MMTC Ltd, New Delhi V. DCIT, New Delhi

ITA 4321/DEL/2009

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 65507 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 10 month(s) 9 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Assessee
• Order Result: Partly Allowed
• Bench Allotted: E
• Next Hearing Date: 20-09-2012
• Assessment Year: 1996-1997
• Appeal Filed On: 11-11-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: ANOOP KUMA R SINGH
• Assessee Lawyers: ROHIT JAIN
• Keywords: Opportunity of being heard
• Section: 153A; 147; 263; 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 DELHI DELHI DELHI DELHI BENCH BENCH BENCH BENCH E EE E : NEW DELHI : NEW DELHI : NEW DELHI : NEW DELHI BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G. BEFORE SHRI G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND VICE PRESIDENT AND SHRI SHRI SHRI SHRI I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR, JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER , JUDICIAL MEMBER ITA NO. ITA NO. ITA NO. ITA NO.4321/DEL/2009 4321/DEL/2009 4321/DEL/2009 4321/DEL/2009 ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR ASSESSMENT YEAR : : : : 1996 1996 1996 1996- -- -97 9797 97 M/S MMTC LIMITED, M/S MMTC LIMITED, M/S MMTC LIMITED, M/S MMTC LIMITED, SCOPE COMPLEX, SCOPE COMPLEX, SCOPE COMPLEX, SCOPE COMPLEX, CORE CORE CORE CORE- -- -1, LODHI ROAD 1, LODHI ROAD 1, LODHI ROAD 1, LODHI ROAD INSTIT INSTIT INSTIT INSTITUTIONAL AREA, UTIONAL AREA, UTIONAL AREA, UTIONAL AREA, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 003. 110 003. 110 003. 110 003. PAN : AAACM1433E. PAN : AAACM1433E. PAN : AAACM1433E. PAN : AAACM1433E. VS. VS. VS. VS. DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF DEPUTY COMMISSIONER OF INCOME TAX, INCOME TAX, INCOME TAX, INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -5(1), 5(1), 5(1), 5(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI ROHIT JAIN, ADVOCATE AND MS. DEEPASHREE RAO, CA. RESPONDENT BY : SHRI ANOOP KUMAR SINGH, SR.DR. ORDER ORDER ORDER ORDER PER G. PER G. PER G. PER G.D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, D.AGRAWAL, VP VPVP VP : : : : THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF LEARNED CIT(A)-VIII, NEW DELHI DATED 29 TH SEPTEMBER, 2009 FOR THE AY 1996-97. 2. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT THIS APPEAL WAS ORIGINALLY DISMISSED B Y THE ITAT FOR WANT OF COD APPROVAL VIDE ORDER DATED 11 TH JANUARY, 2010. HOWEVER, IN M.A.NO.531/DEL/2010, VIDE ORDER DATED 20 TH MAY, 2011, THE APPEAL WAS RECALLED FOR DECIDING THE ASSESSEES GROUND AGAINST THE LEVY OF INTEREST UNDER SECTION 234D. THEREFORE, THE ONLY GROUND NOW NEEDS TO BE ITA-4321/DEL/2009 2 ADJUDICATED IN THIS APPEAL IS GROUND NO.3 OF THE AS SESSEES APPEAL WHICH IS AGAINST THE LEVY OF INTEREST UNDER SECTION 234D. 3. AT THE TIME OF HEARING BEFORE US, IT IS STATED B Y THE LEARNED COUNSEL THAT INTEREST UNDER SECTION 234D IS CHARGEA BLE ONLY WHEN THE REFUND IS GRANTED TO THE ASSESSEE UNDER SECTION 143 (1) AND DEMAND IS RAISED ON REGULAR ASSESSMENT. HOWEVER, IN THIS CAS E, REFUND WAS GRANTED AS PER THE ORDER OF THE LEARNED CIT(A) AND THEN DEMAND WAS RAISED BECAUSE OF PARTIAL REVERSAL OF THAT ORDER BY THE ITAT. THEREFORE, SECTION 234D HAS NO APPLICATION. 4. THE LEARNED DR, ON THE OTHER HAND, DISPUTED THE ASSESSEES CONTENTION THAT THE REFUND WAS GRANTED AS PER THE O RDER OF THE CIT(A) AND HE STATED THAT REFUND WAS GRANTED AS PER THE OR DER UNDER SECTION 143(1), THEREFORE, INTEREST UNDER SECTION 234D IS R IGHTLY CHARGED. 5. WE HAVE CAREFULLY CONSIDERED THE ARGUMENTS OF BO TH THE SIDES AND PERUSED THE MATERIAL PLACED BEFORE US. SECTION 234D READS AS UNDER:- [INTEREST ON EXCESS REFUND. INTEREST ON EXCESS REFUND. INTEREST ON EXCESS REFUND. INTEREST ON EXCESS REFUND. 