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Income Tax Appellate Tribunal, “D” BENCH, MUMBAI
Before: SHRI SHAMIM YAHYA, AM & SHRI AMARJIT SINGH, JM
O R D E R
PER AMARJIT SINGH, JM:
The revenue has filed the present appeal against the order dated 22.07.2016 passed by the Commissioner of Income Tax (Appeals) -56, Mumbai [hereinafter referred to as the “CIT(A)”] relevant to the A.Y.2006- 07.
The revenue has raised the following grounds: - "1. Whether on the facts and in the circumstances of the case and in law, the Ld. CIT(A) erred in deleting the interest amount to Rs.4,10,15,246/- levied u/s 220(2) of the Act without appreciating that levy of interest u/s 220(2) is independent section and liable on all outstanding dues and ITA No. 2146/M/2018 A.Y.2012-13 bunching up of one demand against refund of other is not the prerogative of the assessee.
2. The appellant prays that the order of the Ld. CIT(A) on the above ground be set aside and that of the AO restored.
3. The appellant craves leave to amend or alter any ground or add a new ground which may be necessary.”
3. The brief facts of the case are that the assessee filed its return of income on 28.11.2006 declaring total income to the tune of Rs.3,967,454,201/-. Thereafter, the assessee filed the revised return of income on 29.03.2008 declaring total income to the tune of Rs.4,026,987,504/-. The draft order dated 31.11.2009 was issued and served upon the assessee. Final assessment was done on 18.02.2010. The total income of the assessee was assessed to the tune of Rs.7,442,628,920/ after certain addition/disallowance. Thereafter, the assessee filed the rectification application dated 20.12.2010, 22.03.2010, 08.04.2014 & 16.06.2014. The DCIT has passed the rectification order by determining the income to the tune of Rs.6,455,461,007/-. Aggrieved by the same, the assessee filed the appeal before the CIT(A) in which one of the issue was in connection with allowance of interest u/s 220(2) of the Act at Rs.4,10,15,246/-. The said claim was allowed by CIT(A), therefore, the revenue has filed the present appeal before us.
We have heard the argument advanced by the Ld. Representative of the parties and perused the record. The revenue filed the present appeal against the deletion of the interest amount of Rs.4,10,15,246/- levied u/s 220(2) of the Act. The contention of the revenue is that the CIT(A) has wrongly allowed the claim of the assessee which is not in accordance with law. However, on the other hand, the Ld. Representative of the assessee has ITA No. 2146/M/2018 A.Y.2012-13 strongly relied upon the order passed by the CIT(A) in question. Before going further, we deem it necessary to advert the finding of the CIT(A) on record.:-
I have carefully considered the facts of the case and submissions of the appellant. The above issue is covered in the appellant’s own case by the order of the Hon’ble Income-tax Appellate Tribunal, Mumbai in AY1995-96. Hence, the AO is directed to delete interest levied under section 220(2) of the Act. Accordingly, this ground is allowed.
On appraisal of the above said finding, we noticed that the CIT(A) has allowed the claim of the assessee on the basis of the decision of the Hon’ble ITAT in the assessee’s own case for the A.Y. 1995-96. The copy of order of Hon’ble ITAT in & 1420/M/2000 for the A.Y.1995-96 is on the file in which the relevant finding has been given in para no. 3 which is hereby reproduced as under.:-
“We have heard both the parties and perused the material placed before us The facts of the case are that the assessment for Asst.Year1995-96 i.e. the year under consideration was completed on 25-2-1998. As per the assessment order, demand of Rs.12.55 crore was caned against the assessee. After adjusting the refund of Asst Year 1991-98, the assessee was asked to make the payment of balance demand i.e. Rs,9,94 crores which was payable by 26th Math, 1998. Before the due date of payment, the assessee has already applied vide Its letters dated 26th February, 1998 and IS March, 1998 to adjust the refund for Asst Year 1992-93, which was more than the outstanding demand of Rs.9.94 crore. The Assessing Officer carried out the adjustment in September 1998, however, upto the date of adjustment he allowed interest u/s 244A on the refund and also charged interest u/s 220 on the outstanding demand for the yeas wide' consideration The assessee challenged the charging of interest it/s.220 and the CIT(A) detected not to levy the interest u/s 220 The Revenue aggrieved by the order of the CIT(A) is in appeal before us The relevant finding of the CIT(A) in this regard reads as under:
ITA No. 2146/M/2018 A.Y.2012-13 In the petition dated 26-1-1998 and 16-3-1998. It was stated that in addition to the refund of Rs.13,98,17,458/- for the assessment year 1991-93. a refund of Rs.31.78.469/- for the assessment year 1993- 94 was also pending. The assessing officer acted on the petitions dated 26-2-1998 and 18-3-1998 in September 98 the meantime he charged Interest under- section 2200) on the demand of Rs.9.94.54.6081- and he gave interest under section 2444 on the refunds for the same period. In my view. the assessing officer instead of adjusting the refunds against the demand as per the appellant's request charged interest on the demand and allowed interest on the refunds. This was incorrect. The assessing officer should have adjusted the refunds against the demand and on the balance amount he should have allowed interest under section 2444 of the Income-tax Act, 1961. There is no case for the levy of interest of Rs.89.50.915/- under section 220(2) of the Income-tax1961. The assessing officer is directed not to levy the interest under section (2) of the Income-tax Act. 1961 f the refunds exceed the demand as on 18-3-98 and on the result figure only he should allow interest under section 244A of the Income tax Act 1961."
Since the issue has squarely covered by the decision of Hon’ble ITAT in the assessee’s own case(supra), therefore, by honoring the decision of the same and finding nothing distinguishable material on record, we affirm the finding of the CIT(A) on this issue and decide these issues in favour of the assessee against the revenue.
ITA No. 2146/M/2018 A.Y.2012-13