DCIT RG 10 (1), MUMBAI V. RELIANCE INFRASTRUCTURE LTD, MUMBAI

ITA 4719/MUM/2010

• Counselvise Citation: [2011] 140 COUNSELVISE.COM (IT) 55048 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 2 month(s) 23 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 30-08-2011
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Next Hearing Date: 18-08-2011
• Assessment Year: 1999-2000
• Appeal Filed On: 07-06-2010
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: DR B SENTHIL KUMAR
• Section: 244A; 234B; 54; 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES, D, MUMBAI BEFORE S/SHRI D.K.AGARWAL (JM) AND B. RAMAKOTAIAH ( A.M ) ITA NO. 4718 AND 4719/MUM/2010 (ASSESSMENT YEARS: 1998-99 AND 1999-2000) ASSISTANT COMMISSIONER OF INCOME TAX, 10(1), R.NO.455, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI-400020 M/S RELIANCE INFRASTRUCTURE LTD., (ERSTWHILE RELIANCE ENERGY CENTRE LTD.), SANTACRUZ (EAST), MUMBAI-400055. PAN: AACCR7446Q APPELLANT V/S RESPONDENT DATE OF HEARING : 18.8.2011 DATE OF PRONOUNCEMENT : 30.8.2011 APPELLANT BY : DR.B.SENTHIL KU MAR RESPONDENT BY : SHRI JITENDRA SANG HAVI O R D E R PER D.K.AGARWAL (JM) THESE TWO APPEALS PREFERRED BY THE REVENUE ARE DIRECTED AGAINST THE TWO SEPARATE ORDERS DATED 30.1 2.2009 PASSED BY THE LD. CIT(A) FOR THE ASSESSMENT YEARS 1 998-99 AND 1999-2000. SINCE FACTS ARE IDENTICAL AND ISSUE INVOLVES IS COMMON, BOTH THESE APPEALS ARE DISPOSED OF BY TH IS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. ITA NO. 4718/MUM/2010 (AY-1998-99) 2. BRIEFLY STATED FACTS OF THE CASE ARE THAT THE A SSESSEE COMPANY M/S RELIANCE INFRASTRUCTURE LTD., FILED A N APPLICATION DATED 7.1.2008 REQUESTED THE AO TO RE CALCULATE ITA NO. 4718 AND 4719/MUM/2010 (AYS: 1998-99 AND 1999-2000) 2 THE INTEREST UNDER SECTION 244A OF THE INCOME TAX A CT, 1961(IN SHORT THE ACT). HOWEVER, THE AO DID NOT A CCEPT THE ASSESSEES REQUEST. HE OBSERVED THAT ON VERIFICATIO N, IT IS NOTICED THAT THERE IS NO MISTAKE APPARENT FROM THE RECORD. HE FURTHER OBSERVED THAT IN VIEW OF THE PROVISIONS OF THE ACT, MAT CREDIT HAS BEEN CORRECTLY REDUCED AND ACCORDING LY HE REJECTED THE ASSESSEES APPLICATION UNDER SECTION 1 54 OF THE ACT. ON APPEAL, THE LD. CIT(A) AFTER CONSIDERING TH E ASSESSEES WRITTEN SUBMISSIONS, ARGUMENTS AND KEEPI NG IN VIEW OF THE VARIOUS DECISIONS OF THE TRIBUNAL CI TED BY THE ASSESSEE WHILE ACCEPTING THE REQUEST OF THE ASSESSE E DIRECTED THE AO TO ALLOW INTEREST UNDER SECTION 2 44A ON ENTIRE REFUND AMOUNT SO DETERMINED AFTER ALLOWIN G THE MAT CREDIT TO THE APPELLANT COMPANY SUBJECT TO VERIFI CATION OF THE CORRECTNESS OF THE AMOUNT CREDITED AS PER RECORD OF THE APPELLANT COMPANY AND ACCORDINGLY ALLOWED THE APPEA L. 3. BEING AGGRIEVED BY THE ORDER OF THE LD.CIT(A), T HE REVENUE IS IN APPEAL BEFORE US TAKING THE FOLLOWING EFFECTIVE GROUND :- 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CA SE AND IN LAW, THE LEARNED CIT(A) HAS ERRED IN DIREC TING THE AO TO ALLOW INTEREST UNDER SECTION 244A ON THE ENTIRE REFUND AMOUNT DETERMINED AFTER ALLOWING THE MAT CREDIT TO THE ASSESSEE COMPANY WITHOUT APPRECIATING THAT AS PER PROVISO TO SECTION 115JAA( 2) NO INTEREST