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Before: SHRI MAHAVIR SINGH & SHRI ASHWANI TANEJA
Date of hearing 08.03.2017 Date of order 09.03.2017
O R D E R Per Ashwani Taneja, AM:- This appeal has been filed by the assessee against the order passed by the Commissioner of Income-tax (Appeals)-20, Mumbai [hereinafter called CIT(A)] dated 05.11.2014 passed against the assessment order of the year dated 30.12.2008 u/s 143(3) of the Act for assessment year 2006-07 on the following grounds:- Grounds of Appeal:- “I : Re.: Dismissing the appeal by holding that no appealable
2 Mafatlal I.T.A.No.1325/Mum/2015 issue arose from the impugned Order: 1 : The Commissioner of Income-tax has erred in holding that no appealable issue arose from the Assessing Officer's impugned Order purporting to give effect to the Order dated 21 December 2011 passed by the Income-tax Appellate Tribunal and in dismissing the appeal by further holding that the Appellant should approach the Assessing Officer for redressing the grievance.
2 The Appellant submits that considering the facts and circumstances of the case and the law on subject the Assessing Officer's Order was appealable and the Commissioner of Income-tax (Appeals) ought to have adjudicated the same. 1: 3 The Appellant submits that the Assessing Officer be directed to give full and complete effect to the aforesaid Order of the Income- tax Appellate Tribunal. 2 : Deduction of license and technology fees restricted to 50% of the amount paid i.e. Rs. 1,67,65,741/- as against 100% as directed by the Income-tax Appellate Tribunal vide Order dated 21 December 2011:
2 : 1 The Commissioner of Income-tax (Appeals) has erred in holding that the Appellant's grievance about the Assessing Officer's failure to grant relief on the issue as directed by the Hon'ble ITAT is not an appealable issue. 2 : 2 The Appellant submits that considering the facts and circumstances of the case and the law prevailing oil subject the Assessing Officer was duty bound to give full effect to the Order of the Hon'ble ITAT and having failed in that the Commissioner of Income-tax (Appeals) ought to have directed him to do so. 2 : 3 The Appellant submits that the assessing Officer be directed to grant the deduction of the license and technology gees paid and to re-compute its total income accordingly. 3 : 1 Excess levy of interest of Rs. 6,71,146/- u/s. 220(2) of the Income-tax Act,1961 3 : 1 The Assessing Officer has erred in levying excess
3 Mafatlal I.T.A.No.1325/Mum/2015 interest to the extent of Rs. 6,71,146/- u/s. 220(2) while computing the tax liability / refund of the Appellant. 3 : 2 The Appellant submits that considering the facts and circumstances of its case and the law prevailing on the subject interest u/s. 220(2) of the Income-tax Act, 1961 can be levied only to the extent of Rs. 2,693/- and the stand taken by the Assessing Officer in this regard is erroneous and not in accordance with law. 3 : 3 The Appellant submits that the Assessing Officer be directed to delete the excess interest so levied and to re- compute tax liability / refund accordingly. 4 : 0 Non-granting of interest u/s. 244A:
4 :1 The Assessing Officer has erred in not granting interest u/s. 244A to the Appellant.
4 : 2 The Appellant submits that, considering the facts and circumstances of its case and the law prevailing on the subject it is entitled to interest u/s. 244A of the Income-tax Act,1961.
4: 3 The Appellant submits that the Assessing Officer be directed grant interest u/s. 244A to it in accordance with law and to compute the amount of tax refund accordingly. 5 : 0 General: 5 : 1 The Appellant craves leave to add, alter, amend, substitute and / or modify in any manner whatsoever all or any of the foregoing grounds of appeal at or before the hearing of the appeal”.
During the course of hearing, it was submitted at the outset by the Ld. Counsel of the assessee, that appeal of assessee was dismissed by Ld. CIT(A) as non maintainable and the same issued had arisen in assessment year 2003-04 also wherein the Tribunal, relying upon the judgement of Hon'ble jurisdictional High Court in Caltex Oil Refining India Ltd vs CIT [1993] 202 ITR 375 held that orders giving effect to the directions of the appellate orders are 4 Mafatlal I.T.A.No.1325/Mum/2015 maintainable under clause (c) to section 246 and reversed the order of the CIT(A) in dismissing the appeal as not maintainable vide order dated 15.05.2015 and restored the issue back to the file of the CIT(A) for deciding it afresh on merits after calling for remand report from the Assessing Officer. It was requested that following the order of the Tribunal , this year’s appeal should also be sent back to CIT(A) to be decided on merits.
Per contra Ld. DR fairly submitted that the issues can be sent back, but it should be sent back to the file of AO for verifying proper facts and figures.
