DCIT (IT) 2(1)(2), MUMBAI V. DEUTSCHE BANK AG, MUMBAI

ITA 6511/MUM/2016

• Counselvise Citation: [2019] 117 COUNSELVISE.COM (IT) 4873 (ITAT-MUMBAI)
• Duration Of Justice: 2 year(s) 6 month(s) 15 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-05-2019
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: Not Allotted
• Assessment Year: 2006-2007
• Appeal Filed On: 07-11-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: IN CIRCUMSTANCES OF CA SE
• Keywords: Rectification of order; Revised return; Set aside
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D BENCH, MUMBAI BEFORE SHRI SHAMIM YAHYA , AM AND SHRI AMARJIT SINGH, JM / I .T.A. NO. 6511 /MUM/201 6 ( / ASSESSMENT YEAR: 20 06 - 07 ) DCIT (IT) - 2(1)(2) ROOM NO.1713, 17 TH FLOOR, AIR INDIA BUILDING, NARIMAN POINT, MUMBAI - 400021 . / VS. DEUTSCHE BANK AG 5 TH FLOOR NICHOLAS PIRAMAL PENINSULA CORPORATE PARK, GANPATRAO KADAM MARG, LOWER, PAREL, MUMBAI. ./ ./ PAN/GIR NO. : AAACD1390F ( / APPELLA NT ) .. ( / RESPONDENT ) / DATE OF HEARING : 13 / 0 5/ 201 9 / DATE OF PRONOUNCEMENT : 22 /0 5 / 201 9 / O R D E R PER AMARJIT SINGH, J M: THE REVENUE HAS FILED THE PRESENT APPEAL AGAINST THE ORDER DATED 22 . 0 7 .201 6 PASSED BY THE COMMISSIONER OF INCOME TAX (APPEALS) - 56 , MUMBAI [HEREINAFTE R REFERRED TO AS THE CIT(A)] RELEVANT TO THE A.Y. 20 06 - 07 . 2 . THE REVENUE HAS RAISED THE FOLLOWING GROUNDS: - ' 1. WHETHER ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AND IN LAW, THE LD. CIT(A) ERRED IN DELETING THE INTEREST AMOUNT TO RS.4,10,15,246/ - LEVIED U/S 220(2) OF THE ACT WITHOUT APPRECIATING THAT LEVY OF INTEREST U/S 220(2) IS INDEPENDENT SECTION AND LIABLE ON ALL OUTSTANDING DUES AND REVENUE BY : SHRI SANJAY SINGH (DR) ASSESSEE BY: SHRI PERCY PARDIWALLA/NIRAJ SHETH ITA NO. 2146 /M/201 8 A.Y.20 12 - 13 2 BUNCHING UP OF ONE DEMAND AGAINST REFUND OF OTHER IS NOT THE PREROGATIVE OF THE ASSESSEE. 2. THE APPELLANT PRAYS THAT THE ORDER OF THE LD. CIT(A ) ON THE ABOVE GROUND BE SET ASIDE AND THAT OF THE AO RESTORED. 3. THE APPELLANT CRAVES LEAVE TO AMEND OR ALTER ANY GROUND OR ADD A NEW GROUND WHICH MAY BE NECESSARY. 3 . THE BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FILED ITS RETURN OF INCOME ON 2 8 . 11.2006 DECLARING TOTAL INCOME TO THE TUNE OF RS.3,967,454,201 / - . THEREAFTER, THE ASSESSEE FILED THE REVISED RETURN OF INCOME ON 29.03.2008 DECLARING TOTAL INCOME TO THE TUNE OF RS.4,026,987,504/ - . THE DRAFT ORDER DATED 31.11.2009 WAS ISSUED AND SERVED U PON THE ASSESSEE. FINAL ASSESSMENT WAS DONE ON 18.02.2010. THE TOTAL INCOME OF THE ASSESSEE WAS ASSESSED TO THE TUNE OF RS.7,442,628,920/ AFTER CERTAIN ADDITION/DISALLOWANCE. THEREAFTER, THE ASSESSEE FILED THE RECTIFICATION APPLICATION DATED 20.12.2010, 22 .03.2010, 08.04.2014 & 16.06.2014 . THE DCIT HAS PASSED THE RECTIFICATION ORDER BY DETERMINING THE INCOME TO THE TUNE OF RS.6,455,461,007/ - . AGGRIEVED BY THE SAME, THE ASSESSEE FILED THE APPEAL BEFORE THE CIT(A) IN WHICH ONE OF THE ISSUE WAS IN CONNECTION W ITH ALLOWANCE OF INTEREST U/S 220(2) OF THE ACT AT RS.4,10,15,246/ - . THE SAID CLAIM WAS ALLOWED BY CIT(A), THEREFORE, THE REVENUE HAS FILED THE PRESENT APPEAL BEFORE US. 4. WE HAVE HEARD THE ARGUMENT ADVANCED BY THE LD. REPRESENTATIVE OF THE PARTIES AND PE RUSED THE RECORD. THE REVENUE FILED THE PRESENT APPEAL AGAINST THE DELETION OF THE INTEREST AMOUNT OF RS.4,10,15,246/ - LEVIED U/S 220(2) OF THE ACT. THE CONTENTION OF THE REVENUE IS THAT THE CIT(A) HAS WRONGLY ALLOWED THE CLAIM OF THE ASSESSEE WHICH IS NOT IN ACCORDANCE WITH LAW. HOWEVER, ON THE OTHER HAND, THE LD. REPRESENTATIVE OF THE ASSESSEE HAS ITA NO. 2146 /M/201 8 A.Y.20 12 - 13 3 STRONGLY RELIED UPON THE ORDER PASSED BY THE CIT(A) IN QUESTION. BEFORE GOING FURTHER, WE DEEM IT NECESSARY TO ADVERT THE FINDING OF THE CIT(A) ON RECORD.: - I HAVE CAREFULLY CONSIDERED THE FACTS OF THE CASE AND SUBMISSIONS OF THE APPELLANT. THE ABOVE ISSUE IS COVERED IN THE APPELLANTS OWN CASE BY THE ORDER OF THE HONBLE INCOME - TAX APPELLATE TRIBUNAL, MUMBAI IN AY1995 - 96. HENCE, THE AO IS DIRECTED TO DELETE INT EREST LEVIED UNDER SECTION 220(2) OF THE ACT. ACCORDINGLY, THIS GROUND IS ALLOWED. 5. ON APPRAISAL OF THE ABOVE SAID FINDING, WE NOTICED THAT THE CIT(A) HAS ALLOWED THE CLAIM OF THE ASSESSEE ON THE BASIS OF THE DECISION OF THE HONBLE ITAT IN THE ASSESSEE S OWN CASE FOR THE A.Y. 1995 - 96. THE COPY OF ORDER OF HONBLE ITAT IN ITA. NO.1419 & 1420/M/2000 FOR THE A.Y.1995 - 96 IS ON THE FILE IN WHICH THE RELEVANT FINDING HAS BEEN GIVEN IN PARA NO. 3 WHICH IS HEREBY REPRODUCED AS UNDER.: - WE HAVE HEARD BOTH THE P ARTIES AND PERUSED THE MATERIAL PLACED BEFORE US THE FACTS OF THE CASE ARE THAT THE ASSESSMENT FOR ASST.YE AR1995 - 96 I.E. THE YEAR UNDER CONSIDERATION WAS COMPLETED ON 25 - 2 - 1998. AS PER THE ASSESSMENT ORDER, DEMAND OF RS.12.55 CRORE WAS CANED AGAINST THE AS SESSEE. AFTER ADJUSTING THE REFUND OF ASST YEAR 1991 - 98, THE ASSESSEE WAS ASKED TO MAKE THE PAYMENT OF BALANCE DEMAND I.E. RS,9,94 CRORES WHICH WAS PAYABLE BY 26TH MATH, 1998. BEFORE THE DUE DATE OF PAYMENT, THE ASSESSEE HAS ALREADY APPLIED VIDE ITS LETTER S DATED 26 TH FEBRUARY, 1998 AND IS MARCH, 199 8 TO ADJUST THE REFUND FOR ASST YEAR 1 992 - 93, WHICH WAS MORE THAN THE OUTSTANDING DEMAND OF RS.9.94 CRORE. THE ASSESSING