ADDL CIT 3(1), MUMBAI V. BHARAT SERUMS AND VACCINES LTD, MUMBAI

ITA 5209/MUM/2012

• Counselvise Citation: [2015] 120 COUNSELVISE.COM (IT) 9304 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 24 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 11-03-2015
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: B
• Next Hearing Date: 10-02-2015
• Assessment Year: 2007-2008
• Appeal Filed On: 17-08-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: ASGHAR ZAIN
• Assessee Lawyers: VIPUL MODY
• Section: 154; 2

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH, MUM BAI , BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM I.T.A. NO. 5209/MUM/2012 ( / ASSESSMENT YEAR: 2007-08) ASST. CIT, CIRCLE 3(1) ROOM NO. 607, 6 TH FLOOR, AAYAKAR BHAVAN, MUMBAI-400 020 VS. BHARAT SERUMS AND VACCINES LTD., 27 TH FLOOR, HOECHST HOUSE, NARIMAN POINT, MUMBAI-400 021 ! ./PAN/GIR NO. AAACB 2431 M ( ' /APPELLANT ) : ( #$ ' / RESPONDENT ) '%& / APPELLANT BY : SHRI ASGHAR ZAIN #$ '%& / RESPONDENT BY : SHRI NITESH JOSHI & SHRI VIPUL MODY ' ()%*+ / DATE OF HEARING : 10.02.2015 ,-.%*+ / DATE OF PRONOUNCEMENT : 11.03.2015 /0 O R D E R PER SANJAY ARORA, A. M.: THIS IS AN APPEAL BY THE REVENUE DIRECTED AGAINST T HE ORDER BY THE COMMISSIONER OF INCOME TAX (APPEALS)-5, MUMBAI (CIT(A) FOR SHO RT) DATED 12.06.2012, PARTLY ALLOWING THE ASSESSEES APPEAL CONTESTING THE ORDER DATED 13.07.2011, PASSED U/S. 154 OF THE INCOME TAX ACT, 1961 (THE ACT HEREINAFTER) MO DIFYING ITS ASSESSMENT U/S.143(3) FOR THE ASSESSMENT YEAR (A.Y.) 2007-08 VIDE ORDER DATED 18.12.2009. 2. THE ONLY ISSUE RAISED BY THE REVENUE PER ITS INS TANT APPEAL, AS EVIDENT FROM THE SOLE GROUND NO. 1, IS THE VALIDITY OF THE WITHDRAWA L OF THE INTEREST ALLOWED U/S.244A(1) OF 2 ITA NO. 5209/MUM/2012 (A.Y. 2007-08) ASST. CIT VS. BHARAT SERUMS AND VACCINES LTD. THE ACT ON EXCESS PAYMENT OF SELF ASSESSMENT TAX. A S PER THE REVENUE, THE SAME IS COVERED NEITHER U/S. 244A(1)(A) NOR SECTION 244A(1) (B). THE LD. CIT(A) ALLOWED THE ASSESSEES PLEA BASED ON THE DECISION BY THE TRIBUN AL IN THE CASE OF SUTLEJ INDUSTRIES LTD. VS. ASST. CIT [2003] 86 ITD 335 (DEL), SO THAT, AGGRIEVED, THE R EVENUE IS IN APPEAL. 