We have gone through the orders passed by the lower authorities by the Tribunal in assessment year 2003-04, it is noted that the Tribunal held in assessment year 2003-04 as under:-
“At the very outset, Ld Counsel for the assessee brought our attention to the ground no.1 of the appeal and mentioned that it relates to the decision of the CIT (A) in dismissing the assessee's appeal as not maintainable. Brief facts in this regard are that this is the second round of proceedings before the Tribunal. In the first round, the Tribunal vide its order dated 21.12.2011, set aside the issues to the file of the AO and issued certain directions to the AO. Assessee is aggrieved with the order of the AO giving effect to said order of the [TAT (supra). Therefore, the assessee filed an appeal before the CIT (A) u/s 246A of the Act. On these facts, the CIT (A) held that such order of the AO is not appealable before the CIT (A). Against the said finding of the CIT (A), assessee raised the ground no.1 on the issue of maintainability of the appeal. In this regard, Ld Counsel for the assessee argued that the order of the AO giving effect to the order of the CIT (A) is an appealable order before the CIT (A) u/s 246A of Act, as such orders of the AO are deemed as assessment orders. In order to substantiate above, Ld Counsel for the assessee field a copy of the order of the Tribunal, dated 6.3.2013 in the case of Satellite
5 Mafatlal ind I.T.A.No. 1325/Mum/2015 Television Asian Region Limited vs. Deputy Director of Income Tax in to 8641/Mum/2010 for the AY5 2000-01, 2001-02, 2002-03. Referring to paras 3.3 and 5 of the said order of the Tribunal dated 6.3.2013 (supra), Ld.CIT(A). Counsel demonstrated that the finding of the Tribunal for the proposition that such orders giving effect to the order of the [TAT constitutes assessment order and the same is appealable order before the appellate authorities. In this regard, Ld Counsel read out the para 5 of said Tribunal's order and the same is extracted as under: 5.We have heard both the parties and perused the material on record. As regards the view of the Ld CIT (A) that orders passed by the AO u/s 254 of the Act giving effect to the order of the [TAT cannot be appealed against u/s 2464 it is pertinent to mention that the jurisdictional High Court in the case of Catex Oil Refining India (Ltd) Vs. Commissioner of Income Tax has held that fresh order to give effect to an appellate order is also an assessment order and can be a subject matter of appeal before the appellate authorities. Relying on the said decision, we are of the view that the ratio of the td U T that the appeal before him being not maintainable and thus becomes void authorities below initio is legally untenable and also against the settled principle of law”.
From the above, it evident that the Tribunal for coming to the said conclusions, relied on the judgment of the Hon'ble jurisdictional High Court judgment in the case of Caltex Oil Refining India (Ltd) vs. CIT [1993} 202 ITR 375. On perusal of the said judgment, it is the finding of the jurisdictional High Court that the orders giving effect to the directions of the appellate orders are maintainable under clause (c) to section 246 of the Act. The said judgment is applicable for the AYs 1970-71 and 1972-73 under the old provisions which is para materia to section 246 of the Act. Considering the order of the CIT (A) on the issue of maintainability of appeal needs to be reversed. Consequently, we remand this issue to the file of the CIT (A) with a direction to admit the appeal and adjudicate the issues raised by the assessee on merits mentioned in ground nos. 2 to 12, if any. For this, CIT (A) may call for remand report, if any, from the AO in accordance with the 6 Mafatlal ind I.T.A.No. 1325/Mum/2015 provisions of the Act. Accordingly, all the grounds raised by the assessee are allowed for statistical purposes.”
No distinction has been made on law or on facts, therefore respectfully following the order of the Tribunal, we send all the issues back to the file of AO to be decided afresh after giving adequate opportunity of being heard to the assessee after taking into account entire material as may be placed on record by the assessee. The assessee shall be free to raise all the factual and legal issues with respect of the grounds raised before us.
The assessee shall also extend requisite cooperation to the AO by submitting details and documentary evidence as required by the AO from time to time, as per law. With these directions all the grounds are sent back to the file of the AO to be decided on merits.
As a result this appeal may be treated as allowed for statistical purposes. Order was pronounced in the open court at the conclusion of hearing. Sd/- Sd/- (MAHAVIR SINGH) (ASHWANI TANEJA) JUDICIAL MEMBER ACCOUNTANT MEMBER Mumbai, Dt : 09.03.2017 kt/- Copy to : 1. The appellant 2. The respondent 3. The CIT(A) 4. The CIT 5. The Ld. Departmental Representative for the Revenue, “B”, Bench (True copy) By order