ASST CIT 2(3), V. TATA POWER CO. TD,

MA 691/MUM/2012

• Counselvise Citation: [2013] 124 COUNSELVISE.COM (IT) 0313 (ITAT-MUMBAI)
• Duration Of Justice: 4 month(s) 16 day(s)
• Appeal Type: Miscellaneous Application
• Pronouncement Date: 05-04-2013
• Appeal Filed By: Department
• Order Result: Dismissed
• Bench Allotted: D
• Assessment Year: 2002-2003
• Appeal Filed On: 19-11-2012
• Result in Favour of: Assessee
• Court: TRIBUNAL
• Department Lawyers: D K SINHA
• Assessee Lawyers: DINESH VYAS
• Section: 244A

Judgement Text

1 MA NO. 691/MUM/ 2012 IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES E BEFORE SHRI P.M. JAGTAP, AM AND DR. S.T.M. PAVALAN, JM MA NO. 691/MUM/2012 ARISING OUT OF ITA NO. 3035/MUM/2009 ASSESSMENT YEAR 2002-03 THE ASSTT. COMMISSIONER OF INCOME TAX 2(3), R. NO. 552, AAYAKAR BHAVAN, M.K. ROAD, MUMBAI 400 020. VS. M/S TATA POWER CO. LTD., CORPORATE CENTRE, B-BLOCK, 5 TH FLOOR, 34, SANT TUKARAM ROAD, CARNAC BUNDER, MUMBAI. 400 009. PAN AAACT 0054A APPLICANT RESPONDENT APPLICANT BY SHRI D.K. SINHA RESPONDENT BY SHRI DINESH VYAS DATE OF HEARING : 05-04 -2013 DATE OF PRONOUNCEMENT : 05-04-2013 ORDER PER P.M. JAGTAP, A.M. BY THIS MISC. APPLICATION, THE REVENUE IS SEEKING R ECTIFICATION OF THE MISTAKES ALLEGED TO HAVE CREPT IN THE ORDER OF THE TRIBUNAL DTD. 20-4-2012 PASSED IN ITA NO. 3035/MUM/2009 FOR A.Y 2002-03. 2. WE HAVE HEARD THE ARGUMENTS OF BOTH THE SIDES AN D ALSO PERUSED THE RELEVANT MATERIAL ON RECORD. AS SUBMITTED BY THE RE VENUE IN THE PRESENT MISC. APPLICATION AND FURTHER REITERATED BY THE LD. D.R. AT THE TIME OF HEARING BEFORE US, THE ORDER OF THE TRIBUNAL DTD. 20-4-2012 (SUPRA ) SUFFERS FROM THE FOLLOWING MISTAKES:- 2 MA NO. 691/MUM/ 2012 IN THIS CASE THE ASSESSING OFFICER GRANTED INTERES T U/S.244A OF THE I.T. ACT 1961 FROM OCTOBER 2004 TO FEBRUARY 2005. THE AS SESSEE DISPUTED THE PERIOD OF GRANTING INTEREST U/S.244A AND FILED AN APPEAL BEFORE THE CIT(A). THE CIT(A) DIRECTED TO GRANT INTEREST FROM APRIL 2004 TO FEBRUARY 2005. THE HONBLE ITAT HAS CONFIRMED THE DIRECTION GIVEN BY THE CIT(A) ON THE GROUND THAT THE FACTS SHOWED THAT AMOUNTS IN QUESTION WAS TAX DEDUCTED AT SOURCE AND THERE WAS NO DELAY ON THE PA RT OF THE ASSESSEE. THE HONBLE ITAT WAS PLEASED TO ALLOW INTEREST U/S. 244A AMOUNTING TO RS. 1,48,968/- BY HOLDING THAT THE A.O. WAS REQUIRE D TO SEEK THE OPINION OF CHIEF COMMISSIONER BEFORE EXCLUDING THE PERIOD F OR WHICH INTEREST WAS PAYABLE. 2. THE FINDING OF THE HONBLE ITAT IN THIS REGARD I S NOT IN ORDER. SECTION 244A(2) LAYS DOWN THAT WHERE ANY DISPUTE ARISES AS TO THE PERIOD TO BE EXCLUDED FOR PAYMENT OF INTEREST, IT SHALL BE DECID ED BY THE CHIEF COMMISSIONER OR COMMISSIONER, WHOSE DECISION THEREO N SHALL BE FINAL. IN THE PRESENT CASE, THE ASSESSEE SHOULD HAVE APPROACH ED THE CHIEF COMMISSIONER OR COMMISSIONER SINCE IT HAS RAISED TH E DISPUTE ABOUT THE PERIOD TO BE EXCLUDED FOR PAYMENT OF INTEREST. THE ASSESSEE HAS WRONGLY APPROACHED THE CIT(A) AND THE ITAT FOR THIS PURPOSE . 3. WE HAVE PERUSED THE PROVISIONS OF SUB-SECTION (2) O F SECTION 244A OF THE INCOME TAX ACT, 1961 AS REFERRED TO BY THE REVENUE IN ITS MISC. APPLICATION. AS PROVIDED THEREIN, IF THE PROCEEDINGS RESULTING IN T HE REFUND ARE DELAYED FOR REASONS ATTRIBUTABLE TO THE ASSESSEE, WHETHER WHOLL Y OR IN PART, THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HIM SHALL BE EXCLUDED FROM THE PERIOD FOR WHICH INTEREST IS PAYABLE, AND WHERE ANY QUESTION ARISES AS TO THE PERIOD TO BE EXCLUDED, IT SHALL BE DECIDED BY THE CHIEF COMMISSI ONER OR COMMISSIONER WHOSE DECISION THEREON SHALL BE FINAL. IN ITS ORDE R DTD. 20-4-2012 (SUPRA), THE TRIBUNAL AFTER TAKING INTO CONSIDERATION THE SAID P ROVISIONS HAS HELD THAT IF THE A.O. WANTED TO EXCLUDE ANY SUCH PERIOD ON THE GROUN D THAT THE DELAY WAS ATTRIBUTABLE TO THE ASSESSEE, HE SHOULD HAVE SOUGHT THE OPINION OF THE CHIEF COMMISSIONER. THE TRIBUNAL THUS HAS TAKEN A WELL C ONSIDERED DECISION ON INTERPRETATION OF THE RELEVANT PROVISION OF SECTIO N 244A(2) OF THE ACT AND WHAT 3 MA NO. 691/MUM/ 2012 THE REVENUE IS NOW SEEKING BY WAY OF THE PRESENT MI SC. APPLICATION IS THE REVIEW OF THE WELL CONSIDERED DECISION OF THE TRIBU NAL BASED ON SUCH INTERPRETATION, WHICH IS BEYOND THE RECTIFICATION P ERMISSIBLE U/S 254(2) OF THE ACT. WE THEREFORE FIND NO MERIT IN THE PRESENT MISC . APPLICATION FILED BY THE REVENUE AND DISMISS THE SAME. 4. IN THE RESULT, THE MISC. APPLICATION FILED BY TH E REVENUE IS DISMISSED. ORDER PRONOUNCED ON 05-04-2013. SD/- SD/- (DR. S.T.M. PAVALAN) (P.M. JAGTAP) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI, DATED 05-04-2013. RK COPY TO 1. THE APPELLANT 2. THE RESPONDENT 3. THE CIT(A) CONCERNED - MUMBAI 4. THE CIT- CONCERNED, MUMBAI 5. THE DR BENCH, J 6. MASTER FILE // TUE COPY// BY ORDER DY/ASSTT. REGISTRAR ITAT, MUMBAI