OTIS ELEVATORS COMPANY (I) LTD, MUMBAI V. DCIT 9(2), MUMBAI

ITA 4855/MUM/2013

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9448 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 19-01-2015
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: C
• Next Hearing Date: 19-01-2015
• Assessment Year: 2008-2009
• Appeal Filed On: 24-06-2013
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: NEIL PHILIP
• Assessee Lawyers: FIROZE ANDHYARUJINA
• Keywords: Rectification of order
• Section: 143(3); 244A; 154

Judgement Text

, IN THE INCOME TAX APPELLATE TRIBUNAL C BE NCH, MUMBAI , !' #$%& , '' ' ( BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER ./I .T.A. NO. 4855/MUM/2013 ( ! ! ! ! ) ) ) ) / ASSESSMENT YEAR : 2008-09 OTIS ELEVATORS COMPANY (INDIA) LTD., 9 TH FLOOR, MAGNUS TOWERS, MINDSPACE, LINK ROAD, MALAD, MUMBAI-400 064 ! ! ! ! / VS. THE DCIT-9(2), AAYAKAR BHAVAN, MUMBAI-400 020 * '' ./ + ./ PAN/GIR NO. : AAACO 0481E ( *, / APPELLANT ) .. ( -.*, / RESPONDENT ) *, / ' / APPELLANT BY: SHRI FIROZE ANDHYARUJINA -.*, 0 / ' / RESPONDENT BY: SHRI NEIL PHILIP ! 0 12' / DATE OF HEARING :19.01.2015 3) 0 12' / DATE OF PRONOUNCEMENT :19.01.2015 '4 / O R D E R PER N.K. BILLAIYA, AM: THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF THE LD. CIT(A)-20, MUMBAI DT.15.4.2013 PERTAINING TO A.Y.20 08-09. 2. THE ASSESSEE HAS RAISED THREE SUBSTANTIVE GROUND S OF APPEAL. WITH GROUND NO. 1, THE ASSESSEE HAS CHALLENGED THE ASSUM PTION OF JURISDICTION U/S. 154 OF THE ACT BY THE DCIT. ITA NO. 4855/M/2013 2 3. FACTS RELATING TO THE ISSUES SHOW THAT IN THIS C ASE THE ASSESSMENT ORDER WAS PASSED U/S. 143(3) OF THE ACT VIDE ORDER DATED NIL. PURSUANT TO THE ASSESSMENT ORDER, THE ASSESSEE WAS GRANTED REFU ND WITH INTEREST U/S. 244A OF THE ACT. THE AO SOUGHT TO RECTIFY THE ASSE SSMENT ORDER U/S. 154 OF THE ACT. THE NOTICE WAS ISSUED TO THE ASSESSEE FOR WITHDRAWING THE INTEREST GRANTED U/S. 244A OF THE ACT. THE AO COMP LETED THE PROCEEDING BY RECTIFYING THE ASSESSMENT ORDER U/S. 154 OF THE ACT HOLDING THAT NO INTEREST IS PAYABLE TO THE ASSESSEE AND WITHDREW TH E INTEREST GRANTED U/S. 244A OF THE ACT. 4. AGGRIEVED BY THIS, THE ASSESSEE CARRIED THE MATT ER BEFORE THE LD. CIT(A). IT WAS STRONGLY CONTENDED THAT THE AO GROS SLY ERRED IN ASSUMING JURISDICTION U/S. 154 OF THE ACT INASMUCH AS THE IS SUE IS DEBATABLE AND IT IS NOT A MISTAKE APPARENT FROM RECORD WHICH CAN BE R ECTIFIED U/S. 154 OF THE ACT. THE LD. CIT(A) WAS NOT CONVINCED AS HE WAS OF THE OPINION THAT THERE IS NO DEBATABLE ISSUE REGARDING REFUND DUE IS LESS THAN 10% OF THE TOTAL TAX PAYABLE. THEREFORE, THE ASSESSEE WAS NOT ENTITLED FOR INTEREST ON EXCESS TAX. THE APPEAL FILED BY THE ASSESSEE WAS D ISMISSED. 