KOTAK MAHINDRA BANK LTD. (AS SUCCESSOR IN BUSINESS OF ERSTWHILE ING VYSYA BANK LTD.),MUMBAI vs. A.C.I.T. CIR. - 2(3)(2), MUMBAI

आदेश / O R D E R PER M. BALAGANESH (A.M):

These appeals in ITA Nos.728/Mum/2018 to 731/Mum/2018 for A.Yrs.1994-95 to 1997-98 respectively arise out of the order by the ld. Commissioner of Income Tax (Appeals)-6, Mumbai in appeal No.CIT(A)- 6/IT-228/3/2016-17, CIT(A)-6/IT-227/4/2016-17, CIT(A)-6/IT- 226/5/2016-17 & CIT(A)-6/IT-225/6/2016-17 respectively dated 29/12/2017 (ld. CIT(A) in short) against the order of assessment passed u/s.154 of the Income Tax Act, 1961 (hereinafter referred to as Act)

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dated 20/02/2017 by the ld. Asst. Commissioner of Income Tax, Circle – 2(3)(2), Mumbai (hereinafter referred to as ld. AO).

Identical issue is involved in all these appeals and hence they are taken up together and disposed of by this common order for the sake of convenience.

3.1. The assessee filed an application dated 10.07.2000 u/s 245C of the Act for the Asst Years 1994-95 to 1999-2000 before the Hon’ble Income Tax Settlement Commission (ITSC in short). Pursuant thereto, the ITSC

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heard both the parties and passed an order dated 04.03.2008 u/s 245D(1) and 245D(4) of the Act and granted immunity from penalty and prosecution to the assessee. The department filed a writ before the Hon’ble Karnataka High Court stating t hat the order of ITSC granting immunity from penalty and prosecution is cryptic and detailed reasons are not there and hence should be remanded back to ITSC for reconsidering granting immunity from penalty and prosecution. Against this order, the assessee is in Hon’ble Supreme Court and matter is pending. Meanwhile, the assessee filed an application for rectification before the ITSC on 17.04.2008 seeking rectification of arithmetic errors in the computation of additional income tax payable and computation of interest due to the assessee u/s 244A of the Act.

3.2. On 14.7.2009, the ITSC passed an order determining the tax and interest refundable to the assessee for the various Asst Years under consideration as under:-

Asst Year Refund 1994-95 Rs 7,92,48,950 1995-96 Rs 34,51,94,642 1996-97 Rs 4,49,31,336 1997-98 Rs 23,16,11,027

3.3. The aforesaid refunds were however retained by the department without granting the same to the assessee. The ld AR before us submitted that after repeated reminders and persistent follow up , inter alia in the form of more than 54 letters addressed to the ld AO, the above refunds

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were granted to the assessee after a lapse of almost 98 months by cheques dated 04/05/2016, without any interest thereon for the delayed period. The assessee’s request for interest u/s 244A of the Act on the above refunds were denied by the ld AO on the ground that :

a) In para 9 of its order , the ITSC had not given interest beyond March 2008 ; b) The matter had not yet attained finality in view of pending appeals ;

3.3.1. This action of the ld AO was upheld by the ld CIT(A). Aggrieved, the assessee is in appeals before us.

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convenient to it, thereby depriving the legitimate interest that is otherwise due to assessee u/s 244A of the Act on the refund amount due. Once the ITSC passes the order u/s 245D (4) of the Act and if the department chooses not to grant the determined refunds to the assessee in time, then the interest u/s 244A of the Act shall become automatically eligible to the assessee as per law.

4.1. The ld AR submitted that one of the reason for denying interest u/s 244A of the Act to the assessee is that the refund determined by the ITSC is not final since assessee had preferred writ appeals and the same is pending. The ld AR stated that this is factually erroneous in as much the determination of refunds due by the ITSC was never the subject matter of challenge in the writ appeals preferred by the assessee. The quantification of tax done by the ITSC had become final and the challenge was only for granting immunity from penalty and prosecution as could be seen from the undisputed facts narrated above. We find lot of force in this argument advanced by the ld AR. Hence we hold that the denial of refund u/s 244A of the Act to the assesseeon this reason is totally unwarranted.

4.2. It would be relevant to get into the statutory provisions governing refunds and interest thereon.

Section 240 – Refund on appeal, etc. Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the Assessing Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf: Provided that where, by the order aforesaid, -

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(a) an assessment is set aside or cancelled and an order of fresh assessment is directed to be made, the refund, if any, shall become due only on the making of such fresh assessment; (b) the assessment is annulled, the refund shall become due only of the amount, if any, of the tax paid in excess of the tax chargeable on the total income returned by the assessee.