3. BEFORE US, THE LD. AUTHORIZED REPRESENTATIVE (AR ) PLEADED THE ASSESSEES CASE AS SQUARELY COVERED BY THE DECISION BY THE HONBLE JUR ISDICTIONAL HIGH COURT IN THE CASE OF STOCK HOLDING CORPORATION OF INDIA LTD. VS. CIT (WRIT PETITION NO. 823 OF 2000 DATED 17.11.2014) AND CIT VS. INDIAN OIL CORPORATION LIMITED (IN ITA NO. 801 OF 2012 DATED 12.09.2014), PLACING COPIES OF THE SAME ON RECORD A ND TAKING US THROUGH THE RELEVANT PARTS THEREOF, INCLUDING THE SUBSTANTIAL QUESTION/S OF LAW RAISED BEFORE THE HONBLE HIGH COURT, SO AS TO EXHIBIT THE ISSUE AS SQUARELY COVER ED BY THE SAID DECISIONS. THE LD. DEPARTMENTAL REPRESENTATIVE (DR) WOULD CONCEDE TO T HE ISSUE BEING COVERED, I.E., IN PRINCIPLE, BY THE SAID DECISIONS BY THE HONBLE JUR ISDICTIONAL HIGH COURT. 4. WE HAVE HEARD THE PARTIES, AND PERUSED THE MATER IAL ON RECORD. THERE IS NO DENYING THE FACT THAT THE ISSUE IS IN P RINCIPLE SQUARELY COVERED BY THE DECISION BY THE HONBLE JURISDICTIONAL HIGH COURT I N THE CASE OF INDIAN OIL CORPORATION LIMITED (SUPRA) AND STOCK HOLDING CORPORATION OF INDIA LTD. (SUPRA). THE HONBLE HIGH COURT HAS CLARIFIED THAT THE PROVISION OF SECTION 2 44A(1)(B), WHICH SPEAKS OF REFUND IN ANY OTHER CASE, WOULD THEREFORE ALSO COVER THE REFU ND ARISING OUT ON ACCOUNT OF EXCESS PAYMENT OF SELF ASSESSMENT TAX. THE SUBSEQUENT DECI SION BY THE HONBLE JURISDICTIONAL HIGH COURT WOULD WARRANT A RECTIFICATION, AS EXPLAI NED BY THE HONBLE APEX COURT IN THE CASE OF ASST. CIT VS. SAURASHTRA KUTCH STOCK EXCHANGE LTD. [2008] 305 ITR 227 (SC). THIS LEAVES US, HOWEVER, WITH ONE SURVIVING QUESTIO N, I.E., THAT THE SAID DECISIONS WERE NOT IN EXISTENCE AT THE TIME THE LD. CIT(A) UPHELD THE WITHDRAWAL OF INTEREST BY THE ASSESSING OFFICER (A.O.) TO BE A MISTAKE, OR AT THE TIME OF THE LATTERS ORDER DENYING THE INTEREST. COULD, IN THE ABSENCE OF THE SAID DECISIONS, WE WON DER, THE SAME, I.E., THE WITHDRAWAL OR NON-ALLOWANCE OF INTEREST U/S. 244A(1 ) OF REFUND OF SELF ASSESSMENT TAX, BE 3 ITA NO. 5209/MUM/2012 (A.Y. 2007-08) ASST. CIT VS. BHARAT SERUMS AND VACCINES LTD. SAID TO BE A MISTAKE APPARENT FROM THE RECORD ? RATHER, THE VERY FACT THAT THE MATTER TRAVELLED TO THE HONBLE HIGH COURT, AND IN FACT AL SO TO THE APEX COURT, AS OBSERVED BY THE HONBLE HIGH COURT IN STOCK HOLDING CORPORATION OF INDIA LTD. , ADVERTING TO THE FORMERS DECISION IN THE CASE OF UNION OF INDIA V. TATA CHEMICALS LTD. [2014] 363 ITR 658 (SC) (WHICH IS DATED 26.02.2014), AS SETTLING THE ISSUE, WOULD ONLY BE REGARDED AS DEBATABLE, PRECLUDING RECTIFICATION. THE ANSWER, THEREFORE, SH OULD BE IN THE NEGATIVE. THE DECISION