DCIT CIR. 7(3)(2), MUMBAI vs. PJL CLOTHING INDIA LTD., MUMBAI

Assessee by: Shri Satish R. Mody (AR) Department by: Shri Rajesh Kumar Yadav, DR सुनवाईकीतारीख / Date of Hearing: 09.08.2017 घोषणाकीतारीख /Date of Pronouncement: 22.09.2017 आदेश / O R D E R

PER AMARJIT SINGH, JM:

On the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in granting interest under section 244A(1)(b) when the amount paid on Self-Assessment was even accor4ing to the assessee not payable as tax. Therefore, the amount/paid in A.Y. 2009-10 excess, not being tax, would entitle the assessee to the refund of the principal amount paid andnot fly interest thereon." 2- "Without prejudice to the above, on the facts and in the circumstances of the case and in law, the Id. CIT(A) erred in Wanting interest under section 244A(l)(b) when as per explanation to section 244A(l)(b) date of payment of tax or penalty while calculating Interest means date on and from which the amount of ties penalty specified In the demand Issued under section 156 is paid in excess of such demand. Self Assessment Tax, however was not paid in lieu of notice under section 156 and so this provision Is not applicable." 3. "On the facts and in the circumstances of the case and in law, the 14. CIT A) erred in granting interest under section 244A on account of payment of Self-Assessment Ties placing reliance on the judgment of the Hon'ble Bombay High Court in the case of Stock Holding Corporation India Pvt. Ltd. vs. CIT without appreciating the fact that the decision was not acceptable on merits but SIP was not filed due to monetary limit."

4. 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 original return of income for the A.Y. 2009-10 on 27.09.2009 declaring total income to the tune of Rs.74,87,54,023/-. The return was processed u/s 143(1) of the I.T. Act on 23.10.2010. Thereafter the return was revised on 27.09.2010 declaring the total income to the tune of Rs.75,86,59,174/-. The return was again revised on 22.03.2011 declaring total income to the tune of Rs.69,54,26,252/-. The case was selected for scrutiny, thereafter, notices u/s 143(2) & 142(1) were issued and served upon the assessee. The case of the assessee also fell under transfer pricing scrutiny for the current assessment year. Therefore, the reference was made u/s 92CA(1) of the I.T. Act, 1961 to DCIT Transfer Pricing 11(5), Mumbai, vide order dated ITA. No.5014/M/2014 A.Y. 2009-10 11.10.2010. The assessee company was engaged in the business of manufacturing and dealing in readymade garments. The assessee company has a license to manufacture and to market “pepe jeans London” brand in India. It gets either garment manufactured from various job workers or purchase from vendors. The assessee was having various distribution models such as formal stores (Multi brand outlets), franchisees and store management agencies and off price. The income of the assessee was computed to the tune of Rs.69,54,26,252/-. Feeling aggrieved, the assessee filed an appeal before the CIT(A) who allowed claim of the assessee with regard to the interest u/s 244A of the Act to the tune of Rs.2,53,63,930/-. Feeling aggrieved, the revenue has filed the present appeal before us.

I have carefully considered the AO’s order as well as the AR’s submissions. It is clear that the AO had restricted himself to the provisions of section 244A(1)(a) of the Act and had not touched upon the provisions of Section 244A(1)(b) of the Act at all. For better understanding, these provisions are reproduced herewith. “Interest on refunds. 244A.(1) where refund of any amount of 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 paid under section 115WJ or collected at source under section 206C or paid by way of advance tax or treated as paid u/s 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of one-half percent for every month or part of a month comprised in the period from the 1st day of April of the assessment year to the date on which the refund is granted. Provided that no interest 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 115WE or 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 percent 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.

ITA. No.5014/M/2014 A.Y. 2009-10 From a plain reading of the above, it becomes clear that while clause (a) of Section 244A(1) of the Act deals with refunds arising out of tax payments under section 115WJ, tax collection at source u/s 206C of the Act, tax payment by way of advance tax and from treatment of tax as havingbeen paid u/s 199 of the Act, clause (b) of the same provision deals with all other cases but for those mentioned in clause (a). While the AO is correct in not granting interest on refund of self-assessment tax in terms of provisions of section 244A(1)(a) of the Act, he seems to have been not taken into account the provisions of section 244A(1)(b) of the Act which clearly provide for such refund. In this content the reliance of the AR on the decision of the Hon’bleBombay High Court in the case of Stock Holding Corporation India Pvt. Limited v. CIT is seen to be quite apposite. In its extensive order the Hon'ble Bombay High Court had held that interest under section 244A of the Act was very much due from the date of payment of self-assessment tax. The relevant portion of this order is extracted hereunder.