HDFC BANK LTD ( SUCCESSOR TO BUSINESS OF LORD KRISHNA BANK LTD), MUMBAI V. ACIT 2(3), MUMBAI

ITA 5094/MUM/2010

• Counselvise Citation: [2012] 140 COUNSELVISE.COM (IT) 59675 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 6 month(s) 25 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 13-01-2012
• Appeal Filed By: Assessee
• Bench Allotted: H
• Next Hearing Date: 09-01-2012
• Assessment Year: 2001-2002
• Appeal Filed On: 18-06-2010
• Court: TRIBUNAL
• Department Lawyers: V V SHASTRI
• Assessee Lawyers: KIRIT N MEHTA
• Keywords: Retrospective amendment; Question of law
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H BEFORE SHRI J. SUDHAKAR REDDY(AM) & SHRI V.DURGA RA O(JM) I.T.A.NO. 6558/MUM/2010 (ASSESSMENT YEAR : 2001-02) I.T.A.NO. 5094/MUM/2010 (ASSESSMENT YEAR : 2001-02) I.T.A.NO. 5095/MUM/2010 (ASSESSMENT YEAR : 2002-03) M/S. HDFC BANK LTD. HDFC BANK HOUSE SENAPATI BAPAT MARG LOWER PAREL MUMBAI-400 013. VS. ACIT 2(3) ROOM NO. 557 AAYAKAR BHAVAN M.K. ROAD MUMBAI-400 020. APPLICANT RESPONDENT PAN/GIR NO. : AAACH2702H ASSESSEE BY : SHRI KIRIT N. MEHTA DEPARTMENT BY : SHRI V.V. SHASTRI DATE OF HEARING : 9.1.2012 DATE OF PRONOUNCEMENT : ORDER PER J. SUDHAKAR REDDY(AM) :- ALL THESE APPEALS ARE FILED BY THE ASSESSEE. GRO UNDS OF APPEAL ARE COMMON HENCE THEY ARE HEARD TOGETHER AND DISPOSE OF BY WAY OF THIS COMMON ORDER. 2. THE ASSESSEE FILED AN APPLICATION FOR RECTIFICAT ION U/S. 154 OF THE ACT, BEFORE THE ASSESSING OFFICER ON THE GROUND THA T INTEREST U/S. 234D IS NOT ATTRACTED FOR THE ASSESSMENT YEARS IN QUESTION. THE ASSESSING OFFICER AT PARAGRAPH 4 OF THIS ORDER U/S. 154 REJECTED THE CONTENTION BY OBSERVING AS FOLLOWS :- AS REGARDS LEVYING OF INTEREST U/S. 234D, THE CONT ENTION OF THE ASSESSEE IS NOT ACCEPTABLE. THE ACT CLEARLY PROVIDE S FOR LEVY OF INTEREST U/S. 234D IN CASES WHERE REFUND U/S. 143(1 ) IS GRANTED TO THE ASSESSEE AND SUBSEQUENTLY ON REGULAR ASSESSMENT , THERE IS NO REFUND IS DUE OR THE AMOUNT REFUNDED EXCEEDS THE AM OUNT REFUNDABLE THEN INTEREST U/S. 234D IS LEVIABLE ON S UCH EXCESS AMOUNT REFUNDED, FOR THE PERIOD FROM THE DATE OF GR ANT OF REFUND TO THE DATE OF REGULAR ASSESSMENT. IN VIEW OF THE A BOVE, THE INTEREST U/S. 234C IS DELETED. M/S. HDFC BANK LTD. 2 THE ASSESSEE CARRIED THE MATTER IN APPEAL. 3. THE FIRST APPELLATE AUTHORITY DISMISSED THE APPE AL BY HOLDING THAT, THE ISSUE IS DEBATABLE AND APPROPRIATE COURSE FOR T HE ASSESSEE WOULD HAVE BEEN TO FILE AN APPEAL AGAINST THE ORIGINAL OR DER OF ASSESSMENT, WHEREIN INTEREST U/S.234D WAS LEVIED. 