Section 244A - Interest on refunds 244A. (1) Where refund of any amount becomes due to the assessee under this Act, he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the following manner, namely :— (a) where the refund is out of any tax collected at source under section 206C or paid by way of advance tax or treated as paid under section 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of one-half per cent for every month or part of a month comprised in the period,— (i) from the 1st day of April of the assessment year to the date on which the refund is granted, if the return of income has been furnished on or before the due date specified under sub-section (1) of section 139; or (ii) from the date of furnishing of return of income to the date on which the refund is granted, in a case not covered under sub-clause (i); (aa) where the refund is out of any tax paid under section 140A, such interest shall be calculated at the rate of one-half per cent for every month or part of a month comprised in the period, from the date of furnishing of return of income or payment of tax, whichever is later, to the date on which the refund is granted: Provided that no interest under clause (a) or clause (aa) shall be payable, if the amount of refund is less than ten per cent of the tax as determined under sub- section (1) of section 143 or on regular assessment; (b) in any other case, such interest shall be calculated at the rate of one-half per cent for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of the tax or penalty to the date on which the refund is granted. Explanation.—For the purposes of this clause, "date of payment of tax or penalty" means the date on and from which the amount of tax or penalty specified in the notice of demand issued under section 156 is paid in excess of such demand. (1A) In a case where a refund arises as a result of giving effect to an order under section 250 or section 254 or section 260 or section 262 or section 263 or section 264, wholly or partly, otherwise than by making a fresh assessment or reassessment, the assessee shall be entitled to receive, in addition to the interest payable under sub-section (1), an additional interest on such amount of refund calculated at the rate of three per cent per annum, for the period beginning from

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the date following the date of expiry of the time allowed under sub-section (5) of section 153 to the date on which the refund is granted. (1B) Where refund of any amount becomes due to the deductor in respect of any amount paid to the credit of the Central Government under Chapter XVII-B, such deductor shall be entitled to receive, in addition to the said amount, simple interest thereon calculated at the rate of one-half per cent for every month or part of a month comprised in the period, from the date on which— (a) claim for refund is made in the prescribed form; or (b) tax is paid, where refund arises on account of giving effect to an order under section 250 or section 254 or section 260 or section 262, to the date on which the refund is granted. (2) If the proceedings resulting in the refund are delayed for reasons attributable to the assessee or the deductor, as the case may be, whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable under sub-section (1) or (1A) or (1B), and where any question arises as to the period to be excluded, it shall be decided by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner whose decision thereon shall be final. (3) Where, as a result of an order under sub-section (3) of section 115WE or section 115WF or section 115WG or sub-section (3) of section 143 or section 144 or section 147 or section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount on which interest was payable under sub-section (1) has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and in a case where the interest is reduced, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the amount of the excess interest paid and requiring him to pay such amount; and such notice of demand shall be deemed to be a notice under section 156 and the provisions of this Act shall apply accordingly. (4) The provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989, and subsequent assessment years : Provided that in respect of assessment of fringe benefits, the provisions of this sub- section shall have effect as if for the figures "1989", the figures "2006" had been substituted.

4.3. It could be seen that section 244A of the Act uses the expression ‘any amount due’ to the assessee under this Act, which manifestly includes refunds determined by the ITSC u/s 245D(4) of the Act also. We find from the order of the ITSC that interest u/s 244A of the Act had indeed been calculated upto March 2008 by ITSC itself. The total amount

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of refunds determined by the ITSC pursuant to its final order becomes the ‘amount due’ to the assessee. If the said determined refund is immediately given to the assessee, then there is no obligation to give interest to the assessee by the department. But in this case, the said determined refund had been granted to the assessee after a delay of 98 months by the department. Obviously the determined refund by ITSC becomes ‘any amount due’ to the assessee and hence on the said whole amount, the assessee would be entitled for interest u/s 244A of the Act. In this regard, the ld DR before us , vehemently argued that the expression ‘any amount due’ cannot include interest component thereon and that granting interest u/s 244A of the Act thereon would tantamount to giving interest on interest which is against the provisions of the Act. We find that this aspect has been specifically addressed by the Hon’ble Supreme Court by 3 Judges Bench in the case of CIT vs H.E.G. Ltd reported in 324 ITR 331 (SC) wherein it was held as under:-

