TATA SONS LTD, MUMBAI V. ACIT 2(3), MUMBAI

ITA 5391/MUM/2014

• Counselvise Citation: [2016] 132 COUNSELVISE.COM (IT) 4327 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 7 month(s) 6 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 01-04-2016
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: E
• Assessment Year: 1989-1990
• Appeal Filed On: 26-08-2014
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: CHANDRAJIT SINGH I T A NO MUM; I T A
• Assessee Lawyers: DINESH VYAS
• Keywords: Rectification of order
• Section: 244A; 154

Judgement Text

, , IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUM BAI . . , , !' , # $ BEFORE SHRI B.R.BASKARAN, AM AND SHRI AMARJIT SINGH, JM / I.T.A. NO.5388/MUM/2014, I.T.A. NO.5389/MUM/2014 & I.T.A. 5390/MUM/2014, I.T.A.5391/MUM/2014, I.T.A.5392/MUM/14 & 5393/MUM/1 4 & I.T.A.5394/MUM/2014 ( # % &% / ASSESSMENT YEAR: 1985-86, 1986-87, 1988-89, 1989-90 , 1992-93,1994-95 & 1996-97) M/S. TATA SONS LTD. BOMBAY HOUSE, 24, HOMI MODI STREET, FORT, MUMBAI - 400001 / VS. ASSISTANT COMMISSIONER OF INCOME TAX 2(3) R. NO. 552, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 / I.T.A. NO.5395/MUM/2014, I.T.A. NO.5396/MUM/2014 & I.T.A. 5373/MUM/2014, I.T.A.5374/MUM/2014, I.T.A.5375/MUM/14 & 5376/MUM/1 4 & I.T.A.5377/MUM/2014 ( # % &% / ASSESSMENT YEAR: 1985-86, 1986-87, 1988-89, 1989-90 , 1992-93,1994-95 & 1996-97) DY. COMMISSIONER OF INCOME TAX 2(3) R. NO. 552, 5 TH FLOOR, AAYAKAR BHAVAN, M.K.ROAD, MUMBAI - 400020 / VS. M/S. TATA SONS LTD. BOMBAY HOUSE, 24, HOMI MODI STREET, FORT, MUMBAI - 400001 ./ ./ PAN/GIR NO. : AAACT4060A ( / APPELLANT ) .. ( / RESPONDENT ) ASSESSEE BY: SHRI DINESH VYAS DEPARTMENT BY: SHRI CHANDRAJIT SINGH I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 2 / DATE OF HEARING: 22.03.2016 /DATE OF PRONOUNCEMENT: 01.04.2016 !' / O R D E R PER BENCH: THESE CROSS APPEALS ARE DIRECTED AGAINST THE ORDER S PASSED BY COMMISSIONER OF INCOME TAX (APPEALS)-6, MUMBAI [HER EINAFTER REFERRED TO AS THE CIT(A)] AND THEY RELATE TO THE A.Y.1985-86, 1986-87, 1988-89, 1989-90, 1992-93, 1994-95 AND 199 6-97. ALL THESE APPEALS WERE HEARD TOGETHER AND ARE BEING DIS POSED OF BY THIS COMMON ORDER, FOR THE SAKE OF CONVENIENCE. 2. IN ALL THESE YEARS, THE ASSESSING OFFICER PA SSED RECTIFICATION ORDER U/S.154 OF THE INCOME TAX ACT, 1961( IN SHORT THE ACT) WITHDRAWING A PORTION ON INTEREST GRANTED TO THE AS SESSEE U/S. 244A OF THE ACT ON THE REFUND ARISING UPON GIVING EFFECT TO THE APPELLATE ORDER. 3. THE ASSESSEE WAS AGGRIEVED BY THE RECTIFICATION ORDER PASSED BY THE ASSESSING OFFICER AND HENCE FILED APPEALS BE FORE LEARNED CIT(A) CHALLENGING VALIDITY ON RECTIFICATION ORDER AND ALSO CHALLENGED THE WITHDRAWAL OF INTEREST ALREADY GRANT ED TO THE ASSESSEE. THE LEARNED CIT(A) UPHELD THE VALIDITY O F RECTIFICATION ORDER. WITH REGARD TO THE CONTENTIONS RAISED BY T HE ASSESSEE ON MERITS, THE LEARNED CIT(A) DIRECTED THE ASSESSING O FFICER TO FOLLOW THE DECISION RENDERED BY HIM FOR A.Y.1990-91. AGGRI EVED BY THE ORDER PASSED BY LEARNED CIT(A) IN UPHOLDING THE VAL IDITY ON I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 