OOCL LOGISTICS (INDIA) PVT. LTD., MUMBAI V. DCIT - 7(3)(1), MUMBAI

ITA 6028/MUM/2016

• Counselvise Citation: [2018] 125 COUNSELVISE.COM (IT) 5417 (ITAT-MUMBAI)
• Duration Of Justice: 1 year(s) 9 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-07-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: D
• Assessment Year: 2009-2010
• Appeal Filed On: 10-10-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: RAM TIWARI LD DR
• Assessee Lawyers: ABHISHEK TILAK LD
• Section: 143(3); 244A; 154; 15

Judgement Text

ITA NO.6028/MUM/2016 OOCL LOGISTICS (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2009-10 IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI , BEFORE SHRI SAKTIJIT DEY, JM AND SHRI MANOJ KUMAR AGGARWAL, AM I.T.A. NO.6028/MUM/2016 ( ASSESSMENT YEAR: 2009-10) OOCL LOGISTICS (INDIA) PRIVATE LIMITED ICC CHAMBERS, 5 TH FLOOR SAKI VIHAR ROAD, POWAI OPP. SANTOGEN SILK MILLS MUMBAI-400 072 VS. DEPUTY COMMISSIONER OF INCOME TAX-7(3)(1) ROOM NO.12, GROUND FLOOR AAYKAR BHAVAN, M.K.ROAD MUMBAI-400 020 ! ' PAN/GIR NO. AAACO-7690-K ( !# APPELLANT ) : ( $%!# RESPONDENT ) A SSESSEE BY : ABHISHEK TILAK, LD.AR RE VENUE BY : RAM TIWARI, LD. DR & DATE OF HEARING : 18/07/2018 '() / DATE OF PRONOUNCEMENT : 25/07/2018 O R D E R PER MANOJ KUMAR AGGARWAL (ACCOUNTANT MEMBER) 1. AFORESAID APPEAL BY ASSESSEE FOR ASSESSMENT YEAR [AY] 2009-10 CONTEST THE ORDER OF THE LD. COMMISSIONER OF INCOME -TAX (APPEALS)-13 [CIT(A)], MUMBAI, APPEAL NO.CIT(A)-13/DCIT-7(3)(1)/70/2015-16 DATED 08/07/2016 BY RAISING FOLLOWING SEVERAL GROUNDS OF APPEAL, THE HEAD OF WHICH READS AS UNDER:- ITA NO.6028/MUM/2016 OOCL LOGISTICS (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2009-10 2 1. GROUND 1 : THE LEARNED CIT(A) HAS ERRED IN OBSERVING THAT TH E AUTHORIZED REPRESENTATIVE (AR) OF THE APPELLANT HAS NOT PRES SED GROUND NO.2 AND 3 (I.E. GROUND RELATED TO NON-RECEIPT OF REFUND AND S HORT GRANT OF INTEREST UNDER SECTION 244A OF THE ACT) DURING THE COURSE OF APPEL LATE PROCEEDINGS. 2. GROUND 2 : NON-RECEIPT OF REFUND BY THE COMPANY. 3. GROUND 3: SHORT GRANT OF INTEREST UNDER SECTION 244A OF THE ACT THE ASSESSMENT FOR IMPUGNED AY WAS FRAMED BY LD. DEPUTY COMMISSIONER OF INCOME TAX-CIRCLE 7(1), MUMBAI [AO] U/S 143(3) OF THE INCOME TAX ACT, 1961 ON 26/12/2011 ACCEPTING THE BUSINESS LOSS OF RS.222.70 LACS FILED BY THE ASSESSEE ON 30/09/2009. AS EVIDENT FROM GROUNDS OF APPEAL, THE ASSESSEE IS AGGRIEVED BY NON -GRANT OF REFUND & CONSEQUENTIAL INTEREST FOR THE IMPUGNED AY. 2. THE LD. CIT(A), UPON APPEAL, HAS CONCLUDED THE M ATTER BY MAKING FOLLOWING OBSERVATIONS:- 2. GROUNDS OF APPEAL- THE FOLLOWING ARE THE GROUNDS OF APPEAL IN THIS CASE 1. THE LEARNED AO ERRED IN RESTRICTING THE CREDIT FOR TAXES DEDUCTED AT SOURCE (TDS) TO RS.42,60,94/- AS AGAINST THE CREDIT OF RS.45,93, 018/- AS CLAIMED BY THE APPELLANT. 2. THE LEARNED AO ERRED IN STATING THAT A REFUND OF RS.46,16,231/- (INCLUSIVE OF INTEREST OF RS.3,61,641/- UNDER SECTION 244A OF THE ACT) HAS BEEN PAID TO THE APPELLANT. 3. CONSEQUENTLY, THE INTEREST GRANTED UNDER SECTION 244A OF THE ACT IS LOWER THAN THE CORRECT AMOUNT OF INTEREST DUE TO THE APPELLANT . 