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Income Tax Appellate Tribunal, MUMBAI “E” BENCH, MUMBAI
Before: SHRI SHAILENDRA KUMAR YADAV, JUDICIAL & SHRI RAJESH KUMAR.
अपीलाथ� क� ओर से/By Appellant :Shri Dinesh Vyas, ��यथ� क� ओर से/By Respondent :Shri Manjunatha Swamy सुनवाई क� तार�ख/Date of Hearing : 16.08.2016 घोषणा क� तार�ख/Date of Pronouncement :23.08.2016 ORDER PER SHAILENDRA KUMAR YADAV, J.M:
This appeal has been filed by assessee against the order of Commissioner of Income-Tax (Appeals)-2, Mumbai, dated 28.11.2012 for A.Y. 2002-03 on following ground:
A.Y. 2002-03 [Tata Communication Ltd. vs. DCIT] Page 2
“Grounds of Appeal 1. The Hon’ble CIT(A) was not justified in upholding the levy of interest under Section 234D of the Income Tax Act, 1961 by the learned Assessing Officer.
2. On the facts and circumstances of the case and in law, the Hon’ble CIT(A) has erred in not directing the learned Assessing Officer to grant interest u/s.244A on ‘refund’ due (including interest), in accordance with law.
Additional Supplementary Grounds of Appeal
On the facts and in circumstances of the case and in law, the Appellant is entitled to interest under section 244A on refund due, which ought to be computed by the Assessing Officer by deducting only the tax component from the refund granted earlier and excluding the interest portion, in accordance with law and the current legal position; and accordingly necessary directions be given.
Additional Supplementary Grounds of Appeal
Ground No 3 : Short grant of Interest u/s 244A: On the facts and in circumstances of the case and in law, the Hon'ble CIT(A) has erred in not directing the learned Assessing Officer to grant interest u/s 244A on refund due in accordance with law and the current legal position. Ground No 4 : Computation of Interest u/s 234D: On the facts and in circumstances of the case and in law, while computing interest u/s 234D, the Interest granted earlier u/s 244A ought to have been excluded from the refund amount in accordance with law and the current legal position.”
At the outset of hearing learned AR pointed out that the issue of 234D has been decided against the assessee by Hon’ble Bombay High Court in the case of CIT vs. Indian Oil Corporation Ltd. (2012) 210 Taxman 466 (Bombay High Court) wherein it was held that provision of Section 234D are applicable even to the assessment year prior to 2003-04, assessment proceedings are completed after 1st June, 2003. Learned Authorized Representative fairly conceded the fact that A.Y. 2002-03 [Tata Communication Ltd. vs. DCIT] Page 3 this issue is being decided against the assessee. So, we are not inclined to interfere with the finding of the CIT(A) in upholding the levy of interest u/s.234D of the Income Tax Act.
Next issue is with regards to the interest u/s.244A of the Income Tax Act. The Assessee has taken ground by way of additional ground. Being legal, it can be taken inter alia claimed interest u/s.244A on the refund due, which ought to be computed by Assessing Officer by deducting only the tax component from the refund granted earlier and excluding interest portion, in accordance with law and current legal position.
3.1 Learned Authorized Representative pointed out that issue is decided in favour of the assessee’s own case for A.Y.1990-91 by the Hon’ble Income Tax Appellate Tribunal Mumbai Benches ‘E’ Bench Mumbai in for A.Y.1990-91 dated 22.10.2014 wherein this issue was decided in favour of the assessee. Matter has been remitted to Assessing Officer with certain directions.
“4. After hearing both the parties, respectfully following aforementioned decision of Tribunal in group case of the assessee the relevant portion of which has already been reproduced, we direct the AO to recalculate the interest in accordance with the aforementioned decision of the Tribunal. We direct accordingly. 5. In the result the ground raised by the assessee is considered to be allowed for statistical purposes in the matter aforesaid.”
Nothing contrary was brought to our knowledge on behalf of Revenue. Facts being similar, so, following same reasoning, A.Y. 2002-03 [Tata Communication Ltd. vs. DCIT] Page 4 we set aside the order of CIT(A) and restore the matter to Assessing Officer with similar direction.
In the result the appeal filed by the assessee is partly allowed as indicated above.
Pronounced in the open Court on this the 23rd day of August, 2016.
Sd/- Sd/- (RAJESH KUMAR) (SHAILENDRA KUMAR YADAV) ACCOUNTANT MEMBER JUDICIAL MEMBER Mumbai: Dated 23/08/2016 True Copy Prabhat kesarwani आदेश क� ��त�ल�प अ�े�षत / Copy of Order Forwarded to:- 1. राज�व / Revenue 2. आवेदक / Assessee 3. संबं�धत आयकर आयु�त / Concerned CIT 4. आयकर आयु�त- अपील / CIT (A) 5. �वभागीय ��त�न�ध, आयकर अपील�य अ�धकरण, मुंबई / DR, ITAT, Mumbai 6. गाड� फाइल / Guard file. By order/आदेश से,
उप/सहायक पंजीकार, आयकर अपील�य अ�धकरण, मुंबई ।