BY THE TRIBUNAL IN THE CASE OF SUTLEJ INDUSTRIES LTD. (SUPRA), RELIED UPON BY THE FIRST APPELLATE AUTHORITY, THOUGH OTHERWISE BINDING ON HI M, HOWEVER, CANNOT BE SAID TO LAY DOWN THE LAW, EVEN WHERE UNDER ITS TERRITORIAL JURI SDICTION, SO AS TO RENDER A CONTRARY VIEW AS MISTAKEN. AT THE SAME TIME, WE OBSERVE THAT THE WITHDRAWAL IT SELF STANDS EFFECTED BY THE A.O. BY THE RECOURSE TO SECTION 154, I.E., UNDER RECTIFI CATION PROCEEDINGS, AND NOT IN REGULAR ASSESSMENT. THE SAME CLEARLY COULD NOT BE WITHDRAWN IN THE FIRST PLACE U/S. 154, AND TOWARD WHICH WE MAY ALSO ADVERT TO THE DECISION BY THE TRIBUNAL IN THE CASE OF NIRMA CHEMICALS WORKS LTD. VS. JT. CIT [2009] 29 DTR 76 (AHBD.). FURTHER ON, THE IMPUGNED WITHDRAWAL CAN IN VIEW OF THE SAID DECISIONS CERTAI NLY BE NOW SAID TO BE A MISTAKE. A RECTIFICATION OF SECTION 154 ORDER DATED 13.07.2011 , WITHDRAWING INTEREST; THE TIME LIMIT FOR WHICH IS AVAILABLE, WHERE NOW MOVED BY THE ASSE SSEE, WOULD MERIT ACCEPTANCE (REFER: HIND WIRE INDUSTRIES LTD. VS. CIT [1995] 212 ITR 639 (SC)). IN-AS-MUCH AS THE APPELL ATE PROCEEDINGS ARE ONLY A CONTINUATION OF THE ASSESSME NT PROCEEDINGS, AND THE RECTIFICATION PROCEEDINGS ARE OF THE SAME GENRE AS THE ORIGINAL P ROCEEDINGS, IN OUR VIEW, SUCH A MOVE BY THE ASSESSEE WOULD NOT BE NECESSARY, AND THAT A LIKE DIRECTION, I.E., AS IN THE CASE OF THE ORIGINAL PROCEEDINGS, COULD BE RENDERED IN THE APPELLATE PROCEEDINGS AS WELL. RELIANCE TOWARD THE SAME IS PLACED ALSO ON THE DECI SION IN THE CASE OF BLUE STAR ENGINEERING CO. (BOMBAY) (P.) LTD. VS. CIT [1969] 73 ITR 283 (BOM). WE, ACCORDINGLY, HOLD THE ORDER UNDER SECTION 154 WITHDRAWING INTERE ST U/S.244A(1) ON THE REFUND OF SELF ASSESSMENT TAX, AS NOT VALID IN LAW. WE HOLD ACCORD INGLY, CONFIRMING IN RESULT THE IMPUGNED ORDER, I.E., FOR THE TWO SEPARATE REASONS AS EXPLAINED ABOVE. WE DECIDE ACCORDINGLY. 4 ITA NO. 5209/MUM/2012 (A.Y. 2007-08) ASST. CIT VS. BHARAT SERUMS AND VACCINES LTD. 5. IN THE RESULT, THE REVENUES APPEAL IS DISMISSED . 1.*2(% 1%*3 ORDER PRONOUNCED IN THE OPEN COURT ON MARCH 11, 201 5 SD/- SD/- (D. MANMOHAN) (SANJAY ARORA) / VICE PRESIDENT / / ACCOUNTANT MEMBER ' 4) MUMBAI; 5/ DATED : 11.03.2015 (6 ROSHANI , SR. PS ! ' #$%& ' &$ COPY OF THE ORDER FORWARDED TO : 1. ' / THE APPELLANT 2. #$ ' / THE RESPONDENT 3. ' 7* 8 9 / THE CIT(A) 4. ' 7* / CIT - CONCERNED 5. :(;<#6*6=> +=>. ' 4) / DR, ITAT, MUMBAI 6.