DCIT - 2(1)(1), MUMBAI V. BANK OF INDIA, MUMBAI

ITA 5171/MUM/2016

• Counselvise Citation: [2018] 121 COUNSELVISE.COM (IT) 6866 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 06-06-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 12-08-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ANADI VARMA
• Section: 143(3); 244A; 115JB

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH H , MUMBAI BEFORE SHRI C.N. PRASAD, HON'BLE JUDICIAL MEMBER AND SHRI RAJESH KUMAR , HON'BLE ACCOUNTANT MEMBER ITA.NO. 5171 /MUM/201 6 (A.Y : 2006 - 07) D .C.I.T 2(1)(1) ROOM NO. 561, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400 020 V. M/S. BANK OF INDIA STAR HOUSE, C - 5, G - BLOCK, BANDRA KURLA COMPLEX BANDRA (E), MUMBAI 400 051 PAN NO: AAACB 0472 C (APPELLANT) (RESPONDENT) ASSESSEE BY : SHRI C. NARESH REVENUE BY : SHRI ANADI VARMA DATE OF HEARING : 0 8 .03 .2018 DATE OF PRONOUNCEMENT : 06 . 06 .2018 O R D E R PER C. N. PRASAD (JM) 1. THIS APPEAL IS FILED BY THE REVENUE AGAINST THE ORDER OF THE LD. COMMISSIONER OF THE INCOME - TAX - 4, MUMBAI DATED 25.05.2016. THE FIRST ISSUE IN THE APPEAL OF THE REVENUE IS THAT , THE LD.CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW INTEREST U/S. 244A ON THE SELF - ASSESSMENT TAX PAID BY THE ASSESSEE. 2 ITA.NO. 5171/MUM/2016 (A.Y: 2006 - 07) M/S. BANK OF INDIA 2. AT THE OUTSET LD . COUNSEL FOR THE ASSESSEE SUBMITTED THAT NO SELF - ASSESSMEN T TAX WAS PAID BY THE ASSESSEE DURING THE YEAR AND THERE WAS NO FINDING IN THE ORDER OF LD. CIT(A) THAT INTEREST SOUGHT TO BE GRANTED ON SELF - ASSESSMENT TAX AND ACCORDINGLY, THE GROUND RAISED BY THE DEPARTMENT NEEDS TO BE DISMISSED. WITHOUT PREJUDICE TO T HE ABOVE, LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE LD. CIT (A) HAD ONLY DIRECTED THE AO TO EXAMINE THE WORKING OF REFUND AND THE INTEREST IN THE LIGHT OF THE DECISION OF DELHI HIGH COURT IN THE CASE OF INDIA TRADE PROMOTION ORGANIZATION V. CIT [ 361 ITR 646] AND IN ACCORDANCE WITH THE ORDER OF HON'BLE ITAT IN THE ITA NO. 5444 TO 5446/MUM/2013. HENCE, THERE SHOULD NOT BE ANY GRIEVANCE FOR THE DEPARTMENT TO COME UP I N APPEAL. 3. LD. COUNSEL FOR THE ASSESSEE FURTHER SUBMITTED THAT THE ISSUE INVOLVED IS NOT GRANT ING OF INTEREST U/S. 244A OF THE ACT ON INTEREST BUT ONLY THE METHOD OF ADJUSTMENT OF PART REFUNDS GRANTED. ACCORDING TO THE ASSESSEE THE PART REFUNDS GRANTED ARE TO BE FIRST ADJUSTED AGAINST INTEREST REFUND DUE AND THEREAFTER THE BALANCE AMOUNT AGAINST THE TAX REFUND THAT IS DUE. HOWEVER, THE A.O ADJUST ED THE REFUND FIRST AGAINST THE TAX REFUND THAT BECOMES DUE LEAVING THE INTEREST COMPONENT ASIDE . 3 ITA.NO. 5171/MUM/2016 (A.Y: 2006 - 07) M/S. BANK OF INDIA 4. LD. DR VEHEMENTLY SUPPORTED THE ORDERS OF THE ASSESSING OFFICER. LD. DR FURTHER RELIED ON THE DEC ISION OF THE HON'BLE SUPREME COURT IN CIVIL APPEAL NO. 4366 OF 2012 IN THE CASE OF CIT V. GUJARAT FLOURO CHEMICALS DATED 18.09.2013 INTEREST ON INTEREST IS NOT ALLOWABLE . 5. WE HAVE HEARD THE RIVAL SUBMISSIONS, PERUSED THE ORDERS OF THE AUTHORITIES BELOW. WE FIND FROM THE GROUNDS OF APPEAL FILED BY THE ASSESSEE BEFORE THE LD.CIT( A) THAT ASSESSEE CHALLENGED THE ORDER OF THE LD. ASSESSING OFFICER IN NOT GRANTING INTEREST ON INTEREST U/S. 244A OF THE ACT IN THE PROCESS OF GRANTING INTEREST AND THE LD .CIT(A) DISPOSED OF THIS GROUND OF APPEAL OBSERVING THAT THE ISSUE DOES NOT EMERGE FROM THE ORDER GIVING EFFECT AND SINCE THE ISSUE HAS NOT BEEN DECIDED AGAINST THE ASSESSEE BY THE ASSESSING OFFICER NO ADMINISTRATIVE DIRECTION CAN BE GIVEN. HE ALSO OBSERVED