M/s Rehabilitation Plantations limited, Punalur V. DCIT, Kollam

ITA 448/COCH/2010

• Counselvise Citation: 44821914 RSA 2010
• Duration Of Justice: 1 year(s) 6 month(s) 11 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 02-02-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: DB
• Assessment Year: 1998-1999
• Appeal Filed On: 21-07-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: S PRAVEEN
• Assessee Lawyers: V C PILLAI
• Section: 54; 154; 244A

Judgement Text

1 ITA NO.448/COCH/2010 IN THE INCOME TAX APPELLATE TRIBUNAL COCHIN BENCH, COCHIN BEFORE SHRI N.R.S. GANESAN (JM) AND SHRI SANJAY AROR A (AM) I.T.A. NO. 448/COCH/2010 (ASSESSMENT YEAR 1998-99) REHABILITATION PLANTATIONS LTD VS DY.CIT, CIRCLE- 1 PUNALUR KOLLAM M/S V.C. PILLAI & CO, C.AS MUSALIAR BUILDINGS, KOLLAM-601 001 PAN : AAACT8105A (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI V.C. PILLAI RESPONDENT BY : SHRI S PRAVEEN DATE OF HEARING : 25-01-2012 DATE OF PRONOUNCEMENT : 02-02-2012 O R D E R PER N.R.S. GANESAN (JM) THIS APPEAL OF THE ASSESSEE IS DIRECTED AGAINST TH E ORDER OF COMMISSIONER OF INCOME-TAX(A)-I, TRIVANDRUM DATED 1 7-06-2010 AND PERTAINS TO ASSESSMENT YEAR 1998-99. 2. THE ONLY ISSUE ARISES FOR CONSIDERATION IS WITHD RAWAL OF INTEREST GRANTED ON REFUND U/S 244A OF THE ACT. 2 ITA NO.448/COCH/2010 3. SHRI V.C. PILLAI, THE LD.REPRESENTATIVE FOR THE ASSESSEE SUBMITTED THAT THE ASSESSING OFFICER, AFTER PROCESSING THE RETURN U/S 143(1)(A) GRANTED INTEREST U/S 244A OF THE ACT WITHOUT EXCLUDING ANY PERIOD. HOWEVER, BY AN ORDER DATED 23-02-2010 PURPORTED TO BE PASSED U/S 1 54 OF THE ACT , THE ASSESSING OFFICER WITHDREW THE INTEREST ON THE GROU ND THAT THERE WAS A DELAY ON THE PART OF THE ASSESSEE IN CURING THE DEF ECT IN THE TDS CERTIFICATE. ACCORDINGLY, INTEREST FOR THE PERIOD DECEMBER, 1998 TO OCTOBER, 1999 WAS WITHDRAWN BY AN ORDER U/S 154 OF THE INCOME-TAX ACT . THE COMMISSIONER OF INCOME-TAX(A) HAS ALSO CONFIRMED THE ORDER. ACC ORDING TO THE LD.REPRESENTATIVE, THE ASSESSING OFFICER HAS NO POW ER TO EXCLUDE THE PERIOD. ACCORDING TO THE LD.REPRESENTATIVE, IN FACT, THERE WAS NO DELAY AT ALL IN CURING THE DEFECT, IF ANY, IN THE TDS CERTIFICATE. ACCORDING TO THE LD.REPRESENTATIVE, THE ASSESSING OFFICER POINTED OU T SOME TECHNICAL DEFECT IN THE TDS CERTIFICATE WHICH WAS IMMEDIATELY RECTIFIED . THEREFORE, THERE CANNOT BE ANY DELAY ON THE PART OF THE ASSESSEE IN FURNISHING THE TDS CERTIFICATE OR RECTIFYING THE ERROR, IF ANY, ON THE TDS CERTIFICATE. 4. WE HEARD SHRI S. PRAVIN, THE LD.DR. THE LD. DR SUBMITTED THAT HE IS PLACING HIS RELIANCE ON THE OBSERVATIONS MADE BY TH E COMMISSIONER OF INCOME-TAX(A). 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND ALS O PERUSED THE MATERIAL AVAILABLE ON RECORD. WE HAVE ALSO CAREFUL LY GONE THROUGH THE PROVISIONS OF SECTION 244A(2) OF THE INCOME-TAX WH ICH READS AS FOLLOWS: 3 ITA NO.448/COCH/2010 (2) IF THE PROCEEDINGS RESULTING IN THE REFUND ARE DELAYED FOR REASONS ATTRIBUTABLE TO THE ASSESSEE, WHETHER WHOLL Y OR IN PART, THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HI M SHALL BE EXCLUDED FROM THE PERIOD FOR WHICH INTEREST IS PAYA BLE, AND WHERE ANY QUESTION ARISES AS TO THE PERIOD TO BE EX CLUDED, IT SHALL BE DECIDED BY THE CHIEF COMMISSIONER OR COMMI SSIONER WHOSE DECISION THEREON SHALL BE FINAL. IN VIEW OF THE ABOVE PROCEEDINGS, IF ANY, THE QUEST ION ARISES IS AS TO THE PERIOD TO BE EXCLUDED FOR THE PURPOSE OF GRANTING I NTEREST ON REFUNDS, THE SAME SHALL BE DECIDED BY THE CONCERNED CHIEF COMMIS SIONER OR THE COMMISSIONER AND WHOSE DECISION SHALL BE FINAL. TH EREFORE, IT IS OBVIOUS THAT THE ASSESSING OFFICER HAS NO AUTHORITY TO DECI DE THE MATTER. THIS TRIBUNAL IS OF THE OPINION THAT THE MATTER OUGHT TO HAVE BEEN REFERRED TO THE COMMISSIONER OR CHIEF COMMISSIONER BY THE ASSES SING OFFICER. UNFORTUNATELY, IT WAS NOT DONE SO. WE FIND THAT TH E DELHI BENCH OF THIS TRIBUNAL IN POWER FINANCE CORPORATION LTD VS ASSIS T.COMMISSIONER OF INCOME-TAX (2009) 29 SOT 220 (DEL), COPY OF WHICH I S FILED BY THE ASSESSEE, WHICH IS ON FILE HAD AN OCCASION TO DISCUSS THIS IS SUE. THE DELHI BENCH OF THIS TRIBUNAL FOUND THAT NEITHER THE ASSESSING OFFI CER NOR THE COMMISSIONER OF INCOME-TAX(A) IS JUSTIFIED IN ORDERING THE EXCLU SION OF THE PERIOD. THE POWER TO DETERMINE THE PERIOD OF EXCLUSION U/S 244A (2) VESTS WITH THE COMMISSIONER OF INCOME-TAX OR CHIEF COMMISSIONER OF INCOME-TAX. IN VIEW OF THE ABOVE, IT IS FOR THE ASSESSING OFFICER TO RE FER THE MATTER TO THE COMMISSIONER OR CHIEF COMMISSIONER, AS THE CASE MAY BE, AND THEREAFTER DECIDE THE ISSUE ACCORDINGLY. SINCE THE MATTER WAS NOT REFERRED TO THE COMMISSIONER OR CHIEF COMMISSIONER, THE ORDERS OF L OWER AUTHORITIES ARE SET ASIDE. THE ASSESSING OFFICER SHALL REFER THE I SSUE TO THE CONCERNED