Bengal DCL Housing Development Co. Ltd., Kolkata V. THE DCIT, CIR-8, KOLKATA, Kolkata

ITA 768/KOL/2016

• Counselvise Citation: [2018] 119 COUNSELVISE.COM (IT) 1669 (ITAT-KOLKATA)
• Duration Of Justice: 2 year(s) 7 month(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 22-11-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Assessment Year: 2006-2007
• Appeal Filed On: 22-04-2016
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: K MONDAL
• Assessee Lawyers: BIKAL CLADA
• Section: 143(3); 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL D, BENCH KOLKATA BEFORE SHRI S. S. GODARA, JM & DR. A.L.SAINI, AM ITA NO.768/KOL/2016 (ASSESSMENT YEAR: 2006-07) BENGAL DCL HOUSING DEVELOPMENT CO. LTD. 24B, PARK STREET, KOLKATA 700 016. VS. DCIT, CIRCLE-8, KOLKATA AAYAKAR BHAWAN, P-7, CHOWRINGHEE SQUARE, KOLKATA 700 069. ./ ./PAN/GIR NO. : AABCB 9839 N ( /APPELLANT ) .. ( / RESPONDENT ) APPELLANT BY : SHRI BIKAL CLADA, AR REVENUE BY : SHRI K. MONDAL, ADDL. CIT (SR. DR) / DATE OF HEARING : 26/09/2018 /DATE OF PRONOUNCEMENT: 22/11/2018 / O R D E R PER DR. ARJUN LAL SAINI, AM: THE CAPTIONED APPEAL FILED BY THE ASSESSEE, PERTAINING TO ASSESSMENT YEAR 2006-07, IS DIRECTED AGAINST AN ORDER PASSED BY THE LD. COMMISSIONER OF INCOME TAX (APPEALS)-15, KOLKATA IN APPEAL NO.383/CIT(A)-15/14-15/CIR-8/R&T/KOL, DATED 19.01.2016, WHICH IN TURN ARISES OUT OF AN ASSESSMENT ORDER PASSED BY THE ASSESSING OFFICER U/S 251/143(3) OF THE INCOME TAX ACT, 1961 (HEREINAFTER REFERRED TO AS THE ACT). 2. THE GRIEVANCES RAISED BY THE ASSESSEE ARE AS FOLLOWS: 1. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN LAW BY NOT ALLOWING INTEREST U/S 244A OF THE INCOME TAX ACT, 1961 (THE ACT) ON THE AMOUNT OF REFUND ARISING ON ACCOUNT OF EXCESS PAYMENT OF SELF-ASSESSMENT TAX BY THE APPELLANT. 2. THAT ON THE FACTS AND IN THE CIRCUMSTANCES OF THE CASE, THE LD CIT(A) HAS ERRED IN LAW BY NOT CONSIDERING CLAUSE (B) OF SUB-SECTION (1) OF SECTION 244A AS RESIDUARY IN NATURE WHICH PROVIDES FOR INTEREST ON REFUND IN OTHER CASES INCLUDING EXCESS TAX PAID ON SELF-ASSESSMENT U/S 140A OF THE ACT. BENGAL DCL HOUSING DEVELOPMENT CO. LTD. ITA NO.768/KOL/2016 ASSESSMENT YEAR: 2006-07 2 3. THE BRIEF FACTS QUA THE ISSUE ARE THAT THE LD. CIT(A) DIRECTED THE ASSESSING OFFICER, VIDE ORDER DATED 27.11.2009 IN APPEAL NO.520/CIT(A)-VIII/8(4)/08-09, TO REVISE THE TOTAL INCOME OF THE ASSESSEE. ACCORDINGLY, THE ASSESSING OFFICER COMPUTED REVISED INCOME OF THE ASSESSEE TAKING INTO ACCOUNT THE ORDER U/S 143(3) OF THE ACT. WHILE MAKING THE REVISED COMPUTATION OF THE ASSESSEE, THE ASSESSING OFFICER DID NOT CONSIDER THE SELF ASSESSMENT TAX PAID U/S 140A OF THE ACT PROPERLY AND CHARGED INTEREST U/S 234D AND U/S 220(2) OF THE ACT. DURING THE RELEVANT ASSESSMENT YEAR, THE ASSESSEE COMPANY HAD PAID TAX AGGREGATING TO RS. 76,91,566/- ( CONSISTING RS.57,59,000/- SELF ASSESSMENT TAX PLUS RS.19,32,566/- CREDIT FOR TDS). WHILE ISSUING THE ORDER GIVING EFFECT TO THE ABOVE MENTIONED ORDER OF THE LD CIT(A), INTEREST U/S 244A WAS ALLOWED BY THE ASSESSING OFFICER ONLY TO THE EXTENT OF THE TDS CREDITED CLAIMED BY THE ASSESSEE. THE INTEREST ON REFUND ARISING ON ACCOUNT OF THE EXCESS PAYMENT OF SELF-ASSESSMENT TAX BY THE ASSESSEE WAS IGNORED WHILE COMPUTING THE INTEREST U/S 244A OF THE ACT. 4. THE MAIN GRIEVANCE OF THE ASSESSEE IS THAT THE ASSESSEE HAD PAID HIS SELF- ASSESSMENT TAX U/S 140A OF THE ACT TO THE TUNE OF RS.57,59,000/- WHEREAS THE TOTAL PAYABLE WORKED OUT BY THE ASSESSING OFFICER AFTER CONSIDERING THE INTEREST U/S 234B, 234C WAS TO THE TUNE OF RS.52,97,372/-. THEREFORE, ASSESSEE WAS ENTITLED TO REFUND TO THE TUNE OF RS.4,61,628/- (RS.57,59,000 - 52,97,372). HOWEVER, THE ASSESSING OFFICER ISSUED A REFUND TO THE ASSESSEE ON 16.11.07 TO THE TUNE OF RS.5,50,760/- AND WORKED OUT AMOUNT PAYABLE BY THE ASSESSEE TO THE TUNE OF RS.89,132/-. THEREAFTER, THE ASSESSING OFFICER CHARGED THE INTEREST U/S 234D TO THE TUNE OF RS.6,237/- AND INTEREST U/S 220(2) TO THE TUNE OF RS.10,483/- AND WORKED OUT THE NET PAYABLE BY ASSESSEE TO THE TUNE OF RS.1,05,852/- ( RS. 89,132 + RS.6,237 + RS.10,483). HENCE, THE GRIEVANCE OF THE ASSESSEE IN THIS APPEAL IS THAT THE ASSESSEE IS NOT LIABLE TO PAY ANY INTEREST SINCE HIS SELF ASSESSMENT-TAX PAID BY HIM WAS MORE THAN THE DEMAND OF THE DEPARTMENT. SINCE, THE AO CHARGED INTEREST U/S 234D AND U/S BENGAL DCL HOUSING DEVELOPMENT CO. LTD. ITA NO.768/KOL/2016 ASSESSMENT YEAR: 2006-07 3 220(2) OF THE ACT, THEREFORE, THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LD. CIT(A) WHO HAS DISMISSED THE APPEAL OF THE ASSESSEE. 5. AGGRIEVED BY THE ORDER OF THE LD. CIT(A), THE ASSESSEE IS IN APPEAL BEFORE US. THE LD. COUNSEL FOR THE ASSESSEE SUBMITTED BEFORE US THAT THE ASSESSING OFFICER OUGHT TO HAVE ALLOWED INTEREST U/S 244A OF THE ACT ON THE AMOUNT OF REFUND ARISING ON ACCOUNT OF EXCESS PAYMENT OF SELF-ASSESSMENT TAX BY THE ASSESSEE. THE LD. COUNSEL FOR THE ASSESSEE ALSO POINTED OUT THAT CLAUSE (B) OF SUB-SECTION 1 OF SECTION 244A IS A RESIDUARY IN NATURE WHICH PROVIDES FOR INTEREST ON REFUND IN OTHER CASES INCLUDING EXCESS TAX PAID ON SELF-ASSESSMENT U/S 140A OF THE ACT. 6. ON THE OTHER HAND, THE LD. DR FOR THE REVENUE HAS PRIMARILY REITERATED THE STAND TAKEN BY THE ASSESSING OFFICER WHICH WE DISCUSSED IN OUR EARLIER PARA AND IS NOT BEING REPEATED FOR THE SAKE OF CONVENIENCE AND BREVITY. 7. WE HAVE GIVEN A CAREFUL CONSIDERATION TO THE RIVAL SUBMISSIONS AND PERUSED THE MATERIALS AVAILABLE ON RECORD, WE NOTE THAT DURING THE ASSESSMENT YEAR UNDER CONSIDERATION, THE ASSESSEE COMPANY HAD PAID SELF-ASSESSMENT TAX U/S 140A OF THE ACT AMOUNTING TO RS.57,59,000/- AND CREDITED FOR TAX DEBITED AT SOURCE AGGREGATING TO RS.19,32,566/-. THIS WAY, THE ASSESSEE COMPANY HAD PAID TAX TO THE TUNE OF RS.76,91,566/-. WE NOTE THAT ASSESSEE IS ENTITLED TO HAVE INTEREST ON EXCESS SELF-ASSESSMENT PAID BY HIM AS THE ASSESSEE HAD PAID THE EXCESS AMOUNT HENCE THE ASSESSEE WOULD BE ENTITLED TO INTEREST U/S 244A OF THE ACT, ON THE REFUND OF SELF-ASSESSMENT TAX. WE NOTE THAT THE HONBLE SUPREME COURT IN THE CASE OF CIT VS. ENGINEERS INDIA LTD. [2015] 55 TAXMANN.COM, HELD THAT ASSESSEE WOULD BE ENTITLED TO INTEREST U/S 244A OF THE ACT ON REFUND OF SELF-ASSESSMENT TAX. WE ALSO RELY ON THE JUDGMENT OF THE HONBLE CALCUTTA HIGH COURT IN THE CASE OF CIT VS. BIRLA CORPORATION LTD. WHEREIN IT WAS HELD THAT INTEREST ON REFUND OF EXCESS PAYMENT ON SELF ASSESSMENT TAX SHOULD BE ALLOWED TO THE ASSESSEE. THEREFORE, CONSIDERING THE FACTUAL POSITION AND THE MANDATE OF THE HONBLE SUPREME COURT IN THE CASE OF ENGINEERS INDIA PVT. LTD.(SUPRA), WE ARE OF THE VIEW BENGAL DCL HOUSING DEVELOPMENT CO. LTD. ITA NO.768/KOL/2016 ASSESSMENT YEAR: 2006-07 4 THAT ASSESSEE IS ENTITLED TO TAKE INTEREST ON REFUND OF SELF-ASSESSMENT TAX. THEREFORE, WE DIRECT THE ASSESSING OFFICER TO ALLOW THE INTEREST ON REFUND OF SELF- ASSESSMENT TAX. 8. IN THE RESULT, THE APPEAL FILED BY THE ASSESSEE IS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 22/11/2018. SD/- (S. S. GODARA) SD/- (A. L. SAINI) / JUDICIAL MEMBER / ACCOUNTANT MEMBER /KOLKATA; DATED:22/11/2018 RS, SR.PS / COPY OF THE ORDER FORWARDED TO : 1. / THE APPELLANT- BENGAL DCL HOUSING DEVELOPMENT CO. LTD. 2. / THE RESPONDENT.- DCIT, CIRCLE-8, KOLKATA 3. ( ) / THE CIT(A), 4. / CIT 5. , , / DR, ITAT, KOLKATA 6. [ / GUARD FILE. //TRUE COPY// BY ORDER ASSISTANT REGISTRAR, I.T.A.T, KOLKATA BENCHES, KOLKATA .