3 RECTIFICATION PROCEEDINGS, THE ASSESSEE HAS FILED T HE APPEALS BEFORE US. AGGRIEVED BY THE ORDER OF LEARNED CIT(A) IN DIR ECTING THE ASSESSING OFFICER TO ACCEPT THE CLAIM OF THE ASSESS EE, THE REVENUE HAS FILED THESE APPEALS BEFORE US. 4. THE BRIEF FACTS RELATING TO THE ISSUE ARE THAT T HE ASSESSEE BECAME ENTITLED TO HIGHER REFUND THAN ORIGINALLY GR ANTED TO IT. THE ASSESSING OFFICER, WHILE COMPUTING THE INTEREST PAY ABLE ON THE ENHANCED AMOUNT OF REFUND, REDUCED THE TAX PORTION AS WELL AS INTEREST ELEMENT FROM THE TOTAL REFUND DUE AND ACCO RDINGLY COMPUTED INTEREST ON THE REMAINING AMOUNT. ACCORDI NG TO THE ASSESSEE, THE INTEREST ELEMENT SHOULD NOT BE DEDUCT ED AND ONLY THE TAX PORTION OF THE REFUND ALONE SHOULD BE DEDUCTED AND ACCORDINGLY THE INTEREST SHOULD BE GRANTED ON THE ENHANCED REFU ND. THOUGH THE AO ORIGINALLY ACCEPTED THE SUBMISSIONS OF THE ASSES SEE, BUT BY PASSING THE IMPUGNED RECTIFICATION ORDERS, HE REDUC ED THE AMOUNT OF INTEREST ALREADY GRANTED U/S 244A OF THE ACT. 5. THE LEARNED AR SUBMITTED THAT THE ASSESSING OF FICER HAD ORIGINALLY GRANTED REFUND TO THE ASSESSEE ALONG WIT H INTEREST. SUBSEQUENT TO THE PASSING OF ORDER BY INCOME TAX AP PELLATE TRIBUNAL, THE REFUND DUE TO THE ASSESSEE GOT ENHANC ED. WHILE, CALCULATING THE INTEREST PAYABLE ON THE ENHANCED RE FUND, THE ASSESSING OFFICER DEDUCTED THE INTEREST ALREADY GR ANTED TO THE ASSESSEE FROM THE TAX PORTION OF THE REFUND DUE AND ACCORDINGLY COMPUTED THE INTEREST ON THE AMOUNT SO REDUCED. IN THE ORIGINAL PROCEEDING THE ASSESSING OFFICER HAD ACCEPTED THE C LAIM OF THE I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 4 ASSESSEE THAT THE TAX PORTION OF THE REFUND ALREADY GRANTED ALONE SHOULD BE DEDUCTED FROM THE TOTAL REFUND ARISING UP ON GIVING EFFECT TO THE ORDER PASSED BY INCOME TAX APPELLATE TRIBUNA L AND ACCORDINGLY GRANTED INTEREST. HOWEVER THE ASSESSIN G OFFICER, THEREAFTER, PASSED THE IMPUGNED RECTIFICATIONS ORDE RS U/S. 154 OF THE ACT AND REDUCED THE AMOUNT OF INTEREST ALREADY PAID U/S. 244A OF THE ACT FROM THE TAX PORTION OF REFUND DUE AND THE SAME HAS RESULTED IN REDUCTION OF THE INTEREST DUE TO THE AS SESSEE. HE SUBMITTED THAT THE AO SHOULD HAVE DEDUCTED ONLY TAX PORTION OF REFUND ALREADY GRANTED FROM THE TAX PORTION OF TOTA L REFUND DUE. 6. THE LEARNED AR SUBMITTED THAT AN IDENTICAL ISSUE WAS CONFIRMED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN T HE CASE OF JCIT VS. TATA POWER CO. LTD. (ITA NO.6863/MUM/11 DATED 06.03.2013), WHEREIN THE TRIBUNAL HAD CONFIRMED THE ORDER OF LEARNED CIT(A) IN UPHOLDING THAT THE INTEREST ELEME NT OF REFUND GRANTED EARLIER SHOULD NOT BE DEDUCTED FROM THE REF UND ARISING WHILE GIVING EFFECT TO THE ORDER OF THE APPELLATE A UTHORITIES. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL HAS PASSED T HE ORDER ON 06.03.2013 AND THE ASSESSING OFFICER HAS PASSED THE IMPUGNED ORDERS ON 13.08.2013. HENCE ON THE DATE OF PASSING OF IMPUGNED RECTIFICATIONS ORDERS THE ISSUE WAS DEBATABLE ONE. BY PLACING RELIANCE ON THE DECISION OF HONBLE SUPREME COURT R ENDERED IN THE CASE OF T.S.BALRAM ITO VS. VOLKART BROS. 82 ITR 50( SC), THE LEARNED AR SUBMITTED THAT THE DEBATABLE ISSUE WILL NOT FALL UNDER THE DEFINITION OF MISTAKES APPARENT FROM RECORD A ND HENCE SUCH I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 5 ISSUES CANNOT BE RECTIFIED U/S. 154 OF THE ACT. AC CORDINGLY HE SUBMITTED THAT THE ORDER OF LD CIT(A) IN UPHOLDING THE RECTIFICATION PROCEEDINGS U/S 154 OF THE ACT SHOULD BE QUASHED. 