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Income Tax Appellate Tribunal, “A’’ BENCH: BANGALORE
Before: SHRI CHANDRA POOJARI & SMT. BEENA PILLAI
PER CHANDRA POOJARI, ACCOUNTANT MEMBER:
This appeal by assessee is directed against order of NFAC dated 28.4.2023 for the assessment year 2010-11. The assessee has raised following grounds:
1. That the order passed by Authorities below in so far as it is against the appellant is against the law, facts, circumstances, natural justice. without jurisdiction, bad in law and all other known principles of law.
2. The learned CIT-Appeals (NFAC) erred in holding the appeal filed by the appellant as infructuous in nature and dismissing the same.
3. That the learned CIT-Appeals (NFAC) failed to appreciate that the Order Giving Effect to VSVS was a combined order giving effect to VSVS and rectification sought by the appellant. 4. That the learned CIT-Appeals (NFAC) failed to appreciate that the AO had erred in not granting credit for full TDS.
M N Dastur & Co. Pvt. Ltd., Bangalore Page 2 of 10 5. That the learned CIT-Appeals (NFAC) failed to appreciate that the AO had erred in not granting correct interest u/s 244A of the Act and failed to provide the quantification of interest u/s 244A of the Act.
6. The learned CIT-Appeals (NFAC) erred in not granting reasonable and sufficient opportunity to the appellant thus violating the principles of natural justice 7. For the above and other grounds and reasons which may be submitted during the course of hearing of this appeal, the assessee requests that the appeal be allowed as prayed and justice be rendered.
Facts of the case are that in the instant case, the assessment order u/s 143(3) r.w.s. 254 of the Income-tax Act,1961 ['the Act' for short] was completed on 26.12.2016 determining income at Rs.7,13,77,121/-. Against the said order assessee preferred appeal before ld. CIT(A). The ld. CIT(A) partly allowed appeal. Subsequently, revenue preferred an appeal before ITAT against the order of ld. CIT(A). Meanwhile, the assessee opted VSV Scheme, 2020 and accordingly, filed application in Form No.1 & 2 on 23.12.2020 under VSV Scheme, 2020. 2.1 The ld. Principal CIT-2 Bangalore issued Form No.3 on 15.1.2021 as per VSV Scheme, 2020. Subsequently, the assessee filed Form No.4 on 17.2.2021. Thereafter, ld. Principal CIT-2, Bangalore issued Form No.5 on 24.2.2021. Considering the same, the ld. AO “Order giving effect consequent to VSV Scheme, 2020” was passed on 18.2.2022 determining the refund amount of Rs.1,80,63,633/-. Aggrieved against this, assessee went in appeal before ld. CIT(A).
The ld. CIT(A) observed that the assessee has filed appeal against the 'Order giving effect consequent to VSV Scheme 2020', which is not an appealable order u/s 246A of I.T. Act. In fact, assessee has not submitted copy of order passed u/s 143(3) r.w.s 254 of the Act dated 26.12.2016 in context of which appellate proceeding was pending before Tribunal when M N Dastur & Co. Pvt. Ltd., Bangalore Page 3 of 10 assessee opted for VSV Scheme. Since the assessee has not filed appeal against an order, which is an appealable order u/s 246A of the Act before the CIT(A), he decided it to be infructuous in nature and hence the same was dismissed by him. Against this assessee is in appeal before us.
The ld. A.R. submitted before us that the ld. CIT(A) totally misconceived the appeal filed before him and wrongly dismissed the appeal of the assessee as infructuous by observing that the appeal is raising out of “Order giving effect consequent to VSV Scheme, 2020” and appeal is not maintainable u/s 246A of the Act. He submitted that there was a huge refund due to the assessee on which assessee is also entitled for interest u/s 244A of the Act. 4.1 The ld. A.R. submitted that the assessee has been contesting the granting of interest u/s 244A of the Act and also amount of refund due to the assessee by way of various letters. While passing the OGE, the AO considered the various applications filed by the assessee and granted short interest due to the assessee u/s 244A of the Act. This has been questioned by assessee by way of appeal before ld. CIT(A). However, he dismissed the appeal as not maintainable and not correcting the mistake crept in passing the OGE at the end of the AO.
