, MUMBAI

ITA 3987/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 49114 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 29 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 15-06-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2001-2002
• Appeal Filed On: 17-05-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D EVI SINGH

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES D, MUMBAI BEFORE SHRI D. MANMOHAN, VICE PRESIDENT AND SHRI T. R. SOOD, AM I.T.A. NO.: 3987/MUM/2010 ASSESSMENT YEAR : 2001-02 THE DY. DIT(IT)-1(2), ROOM NO.119, SCINDIA HOUSE, 1 ST FLOOR, BALLARD ESTATE, N.M. ROAD, MUMBAI-400 038 VS. M/S. DEUSTCHE BANK AG, C/O. 5 TH FLOOR, NICHOLAS PIRAMAL TOWER, PENINSULA CORPORATE PARK, LOWER PAREL, MUMBAI-400 013. PAN NO: AAACD1390F (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI DEVI SINGH RESPONDENT BY : NONE ORDER PER T.R. SOOD (AM) : THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER DATED 19.02.2010 OF COMMISSIONER OF INCOME TAX (APPEALS)- 10, MUMBAI AND RELATES TO THE ASSESSMENT YEAR 2001-02. 2. IN THIS CASE AN ADJOURNMENT APPLICATION HAS BEEN MOVED ON BEHALF OF THE ASSESSEE. AT THE TIME OF HEARING, MS. AARTI SAT HE APPEARED AND SUBMITTED THAT IN THIS CASE MR. NISHANT THAKKAR HAS BEEN APPOINTED AS COUNSEL OF THE ASSESSEE, BUT SINCE HE IS OUT OF TOW N AND HENCE THIS APPLICATION HAS BEEN MOVED. HOWEVER, ON PERUSAL OF THE RECORDS WE FOUND THAT THIS ISSUES IS RAISED BY THE REVENUE AND IS CO VERED IN FAVOUR OF THE ASSESSEE AND, THEREFORE, WE HAVE PROCEED TO HEAR TH E APPEAL ON EXPARTE BASIS, AS THERE IS NO NEED TO GRANT ADJOURNMENT. 2 3. THE REVENUE HAS RAISED THE FOLLOWING GROUNDS :- 1. ON THE FACTS AND IN THE CIRCUMSTANCE OF THE CAS E AND IN LAW, THE LD. CIT(A) ERRED IN ALLOWING INTEREST U/S.244A OF T HE ACT WHERE REFUND AROSE ON ACCOUNT OF SELF ASSESSMENT TAX WITHOUT APP RECIATING THAT THE WORDS IN ANY OTHER CASE OCCURRING IN SEC.244A(1)( B) CANNOT BE CONSTRUED TO INCLUDE SELF ASSESSMENT TAX WHEN IT WA S NOT SPECIFICALLY INCLUDED IN CLAUSE (A) OF SEC. 244A(1) OF THE ACT. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CI T(A) ON THE ABOVE GROUND(S) BE SET ASIDE AND THAT OF THE ASSESSING OF FICER RESTORED. THE REVENUE WAS HEARD. 4. AFTER CONSIDERING THE SUBMISSIONS OF THE LD. DR AND THE RELEVANT MATERIAL ON RECORD, WE FIND THAT THE LD. CIT(A) HAD DECIDED THE ISSUE VIDE PARA 2.3.1 WHICH IS AS UNDER : 2.3.1 AS REGARDS GROUND NO.6(C) IS RELATED TO NON GRANTING OF INTEREST ON SELF ASSESSMENT TAX PAID ON 29.06.20 01, I HAVE CAREFULLY CONSIDERED THE ABOVE FACTS AND I HAVE ALS O GONE THROUGH THE PROVISIONS OF SECTION 244A(1). CLAUSE (B) OF SE CTION 244A(1) SAYS THAT WHERE EXCESS REFUND IS DUE IN RESPECT OF ANY OTHER CASE SUCH INTEREST WOULD BE CALCULATED AT THE RATE PRESC RIBED THEREIN, WHEREAS CLAUSE (A) OF SECTION 244A(1) TALKS REGARDI NG EXCESS PAYMENT ON ACCOUNT OF ADVANCE TAX / TDS. THEREFORE, WHERE EXCESS PAYMENT HAS BEEN MADE ON ACCOUNT OF SELF ASS ESSMENT OR PENALTY WOULD BE COVERED IN THE PHRASE IN ANY OTHE R CASE. THIS IS ALSO SUPPORTED BY THE CASE LAW CITED BY THE A.R. OF THE APPELLANT IN THE CASE OF GRINDWELL NORTON LTD. (100 ITD 245) (MUM) AND MADRAS HIGH COURT IN THE CASE OF CHOLAMAN DALAM INVESTMENT & FINANCE CO. LTD. (166 TAXMAN 132) (MAD ). SIMILAR FINDING WAS ALSO GIVEN IN THE CASE OF NIRMA CHEMICA L WORKS LTD. VS. JT. CIT 29 DTR (AHD) (TM) 76 (DATED 17 TH JULY, 2009). IN CASE OF ACIT VS. SANDOZ LTD. (ITA 2863/M/05) (A.Y. 2000- 01) (DTD.15.5.2006) TRIBUNAL HELD THAT APPELLANT IS ENT ITLED TO INTEREST U/S.244A(1)(B) ON SELF ASSESSMENT TAX. IN ACIT V. N OVARTIS INDIA LTD. (ITA NO.4767/MUM/2005) (A.Y. 1999-00) (DTD. 16 .08.2005), D- BENCH MUMBAI ALSO HELD THAT IN ANY OTHER CASE WOULD CERTAINLY INCLUDE WHERE TAX HAS BEEN PAID BY WAY OF SELF ASSESSMENT. CONSIDERING THESE FACTS I AM OF THE VIE W THAT THE APPELLANT IS ENTITLED TO INTEREST ON REFUND AS ARIS ING ON ACCOUNT OF EXCESS PAYMENT OF SELF ASSESSMENT. THEREFORE, THE A O IS DIRECTED TO ALLOW THE INTEREST U/S.244A IN ACCORDANCE WITH T HE LAW. 5. CAREFULLY READING OF THE ABOVE PARA SHOWS THAT T HE LD. CIT(A) HAS DECIDED THE ISSUE ON THE BASIS OF VARIOUS DECISIONS RENDERED BY DIFFERENT 3 BENCHES OF THE TRIBUNAL INCLUDING THE MUMBAI BENCH OF THE TRIBUNAL IN CASE OF ACIT VS. NOVARTIS INDIA LTD. (SUPRA) WHICH HAS BEEN FOLLOWED. SINCE THE LD. DR COULD NOT BRING TO OUR NOTICE ANY CONTRA RY DECISION, WE DECLINE TO INTERFERE IN THE ORDER OF THE LD. CIT(A) AND CONFIR M THE SAME. 6. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . ORDER PRONOUNCED ON THIS 15 TH DAY OF JUNE, 2011. SD/- SD/- (D. MANMOHAN) (T. R. SOO D) VICE PRESIDENT ACCOUNTANT MEMBER MUMBAI, DT: 15/06/2011 COPY FORWARDED TO : 1. THE APPELLANT, 2. THE RESPONDENT, 3. THE C.I.T. 4. CIT (A) 5. THE DR, D - BENCH, ITAT, MUMBAI //TRUE COPY// BY ORDER ASSISTANT REGISTRAR ITAT, MUMBAI BENCHES, MUMBAI ROSHANI