ACIT, New Delhi V. M/s. Lal Chand & Co., Delhi

ITA 456/DEL/2013

• Counselvise Citation: [2015] 140 COUNSELVISE.COM (IT) 86745 (ITAT-DELHI)
• Duration Of Justice: 2 year(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-02-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 09-02-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-01-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: PARAMINDER KAUR
• Assessee Lawyers: K P GARG
• Keywords: Rectification of order; Assessment record
• Section: 143(3); 244A; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL (DELHI BENCH D , NEW DELHI) BEFORE SHRI T.S. KAPOOR, ACCOUNTANT MEMBER AND SHRI C. M. GARG, JUDICIAL MEMBER I.T.A. NO. 456/DEL/2013 ASSESSMENT YEAR : 2008-09 ACIT, CIRCLE 38(1), VS. M/S. LAL CHAND & CO., NEW DELHI C-66, Y-3, DILSHAD GARDEN, SHAHADRA, DELHI GIR / PAN:AAAFL3234D (APPELLANT) (RESPONDENT) APPELLANT BY : MS. PARAMINDER KAUR, SR. DR RESPONDENT BY : SHRI K P GARG, CA ORDER PER T.S. KAPOOR, AM: THIS IS AN APPEAL FIELD BY REVENUE AGAINST THE ORD ER OF LD. CIT(A) DATED 31.10.2012. THE GROUNDS OF APPEAL TAKEN BY R EVENUE ARE REPRODUCED BELOW: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN: 1. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONCLUDING THAT WITHDRAWAL OF INTEREST U/S 244A AND CONSEQUENTIAL INTEREST U/S 234D OF I T ACT WAS INCORRECT WITHOUT APPRECIATING THAT AS PER RECORD, EXCESS TAX LIABILITY OF THE ASSESSEE HA D BEEN WORKED OUT U/S 143(3) OF I T ACT AS AGAINST THE REFUND CLAIM O F THE ASSESSEE AS PER RETURN OF INCOME AND HENCE INTEREST U/S 244A WAS LI ABLE TO BE WITHDRAWN. 2. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONCLUDING THAT REFUND AND INTEREST U/S 244A HAD NOT BEEN GRANTED TO THE ASSESSEE, WITHOUT APPRECIATING THE FACT THAT THE AO HAD PASSED ORDER U/S 154/143(1) ON 17.1.2011 3. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN CONCLUDING THAT THE INTEREST U/S 244A WAS LESS T HAN THE AMOUNT ADMISSIBLE ON 17.1.2011 WITHOUT SPECIFYING THE DEFE CT IN CALCULATION MADE BY THE AO. ITA NO.456/DEL/2013 2 4. IN THE FACTS AND CIRCUMSTANCES OF THE CASE, THE CIT(A) HAS ERRED IN LAW IN REJECTING THE AO'S CALCULATIONS WITHOUT A FFORDING ANY OPPORTUNITY TO THE AO OR WITHOUT EVEN CALLING FOR T HE ASSESSMENT RECORD. RELIEF CLAIMED IN APPEAL AS PER THE GROUNDS OF APPEAL & THE ORDER PASSED BY LD. CIT(A)- XXVIII, NEW DELHI BE QUASHED. 2. AT THE OUTSET, LD. D.R. SUBMITTED THAT LD. CIT(A ) HAS PASSED WRONG ORDER AS AFTER CONSIDERING ADDITIONS MADE U/S 143(3 ), THE REFUND DOES NOT BECOME DUE TO ASSESSEE AND, THEREFORE, ASSESSEE WAS NOT ENTITLED TO INTEREST U/S 244A OF THE I. T. ACT, 1961. 3. LD. A.R. ON THE OTHER HAND SUBMITTED THAT THE RE VENUE HAD GIVEN PART CREDIT OF TDS ONLY VIDE ORDER DATED 17.01.2011 ON A N APPLICATION FILED BY ASSESSEE U/S 154 OF THE ACT. LD. A.R. FURTHER SUBM ITTED THAT HAD THIS MISTAKE WHICH WAS APPARENT FROM RECORD, WAS NOT MADE BY REV ENUE, THE ASSESSEE WAS DULY ENTITLED TO REFUND AND CONSEQUENT INTEREST U/S 244A. HE HEAVILY RELIED ON THE ORDER OF LD. CIT(A). 