Sahara Universal Mining Corporation Limited, Kolkata V. A.C.I.T., Circle-7(1), Kolkata, Kolkata

ITA 648/KOL/2022

• Counselvise Citation: [2024] 101 COUNSELVISE.COM (IT) 5995 (ITAT-KOLKATA)
• Duration Of Justice: 1 year(s) 7 month(s) 19 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 04-07-2024
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 28-05-2024
• Assessment Year: 2013-2014
• Appeal Filed On: 15-11-2022
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Section: 148; 154; 143(3); 250; 143(2)

Judgement Text

आयकर अपीलीय अधिकरण कोलकाता 'ए' पीठ, कोलकाता म ें IN THE INCOME TAX APPELLATE TRIBUNAL KOLKATA ‘A’ BENCH, KOLKATA श्री राज े श क ु मार, ल े खा सदस्य एवं श्री प्रदीप क ु मार चौब े , न्याधयक सदस्य क े समक्ष Before SRI RAJESH KUMAR, ACCOUNTANT MEMBER & PRADIP KUMAR CHOUBEY, JUDICIAL MEMBER I.T.A. No.: 648/KOL/2022 Assessment Year: 2013-14 Sahara Universal Minings Corporation Limited.......................Appellant [PAN: AALCS 3315 G] Vs. ACIT, Circle-7(1), Kolkata.....................................................Respondent Appearances: Assessee represented by: P.K. Bansal, AR. Department represented by: B.K. Singh, JCIT, Sr. DR. Date of concluding the hearing : May 29 th , 2024 Date of pronouncing the order : July 5 th , 2024 ORDER Per Pradip Kumar Choubey, Judicial Member: This appeal filed by the assessee pertaining to the Assessment Year (in short ‘AY’) 2013-14 is directed against the order passed u/s 250 of the Income Tax Act, 1961 (in short the ‘Act’) by ld. Commissioner of Income-tax (Appeals)- NFAC, Delhi [in short ld. ‘CIT(A)’] dated 21.09.2022 arising out of the assessment order framed u/s 251/154/147/143(3) of the Act dated 31.01.2018. 2. The brief facts of the case of the appellant are that the assessee filed its income tax return for the year under consideration on 18.12.2015 declaring I.T.A. No.: 648/KOL/2022 Assessment Year: 2013-14 Sahara Universal Minings Corporation Limited. Page 2 of 5 total taxable income of Rs. 1,17,37,470/-. Various additions were made to the returned income and the income was assessed at Rs. 8,12,39,90,360/-. The assessee filed an appeal before the ld. CIT(A) wherein the ld. CIT(A) allowed the relief of Rs. 8,11,22,52,886/- thereby assessed income was reduced to Rs. 1,17,37,470/-. An order u/s 251/154/147/143(3) of the Act has been passed by the ACIT, Circle-8(2), Kolkata on 31.01.2018 determining the refund of the assessee at the rate of Rs. 27,04,767/-. While passing the order the Assessing Officer (hereinafter referred to as ld. 'AO') denied the claim of refund of the assessee u/s 239(2)(c) of the Act by saying that assessee filed its return of income on 18.12.2015 in response to the notice u/s 148 of the Act dated 16.10.2015 i.e. after one year from the last date of the relevant assessment year. Accordingly, the claim of the refund made by the assessee is denied. The said order of ld. AO has been confirmed by ld. CIT(A) that impugned order is under challenge. 3. Ld. Counsel for the assessee challenges the impugned order thereby submitting that ld. AO as well as ld. CIT(A) have erred in law and facts and circumstances of the case thereby denying the grant of the refund to the appellant by taking the resort to the provisions of Section 239(2)(c) of the Act ignoring the fact that in the present case Section 240 of the Act will be applicable as the refund is made consequent on the order passed in appeal for other proceedings. Ld. Counsel for the assessee placed reliance on judicial pronouncement passed in the case of CIT vs. Royal Rags Pvt. Ltd. Reported in (2012) 83 CCH 50 (Mad) (HC). 4. Contrary to that ld. D/R has only supported the impugned order of the ld. CIT(A). 5. We have perused the case of the assessee from which following facts emerged: a) Rectification u/s 154 of the Act dated 31.01.2018 was made by ACIT, Circle-8(2), Kolkata and computing the total income to ₹ 1,17,37,474/-. I.T.A. No.: 648/KOL/2022 Assessment Year: 2013-14 Sahara Universal Minings Corporation Limited. Page 3 of 5 b) Various additions were made to the returned income and the income was assessed at Rs. 8,12,39,90,360/-. c) Assessee filed an appeal wherein his appeal was allowed by giving a relief by determining the refund of the assessee at the rate of ₹ 27,04,767/-. 5.1. It admits of no doubt that while passing the order ld. AO has denied the claim of the refund of the assessee by invoking the provisions of Section 239(2)(c) of the Act in which time has been prescribed for one year. The only contention of the ld. Counsel for the assessee is that his case is covered u/s 240 of the Act as refund is made consequent to the order passed in appeal. There is no denying to this fact as an order u/s 251/154/147/143(3) of the Act has been passed by ACIT, Circle-8(2), Kolkata determining the refund of the assessee at the rate of Rs. 27,04,767/-. We have gone through the cited decision of the assessee which is as follows: “2. The assessee herein filed return of income for the assessment year 1993- 94 on 29.03.1996. Admittedly, it was return filed beyond the limitation time. However, the Officer issued a notice under Section 143(2) of the Income Tax Act, 1961 (hereinafter called as the "Act") on 23.04.1996. Ultimately, the order of assessment was made on 29.10.1998. Both the orders state that it was under Section 143(3) of the Act and the time limit for passing the regular assessment had expired. One can only view this order as the order passed under Section 143(3) read with 147 of the Act as had been read in the order of the Commissioner of Income Tax (Appeals). The assessee claimed refund of Rs.4,03,675/-. However, the Assessing Authority rejected the claim based on Section 239(2)(c), wherein, the time limit for claim of refund is given as one year from the last day of relevant assessment year and since return was filed on 29.03.1996 i.e., after one year from the end of the assessment year, the claim was to be ignored. ................................................. 