3. GROUND NO.1- VIDE THIS GROUND, THE APPELLANT HA S PROTESTED AGAINST THE SHORT- GRANT OF CREDIT OF TDS. WHILE THE APPELLANT HAD CLA IMED CREDIT OF RS.45,93,018/-, THE AO HAD GRANTED IT ONLY TO THE EXTENT OF RS.42,60,90 4/-. THE AO IS DIRECTED TO GRANT THE CREDIT CLAIMED BY THE APPELLANT SUBJECT TO THE VERIFICATION. TO THAT EXTENT, GROUND NO.1 IS TAKEN TO HAVE BEEN ALLOWED. 4. GROUND NOS.2 AND 3 VIDE THESE GROUNDS THE APP ELLANT HAD PROTESTED AGAINST THE SHORT-GRANT OF INTEREST UNDER SECTION 244A OF INCOM E TAX ACT, 1961 ON THE REFUND GRANTED TO THE APPELLANT AS ALSO AGAINST THE INCORR ECT STATEMENT OF THE AO THAT REFUND HAD BEEN GRANTED. BEFORE ME, THE AR OF THE A PPELLANT HAS NOT PRESSED THESE TWO GROUNDS STATING THAT WHILE THE REFUND HAS SINCE BEEN GRANTED, SHORT-GRANT OF INTEREST HAS ALSO SINCE BEEN RECTIFIED BY THE AO. A NOTING TO THIS EFFECT HAS ALSO BEEN ENDORSED ON THE ORDER-SHEET BY THE AR. GROUND NOS.2 AND 3 ARE ACCORDINGLY DISMISSED. 5. TO SUMMARIZE, WHILE GROUND NO.1 IS ALLOWED, GRO UND NOS.2 AND 3 ARE DISMISSED. ITA NO.6028/MUM/2016 OOCL LOGISTICS (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2009-10 3 AGGRIEVED, THE ASSESSEE IS IN FURTHER APPEAL BEFORE US. 3. THE LD. AR, DRAWING OUR ATTENTION TO THE DOCUMEN TS PLACED ON RECORD, SUBMITTED THAT THE REFUND FOR THE IMPUGNED AY WAS DUE TO THE ASSESSEE ALONG WITH INTEREST, WHICH HAS NOT BEEN GR ANTED TO THE ASSESSEE AND THEREFORE, THE MATTER MAY BE SET ASIDE TO LOWER AUTHORITIES FOR PROPER APPRECIATION OF FACTUAL MATRIX. IT WAS F URTHER SUBMITTED THAT THE OBSERVATIONS MADE BY LD. CIT(A), IN THIS REGARD, WE RE ERRONEOUSLY SUBMITTED BY THE ASSESSEE. THE LD. DR SUBMITTED THA T THE REFUND HAS BEEN ADJUSTED AGAINST THE DEMAND OF EARLIER YEARS. 4. UPON DUE CONSIDERATION, WE FIND THAT THE RETURNE D LOSS FILED BY THE ASSESSEE HAS BEEN ACCEPTED AND THE ASSESSEE HAD CLA IMED A REFUND OF RS.43.43 LACS IN RETURN OF INCOME FILED ON 30/09/20 09. AS AGAINST THE SAME, THE ASSESSEE HAS BEEN GRANTED A REFUND OF RS. 7,350/- ON 29/12/2011. THE LD. AR HAS SUBMITTED THAT THE DEMAN D IN OTHER YEARS HAS BEEN ADJUSTED FROM REFUND OF AY 2012-13 AND NOT FROM THE REFUND OF IMPUGNED AY AND THE SUBMISSIONS MADE BY THE ASSESSE E BEFORE LD. CIT(A), IN THIS REGARD, WAS INADVERTENT ERROR. IT I S ALSO NOTED THAT THE ASSESSEE HAS FILED RECTIFICATION APPLICATION U/S 15 4 BEFORE BOTH THE LOWER AUTHORITIES. HENCE, WITHOUT DELVING MUCH DEEPER INT O THE ISSUE, THE MATTER STAND REMITTED BACK TO THE FILE OF LD.AO FOR RE-DETERMINATION OF CORRECT REFUND AMOUNT AS WELL AS INTEREST DUE TO TH E ASSESSEE WITH A DIRECTION TO GRANT LEGITIMATE REFUND AS DUE TO THE ASSESSEE. THE ASSESSEE IS DIRECTED TO PROVIDE SUFFICIENT DOCUMENT ARY EVIDENCES TO LD. AO, IN THIS REGARD. 5. THE APPEAL STANDS ALLOWED FOR STATISTICAL PURPOS ES. ORDER PRONOUNCED IN THE OPEN COURT ON 25 TH JULY, 2018 ITA NO.6028/MUM/2016 OOCL LOGISTICS (INDIA) PRIVATE LIMITED ASSESSMENT YEAR-2009-10 4 SD/- SD/- (SAKTIJIT DEY) (MANOJ KUMAR AGGARWAL) / JUDICIAL MEMBER / ACCOUNTANT MEMBER *& MUMBAI; DATED : 25.07.2018 SR.PS:-THIRUMALESH ! COPY OF THE ORDER FORWARDED TO : 1. !# / THE APPELLANT 2. $%!# / THE RESPONDENT 3. / THE CIT(A) 4. / CIT CONCERNED 5. + ,$ - -) *& / DR, ITAT, MUMBAI 6. , ./0 & GUARD FILE ' / BY ORDER, # '$% (DY./ASSTT.REGISTRAR) *& / ITAT, MUMBAI