5. AGGRIEVED BY THIS, THE ASSESSEE IS BEFORE US. T HE LD. COUNSEL FOR THE ASSESSEE STATED THAT A MISTAKE APPARENT ON THE RECORD MUST BE AN OBVIOUS AND PATENT MISTAKE AND NOT SOMETHING WHICH CAN BE ESTABLISHED BY A LONG DRAWN PROCESS OF REASONING ON THE POINTS ON WHICH THERE MAY BE CONCEIVABLY BE TWO OPINIONS. THE LD. COUNSEL RE LIED UPON THE DECISION OF THE HONBLE SUPREME COURT IN THE CASE O F T.S. BALRAM ITO VS VOLKART BROTHERS & OTHERS, 82 ITR 50. THE LD. COUNSEL FURTHER STATED THAT THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD. IN WRIT PETITION NO. 823 OF 2000 HAS HELD THAT INTEREST IS PAYABLE FROM THE DATE OF PAYM ENT OF THE TAX ON SELF ITA NO. 4855/M/2013 3 ASSESSMENT TO THE DATE OF REFUND OF THE AMOUNT U/S. 244A OF THE ACT. IT IS THE SAY OF THE LD. COUNSEL THAT LOOKING FROM ANY AN GLE ASSUMPTION OF JURISDICTION U/S. 154 OF THE ACT IS ERRONEOUS. 6. PER CONTRA, THE LD. DEPARTMENTAL REPRESENTATIVE STRONGLY SUPPORTED THE ORDER OF THE LD. CIT(A). 7. WE HAVE CAREFULLY PERUSED THE ORDERS OF THE AUTH ORITIES BELOW. IT IS NOT IN DISPUTE THAT THE REFUND GRANTED TO THE ASSES SEE WAS WITHDRAWN BY WAY OF RECTIFICATION ORDER U/S. 154 OF THE ACT. IT IS ALSO NOT IN DISPUTE THAT THE HONBLE HIGH COURT OF BOMBAY IN THE CASE OF ST OCK HOLDING CORPN. OF INDIA (SUPRA) HAS HELD THAT THE ASSESSEE IS ENT ITLED FOR INTEREST ON REFUND U/S. 244A OF THE ACT IN RESPECT OF SELF ASSE SSMENT TAX PAID. CONSIDERING THE FACTS IN THE LIGHT OF THE JUDICIAL DECISIONS REFERRED TO HEREINABOVE, IN OUR CONSIDERED VIEW, THE AO ERRED I N ASSUMING THE JURISDICTION U/S. 154 OF THE ACT ON A DEBATABLE ISS UE. THE LD. CIT(A) FURTHER ERRED IN CONFIRMING THE ORDER OF THE AO. W E, THEREFORE, SET ASIDE THE ORDER OF THE LD. CIT(A) AND HOLD THAT THE ORDER PASSED BY THE AO U/S. 154 OF THE ACT IS BAD IN LAW. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS TREATED AS ALLOWED FOR STATISTICAL PURPOSES. ORDER PRONOUNCED IN THE OPEN COURT AT THE TIME OF H EARING ON 19 TH JANUARY, 2015. SD/- SD/- (JOGINDER SINGH ) (N.K. BILLAIYA) JUDICIAL MEMBER/ '' / ACCOUNTANT MEMBER MUMBAI; 5! DATED : 19 TH JANUARY, 2015 . ! . ./ RJ , SR. PS ITA NO. 4855/M/2013 4 '4 '4 '4 '4 0 00 0 -1# -1# -1# -1# 6'#)1 6'#)1 6'#)1 6'#)1 / COPY OF THE ORDER FORWARDED TO : 1. *, / THE APPELLANT 2. -.*, / THE RESPONDENT. 3. 7 ( ) / THE CIT(A)- 4. 7 / CIT 5. #8 -1! , , / DR, ITAT, MUMBAI 6. 9 : / GUARD FILE. '4! '4! '4! '4! / BY ORDER, .#1 -1 //TRUE COPY// ; ;; ; / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI