OOCL LOGISTICS (INDIA ). P.LTD, MUMBAI V. DCIT CIR 7(1), MUMBAI

ITA 4265/MUM/2018

• Counselvise Citation: [2019] 115 COUNSELVISE.COM (IT) 6045 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 3 month(s) 5 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 26-09-2019
• Appeal Filed By: Assessee
• Order Result: Dismissed
• Bench Allotted: C
• Assessment Year: 2009-2010
• Appeal Filed On: 20-06-2018
• Result in Favour of: Revenue
• Court: TRIBUNAL
• Department Lawyers: KUMAR PADMA
• Assessee Lawyers: ABHISHEK TILAK
• Section: 244A; 201; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C , MUMBAI BEFORE S HRI S. R IFAUR RA HMAN (AM ) AND SHRI RAM LAL NEGI (JM) ITA NO. 4265 /MUM/2018 ASSESSMENT Y EAR: 2009 - 10 OOCL LOGISTICS (INDIA) PRIVATE LIMITED, ICC CHAMBERS, 5 TH FLOOR, SAKI VIHAR ROAD, POWAI, OPP, SANTOGEN SILK MILLS, MUMBAI - 400072 PAN: AAACO7690K VS. THE DEPUTY COMMISSIONER OF INCOME TAX - 7(1), AAYAKAR BHAVAN, MUMBAI - 400020 (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI ABHISHEK TILAK (AR) REVENUE BY : SHRI KUMAR PADMAPANI BORA (DR) DATE OF HEARING: 16 /09 /201 9 DATE OF PRONOUNCEMENT: 26 / 0 9 /201 9 O R D E R PER RAM LAL NEGI, JM T HE ASSESSEE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 17.01.2017 PASSED BY THE COMMIS SIONER OF INCOME TAX (APPEALS) - 13 (FOR SHORT THE CIT(A) , MUMBAI, PERTAINING TO THE ASSESSMENT YEAR 2009 - 10 , WHEREBY THE LD. CIT(A) HAS DISMISSED T HE APPLICATION FILED BY THE ASSESSEE U/S 154 OF THE INCOME TAX ACT, 1961 (FOR SHORT THE ACT) FOR RECTIFICAT ION OF APPELLATE ORDER PASSED BY THE LD. CIT(A). 2. THE ASSESSEE HAS CHALLENGED THE IMPUGNED ORDER PASSED BY THE LD. CIT (A) ON THE FOLLOWING EFFECTIVE GROUNDS : - 1. GROUND 1 - GRANT OF REFUND IT IS PRAYED THAT THE LEARNED AO BE DIRECTED TO REFUND INR 46,16 ,231 [INCLUSIVE OF INTEREST UNDER SECTION 244A OF THE ACT COMPUTED IN THE INTIMATION PASSED UNDER SECTION 143 (1) OF THE ACT] WHICH IS IN THE NATURE OF AMOUNT PAID IN EXCESS OVER THE TAX LIABILITY DULY DETERMINED BY THE AO SINCE THE SAME DOES NOT 2 ITA NO. 4265 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 PARTAKE T HE NATURE OF INCOME TAX AND IS REFUNDABLE TO THE APPELLANT ALONG WITH APPLICABLE INTEREST UNDER THE ACT. 2. GROUND 2 - MISTAKE APPARENT FROM RECORD. ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LEARNED CIT (A) HAS ERRED IN NOT APPRECIA TING THE FACT THAT THE RECTIFICATION WAS SOUGHT ON A MISTAKE APPARENT FROM RECORDS IN RESPECT OF TAX REFUND OF INR 46,16,231 NOT GRANTED TO THE APPELLANT THOUGH DETERMINED TO BE REFUNDABLE UNDER SECTION 143 (1) OF THE ACT. 3. GROUND 3 - NON - RECEIPT OF REFUN D BY THE COMPANY THE LEARNED AO ERRED IN DETERMINING THE REFUND AMOUNTING TO INR 7,350 (INCLUSIVE OF INTEREST UNDER SECTION 244A OF THE ACT) IN THE ASSESSMENT ORDER PASSED UNDER SECTION 143 (3) OF THE ACT AND NOT CONSIDERING THAT THE REFUND OF INR 46,16,23 1 DETERMINED TO BE REFUNDABLE UNDER SECTION 143 (1) OF THE ACT, SHOWN AS REFUNDED TO THE APPELLANT HAD NEVER BEEN REFUNDED NOR HAS THE SAME BEEN ADJUSTED AGAINST DEMAND OF ANY OTHER ASSESSMENT YEAR(S). THE APPELLANT PRAYS THAT THE LEARNED DCIT BE DIRECTED TO VERIFY THE RECORDS AND GRANT REFUND ALONG WITH INTEREST IN ACCORDANCE WITH THE PROVISIONS OF THE ACT AND AFTER CONSIDERING DUE CREDIT OF TAXES PAID. GROUND 4 - SHORT GRANT OF INTEREST UNDER SECTION 244A OF THE ACT THE APPELLANT PRAYS THAT THE AO BE DIRE CTED TO GRANT INTEREST UNDER SECTION 244A OF THE ACT BY CONSIDERING THE PERIOD FOR WHICH REFUND HAS NOT BEEN ACTUALLY REFUNDED. 