7. THE LEARNED AR ALSO SUBMITTED THAT THE DECISION RENDERED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN CASE OF TATA P OWER CO. LTD. (SUPRA) HAS SINCE BEEN UPHELD BY THE HONBLE JURISD ICTIONAL BOMBAY HIGH COURT IN HIS DECISION DATED 07.07.2015 RENDERED IN THE CASE OF CIT VS TATA POWER CO. LTD. IN ITA NO.1 560/M/2013. ACCORDINGLY, THE LEARNED AR SUBMITTED THAT THE ORDE RS PASSED BY LEARNED CIT(A) ON MERITS HAVE TO BE UPHELD, SINCE T HEY ARE IN ACCORDANCE WITH THE DECISION RENDERED BY THE HONBL E JURISDICTIONAL BOMBAY HIGH COURT. 8. ON THE CONTRARY THE LEARNED DR PLACED STRONGLY R ELIANCE ON THE ASSESSMENT ORDER. 9. WE HAVE HEARD THE PARTIES AND PERUSED THE RECORD . WE FIND MERIT IN THE SUBMISSION OF THE ASSESSEE THAT THE IS SUE SOUGHT TO BE RECTIFIED U/S. 154 OF THE ACT IS A DEBATABLE ISSUE, SINCE AN IDENTICAL ISSUE HAS BEEN DECIDED IN FAVOUR OF THE ASSESSEE BY THE CO-ORDINATE BENCH OF TRIBUNAL TATA POWER CO. LTD. (SUPRA). THE VERY FACT THAT AN IDENTICAL ISSUE HAS TRAVELLED UP TO THE LEVEL OF TRIBUNAL WOULD SHOW THAT THE SAID ISSUE IS A DEBATABLE ONE. THE H ONBLE SUPREME COURT IN THE CASE OF T.S.BALRAM ITO VS. VOLKAR BROS .(SUPRA) HAS HELD THAT THE DECISION TAKEN ON A DEBATABLE POINT O F LAW SHALL NOT CONSTITUTE A MISTAKE APPARENT FROM RECORD. ACCORDI NGLY WE ARE OF THE VIEW THAT THE IMPUGNED RECTIFICATION ORDERS ARE LIABLE TO BE I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 6 QUASHED. ACCORDINGLY WE SET ASIDE THE ORDER OF LD CIT(A) AND QUASH THE IMPUGNED RECTIFICATION ORDERS. 10. EVEN ON MERIT WE NOTICE THAT CLAIM OF THE ASSES SEE IS SUPPORTED BY THE DECISION OF HONBLE BOMBAY COURT R ENDERED IN THE CASE OF TATA POWER CO. LTD. (SUPRA). IT IS ALS O PERTINENT TO NOTE THAT THE DECISION RENDERED BY THE CO-ORDINATE BENCH OF TRIBUNAL IN THE CASE OF TATA POWER CO. LTD (SUPRA) WAS AVAILABL E ON THE DATE OF PASSING OF IMPUGNED RECTIFICATION ORDERS. ACCORDIN GLY, WE ARE OF THE VIEW THAT THE ASSESSEE WINS ON MERITS ALSO AND ACCORDINGLY WE DO NOT FIND ANY MERIT IN THE APPEALS FILED BY THE R EVENUE. 11. IN THE RESULT, ALL THE APPEALS FILED BY THE ASS ESSEE ARE ALLOWED AND APPEALS FILED BY THE REVENUE ARE DISMIS SED. ORDER PRONOUNCED IN THE OPEN COURT ON 1 ST APRIL, 2016. SD/- SD/- (AMARJIT SINGH) (B.R.BASKARAN) $% ! /JUDICIAL MEMBER ! / ACCOUNTANT MEMBER & ' MUMBAI; (! DATED : 1 ST APRIL, 2016 MP MP MP MP I.T.A. NO.5388-5396/MUM/2014 & I.T.A. 5373-5377/MUM/2014 A.Y. 1985-86, 1986-87, 1988-89, 1989-90, 1992-93,1994-95 & 1996-97 7 ' ( )# !* +*& / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ) ( ) / THE CIT(A)- 4. ) / CIT 5. *+, %%-. , -. , & ' / DR, ITAT, MUMBAI 6. ,/0 1 / GUARD FILE. ' / BY ORDER, * % //TRUE COPY// , / ' (DY./ASSTT. REGISTRAR) , & ' / ITAT, MUMBAI