DCIT CIRCLE-2(2)(1), MUMBAI V. M/S.STATE BANK OF INDIA, MUMBAI

ITA 5907/MUM/2017

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 1689 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 17 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 05-09-2018
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: E
• Assessment Year: 1999-2000
• Appeal Filed On: 18-09-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: MANJUNATHA SWANG
• Keywords: Double taxation relief
• Section: 244A; 263

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL E BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , A M AND SHRI AMARJIT SINGH, JM I.T.A. NO. 5907/MUM/2017 ( ASSESSMENT YEAR: 1999 - 2000 ) ACIT - 2(2)(1) ROOM NO. 545, 5 TH FLOOR, AAYAKAR BHAVAN, M. K. ROAD, MUMBAI - 400 020 VS. M/ S. STATE BANK OF INDIA FRT DEPARTMENT, 3 RD FLOOR, CORPORATE CENTRE, STATE BANK BHAWAN, MADAM CAMA ROAD, NARIMAN POINT, MUMBAI - 400 0 21 PAN/GIR NO. AAACS 8577 K ( APPELLANT ) : ( RESPONDENT ) APPELLANT BY : SHRI MANJUNATHA SWANG RESPONDENT BY : SHR I C. NARESH DATE OF HEARING : 17.07.2018 DATE OF PRONOUNCEMENT : 05.09 .2018 O R D E R PER S HAMIM YAHYA, A. M.: THIS A PPEAL BY THE REVENUE IS DIRECTED AGAINST THE O RDER BY THE COMMISSIONER OF INCOME TAX (APPEALS) DATED 21.06.2017 AND PERTAINS TO THE A SSESSMENT YEAR 1999 - 2000. 2. THE GROUNDS OF APPEAL READ AS UNDER: 1. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING THE ASSESSING OFFICER TO ADJUST THE REFUND GRANTED, FIRST TOWARDS INTEREST AMOU NT REFUNDABLE AND THEREAFTER CONSIDER THE BALANCE AGAINST THE TAX AMOUNT REFUNDABLE WHICH WILL LEAD TO EXCESS GRANT OF INTEREST, CONTRARY TO THE LEGISLATIVE PROVISION AND LAW WHICH IS REGULARLY FOLLOWED BY THE DEPARTMENT. 2. ON THE FACTS AND IN THE CIRCU MS TANCES OF THE CASE AND IN LAW THE LD. CIT(A) WAS R JGHT IN DIRECTING THE AO TO ALLOW INTEREST ON REFUND ARISING ON ACCOUNT OF DOUBLE TAXATION RELIEF INTEREST WITHOUT APPRECIATING THE FACT THAT THE ASSESSE IS NOT 2 ITA NO. 5907/MUM/2017 M/S. STATE BANK OF INDIA ENTITLED FOR REFUND OUT OF CREDIT FOR DTR AND HENCE NO INTEREST U/S 244A IS ALLOWABLE 3. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) HAS ERRED IN DIRECTING TO COMPUTE INTEREST U/S 244A OF I T. ACT FROM FIRST DAY OF APRIL OF ASSESSMENT YEAR UPTO TO DATE OF GRANTING OF REFUND WITHOUT APPRECIATING THE FACT THAT REFUND HAD NOT BECOME DUE TO THE ASSESSE E OUT OF ADVANCE TAX PAYMENT OR TDS BUT HAS ARISEN OUT OF VOLUNTARY PAYMENT BY ASSESS E E ON GOING EFFECT TO THE ORDER OF LD. CIT(A) WHEREIN FOR THE FIRST TIME CLAIM OF DEDUCT ION ON ACCOUNT OF INTEREST ON SECURITIES WAS MADE AND ALLOWED. 3. AT THE OUTSET, IT IS NOTED THAT THE IMPUGNED ORDER OF THE LD. COMMISSIONER OF INCOME TAX (APPEALS) IN THIS CASE WAS PASSED UPON THE ASSESSING OFFICERS ORDER DATED 30.07.2012 WHICH WAS AN O RDER GIVING EFFECT TO THE LD. COMMISSIONER OF INCOME TAX S ORDER U/S. 263 OF THE INCOME TAX ACT, 1961. 4. UPON HEARING BOTH THE COUNSEL AND PERUSING THE RECORDS, IT TRANSPIRES THAT THIS TRIBUNAL IN ITA NO. 2018/MUM/2012 FOR ASSESSMENT YEAR 1999 - 2000 HAS CANCELLED THE ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX U/S. 263 VIDE ORDER DATED 14.07.2017. SINCE THE ITAT HAS QUASHED THE ORDER OF THE LD. COMMISSIONER OF INCOME TAX, THE ORDER GIVING EFFECT PASSED BY THE ASSESSING OFFICER IN THIS REG ARD DOES NOT SURVIVE. HENCE, IN OUR CONSIDERED OPINION, THIS APPEAL BY THE REVENUE BECOMES INFRUCTUOUS. BOTH THE COUNSEL FAIRLY AGREED TO THIS PROPOSITION. 5. IN THE RESULT, TH IS APPEAL FILED BY THE REVENUE STANDS DISMISSED AS INFRUCTUOUS. ORDER PRONOUN CED IN THE OPEN COURT ON 05.09.2018 SD/ - SD/ - ( AMARJIT SINGH ) (S HAMIM YAHYA) J UDICIAL MEMBER A CCOUNTANT MEMBER MUMBAI ; DATED : 05.09.2018 3 ITA NO. 5907/MUM/2017 M/S. STATE BANK OF INDIA ROSHANI , SR. PS COPY OF THE ORDE R FORWARDED TO : 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) 4. CIT - CONCERNED 5. DR, ITAT, MUMBAI 6. GUARD F ILE BY ORDER, (DY./ASSTT. REGISTRAR) ITAT, MUMBAI