SHALL BE PAYABLE ON THE TAX CREDIT ALLO WED UNDER SECTION (1) ITA NO. 4718 AND 4719/MUM/2010 (AYS: 1998-99 AND 1999-2000) 3 4. AT THE TIME OF HEARING, BOTH THE PARTIES HAVE A GREED THAT THIS ISSUE STANDS COVERED AGAINST THE REVENUE AND IN FAVOUR OF THE ASSESSEE BY THE RECENT DECISION OF T HE HONBLE SUPREME COURT IN THE CASE OF CIT V/S TULSYAN NEC LTD. (2011) 330 ITR 226 (SC) . THE LEARNED COUNSEL FOR THE ASSESSEE ALSO RELIED ON OTHER DECISIONS NAMELY (1) CIT V/S APAR INDUSTRIES LTD. (2010) 323 ITR 411(BOM), (2) C IT V/S SALORA INTERNATIONAL LTD. (2010) 191 TAXMAN 145 (DE L), (3) CIT V/S ABAN LLOYD CHILES OFFSHORE LTD. (2010) 187 TAXMAN 51 (MAD) AND (4) DCIT V/S M/S AJANTA OFFSET AND PA CKAGING LTD IN ITA NO.3037/DEL/2005 (AY-2001-02) DATED 15.2 .2008. 5. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON RECO RD WE FIND THAT THE ISSUE INVOLVED IN THE PRESENT APPEAL IS N O MORE RES- INTEGRA AND IS COVERED IN FAVOUR OF THE ASSESSEE B Y THE RECENT DECISION OF THE HONBLE APEX COURT IN THE CA SE OF TULSYAN NEC LTD (SUPRA) WHEREIN IT HAS BEEN HELD T HAT MINIMUM ALTERNATIVE TAX (MAT) CREDIT ADMISSIBLE IN TERMS OF SECTION 115JAA OF THE ACT, HAS TO BE SET OFF AGAI NST THE ASSESSED TAX PAYABLE BEFORE CALCULATING INTEREST UN DER SECTIONS 234A, 234B AND 234C OF THE ACT. THE ISS UE IS ALSO COVERED IN FAVOUR OF THE ASSESSEE BY THE DECISIONS CITED SUPRA BY THE LEARNED COUNSEL FOR THE ASSESSEE. RES PECTFULLY FOLLOWING THE AUTHORITATIVE PRONOUNCEMENTS OF THE HONBLE ITA NO. 4718 AND 4719/MUM/2010 (AYS: 1998-99 AND 1999-2000) 4 APEX COURT AND THE HIGH COURTS, WE ARE INCLINED TO UPHOLD THE FINDINGS OF THE LD.CIT(A) IN DIRECTING THE AO TO ALLOW THE INTEREST UNDER SECTION 244A ON THE ENTIRE REFUND A MOUNT SO DETERMINED AFTER ALLOWING MAT CREDIT TO THE APPELL ANT COMPANY SUBJECT TO VERIFICATION. ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. ITA NO. 4719/MUM/2010 (AY-1999-2000) 6. AT THE TIME OF HEARING, BOTH THE PARTIES HAVE A GREED THAT THE FACTS OF THIS CASE AND THE FACTS OF THE C ASE FOR THE ASSESSMENT YEAR 1998-99 ARE IDENTICAL, THEREFORE, THE PLEA TAKEN BY THEM FOR THE SAID ASSESSMENT YEAR MAY BE CONSIDERED WHILE DECIDING THE PRESENT APPEAL. 7. HAVING CAREFULLY HEARD THE SUBMISSIONS OF THE RI VAL PARTIES AND PERUSING THE MATERIAL AVAILABLE ON REC ORD AND IN THE ABSENCE OF ANY CONTRARY MATERIAL PLACED ON RECO RD BY THE REVENUE, WE FOLLOWING OF OUR FINDINGS RECORDED IN PARAGRAPH 5 OF THIS ORDER UPHOLD THE FINDINGS OF THE LD.CIT (A) IN DIRECTING THE AO TO ALLOW THE INTEREST UNDER SECTI ON 244A ON THE ENTIRE REFUND AMOUNT SO DETERMINED AFTER ALLOW ING MAT CREDIT TO THE APPELLANT COMPANY SUBJECT TO VERIFICA TION. ACCORDINGLY, THE GROUNDS TAKEN BY THE REVENUE ARE REJECTED. ITA NO. 4718 AND 4719/MUM/2010 (AYS: 1998-99 AND 1999-2000) 5 8. IN THE RESULT, THE REVENUES APPEALS STAND DISM ISSED. ORDER PRONOUNCED IN THE OPEN COURT ON 30TH AUG.201 1. SD SD (B. RAMAKOTAIAH) (D.K .AGARWAL) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI, DATED 30TH AUGUST, 2011 SRL: COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH 6. GUARD FILE. TRUE COPY BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI