VOLTAS LIMITED , MUMBAI V. DEPUTY COMMISSIONER OF INCOME TAX 8(3)(2), MUMBAI

MA 401/MUM/2017

• Counselvise Citation: [2018] 124 COUNSELVISE.COM (IT) 6454 (ITAT-MUMBAI)
• Duration Of Justice: 7 month(s) 19 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 04-04-2018
• Appeal Filed By: Assessee
• Order Result: Allowed
• Bench Allotted: I
• Assessment Year: 2009-2010
• Appeal Filed On: 16-08-2017
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: V VIDHYADHAR
• Section: 244A

Judgement Text

IN THE INCOME TAX APPELLATE TRIBUNAL I BENCH, MUMBAI BEFORE S/ SHRI B.R. BASKARAN (AM) & SANDEEP GOSAIN (JM) M.A. NO. 401/MUM/2017 IN I.T.A. NO. 2521 /MUM/20 1 5 (ASSESSMENT YEAR 20 0 9 - 1 0 ) M/S. VOLTAS LIMITED VOLTAS HOUSE A 4 TH FLOOR, DR. BABASAHEB AMB EDKAR ROAD CHINCHPOKLI MUMBAI - 400 033. PAN NO. AAACV2809D VS. DCIT 8(3)(2) MUMBAI ( APPELLANT ) ( RESPONDENT ) ASSESSEE BY SHRI NITESH JOSHI DEPARTMENT BY SHRI V. VIDHYADHAR DATE OF HEARING 9 . 3 . 201 8 DATE OF PRONOUNCEMENT 4.4 . 201 8 O R D E R PER B.R. BASKARAN (AM) : - THE ASSESSEE HAS FILED THIS MISCELLANEOUS APPLICATION SEEKING RECTIFICATION OF THE ORDER DATED 13.2.2017 PASSED IN THE ABOVE CITED APPEAL PASSED FOR ASSESSMENT YEAR 2009 - 10 . 2. LEARNED COUNSEL APPEARING FOR THE ASSESS EE SUBMITTED THAT THE ASSESSEE RECEIVED REFUND OUT OF SELF ASSESSMENT TAX PAID BY IT FOR AY 2009 - 10 AND ACCORDINGLY WAS ENTITLED TO INTEREST AS PER, THEN EXISTING 2 44 A(1)(B) OF THE ACT . HOWEVER THE ASSESSING OFFICER REJECTED THE SAME ON THE GROUND THAT THE REFUND AMOUNT DUE TO THE ASSESSEE IS LESS THAN 10% OF THE ASSESSED TAX BY APPLYING THE PROVISO TO SEC. 244(1)(A) OF THE ACT. THE ASSESSEE CARRIED THE MATTER IN APPEAL BEFORE THE LEARNED CIT(A), WHO ALLOWED THE CLAIM OF THE ASSESSEE BY FOLLOWING THE DECIS ION RENDERED BY HON'BLE PUNJAB & HARYANA HIGH COURT IN THE CASE OF CIT VS. PUNJAB CHEMICALS AND CROP PROTECTION LTD. (2015) 370 ITR 481 AND ALSO DECISION RENDERED BY HON'BLE KOLKATA BENCH OF THE ITAT IN THE CA SE OF ADIT(IT) VS. ROYAL BANK OF SCOTLAND N.V. (ITA NO. 976/KOL/2010 ) , I.E., M/S. VOLTAS LIMITED 2 T HE LEARNED CIT(A) ACCEPTED THE CONTENTION OF THE ASSESSEE THAT LIMIT OF 10% PRESCRIBED UNDER PROVISO TO SECTION 244A(1)(A) WILL NOT APPLY TO THE INTEREST GRAN TED U/S. 244A(1)(B) OF THE ACT. HENCE REVENUE PREFERRED APPEAL BEFO RE TRIBUNAL CHALLENGING THE ORDER PASSED BY LD CIT(A). THE TRIBUNAL, HOWEVER, RESTORED THE MATTER TO THE FILE OF THE AO BY THE IMPUGNED ORDER. 3. THE LEARNED AR SUBMITTED THAT AN IDENTICAL ISSUE CAME BEFORE THE TRIBUNAL IN ASSESSEES OWN CASE IN EARLIER Y EARS RELATING TO A.YS. 2008 - 09 AND 2011 - 12 AND THE COORDINATE BENCH HAS UPHELD THAT ORDER PASSED BY THE LEARNED CIT(A) IN THOSE YEARS BY FOLLOWING THE DECISION RENDERED BY HON'BLE BOMBAY HIGH COURT IN THE CASE OF STOC K HOLDING CORPORATION OF INDIA LTD. AC CORDINGLY, AT THE TIME OF ORIGINAL HEARING, THE ISSUE URGED IN THIS APPEAL WAS HEARD AS A COVERED MATTER. THE LEARNED AR SUBMITTED THAT THE TRIBUNAL, HOWEVER , HAS RESTORED THE MATTER TO THE FILE OF THE ASSESSING OFFICER WITH THE OBSERVATION THAT THE LEARNE D CIT(A) DID NOT ADDRESS THE ISSUE AS TO WHETHER PROVISO TO SECTION 244A WOULD BE APPLICABLE TO THE ASSESSEE OR NOT. 4. THE LEARNED AR OF THE ASSESSEE SUBMITTED THAT THE LEARNED CIT(A) HAS GIVEN A CATEGORICAL FINDING THAT PROVISO TO SECTION 244A(1)(A) WI LL NOT APPLY TO THE INTEREST GRANTED U/S. 244A(1)(B) OF THE ACT , BY FOLLOWING TWO DECISIONS REFERRED ABOVE. HE SUBMITTED THAT THE DECISION RENDERED BY KOLKATA BENCH OF THE TRIBUNAL AS WELL AS HON'BLE P&H HIGH COURT REFERRED ABOVE WERE OMITTED TO BE CONSIDE RED BY THE BENCH AT THE TIME OF PASSING THE ORDER AND THE SAME HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. ACCORDINGLY, LEARNED AR PRAYED THAT THE MISTAKE MAY BE RECTIFIED. 5. WE HAVE HEARD LEARNED DR AND PERUSED THE RECORD. WE AGREE WITH THE CONTENT ION S OF LEARNED AR THAT THE TRIBUNAL HAS OMITTED TO CONSIDER THE DECISION RENDERED BY THE KOLKATA BENCH OF THE TRIBUNAL AS WELL AS P&H HIGH COURT REFERRED ABOVE. ACCORDINGLY, WE ARE OF THE VIEW THAT IT HAS RESULTED IN A MISTAKE APPARENT FROM RECORD. ACCOR DINGLY WE ARE OF THE VIEW THAT THE IMPUGNED ORDER PASSED BY THE TRIBUNAL DESERVES TO BE RECALLED. M/S. VOLTAS LIMITED 3 6. ACCORDINGLY WE HEREBY RECALL THE IMPUGNED ORDER DATED 13 - 02 - 2017 PASSED IN ITA NO.2521/MUM/2015 AND DIRECT THE REGISTRY TO POST THE APPEAL FOR FRESH HE ARING IN THE NORMAL COURSE UNDER INTIMATION TO THE PARTIES. 7 . IN THE RESULT, MISCELLANEOUS APPLICATION FILED BY THE ASSESSEE IS ALLOWED. ORDER HAS BE E N PRONOUNCED IN THE COURT ON 4 . 4 .201 8 . SD/ - SD/ - (SANDEEP GOSAIN ) (B.R.BASKARAN) JUDIC IAL MEMBER ACCOUNTANT MEMBER MUMBAI ; DATED : 4 / 4 / 20 1 8 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// ( SENIOR PRIVATE SECRETARY ) PS ITAT, MUMBAI