M/s. MRF Limited, CHENNAI V. DCIT, CHENNAI

MA 200/CHNY/2011

• Counselvise Citation: [2012] 123 COUNSELVISE.COM (IT) 7471 (ITAT-CHENNAI)
• Duration Of Justice: 3 month(s) 17 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 31-01-2012
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: A
• Next Hearing Date: 20-01-2012
• Assessment Year: 2002-2003
• Appeal Filed On: 13-10-2011
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Assessee Lawyers: R VIJAYARAGHAVAN
• Section: 143(3)

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL A BENCH : CHENNAI [BEFORE SHRI HARI OM MARATHA, JUDICIAL MEMBER AND SHRI ABRAHAM P GEORGE, ACCOUNTANT MEMBER] M.P.NO.200/MDS/2011 [ARISING OUT OF I .T.A NO.1676/MDS/2010 ] ASSESSMENT YEAR : 2002-03 M/S MRF LIMITED 124, GREAMS ROAD CHENNAI 600 006 [PAN AACM 4154G] VS THE THE DY. CIT LARGE TAX PAYER UNIT CHENNAI (PETITIONER) (RESPONDENT) PETITIONER BY : SHRI R.VIJAYARAGHAVAN, ADVOCATE RESPONDENT BY : SHRI SHAJI P. JACOB, ADDL. CIT DATE OF HEARING : 20-01-2012 DATE OF PRONOUNCEMENT : 31-01-2012 O R D E R PER HARI OM MARATHA, JUDICIAL MEMBER: THIS MISCELLANEOUS PETITION IS DIRE CTED AGAINST THE ORDER OF THE TRIBUNAL DATED 11.3.2011 IN REVENUES APPEAL IN I.T.A.NO. 1676/MDS/2010, FOR ASSESSMENT YEAR 2002-03, IN WITH REGARD TO LEVY OF INTEREST U/S 234D OF THE ACT. 2. IT HAS BEEN SUBMITTED THROUGH THIS MISCELLANEO US PETITION IN QUESTION THAT THE REVENUE HAS RAISED GROUND NOS.3.1 TO 3.4 REGARDING LEVY OF INTEREST U/S 234D AND AFTER INCORPORATING THESE GROUNDS, M.P 200/11 :- 2 -: REFERENCE HAS BEEN MADE TO PARAGRAPHS 5 & 6 OF THE TRIBUNALS ORDER AND THESE PARAGRAPHS HAVE BEEN VERBATIM INCORPORATE D IN THE BODY OF THE PETITION. ALTHOUGH THE ISSUE OF INTEREST WAS D ECIDED IN FAVOUR OF THE ASSESSEE BUT THE GREVIENCE OF THE PETITIONER B EFORE US IS THAT THE TRIBUNAL HAS NOT DECIDED ON THE ISSUE THAT THERE WA S NO REFUND UNDER THE ORDER MADE U/S 143(1) AND THEREFORE, PROVISION S OF SECTION 234D IS NOT APPLICABLE AT ALL AND HAS ALSO NOT DEALT WIT H THE APPLICABILITY OF THE JURISDICTIONAL HIGH COURTS DECISION RENDERED I N THE CASE OF CIT VS RAMCO INDUSTRIES IN TAX CASE NO.1343/09. IN THE AB OVE DECISION IT WAS HELD THAT IF NO REFUND IS GRANTED U/S 143(1), INTEREST U/S 234D IS NOT CHARGEABLE. IT HAS BEEN PLEADED THAT THE DEPAR TMENT HAS FILED AN APPEAL BEFORE THE HON'BLE HIGH COURT BY WAY OF TA X CASE (APPEALS) NO.319 OF 2011 WHICH CAME UP FOR ADMISSION ON 28.9. 2011 AFTER SERVICE OF NOTICE ON THE ASSESSE. IT IS MENTIONED IN THE PETITION THAT THEIR LORDSHIPS OF HON'BLE MADRAS HIGH COURT HAVE D IRECTED THE APPELLANT TO GET A CLARIFICATION FROMT HET RI REGAR DING NON-CONSIDERATION OF THE CONTENTION THAT PROVISIONS OF SECTION 234D A RE NOT APPLICABLE AS THERE WAS NO REFUND U/S 143(1) AS WELL AS THE JURI SDICTIONAL HIGH COURTS DECISION IN THE CASE OF RAMCO INDUSTRIES (S UPRA). IN THESE BACKGROUND, IT HAS BEEN ARGUED THAT NON-CONSIDERATI ON OF THE PROVISIONS OF LAW AND JURISDICTIONAL HIGH COURTS D ECISION, A MISTAKE APPARENT FROM RECORD RECTIFIABLE U/S 254(2) HAS CR EPT INTO THE ORDER OF THE TRIBUNAL IN VIEW OF THE DECISION OF THE HON'B LE APEX COURT M.P 200/11 :- 3 -: RENDERED IN THE CASE OF CIT VS SAURASHTRA KUTCH STO CK EXCHANGE LTD, 305 ITR 227(SC). SO, IT HAS BEEN PLEADED THAT A MI STAKE APPARENT FROM RECORD HAS CREPT INTO THE ORDER OF THE TRIBUNA L AND RECTIFICATION OF THE SAME HAS BEEN SOUGHT. 3. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND HAVE TREADED THROUGH THE ENTIRE RECORDS PARTICULARLY IN VIEW OF THE MENTION THAT THEIR LORDSHIPS OF HON'BLE MADRAS HIGH COURT HAVE DIRECTE D THE APPELLANT TO GET A CLARIFICATION AS STATED ABOVE. THIS CONTENTI ON HAS BEEN REPELLED BY THE REVENUE ON THE REASONING THAT THE ASSESSEE WAS NOT IN APPEAL AND THE ORDER HAS BEEN RENDERED ON THIS ISSUE REGAR DING CHARGEABILITY OF INTEREST U/S 234D IN FAVOUR OF THE ASSESSEE AN D THEREFORE, THERE CANNOT BE ANY OCCASION TO FILE RECTIFICATION PETITI ON U/S 254(2). IT WAS ALSO ARGUED THAT THERE IS NO SUCH MISTAKE APPARENT FROM RECORD AS HAS BEN CONTENDED FROM THE SIDE OF THE PETITIONER. AFT ER HEARING BOTH SIDES, WE HAVE NOTICED THAT UNDER THE PROVISIONS OF SECTION 254(2), THE TRIBUNAL IS EMPOWERED TO RECTIFY ANY MISTAKE AT ANY TIME WITHIN FOUR YEARS FROM THE DATE OF THE ORDER IN CASE SUCH A MI STAKE IS BROUGHT TO ITS NOTICE BY EITHER PARTIES OR EVEN IF IT IS NOTIC ED SUO MOTU BY THE BENCH. ACCORDINGLY, WE PROCEED TO DECIDE THE IMPUGN ED ISSUE IGNORING THE LEGAL OBJECTION. ON MERITS, IT HAS BEEN NOTICE D THAT NOWHERE THE FACT AS HAS BEEN ALLEGED BY THE ASSESSEE THAT THE ASSESSING OFFICER HAS CHARGED INTEREST U/S 234D FOR REFUNDS GRANTED EARLIER IN REVISIONS M.P 200/11 :- 4 -: FOR GIVING EFFECT TO APPELLATE ORDER ETC. ALTHOUGH AN ARGUMENT WAS RAISED BEFORE THE LD.CIT(A) THAT SUCH INTEREST CAN BE CHARGED ONLY IF THE REFUND ORIGINATES FROM AN ORDER PASSED U/S 143 (1) AND NOT OTHERWISE AND IN SUPPORT THEREOF RELIANCE WAS PLACE D ON THE DECISION OF THE HON'BLE MADRAS HIGH COURT RENDERED IN THE CA SE OF RAMCO INDUSTRIES (SUPRA). NOT ONLY THAT, THE FACTS OF THI S ISSUE WERE CONFIRMED EITHER BY THE ASSESSING OFFICER IN THE WAY IT HAS B EEN ALLEGED BY THE ASSESSEE OR BY THE LD.CIT(A) AND THE LD.CIT(A) HA S DECIDED THE ISSUE IN THE WAY THE BENCH AS DEALT WITH THE SAME. PARAG RAPH 8 AND 8.1 OF THE LD.CIT(A)S ORDER ARE RELEVANT AND ARE EXTRACT ED VERBATIM HEREIN BELOW: :8. THE NEXT ISSUE PERTAINS TO LEVY OF INTEREST U/S 234D. THE APPELLANT HAS CONTESTED CHARGING OF INTEREST U/S 2 34D IN THE RE-ASSESSMENT ORDER DATED 23.12.2009. IN DETERMININ G THE TAX PAYABLE IN HIS ORDER DATED 23.12.2009, THE ASSESSIN G OFFICER CHARGED INTEREST U/S 234D FOR REFUNDS GRANTED EARL IER IN REVISIONS FOR GIVING EFFECT TO APPELLATE ORDER ETC. THE APPELLANT SUBMITS THAT SUCH INTEREST CAN BE CHARGED ONLY IF T HE REFUND ORIGINATES FROM AN ORDER PASSED U/S 143(1) AND NOT OTHERWISE. FOR THIS VIEW, HE HAS PLACED RELIANCE ON THE DECISI ON OF THE MADRAS HIGH COURT IN CIT VS RAMCO INDUSTRIES (TAX C ASE NO.1343/2009). 8.1 I HAVE CONSIDERED THE FACTS OF THE CASE AND SU BMISSIONS OF THE LD. AR. THE A.Y PRESENTLY UNDER APPEAL IS A .Y 2002-03. THE PROVISIONS OF SECTION 234D WERE INTRODUCED INTO THE STATUTE W.E.F 1.6.2003. IT HAS BEEN HELD IN ITO VS EKTA PROMOTERS PVT. LTD (2008) 113 ITD 719 (DELHI)(SB) T HAT PROVISIONS OF SECTION 234D WHICH HAVE BEEN BROUGHT ON STATUTE FROM 1.6.2003 WILL HAVE APPLICATION ONLY WI TH EFFECT FROM A.Y 2004-05 AND THEREFORE, INTEREST UNDER SECT ION 234D CANNOT BE CHARGED FOR EARLIER YEARS EVEN THOUGH REG ULAR ASSESSMENT FOR THOSE YEARS WERE FRAMED AFTER 1.6.20 03 OR REFUND WAS GRANTED FOR THOSE YEARS AFTER SAID DATE. FURTHER, IN M.P 200/11 :- 5 -: THE CASE OF ORACLE INDIA (P) LTD VS THE DY. CIT, 11 8 TTJ (DELHI) 812 ALSO IT WAS HELD THAT INTEREST UNDER SE CTION 234D IS CHARGEABLE FROM A.Y 2004-05 ONLY AND NOT PRIOR TO T HAT. RESPECTFULLY FOLLOWING THE ABOVE DECISIONS, THE A.O IS DIRECTED NOT TO LEVY INTEREST U/S 234D. THIS GROUND IS ACC ORDINGLY ALLOWED. 4. AFTER GETTING THIS ORDER OF THE LD.CIT(A), THE AS SESSEE HAS NOT RAISED ANY ISSUE IN APPEAL BEFORE THE TRIBUNAL AND HAS ACCEPTED WHAT HAS BEEN DECIDED AND THE REASONS FOR THAT DECISION. MEANING THEREBY, THE FINDINGS OF THE LD.CIT(A) HAVE NOT BEEN CHALLE NGED BY THE ASSESSEE IN SECOND APPEAL BEFORE THE TRIBUNAL. BY ACCEPTING THE VERSION OF THE PETITIONER THAT THE HON'BLE HIGH COU RT HAS DIRECTED TO GET CLARIFICATION IN THIS REGARD ALTHOUGH NO WRITTE N ORDER WAS PLACED NOR ANY AFFIDAVIT IN SUPPORT OF THIS VERSION HAVING FIL ED FROM THE PETITIONERS SIDE, BUT STILL HAVING BELIEF IN THE ADVOCATE WHATE VER HAS BEEN STATED AT THE BENCH WHILE ARGUING ORALLY, WE HAVE CIRCUMSP ECTED ON THE ISSUE BUT WE ARE UNABLE TO STATE AS TO WHETHER REFUND U/ S 143(1) OF THE ACT WAS GRANTED OR NOT GRANTED DURING THIS YEAR TO THE ASSESSE. THE ASSESSEE HAD NOT CLEARLY BROUGHT THE FACTS OF THIS ISSUE EITHER BEFORE THE LD.CIT(A) OR BEFORE THE TRIBUNAL. THE ONLY AV ERMENT WAS REGARDING CHARGEABILITY OF INTEREST IN THE LIGHT OF THE ABOVEMENTIONED HON'BLE MADRAS HIGH COURTS DECISION. IN THE ASSES SMENT ORDER, THE DATE OF PROCESSING OF RETURN U/S 143(1) OF THE ACT HAS NOT BEEN MENTIONED AND THE ASSESSMENT WAS PASSED U/S 143(3 ) ON 31.3.2005 M.P 200/11 :- 6 -: WHICH WAS SUBJECTED TO RE-ASSESSMENT PROCEEDINGS A ND FURTHER ASSESSMENT ORDER WAS PASSED U/S 143(3) R.W.S 147 O N 23.12.2009. IN THESE CIRCUMSTANCES, WE ARE UNABLE TO DECIDE THE IS SUE AND FOR THAT MATTER, THE GROUND RAISED BY THE REVENUE IN THIS RE GARD AS GROUND NO.3 (3.1 TO 3.4) HAS TO BE DEALT WITH AFTER RECALL ING THE ORDER TO THAT EXTENT. ACCORDINGLY, IN THE GIVEN FACTS AND CIRCUM STANCES OF THE CASE, WHERE HON'BLE JURISDICTIONAL HIGH COURTS DECISION REMAINED TO BE CONSIDERED, WE RECALL THE ORDER IN QUESTION FOR THE LIMITED PURPOSE OF DECIDING THIS ISSUE; AND DIRECT THE REGISTRY TO FIX THE APPEAL FOR HEARING IN DUE COURSE. 5. IN THE RESULT, THE MISCELLANEOUS PETITION FILED B Y THE ASSESSEE STANDS ALLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON 31.1.2 012. SD/- SD/- (ABRAHAM P GEORGE) ACCOUNTANT MEMBER ( HARI OM MARATHA ) JUDICIAL MEMBER DATED: 31 ST JANUARY, 2012 RD COPY TO: PETITIONER/RESPONDENT/CIT(A)/CIT/DR