7. The one and only provision available under this Chapter XIX of the Act relating to refunds, when the claim for refund has to be made and the situation to be satisfied is dealt with under Section 239 of the Act. Section 240 is the provision where, the refund is made consequent on the order passed in appeal or other proceedings under this Act, where the assessee need not make any such claim, but the Officer has to refund the amount even without an application from the assessee. Thus, on a reading of Sections 239, 240 and 243 of the Act, one will know that while Section 239 covers cases of the assessee on self-assessment making a claim for refund I.T.A. No.: 648/KOL/2022 Assessment Year: 2013-14 Sahara Universal Minings Corporation Limited. Page 4 of 5 within the time limit specified therein, Section 240 provides for refund which is contemplated under the Act without even an application from the assessee, but must emanate from the Officer itself consequent on the order passed on appeal or other proceedings under the Act. 8. Barring these two provisions, there is no other provision, which speaks on refund to the assessee consequent on the assessment. Even in the absence of any such specific provision placing responsibility on the assessee / an Officer to seek or grant refund, Section 243 of the Act contemplates grant of interest in cases, where the assessee is entitled to refund even without making an application in contract to cases where on application, refund to be granted would carry no interest. 9. Thus, on a return filed, where there is determination of income under the Act and the assessment order relates to refund to be granted to the assessee as per Section 243(l)(a) of the Act, refund has to be granted within a period of three months. If the Assessing Officer does not grant the refund, the refund would carry interest as contemplated under Section 243(l)(b) of the Act. 10. Learned Standing counsel for the Revenue pointed out that even the case on hand would fall under Section 239 of the Act. We do not think such view could be sustained having regard to the fact that Section 243(l)(b) of the Act specifically speaks about interest payment at fifteen percent per annum, if the Assessing Officer does not grant the refund within three months from the end of the month in which the total income is determined under this Act. In view of the provisions of the Act with regard to claim for refund, the limitation and interest on delayed refunds etc., a meaningful interpretation has to be given to Section 239 of the Act as well as to the phrase appearing in Section 243 of the Act. 11. In view of the above reasoning, we have no hesitation in rejecting the Revenue's appeal thereby confirming the order of the Income Tax Appellate Tribunal. Accordingly, the Tax Case Appeal stands dismissed. No costs.” 5.2. On perusal of the above judgement of the Madras High Court it is evident that provisions of Section 239 of the Act are applicable to an assessee claiming the refund by self-assessment whereas the cases where the refund is computed in pursuance of an order in appeal for other proceedings under the Act are covered by the provisions of Section 240 of the Act. Section 240 of the Act deals thus: “Whereas, as a result of any order passed in appeal or other proceedings under this Act, refund of any amount becomes due to the assessee (assessing) officers except as otherwise provided in this Act, refund the I.T.A. No.: 648/KOL/2022 Assessment Year: 2013-14 Sahara Universal Minings Corporation Limited. Page 5 of 5 amount to the assessee without his having to make any claim in that behalf.” 5.3. As we have already discussed in the preceding paragraphs that ACIT, Circle-8(2), Kolkata 31.01.2018 determines the refund of the assessee at the rate of Rs. 27,04,767/- hence, in our view the claim of the point of the assessee is covered u/s 240 of the Act and not u/s 239 of the Act as held by the AO and confirmed by the ld. CIT(A). Accordingly, the case of the assessee is hereby allowed by setting aside the orders of ld. AO and ld. CIT(A) and the assessee is entitled to get the refund amount of Rs. 27,04,767/-. 6. In the result, the appeal filed by the assessee is allowed. Order pronounced in the open Court on 5 th July, 2024. Sd/- Sd/- [Rajesh Kumar] [Pradip Kumar Choubey] Accountant Member Judicial Member Dated: 05.07.2024 Bidhan (P.S.) Copy of the order forwarded to: 1. Sahara Universal Minings Corporation Limited, Sahara India Sadan, 2A, Shakespeare Sarani, Kolkata, West Bengal, 700071. 2. ACIT, Circle-7(1), Kolkata. 3. CIT(A)-NFAC, Delhi. 4. CIT- 5. CIT(DR), Kolkata Benches, Kolkata. //True copy // By order Assistant Registrar ITAT, Kolkata Benches Kolkata