DCIT, LTU, Bangalore V. M/s Bosch Ltd., Bangalore

ITA 990/BANG/2009

• Counselvise Citation: [2011] 135 COUNSELVISE.COM (IT) 1637 (ITAT-BANGALORE)
• Duration Of Justice: 1 year(s) 2 month(s) 27 day(s)
• Appeal Type: Income Tax Appeal
• Pronouncement Date: 25-01-2011
• Appeal Filed By: Department
• Order Result: Partly Allowed
• Bench Allotted: B
• Next Hearing Date: 26-05-2011
• Assessment Year: 1993-1994
• Appeal Filed On: 29-10-2009
• Result in Favour of: Partly Allowed
• Court: TRIBUNAL
• Department Lawyers: K HARIPRA SAD RAO
• Assessee Lawyers: P J PARDIWALLA
• Keywords: Opportunity of being heard; Assessment record; Tax effect
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL B BENCH : BANGALORE BEFORE SMT. P. MADHAVI DEVI, JUDICIAL MEMBER AND SHRI A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER ITA NO S . 984, 990 TO 99 2 /BANG/2009 ASSESSMENT YEAR S : 1991 - 92, 1993 - 94 , 1994 - 95 & 1997 - 98 THE DEPUTY COMMISSIONER OF INCOME TAX (LTU), BANGALORE. : APP ELL ANT VS. M/S. BOSCH LTD., (FORMERLY MOTOR INDUSTRIES CO. LTD.), POST BAG NO.3000, HOSUR ROAD, ADUGODI, BANGALORE 560 100. : RESPONDENT APP EL LA NT BY : SHRI K. HARIPRA SAD RAO, ADDL.CIT(DR) RESPONDENT BY : SHRI P.J. PARDIWALLA, SR. ADVOCATE. O R D E R PER A. MOHAN ALANKAMONY, ACCOUNTANT MEMBER THESE FOUR APPEALS ITA NO.990, 991, 992 & 984/BANG/09 ARE FILED BY THE REVENUE DIRECTED AGAINST THE COMMON ORDER OF TH E LD. CIT(A) - LTU, BANGALORE. I N ITA NO.70 &71/CIT(LTU)/07 - 08 AND ITA NO.5 & 4/CIT(LTU)/08 - 09 DATED 15.7.2009 FOR THE A.Y. 1991 - 92, 1993 - 94, 1994 - 95 & 1997 - 98. ITA NO.900/BANG/09 PAGE 2 OF 4 2. IN ALL THESE APPEALS, THE REVENUE HAS RAISED SIX IDENTICAL GROUNDS WHEREIN GROUND NOS.1, 5 & 6 ARE GENERAL IN NATURE AND THEREFORE DO NOT SURVIVE FOR ADJUDICATION. GROUND NO.4 ONLY SPECIFIES THE TAX EFFECT INVOLVED FOR THESE ASSESSMENT YEARS. THE CRUX OF THE ISSUE ARISING FROM GROUND NO.2 & 3 IS THAT THE LD. CIT(A) HAS ERRED IN DIRECTING THE AO TO ALLOW THE ASSESSEE INTEREST U/S. 244 AND/OR 244A OF THE ACT ON THE TOTAL AMOUNT OF REFUND INCLUDING THE INTEREST PORTION OF THE REFUND IN ACCORDANCE WITH THE PROVISION OF THE SAID SECTION AS THE ASSESSEE IS ENTITLED TO. 3. AT THE OUTSET, LD. DR PRAYED FOR ADJOURNMENT DUE TO NON - AVAILABILITY OF ASSESSMENT RECORDS WHICH WAS ESSENTIAL FOR HIM TO FRAME THE ARGUMENTS. 4. LD. AR STOUTLY OBJECTED FOR THE GRANT OF TIME BECAUSE ON SEVERAL OCCASIONS WHEN THE CASE CAME UP FOR HEARING EARLIER, LD. DR SOU GHT FOR TIME ON THE SAME GROUND. EVEN AT THE APPELLATE STAGE BEFORE THE CIT(A), THE REVENUE HAD NOT PRODUCED THE RECORDS WHICH INSTIGATED THE LD. CIT(A) TO REMIT THE MATTER BACK TO THE FILE OF LD. AO FOR CALCULATING THE INTEREST ON REFUND BY FOLLOWING THE DECISION OF THE HON BLE M.P. HIGH COURT IN THE CASE OF CIT V. HEG LTD. (2009) 310 ITR 34 WHEREIN THE DECISION OF VARIOUS OTHER HIGH COURTS AND ALSO THE HON BLE SUPREME COURT IN THE CASE OF SANDVIK ASIA LTD. V. CIT WAS FOLLOWED. LD. AR FORCEFULLY ARGUED S INCE THE MATTER IS ALREADY REMITTED BACK TO THE LD. AO BY THE LD. CIT(A), REVENUE SHOULD HAVE NO GRIEVANCE. LD. AR PRAYED THAT AT THIS STAGE THE ORDER OF THE LD. CIT(A) NEED NOT BE INTERFERED. ITA NO.900/BANG/09 PAGE 3 OF 4 5. WE HAVE HEARD THE RIVAL SUBMISSIONS AND PERUSED THE REC ORDS PRODUCED BEFORE US. WE HAVE ALSO TAKEN NOTE OF THE WRITTEN SUBMISSION FILED BY THE REVENUE ON THE DATE OF THE HEARING RUNNING TO 9 SHEETS. IT IS PERTINENT TO MENTION THAT EITHER THE LD. CIT(A) OR THE LD. DR DID NOT HAVE AN OPPORTUNITY TO PERUSE THE ASSESSMENT RECORDS, TO FORM AN OPINION ON THE FACTS AND LEGAL PROPOSITION OF THE CASE SINCE THEY WERE NOT MADE AVAILABLE BEFORE THEM BY THE REVENUE. LD. CIT(A) HAVE CATEGORICALLY RECORDED THESE FACTS IN HIS ORDER IN THE CONCLUDING PARA 2.11, WHICH IS REPR ODUCED HEREINBELOW FOR REFERENCE: 2.11 SINCE I HAD NO OCCASION TO GO THROUGH THE ASSESSMENT RECORDS, IT IS NOT POSSIBLE TO VERIFY THE CALCULATION OF INTEREST ON REFUND AND THE DATES FROM WHICH INTEREST IS PAYABLE. THEREFORE, RESPECTFULLY FOLLOWING T HE DECISION OF THE HON BLE M.P. HIGH COURT, THE AO IS DIRECTED TO RECALCULATE THE INTEREST ON REFUND AND SIMULTANEOUSLY TO VERIFY THE CORRECTNESS OF THE RECOMPUTATION OF INCOME AFTER GIVING AN OPPORTUNITY OF BEING HEARD. 6. IN THIS SITUATION, WE ARE ALS O OF THE CONSIDERED OPINION THAT SINCE THE CASE IS REMITTED BACK TO THE FILE OF THE LD. AO BY THE LD. CIT(A), THE ASSESSEE MAY RAISE ALL ISSUES/GROUNDS INCLUDING THE APPLICABILITY OF THE DECISION OF HON BLE M.P. HIGH COURT REFERRED SUPRA BEFORE THE LD. AO FOR DEFENDING ITS CASE AND THE LD. AO MAY PASS FRESH ORDERS IN ACCORDANCE WITH LAW. 7. IN THE RESULT, THE APPEALS OF THE REVENUE ARE PARTLY ALLOWED FOR STATISTICAL PURPOSES. ITA NO.900/BANG/09 PAGE 4 OF 4 PRONOUNCED IN THE OPEN COURT ON THIS 25 TH DAY OF JANUARY, 2011 . SD/ - SD/ - ( SMT. P. MADHAVI DEVI ) ( A. MOHAN ALANKAMONY ) JUDICIAL MEMBER ACCOUNTANT MEMBER BANGALORE, DATED, THE 25 TH JANUARY, 2011 . DS/ - COPY TO: BY ORDER ASSISTANT REGISTRAR ITAT, BANGALORE. 1. APP EL LANT 2. RESPONDENT 3. CIT 4. CIT(A) 5. DR, ITAT, BANGALORE. 6. GUA RD FILE