4. AGGRIEVED, THE ASSESSEE IN APPEAL ON THE FOLLOWI NG EFFECTIVE GROUNDS :- 1) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND IN L AW, LEARNED CIT(A) ERRED IN CONCLUDING THAT THE LEVY OF INTEREST U/S. 234D IS A DEBATABLE ISSUE AND CANNOT BE RECTIF IED U/S.154 OF THE ACT. 2) ON THE FACTS AND CIRCUMSTANCES OF THE CASE AND CONS IDERING THE PROVISIONS U/S. 234D AND ALSO THE JUDICIAL DECI SIONS, THE ASSESSING OFFICER ERRED IN LEVYING INTEREST U/S . 234D OF THE I.T. ACT, 1961. 5. AFTER HEARING MR. KIRIT N. MEHTA, LEARNED COUNSE L FOR THE ASSESSEE AND MR. V.V. SHASTRI, LEARNED DEPARTMENTAL REPRESEN TATIVE, WE FIND THAT THE REFUNDS IN THE CASE ON HAND HAVE BEEN ISSUED ON 31.3.2003, 24.2.2003 AND 24.2.2003 RESPECTIVELY. IN OTHER WORD S, REFUNDS IN ALL THE THREE CASES WERE ISSUED PRIOR TO 1.6.2003. 6. HON'BLE JURISDICTIONAL HIGH COURT IN INCOME TAX APPEAL NO. 198 OF 2009 IN THE CASE OF COMMISSION OF INCOME TAX VS. M/ S. BAJAJ HINDUSTAN LTD. DATED 15.4.2009 ANSWERED THE FOLLOWING QUESTIO N AS FOLLOWS :- QUESTION OF LAW D) WHETHER IN THE FACTS AND CIRCUMSTANCES OF THE C ASE AND IN LAW THE ITAT WAS RIGHT IN HOLDING THAT THE INTEREST U/S.234 D CANNOT BE CHARGED IN RESPECT OF REFUNDS GRANTED PRIOR TO 1/6/2003? JUDGEMENT 5. SO FAR AS THE LAST QUESTION IS CONCERNED, IT IS SEEN THAT THE SUBJECT PROVISION CAME ON STATUTE BOOK W.E.F. 1/6/2003. IF THAT BE SO, THE SAID PROVISION DOES NOT HAVE RETROSPECTIVE EFFECT. IN TH IS VIEW OF THE MATTER, WE DO NOT SEE APPEAL GIVING RISE TO ANY SUBSTANTIAL QU ESTION OF LAW. APPEAL IS, THEREFORE, DISMISSED IN LIMINI WITH NO ORDER AS TO COSTS. M/S. HDFC BANK LTD. 3 7. IN VIEW OF THE SPECIFIC QUESTION AND ANSWER, WE HAVE NO OTHER ALTERNATIVE BUT TO HOLD THAT INTEREST CANNOT BE LEV IED, UNDER THE FACTS AND CIRCUMSTANCES U/S. 234D IN ALL THE THREE CASES. 8. LEARNED CIT(A) HAS NOT FOLLOWED THE JUDGEMENT OF HON'BLE JURISDICTIONAL HIGH COURT IN THE CASE OF BAJAJ HIND USTAN LTD. (SUPRA), THOUGH HE HAS DECIDED THE MATTER SUBSEQUENT TO THIS DECISION. NOT FOLLOWING THE JURISDICTIONAL HIGH COURT JUDGEMENT R ESULTS IN A MISTAKE WHICH IS APPARENT ON RECORD. EVEN THE ASSESSING OFF ICER HAS PASSED THE ORDER U/S. 154 SUBSEQUENT TO HON'BLE JURISDICTIONAL HIGH COURT DECISION. IN VIEW OF THE ABOVE, WE ALLOW ALL THE THREE APPEAL S OF THE ASSESSEE. 9. IN THE RESULT, ALL THE APPEALS OF THE ASSESSEE A RE ALLOWED FOR STATISTICAL PURPOSES. ORDER HAS BEEN PRONOUNCED ON 13 TH DAY OF JANUARY, 2012. SD/- (V. DURGA RAO) JUDICIAL MEMBER SD/- (J. SUDHAKAR REDDY) ACCOUNTANT MEMBER DATED : 13 TH JANUARY, 2012. COPY TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A)-CONCERNED. 4. THE CIT, CONCERNED. 5. THE DR CONCERNED, MUMBAI 6. GUARD FILE BY ORDER TRUE COPY ASSTT. REGISTRAR, ITAT, MUMBAI PS