The ld. D.R. relied on the order of the ld. CIT(A).
We have heard the rival submissions and perused the materials available on record. The assessee has furnished the details of computation of refund and interest thereon as follows:
M N Dastur & Co. Pvt. Ltd., Bangalore Page 4 of 10 Total income Assessed as per order dated 26.12.2016 7,13,77,121 Tax on Business income @ 30% of 3,62,47,173 10874152 Tax on STCG @ 15% of 3,51,29,948 5269492 Total Tax thereon 1,61,43,644 Surcharge 16,14,364 Cess 5,32,740 Total tax payable 1,82,90,748 Less: Relief 47,59,953 TDS as per 26AS 19,82,62,447 20,30,22,400 Balance refundable 18,47,31,652 Add: Interest u/s 244A (01.04.2010 to 30.11.2011 on 11,23,62,055/-) 1,12,36,206 (01.04.2010 to 31.12.2013 on 7,23,69,597/-) 1,62,83,159 2,75,19,365 Total refund 21,22,51,017 Less: refund granted on 31.12.2011 12,30,36,450 31.12.2013 7,69,34,450 19,99,70,900 Refund due as on 31.12.2013 1,22,80,117 Add: Interest u/s 244A (01.01.2014 to 18.02.2022 on 1,22,80,117/-) 60,17,257 1,82,97,374 Adjusted out of refund of AY 2011-12 on 31.03.2014 41,56,044 Add: Interest u/s 244A from 01.04.2014 to 18.02.2022 19,74,121 61,30,165 Total Refund due 2,44,27,539 6.1 These facts are made available to the AO while passing the OGE dated 18.2.2022. These facts are also evident from the facts narrated in earlier para. The assessee has brought to notice of the AO regarding granting of short interest to the assessee vide his letter dated 15.3.2013, filed before the AO on 18.3.2013, which is placed at page 23 of the assessee’s paper book, which reads as follows:
M N Dastur & Co. Pvt. Ltd., Bangalore M N Dastur & Co. Pvt. Ltd., Bangalore Page 6 of 10 6.2 Further, on 30.6.2014, assessee filed one more letter before the AO, which is placed at page 22 of the assessee’s paper book, which reads as under:
M N Dastur & Co. Pvt. Ltd., Bangalore Page 7 of 10 6.3 Once again on 22.2.2021, the assessee filed one more letter before the AO, which is placed at page 15 of the assessee’s paper book, which reads as under:
M N Dastur & Co. Pvt. Ltd., Bangalore Page 8 of 10 6.4 Further, on 8.4.2021, the assessee filed one more letter before the AO, which is placed at page 13 of the assessee’s paper book, which reads as under:
M N Dastur & Co. Pvt. Ltd., Bangalore 6.5 The AO while passing the OGE dated 18.2.2022, considered all these letters and not granted the TDS appropriately. This is the grievance of the assessee before the ld. CIT(A). However, ld. CIT(A) dismissed the appeal of the assessee as not maintainable on the reason that the appeal was filed against the order giving effect, consequent to availing of VSV Scheme, 2020. In our opinion, the assessee’s grievance is not with regard to giving credit under VSV Scheme, 2020. On the other, not giving due credit to the TDS and assessee’s entitlement of interest u/s 244A of the Act. This issue has been entertained by AO while passing the OGE, consequent to availing VSV Scheme, 2020. It is the duty of the ld. CIT(A) to correct any errors crept in the order passed by AO in OGE, consequent to availing VSV Scheme, 2020 with regard to computation of refund due to the assessee, which is emanated from the order of the AO. Hence, in the interest of justice, we direct the AO to verify the computation of refund vis-à-vis credit given to various types of taxes and levy the same in accordance with law. Ordered accordingly.
In the result, the appeal of the assessee is partly allowed for statistical purposes.