THAT IN ASSESSEES OWN CASE THE TRIBUNAL DIRECTED THE ASSESSING OFFICER TO EXAMINE THE WORKING OF REFUND AND ADJUSTMENT OF INTEREST IN THE LIGHT OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF INDIA TRADE PROMOTION ORGANIZATION V. CIT [ 361 ITR 64 6] . LD.CIT(A) DIRECTED TO FOLLOW THE DECISION OF THE HON'BLE ITAT AND PROCEED IN THE MATTER ACCORDINGLY. THEREFORE, THE ISSUE OF GRANTING INTEREST U/S. 244A ON THE SELF - ASSESSMENT TAX PAID BY THE ASSESSEE IS NOT THE SUBJECT MATTER BEFORE THE LD.CIT(A). WHAT WAS BEFORE THE LD.CIT(A) WAS NON GRANTING OF INTEREST ON INTER EST U/S. 244A OF THE ACT. WE ALSO 4 ITA.NO. 5171/MUM/2016 (A.Y: 2006 - 07) M/S. BANK OF INDIA OBSERVE THAT THE ISSUE IN THE CASE OF INDIA TRADE PROMOTION ORGANIZATION V. CIT (SUPRA) IS WITH REFERENCE TO INTEREST ON REFUND AND ITS COMPUTATION. AS RIGHTLY OBSERVED BY THE LD.CIT(A) THAT T HE TRIBUNAL HAD ALREADY CONSIDERED T HE ADJUSTMENT OF INTEREST OF REFUND FOR THE ASSESSMENT YEARS 2002 - 03, 2003 - 04 AND 2006 - 07 IN ITA.NO. 5444, 5 445 & 5446 /MUM/2013 DATED 22.12.2014 AND RESTORED THE ISSUE TO THE FILE OF THE ASSESSING OFFICER TO EXAMINE THE ISSUE IN THE LIGHT OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF THE INDIA TRADE PROMOTION ORGANIZATION V. CIT (SUPRA). IN THE CIRCUMSTANCES, WE HOLD THAT THE ISSUE OF GRANTING OF INTEREST ON SELF - A SSESSMENT TAX DOES NOT ARISE OUT OF THE ORDER PASSED BY THE LOWER AUTHORITIES. HOWEVER, THE ISSUE BEFORE THE LD.CIT(A) WAS WITH REFERENCE TO NOT GRANTING INTEREST ON INTEREST U/S. 244A IN THE PROCESS OF GRANTING INTEREST , THE LD.CIT(A) HAD ALREADY DIRECTE D THE ASSESSING OFFICER TO EXAMINE THE ISSUE IN THE LIGHT OF THE DECISION OF THE TRIBUNAL IN ASSESSEES OWN CASE. THEREFORE , WE DO NOT SEE ANY GRIEVANCE TO THE DEPARTMENT IN EXAMINE THE ISSUE IN THE LIGHT OF THE DECISION OF THE HON'BLE DELHI HIGH COURT IN THE CASE OF THE INDIA TRADE PROMOTION ORGANIZATION V. CIT (SUPRA) AN D ALSO RELEVANT CASE LAWS ON THE ISSUE. WITH THESE OBSERVATIONS GROUND NO.1 IS DISPOSED OFF. 6. GROUND NO.2 IS IN RESPECT OF COMPUTATION OF BOOK PROFITS U/S. 115JB OF THE ACT. 5 ITA.NO. 5171/MUM/2016 (A.Y: 2006 - 07) M/S. BANK OF INDIA 7. LEARNED COU NSEL FOR THE ASSESSEE SUBMITTED THAT THIS ISSUE IN APPEAL IS ALREADY DECIDED BY THE TRIBUNAL WHILE DISPOSING OFF THE APPEAL FILED AGAINST ASSESSMENT ORDER U/S. 143(3) FOR THE ASSESSMENT YEAR 2006 - 07. COPY OF THE ORDER IS PLACED ON RECORD. WE FIND THAT TH E TRIBUNAL IN ITS ORDER DATED 28.08.2015 IN ITA.NO. 3422/MUM/2013 HAD ALREADY CONSIDERED AS TO WHETHER THE PROVISIONS OF SECTION 115JB OF THE ACT ARE APPLICABLE TO THE ASSESSEE BANK OR NOT AND THE TRIBUNAL FOLLOWING THE ORDER IN ASSESSEES OWN CASE FOR THE ASSESSMENT YEAR 2001 - 02 IN ITA.NO. 1498/MUM/2011 DATED 09.04.2014 HELD THAT THE PROVISIONS OF SECTION 115JB OF THE ACT ARE NOT APPLICABLE TO THE ASSESSEE BANK. THUS FOLLOWING THE SAME WE HOLD THAT THE PROVISIONS OF SECTION 115JB OF THE ACT ARE NOT APPLIC ABLE TO THE ASSESSEE BANK , THUS THIS GROUND OF APPEAL IS DISMISSED. 8. IN THE RESULT, APPEAL OF THE REVENUE IS DISMISSED . ORDER PRONOUNCED IN THE OPEN COURT ON THE 06 TH JUNE , 2018 . SD/ - SD/ - ( RAJESH KUMAR ) (C.N. PRASAD) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI / DATED 06 / 0 6 / 201 8 GIRIDHAR , S R. PS 6 ITA.NO. 5171/MUM/2016 (A.Y: 2006 - 07) M/S. BANK OF INDIA COPY OF THE ORDER FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT. 3. THE CIT(A), MUMBAI. 4. CIT 5. DR, ITAT, MUMBAI 6. GUARD FILE. //TRUE COPY// BY ORDER, (ASSTT. REGISTRAR) ITAT, MUM