4. WE HAVE HEARD RIVAL PARTIES AND HAVE PERUSED THE MATERIAL ON RECORD. WE FIND THAT THE ASSESSMENT WAS COMPLETED U/S 143(1 ) ON 10.11.2009 BY WHICH A DEMAND OF RS.13,68,110/- WAS RAISED. THE A BOVE DEMAND WAS CREATED BECAUSE THE ASSESSEE WAS NOT GIVEN CREDIT O F TDS AMOUNTING TO RS.53,93,099/- WHICH THE REVENUE HAS GIVEN VIDE REC TIFICATION ORDER DATED 17.01.2011 AND IN THIS RECTIFICATION ORDER INTEREST U/S 244A AMOUNTING TO RS.7,28,807/- WAS ALLOWED. HOWEVER, SUCH INTEREST WAS WITHDRAWN VIDE RECTIFICATION ORDER DATE 10.08.2011 AGAINST WHICH A PPEAL WAS FILED BEFORE LD. CIT(A) AND HE GRANTED THE RELIEF BY HOLDING AS UNDE R: I HAVE CONSIDERED THE GROUNDS RAISED IN APPEAL AND THE SUBMISSIONS MADE BY THE APPELLANT. IT IS APPARENT FROM THE ITR THAT THE APPELLANT ITA NO.456/DEL/2013 3 HAS PAID TDS OF RS.6757856/- AND CLAIMED REFUND OF RS.4287114/-. AS PER PROVISIONS OF SECTION 143(1)(E) AFTER PROCESSIN G THE RETURN THE REFUND DUE TO THE ASSESSEE IN PURSUANCE OF THE DETE RMINATION OF INCOME UNDER CLAUSE (C) OF SECTION 143(1) THE REFUN D DUE TO THE ASSESSEE IS TO BE GRANTED TO THE ASSESSEE. THE PROV ISION FOR PROCESSING AND CONSEQUENT GRANT OF REFUND DUE AS PER RETURN OF INCOME SUBJECT TO THE ADJUSTMENTS PROVIDED UNDER SECTION143(1) IS OBL IGATORY UNDER THE LAW. IN THIS CASE KEEPING IN VIEW THE TDS OF RS.67 58056/-, THE INTEREST ON THE AMOUNT OF REFUND ADMISSIBLE WAS ALS O TO BE GRANTED. ON THE REFUND DUE U/S 143( 1) THE INTEREST AS ALLOW ED AT RS. 728807/ - VIDE ORDER U /S 154 DT. 17.01.2011 WAS DUE IN VIEW OF THE PROVISIONS OF SECTION 143(1)(E). THIS AMOUNT OF THE TDS AND RE SULTANT REFUND WAS NOT GRANTED WHILE PASSING THE ORDER U/S 143(1) 10.1 1.2009. HOWEVER, THE SAME BEING ADMISSIBLE WAS TAKEN INTO ACCOUNT WH ILE PASSING THE ORDER U/S 154 (OF ORDER U/S 143(3) DT. 17.01.2011). THUS THE REFUND CLAIM U/S 143(1) WAS PENDING. THUS THE INTEREST GRA NTED VIDE ORDER DT. 17.01.2011 AT RS. 7288071- IS LESS THAN THE AMO UNT ADMISSIBLE TO THE ASSESSEE. THE WITHDRAWAL OF THE SAME VIDE ORDER DT. 10.08.2011 IS INCORRECT. FURTHER AS NO REFUND U/S 143(1) WAS ACTU ALLY GIVEN TO THE ASSESSEE VIDE ORDER U/S 143(1) DT. 10.11.2009, THE CHARGE OF INTEREST U/S 234D AT RS. 300955/ - IS INCORRECT. ACCORDINGLY, I HOLD THAT THE APPELLANT IS ELIGIBLE FOR INTEREST U/S 244A ON THE ENTIRE AMOUNT OF TDS. THE ASSESSING OFFICER IS DIRECTED TO CALCULATE INTEREST U/S 244A AND 234D AFTER VERIFICA TION OF THE TDS CERTIFICATES FILED IN ORIGINAL (AS CLAIMED BY THE A PPELLANT), IN ACCORDANCE WITH LAW AND AS PER PROVISIONS OF THE AC T. APPEAL ON BOTH THE GROUNDS IS ALLOWED. IN THE RESULT, THE APPEAL I S ALLOWED.' 5. WE FIND THAT THE ORDER OF LD. CIT(A) IS QUITE EX HAUSTIVE AND, WE DO NOT FIND ANY INFIRMITY IN THE ABOVE ORDER, THEREFOR E, APPEAL FILED BY REVENUE IS DISMISSED. 6. ORDER PRONOUNCED IN THE OPEN COURT ON 13 TH FEB., 2015. SD./- SD./- (C. M. GARG ) (T.S. KAPOOR) JUDICIAL MEMBER ACCOUNTANT MEMBER DATE: 13 TH FEB., 2015 SP ITA NO.456/DEL/2013 4 COPY FORWARDED TO:- 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT 4. THE CIT (A)-, NEW DELHI. 5. THE DR, ITAT, LOKNAYAK BHAWAN, KHAN MARKET, NEW DEL HI. TRUE COPY. BY ORDER (ITAT, NEW DELHI). S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 11/2 SR. PS/PS 2 DRAFT PLACED BEFORE AUTHOR 12,12, SR. PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER 12/2 AM/AM 5 APPROVED DRAFT COMES TO THE SR. PS/PS 13/2 SR. PS/PS 6 KEPT FOR PRONOUNCEMENT 13/2 SR. PS/PS 7 FILE SENT TO BENCH CLERK 13/2 SR. PS/PS 8 DATE ON WHICH THE FILE GOES TO HEAD CLERK 9 DATE ON WHICH FILE GOES TO A.R. 10 DATE OF DISPATCH OF ORDER