234D. 234D. 234D. 234D. (1) SUBJECT TO THE OTHER PROVISIONS OF THIS A CT, WHERE ANY REFUND IS GRANTED TO THE ASSESSEE UNDER SUB-SEC TION (1) OF SECTION 143 , AND (A) NO REFUND IS DUE ON REGULAR ASSESSMENT; OR (B) THE AMOUNT REFUNDED UNDER SUB-SECTION (1) OF SECTION 143 EXCEEDS THE AMOUNT REFUNDABLE ON REGULAR ASSESSMENT, THE ASSESSEE SHALL BE LIABLE TO PAY SIMPLE INTEREST AT THE RATE OF 6 [ONE-HALF] PER CENT ON THE WHOLE OR THE EXCESS AMOUNT SO REFUNDED, FOR EVERY MONTH OR PART OF A MO NTH COMPRISED IN THE PERIOD FROM THE DATE OF GRANT OF R EFUND TO THE DATE OF SUCH REGULAR ASSESSMENT. ITA-4321/DEL/2009 3 (2) WHERE, AS A RESULT OF AN ORDER UNDER SECTION 154 OR SECTION 155 OR SECTION 250 OR SECTION 254 OR SECTION 260 OR SECTION 262 OR SECTION 263 OR SECTION 264 OR AN ORDER OF THE SETTLEMENT COMMISSION UNDER SUB-SECTION (4) OF SECTION 245D , THE AMOUNT OF REFUND GRANTED UNDER SUB-SECTION (1 ) OF SECTION 143 IS HELD TO BE CORRECTLY ALLOWED, EITHER IN WHOLE OR IN PART, AS THE CASE MAY BE, THEN, THE INT EREST CHARGEABLE, IF ANY, UNDER SUB-SECTION (1) SHALL BE REDUCED ACCORDINGLY. EXPLANATION [ [[ [1] ]] ].WHERE, IN RELATION TO AN ASSESSMENT YEAR, AN ASSESSMENT IS MADE FOR THE FIRST TIME UNDER SECTION 147 OR SECTION 153A , THE ASSESSMENT SO MADE SHALL BE REGARDED AS A REGULAR ASSESSMENT FOR THE PURPOSES O F THIS SECTION.] [ [[ [EXPLANATION 2.FOR THE REMOVAL OF DOUBTS, IT IS HE REBY DECLARED THAT THE PROVISIONS OF THIS SECTION SHALL ALSO APPLY TO AN ASSESSMENT YEAR COMMENCING BEFORE THE 1ST DAY OF JUNE, 2003 IF THE PROCEEDINGS IN RESPECT OF SUCH ASSESSMENT YEAR IS COMPLETED AFTER THE SAID DATE.] ]] ] 6. FROM THE ABOVE, IT IS EVIDENT THAT INTEREST IS C HARGEABLE ONLY WHERE ANY REFUND IS GRANTED TO THE ASSESSEE UNDER S ECTION 143(1) AND ON REGULAR ASSESSMENT EITHER NO REFUND BECAME DUE T O THE ASSESSEE OR THE AMOUNT OF REFUND GRANTED UNDER SECTION 143(1) W AS REDUCED. THEREFORE, WHEN THE REFUND IS GRANTED BY VIRTUE OF CIT(A)S ORDER AND SUCH ORDER OF CIT(A) IS SUBSEQUENTLY REVERSED, INTE REST UNDER SECTION 234D WOULD NOT BE CHARGEABLE. THE IMPUGNED ORDER O F THE ASSESSING OFFICER FURNISHED ALONGWITH THE APPEAL IS THE ORDER DATED 19 TH MARCH, 2009 PASSED UNDER SECTION 154/254/143(3) OF THE INC OME-TAX ACT, 1961. FROM A PERUSAL OF THIS ORDER, IT IS NOT CLEA R WHETHER THE REFUND WAS GRANTED UNDER SECTION 143(1) AND THEN AFTER THE ORDER UNDER SECTION 143(3), THE INTEREST WAS CHARGED OR THE REF UND WAS GRANTED BY VIRTUE OF CIT(A)S ORDER AND INTEREST UNDER SECTION 234D IS CHARGED ON THE REVERSAL OF SUCH ORDER BY THE TRIBUNAL. WE, TH EREFORE, SET ASIDE THE ORDERS OF LOWER AUTHORITIES ON THIS POINT AND RESTO RE THE MATTER TO THE FILE OF THE ASSESSING OFFICER FOR FACTUAL VERIFICAT ION AND READJUDICATION OF ISSUE OF CHARGING OF INTEREST UNDER SECTION 234D AS PER OUR ITA-4321/DEL/2009 4 OBSERVATION ABOVE. NEEDLESS TO MENTION THAT THE AS SESSING OFFICER WILL ALLOW ADEQUATE OPPORTUNITY OF BEING HEARD TO THE AS SESSEE. 7. IN THE RESULT, THE ASSESSEES APPEAL IS DEEMED T O BE PARTLY ALLOWED FOR STATISTICAL PURPOSES. DECISION PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2012. SD/- SD/- ( (( (I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR I.C.SUDHIR) )) ) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) (G.D.AGRAWAL) JUDICIAL JUDICIAL JUDICIAL JUDICIAL MEMBER MEMBER MEMBER MEMBER VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT VICE PRESIDENT DATED : 21.09.2012 VK. COPY FORWARDED TO: - 1. APPELLANT : M/S MMTC LIMITED, M/S MMTC LIMITED, M/S MMTC LIMITED, M/S MMTC LIMITED, SCOPE COMPLEX, SCOPE COMPLEX, SCOPE COMPLEX, SCOPE COMPLEX, CORE CORE CORE CORE- -- -1, LODHI ROAD INSTITUTIONAL AREA, 1, LODHI ROAD INSTITUTIONAL AREA, 1, LODHI ROAD INSTITUTIONAL AREA, 1, LODHI ROAD INSTITUTIONAL AREA, NEW DELHI NEW DELHI NEW DELHI NEW DELHI 110 003. 110 003. 110 003. 110 003. 2. RESPONDENT : DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, DEPUTY COMMISSIONER OF INCOME TAX, CIRCLE CIRCLE CIRCLE CIRCLE- -- -5(1), 5(1), 5(1), 5(1), NEW DELHI. NEW DELHI. NEW DELHI. NEW DELHI. 3. CIT 4. CIT(A) 5. DR, ITAT ASSISTANT REGISTRAR