3. AT THE OUTSET, THE LD. COUNSEL FOR THE ASSESSEE SUB MITTED THAT THE PRESENT APPEAL HAS BECOME ACADEMIC AND DOES NOT REQUIRE ADJUDICATION ON MERITS IN VIEW OF THE FACT THAT THE ITAT HAS ALLOWED THE ASSESSEES APPEAL ITA NO. 6028/MUM/2016 AGAINST THE ORDER DATED 08.07.2016 PASSED BY THE LD. CIT(A) IN QUANTUM APPEAL , VIDE WHICH THE TRIBUNAL HAS DIRECTED THE AO TO RE - 3 ITA NO. 4265 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 DETERMINE THE CORRECT REFUND AMOUNT AS WELL AS INTEREST DUE TO THE ASSESSEE AND REFUND THE SAME . 4. THE LD. DEPARTMENTAL REPRESENTATIVE DID NOT CONTROVERT THE FACTS STATED BY THE LD. COUNSEL AND FURTHER DID NOT OPPOSE THE SUBMISSIONS AFORESAID . 5. AFTER HEARING BOTH THE SIDES, WE ASKED THE LD. COUNSEL TO MAKE WRITTEN SUBMISSION IN THIS REGARD. ACCORDINGLY, THE LD. COUNSEL SUBMITTED WRITTEN SUBMISSIONS DATED 24.09.2019, DULY SIGNED BY THE MANAGING DIRECTOR OF THE COMPANY. THE RELEVANT PORTION OF THE WRITTEN SUBMISSION S MADE ON BEHALF OF THE ASSESSEE COMPANY READS AS UNDER: - YOUR HONOUR MAY OBSERVE THAT BOTH THE ORIGINAL APPEAL AND THE CAPTIONED APPEAL WERE FILED FOR NON - RECEIPT OF REFUND OF EXCESS TAX AMOUNT PAID OVER TAX LIABILITY AS DETERMINED BY THE LEARNED AO UN DER SECTION 143 (1)/143(3) OF THE ACT. HONBLE TRIBUNAL (BENCH D) DISPOSED THE ORIGINAL APPEAL VIDE ITS ORDER DATED 25 JULY 2018 AND REMITTED THE MATTER BACK TO THE FILE OF AO FOR RE - DETERMINATION OF CORRECT REFUND AMOUNT AS WELL AS INTEREST DUE TO THE CO MPANY WITH A DIRECTION TO GRANT LEGITIMATE REFUND AS DUE TO THE COMPANY. THE APPELLANT HAS ALSO FILED AN APPLICATION FOR GIVING EFFECT TO THE AFORESAID ORDER OF MUMBAI TRIBUNAL ON 11 JULY 2019 WHICH IS PENDING TO BE PROCESSED BY THE LEARNED ASSESSING OFF ICER. COPY OF APPLICATION IS ENCLOSED AS ANNEXURE 2. THE APPELLANT WOULD LIKE TO SUBMIT THAT SINCE THE GROUND FOR NON - RECEIPT OF REFUND ALONG WITH INTEREST HAS ALREADY BEEN CONSIDERED BY HONBLE TRIBUNAL IN THE ORIGINAL APPEAL, THE CAPTIONED APPEAL MAY E CONSIDERED ACADEMIC IN NATURE. 4 ITA NO. 4265 / MUM/2018 ASSESSMENT YEAR: 2009 - 1 0 5. WE HAVE PERUSED THE MATERIAL ON RECORD. AS POINTED OUT BY THE LD. COUNSEL , THE PRESENT APPEAL OF THE ASSESSEE HAS BECOME ACADEMIC/INFRUCTUOUS AS THE COORDINATE BENCH HAS ALLOWED THE APPEAL FILED BY THE ASSESSEE AGAIN ST THE QUANTUM ORDER PASSED BY THE LD. CIT(A). IN THE LIGHT OF THE AFORESAID FACTS TH IS APPEAL DOES NOT REQUIRE ADJUDICATION ON MERITS. ACCORDINGLY, WE DISMISS THE PRESENT APPEAL OF THE ASSESSEE BEING ACADEMIC/INFRUCTUOUS . IN THE RESULT, APPEAL FILED BY THE ASSESSEE FOR ASSESSMENT YEAR 2009 - 10 IS DISMISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 26 TH . SEPTEMBER , 2019 . SD/ - SD/ - ( S. R IF A UR RA HMAN ) ( RAM LAL NEGI ) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI ; DATED: 26 / 0 9 / 201 9 ALINDRA, PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE . / BY ORDER, //TRUE COPY// / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI