I.T.O.8(3)(4), MUMBAI V. VALBLANC CHEMIC PVT. LTD., MUMBAI

ITA 6805/MUM/2011

• Counselvise Citation: [2012] 119 COUNSELVISE.COM (IT) 8982 (ITAT-MUMBAI)
• Duration Of Justice: 11 month(s) 14 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 21-09-2012
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: F
• Assessment Year: 2003-2004
• Appeal Filed On: 07-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: AMARD EEP
• Assessee Lawyers: CHETAN A KARIA
• Section: 154

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH F BENCH BEFORE SHRI I.P. BANSAL (JUDICIAL MEMBER) AND SHRI B.RAMAKOTAIAH (ACCOUNTANT MEMBER) ITA NO.6805/MUM/2011 ASSESSMENT YEAR: 2003-04 ITO 8(3)(4) R.NO. 202, AAYKAR BHAVAN, M.K. ROAD, MUMBAI 400 020 VS. M/S. VALBLANC CHEMIC PVT. LTD. RICHA INDUSTRIAL ESTATE, OFF NEW LINK ROAD, MUMBAI 400 058 PAN NO. AAACV1452C (APPELLANT) (RESPONDENT) APPELLANT BY : MR. AMARDEEP RESPONDENT BY : MR. CHETAN A. KARIA DATE OF HEARING : 06 .09.2012 DATE OF PRONOUNCEMENT : 21.09.2012 ORDER PER B.RAMAKOTAIAH, AM : THIS APPEAL BY THE REVENUE IS DIRECTED AGAINST THE ORDER OF CIT(A)-18 MUMBAI DATED 14.07.2011. 2 THE ISSUE IN THIS APPEAL IS WITH REFERENCE TO THE CREDIT OF AN AMOUNT OF RS.4,00,000/- PAID BY THE ASSESSEE BUT NO T CLAIMED IN RETURN OF INCOME. THE ASSESSEE PAID TAX OF AN AMO UNT OF RS.4,00,000/- ON 15.04.2003 AND FURTHER AN AMOUNT OF RS.7,23,779/- ON 25.11.2003. THE TOTAL TAX PAID IN CLUDE TDS AND ADVANCE TAX. HOWEVER, WHILE FILING THE RETURN, THE ASSESSEE DOES NOT INCLUDE THE AMOUNT OF RS.4,00,000/- PAID ON 15.04.2 003 NOR CLAIMED DURING THE ASSESSMENT PROCEEDINGS. IT WAS CLAIMED WHILE GIVING EFFECT TO YHE ORDER OF HONBLE HIGH COURT IN ASSESSEE OWN CASE. THE ASSESSING OFFICER REJECTED THE CLAIM ON THE REASON THAT IT ITA NO.6805/MUM/2011 M/S. VALBLANC CHEMIC PVT. LTD. 2 HAD NOT BEEN MADE IN THE RETURN OF INCOME FILED AND THE CLAIM OF CREDIT WAS BARRED BY LIMITATION TIME SPECIFIED U/S 154(7) OF THE INCOME TAX ACT. 2.1 THE CIT(A) AFTER CONSIDERING THE SUBMISSION AND FACTS OF THE CASE DIRECTED TO ASSESSING OFFICER TO GRANT CREDIT AFTER NECESSARY VERIFICATION OF THE SAME. THE DIRECTION OF THE CIT( A) IN PARA 3 IS AS UNDER : I HAVE CONSIDERED THE FACTS OF THE CASE AND SUBMISSI ONS AS ALSO THE CIRCULARS AND AUTHORITIES QUOTED BY THE AR OF APPELLANT. IT IS SEEN THAT THE APPELLANT HAS PAID SEL F ASSESSMENT TAX AMOUNTING TO RS.4 LACS AS PER BANK C ERTIFICATE ENCLOSED AND THE SAME HAS NOT BEEN CLAIMED EITHER AT T HE TIME OF THE RETURN FILED OR ANY TIME DURING THE COURSE OF ASSESSMENT PROCEEDINGS. THE SAID FACT WAS FIRST BROUGHT TO LIG HT ONLY VIDE ARS LETTER TO THE AO DATED 08.03.2010 WHILST REQUES T FOR ORDER TO GIVE EFFECT TO THE HONBLE BOMBAY HIGH COURT ODER DATED 18.01.2010. I DO NOT AGREE WITH THE AOS CONTENTION THAT THE CLAIM FOR TAXES PAID SHALL LIE ONLY IF CLAIMED IN THE RETURN OF INCOME OF IT APPLICATION IS MADE UNDER SECTION 154 WITHIN THE PRESCRIBED TIME. THE SAID MATTER IS SQUARELY COVERED B Y THE CIRCULARS FILED WHEREIN THE DEPARTMENT NEEDS TO OBVIA TE DIFFICULTIES IN THE OPERATION OF LAW SO AS TO ENSUR E CORRECT RELIEF AND DEDUCTIONS ARE AVAILED BY THE APPELLANT. IN VIEW OF THE FACTS OF THE CASE AND CASE LAWS MENTIONED ABOVE. I FI ND MERIT IN THE SUBMISSIONS MADE BY THE AR AND DIRECT THE AO TO GRANT RELIEF OF SELF ASSESSMENT TAX PAID AMOUNTING TO RS.4 LACS AFTER NECESSARY VERIFICATION OF THE SAME. 3 THE REVENUE IS AGGRIEVED AND RAISED THE FOLLOWING GROUNDS. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE A ND IN LAW, THE CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW BELATED CLAIM FOR REFUND OF SELF ASSESSMENT TAX PAID OF RS.4 LAKHS WITHOUT APPRECIATING THE FACT THAT IN ACCORDA NCE WITH CBDTS CIRCULAR NO.670 DATED 26-10-1993, AN ASSESSIN G OFFICER CAN ADMIT BELATED REFUND CLAIMS U/S. 237 OF T HE I.T.ACT ONLY WHERE THE AMOUNT OF SUCH REFUND DOES NOT EXCEED RS.1 LAKH FOR ANY ASSESSMENT YEAR ITA NO.6805/MUM/2011 M/S. VALBLANC CHEMIC PVT. LTD. 3 ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW BELATED CLAIM OF CREDIT FOR SELF ASSESSMENT TAX WITHO UT APPRECIATING THE FACT THAT IN ACCORDANCE WITH CBDT S CIRCULAR NO.670 DATED 26-10-1993, AN ASSESSING OFFICER CAN AD MIT BELATED REFUND CLAIMS U/S. 237 OF THE I.T.ACT. IN CAS ES WHERE REFUNDS MAY ARISE AS A RESULT OF TDS/TCS AND ADVANCE TAX PAYMENTS ONLY AND NOT ON ACCOUNT OF SELF ASSESSMENT TAX. ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE AN D IN LAW, THE CIT(A) ERRED IN DIRECTING THE ASSESSING OFFICER TO ALLOW BELATED CLAIM OF CREDIT FOR SELF ASSESSMENT TAX PAID OF RS.4 LAKHS WITHOUT APPRECIATING THE FACT THAT SUCH REFUN D IS NOT ALLOWABLE UNDER THE PROVISIONS OF INCOME TAX ACT, 19 61, THE SPECIFIC SECTION BEING SEC.240. 4 AFTER CONSIDERING THE RIVAL SUBMISSIONS AND EXAMI NING THE ISSUE, WE ARE OF THE OPINION THAT REVENUE APPEAL DO ES NOT HAVE ANY MERIT. FIRST OF ALL, ANY PAYMENT OF TAX HAS TO BE GI VEN CREDIT, WHENEVER THERE IS RE-COMPUTATION OF TOTAL INCOME DU E TO CONSEQUENTIAL ORDERS IN APPEAL. THE ISSUE ON MERITS HAS BEEN CONTESTED AT VARIOUS LEVELS AND CONSEQUENT TO THE ORDER OF THE HONBLE BOMBAY HIGH COURT IN ITA 1224/2008, THE TOT AL INCOME WAS DETERMINED RS.77,26,192/- AND THE TAX PAYBLE CO MES TO RS.23,38,375/-. THE ASSESSING OFFICER RAISED FURTHE R DEMANDS IN THE COURSE ASSESSMENT PROCEEDINGS AND THE ASSESSEE PAID FURTHER AMOUNT OF RS.13,31,682/-. THE ASSESSING OFFICER, W HILE GIVING EFFECT TO THE ORDER, DOES NOT GIVE CREDIT FOR THE A MOUNT ALREADY PAID ON 15.03.2012 AT RS.4,00,000/-. THERE IS NO DISPUTE WITH REFERENCE TO PAYMENT OF TAX. IT IS THE DUTY OF THE ASSESSING OFFICER TO GIVE CREDIT TO THE ALL THE TAXES PAID. THIS WAS ALREADY REITERATED IN VARIOUS CIRCULARS OF CBDT MENTIONED IN THE ORDER OF THE CIT(A) IN PARA 2. THESE CIRCULARS ARE BINDING ON THE ASSESSIN G OFFICER. IF THERE IS EXCESS COLLECTION OF TAXES THAN WHAT WAS R EQUIRED BY LAW, THE SAME HAS TO BE REFUNDED. IT IS THE DUTY OF TH E ASSESSING OFFICER TO GIVE CREDIT TO ALL THE TAXES PAID BY ASSESSEE, B E THAT BY WAY OF TDS, ADVANCE TAX, SELF ASSESSMENT TAX OR COLLECTED BY WAY OF RAISING DEMAND. ITA NO.6805/MUM/2011 M/S. VALBLANC CHEMIC PVT. LTD. 4 5 WE ARE SURPRISED THAT IN SPITE OF THE CIT(A) ORDE R, THE ASSESSEE WAS NOT BEEN GIVEN CREDIT. WE ARE UNABLE TO UNDERSTAND HOW THE REVENUE PREFERRED APPEAL WITHOUT GIVING EF FECT TO THE ORDER OF THE CIT(A). AS PER THE INSTRUCTIONS OF BOARD, TH E ASSESSING OFFICER HAS TO GIVE EFFECT TO THE ORDER OF THE CIT(A) FIRST AND THEN ONLY HE CAN PREFER AN APPEAL, IF AGGRIEVED. THE LD. COUNSEL SUBMITTED THAT IN SPITE OF THE ORDER OF THE CIT(A), THE ASSESSING OFFICER HAS NOT GIVEN CREDIT THEREOF. 6 THE ASSESSING OFFICER IS DIRECTED TO GIVE CREDIT IMMEDIATELY AND IF THE AMOUNT IS REFUNDABLE, TO REFUND WITH IN TEREST AS PER LAW. THE CIT IS ALSO DIRECTED TO MONITOR IMPLEMENTING TH IS ORDER BY THE ASSESSING OFFICER AND SEE THAT NO FURTHER GRIEVANCE WAS CAUSED TO THE ASSESSEE BY NON IMPLEMENTING THE ORDERS OF HIG HER AUTHORITIES. APPEAL FILED BY THE REVENUE IS DISMISSED. PRONOUNCED IN THE OPEN COURT ON 21 ST SEPTEMBER, 2012 SD/- (I.P. BANSAL) JUDICIAL MEMBER SD/- (B.RAMAKOTAIAH) ACCOUNTANT MEMBER MUMBAI, DATED 21 ST SEPTEMBER, 2012 RASIKA COPY TO: 1. THE APPELLANT 2. THE RESPONDENT 3. THE COMMISSIONER OF INCOME TAX 18, MUMBAI 4. THE COMMISSIONER OF INCOME TAX, MUMBAI 5. THE DEPARTMENTAL REPRESENTATIVE, BENCH F MUMB AI //TRUE COPY// BY ORDER ASSTT. REGISTRAR, ITAT, MUMBAI