OFFICER CARRIED OUT THE AD JUSTMENT IN SEPTEMBER 1998, HOWEVER, UPTO THE DATE OF ADJUSTMEN T HE ALLOWED INTEREST U/S 244A ON THE R EFUND AND ALSO CHARGED INTEREST U/S 220 ON THE OUTSTANDING DEMAND FOR THE YEAS WIDE' CONSIDERATION THE ASSESSEE CHALLENGED THE CHARGING OF INTEREST IT/S.220 AND THE CIT(A) DETECTED NOT TO LEVY THE INTEREST U/S 220 THE REVENUE AGGRIEVED BY THE ORDER OF THE CIT(A) IS IN APPEAL BEFORE US THE RELEVANT FINDING OF THE CIT(A) IN THIS REGARD READS AS UNDER: ITA NO. 2146 /M/201 8 A.Y.20 12 - 13 4 IN THE PETITION DATED 26 - 1 - 1998 AND 16 - 3 - 1998. IT WAS STATED THAT IN ADDITION TO THE REFUND OF RS.13,98,17,458/ - FOR THE ASSESSMENT YEAR 1991 - 93. A REFUND OF RS.3 1 .78.469/ - FOR THE ASSESSMENT YEAR 1993 - 94 WAS ALSO PENDING. THE ASSESSING OFFICER ACTED ON THE PETITIONS DATED 26 - 2 - 1998 AND 18 - 3 - 1998 IN SEPTEMBER 98 THE MEANTIME HE CHARGED INTEREST UNDER - SECTION 2200) ON THE DE MAND OF RS.9.94.54.6081 - AND HE GAVE INTEREST UNDER SECTION 2444 ON THE REFUNDS FOR THE SAME PERIOD. IN MY VIEW. THE ASSESSING OFFICER INSTEAD OF ADJUSTING THE REFUNDS AGAINST THE DEMAND AS PER THE APPELLANT'S REQUEST CHARGED INTEREST ON THE DEMAND AND ALL OWED INTEREST ON THE REFUNDS. THIS WAS INCORRECT. THE ASSESSING OFFICER SHOULD HAVE ADJUSTED THE REFUNDS AGAINST THE DEMAND AND ON THE BALANCE AMOUNT HE SHOULD HAVE ALLOWED INTEREST UNDER SECTION 2444 OF THE INCOME - TAX ACT, 1961. THERE IS NO CASE FOR THE L EVY OF INTEREST OF RS.89.50.915/ - UNDER SECTION 220(2) OF THE INCOME - TAX1961. THE ASSESSING OFFICER IS DIRECTED NOT TO LEVY THE INTEREST UNDER SECTION (2) OF THE INCOME - TAX ACT. 1961 F THE REFUNDS EXCEED THE DEMAND AS ON 18 - 3 - 98 AND ON THE RESULT FIGURE ON LY HE SHOULD ALLOW INTEREST UNDER SECTION 244A OF THE INCOME TAX ACT 1961.' 6. SINCE THE ISSUE HAS SQUARELY COVERED BY THE DECISION OF HONBLE ITAT IN THE ASSESSEES OWN CASE (SUPRA) , THEREFORE, BY HONORING THE DECISION OF THE SAME AND FINDING NOTHING DIST INGUISHABLE MATERIAL ON RECORD , W E AFFIRM THE FINDING OF THE CIT(A) ON THIS ISSUE AND DECIDE THESE ISSUES IN FAVOUR OF THE ASSESSEE AGAINST THE REVENUE. ITA NO. 2146 /M/201 8 A.Y.20 12 - 13 5 7 . IN THE RESULT, THE APPEAL FILED BY THE REVENUE IS HEREBY ORDERED TO BE D ISMISSED . ORDER PRONOUN CED IN THE OPEN COURT ON 22 /05/2019 SD/ - SD/ - ( SHAMIM YAHYA ) (AMARJIT SINGH) / ACCOUNTANT MEMBER /JUDICIAL MEMBER MUMBAI; DATED : 22 /05/2019 V IJAY / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT 2. / THE RESPONDENT. 3. ( ) / THE CIT(A) - 4. / CIT 5. , , / DR, ITAT, MUMBAI 6. / GUARD FILE. / BY ORDER, //TRUE COPY// / / (DY./ASSTT. REGISTRAR) , / ITAT, MUMBAI