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4.4. We find that the ld AR also rightly placed reliance on yet another decision of Hon’ble Supreme Court in the case of Union of India vs Tata Chemicals Ltd reported in 363 ITR 658 (SC) wherein it was held as under:- 37. A "tax refund" is a refund of taxes when the tax liability is less than the tax paid. As per the old section an assessee was entitled for payment of interest on the amount of taxes refunded pursuant to an order passed under the Act, including the order passed in an appeal. In the present fact scenario, the deductor/assessee had paid taxes pursuant to a special order passed by the assessing officer/Income Tax Officer. In the appeal filed against the said order the assessee has succeeded and a direction is issued by the appellate authority to refund the tax paid. The amount paid by the resident/deductor was retained by the Government till a direction was issued by the appellate authority to refund the same. When the said amount is refunded it should carry interest in the matter of course. As held by the Courts while awarding interest, it is a kind of compensation of use and retention of the money collected unauthorizedly by the Department. When the collection is illegal, there is corresponding obligation on the revenue to refund such amount with interest in as much as they have retained and enjoyed the money deposited. Even the Department has understood the object behind insertion of Section 244A, as that, an assessee is entitled to payment of interest for money remaining with the Government which would be refunded. There is no reason to restrict the same to an assessee only without extending the similar benefit to a resident/deductor who has deducted tax at source and deposited the same before remitting the amount payable to a non- resident/foreign company. 38. Providing for payment of interest in case of refund of amounts paid as tax or deemed tax or advance tax is a method now statutorily adopted by fiscal legislation to ensure that the aforesaid amount of tax which has been duly paid in prescribed time and provisions in that behalf form part of the recovery machinery provided in a taxing Statute. Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, there being no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the

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period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. Whenever money has been received by a party which ex ae quo et bono ought to be refunded, the right to interest follows, as a matter of course. (Emphasis supplied by us)

4.5. We also find that the Hon’ble Apex Court in yet another decision in the case of K.Lakshmanya& Co. vs CIT reported in 87 taxmann.com 190 (SC) had held that assessee was entitled to interest u/s 244A of the Act on a refund due to it on account of waiver by the ITSC of interest u/s 234A , 234B and 234C of the Act. The Hon’ble Apex Court while addressing this issue had also referred to the Objects and Reasons behind introduction of provisions of section 244A of the Act as under:-

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Section 244A in the Income Tax Act, applicable from the assessment year 1989-90 and onwards which contains all the provisions for payment of interest by the Department for delay in the grant of refunds. The rate of interest has been increased from the earlier 15 per cent annum to 1.5% per month or part of a month, comprised in the period of delay in the grant of refund. The Amending Act, 1987, has also amended sections 214, 243 and 244 to provide that the provisions of these sections shall not apply to the assessment year 1989-90 or any subsequent assessment years." (Emphasis supplied by us)

We find that the Hon’ble Apex Court in para 14 and 15 of this judgement had reproduced the operative portions of its earlier decisions in CIT vs H.E.G. Ltd reported in 324 ITR 331 (SC) and Union of India vs Tata Chemicals Ltd reported in 363 ITR 658 (SC) and ultimately held as under:- 16. The above extract would clearly show that a corresponding right exists, to refund to individuals any sum paid by them as taxes which are found to have been wrongfully exasted or believed to be, for any reason, inequitable. The statutory obligation to refund, being non discretionary, carries with it the right to interest, also making it clear that the right to interest is parasitical. The right to claim refund is automatic once the statutory provisions have been complied with. 4.6. Apart from the above decisions, we find that the ld AR also placed reliance on the Instructions issued by the Central Board of Direct Taxes (CBDT) vide Instruction No. 2 / 2007 dated 28/03/2007 which reads as under:- INSTRUCTION NO. 2/2007 SECTION 244A OF THE INCOME-TAX ACT, 1961 - REFUNDS - INTEREST ON - GRANT OF INTEREST ON REFUNDS UNDER SECTION 244A SIMULTANEOUSLY WITH ISSUE OF REFUND INSTRUCTION NO. 2/2007, DATED 28-3-2007 1. In terms of section 244A of the Income-tax Act, 1961 (Act), an assessee is entitled to receive interest calculated in the manner provided in the said section on the amount of refund due under the Act. The interest is to be granted simultaneously with the refund and there should normally be no reason to grant refund without adding the entitled interest. In the case of Sandvik Asia Ltd. v. CIT [280 ITR 643], the Hon'ble Supreme Court, inter alia, adversely commented upon the delay in grant of interest on refund and awarded compensation to the assessee for the said delay by the department. While taking

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this view, the Supreme Court referred to the judgment of the Gujarat High Court in the case of D.J. Works v. Dy. CIT [195 ITR 227] wherein the High Court had held that though there is no specific provision for payment of interest on interest, but if interest on the refund is wrongfully retained, interest on interest would be payable. The Court further held that even assuming that there was no provision in the Act for payment of compensation, on general principles, compensation was payable to the assessee for the delayed payment of interest. The Court also recommended that action be initiated against the officers responsible for the delay. 2. It is necessary to remind all Assessing Officers that while granting refund to the assessee, care should be taken to ensure that any interest payable under section 244A on the amount of refund due should be granted simultaneously with the grant of refund and there should, in no case, be any omission or delay in the grant of such interest. Failure to do so will be viewed adversely and the officer concerned will be held personally accountable, inviting appropriate action. 3. These instructions may be brought to the notice of all officers working in your region for strict compliance. The Range Officers should be directed to carry out periodic test checks of cases within their jurisdiction to ensure that provisions of section 244A are scrupulously implemented. 4. These instructions should also be brought to the notice of the officers responsible for conducting internal audit and adherence to these should be checked by the auditing parties.

4.6.1. We hold that the refunds finally determined by the ITSC in the instant case had been wrongfully retained by the department for a considerable period of time and hence department is bound to compensate assessee with interest u/s 244A of the Act.

4.7. We find that the ld AR also placed reliance on the CBDT Circular No. 11/2016 dated 26/04/2016 which reads as under:-

CIRCULAR NO.11/2016 [F.NO.279/MISC./M-140/2015-ITJ] SECTION 244A, READ WITH SECTION 195, OF THE INCOME-TAX ACT, 1961 - REFUNDS - INTEREST ON - PAYMENT OF INTEREST ON REFUND OF EXCESS TDS DEPOSITED UNDER SECTION 195 CIRCULAR NO.11/2016 [F.NO.279/MISC./M-140/2015-ITJ], DATED 26-4- 2016 The procedure for refund of tax deducted at source under section 195 of the Income tax Act, 1961, to the person deducting the tax is delineated in CBDT Circular No. 7/2007 dated 23-10-2007. Circular No. 7/2007 states that no

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interest under section 244A of the Act, is admissible on refunds to be granted in accordance with the circular or on the refunds already granted in accordance with Circular No. 769 or Circular 790 dated 20.4.2000. 2. The issue of eligibility for interest on refund of excess TDS to a tax deductor has been a subject matter of controversy and litigation. The Hon'ble Supreme Court of India in the case of Tata Chemical Limited1, Civil Appeal No. 6301 of 2011 vide order dated 26-2-2014, held that, "Refund due and payable to the assessee is debt-owed and payable by the Revenue. The Government, there being no express statutory provision for payment of interest on the refund of excess amount/tax collected by the Revenue, cannot shrug off its apparent obligation to reimburse the deductors lawful monies with the accrued interest for the period of undue retention of such monies. The State having received the money without right, and having retained and used it, is bound to make the party good, just as an individual would be under like circumstances. The obligation to refund money received and retained without right implies and carries with it the right to interest. " 3. In view of the above judgment of the Apex Court it is settled that if a resident deductor is entitled for the refund of tax deposited under section 195 of the Act, then it has to be refunded with interest under section 244A of the Act, from the date of payment of such tax. 4. Accordingly, it is advised that no appeals may henceforth be filed on this ground by the officers of the department and appeals already filed on this issue may not be pressed upon. 5. This may be brought to the notice of all concerned.”

4.8. We find from perusal of provisions of section 244A of the Act that the said section does not draw any distinction between ‘tax’ and ‘interest’. It only uses the expression ‘any amount due’. Hence the final refund determined by the ITSC would fall within the ambit of the expression ‘any amount due’ in section 244A of the Act , thereby making the assessee eligible to receive interest u/s 244A of the Act thereon.

4.9. In view of the aforesaid observations and placing reliance on various judicial precedents relied upon hereinabove including the CBDT Instruction and CBDT Circular referred to supra, we direct the ld AO to

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grant interest on refund from 14.7.2009 onwards till the date of granting refund for all the Asst Years under consideration. Accordingly, the grounds raised by the assessee are allowed.

Order pronounced on 27/10/2021 by way of proper mentioning n the notice board.

Sd/- Sd/- (SAKTIJIT DEY) (M.BALAGANESH) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai; Dated 27/10/2021 KARUNA, sr.ps

Copy of the Order forwarded to : The Appellant 1. The Respondent. 2. The CIT(A), Mumbai. 3. CIT 4. DR, ITAT, Mumbai 5. 6. Guard file. //True Copy//

BY ORDER,

(Asstt. Registrar) ITAT, Mumbai