DCIT, Hyderabad v. M/s.National Mineral Development Corporation Limited, Hyderabad

ITA 129/HYD/2011 | 2004-2005
Pronouncement Date: 08-07-2011 | Result: Dismissed

Appeal Details

RSA Number 12922514 RSA 2011
Assessee PAN AAACN7325A
Bench Hyderabad
Appeal Number ITA 129/HYD/2011
Duration Of Justice 5 month(s) 11 day(s)
Appellant DCIT, Hyderabad
Respondent M/s.National Mineral Development Corporation Limited, Hyderabad
Appeal Type Income Tax Appeal
Pronouncement Date 08-07-2011
Appeal Filed By Department
Order Result Dismissed
Bench Allotted B
Tribunal Order Date 08-07-2011
Date Of Final Hearing 29-06-2011
Next Hearing Date 29-06-2011
Assessment Year 2004-2005
Appeal Filed On 27-01-2011
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL HYDERABAD BENCH B HYDERABAD BEFORE SHRI G.C.GUPTA VICE PRESIDENT AND SHRI AKBE R BASHA ACCOUNTANT MEMBER ITA NO.129/HYD/2011 : ASSESSMENT YEAR 2 004-05 DCIT CIR-16 (1) -V- HYDERABAD. (APPELLANT) M/S NATIONAL MINERAL DEVELOPMENT CORPORATION LIMITED HYDERABAD. (PAN AAACN 7325 A) (RESPONDENT) APPELLANT: SHRI. ATUL PRANAY RESPONDENT: SHRI. LAXMINIVAS SHARMA O R D E R PER AKBER BASHA AM:- THIS APPEAL FILED BY THE REVENUE IS DIRECTED AGAI NST THE ORDER OF THE CIT (A)-V HYDERABAD DATED 11-11-2010 AND IT PERTAINS TO THE ASSESSMENT YEAR 2004-05. 2. THE GROUNDS RAISED BY THE REVENUE READ AS UNDER: - 1. THE LEARNED CIT(A) ERRED IN HOLDING THAT PROVIS O TO CLAUSE (B) OF SUB-SECTION (1) OF SECTION 244A ARE A PPLICABLE ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS THE R EFUND IS ESSENTIALLY OUT OF OUT OF TAX DEDUCTED AT SOURCE AN D ADVANCE TAX. 2. THE CIT (A) ERRED IN IGNORING THAT THE REFUND PA YABLE ITA NO.129 OF 2011 M/S NATIONAL MINERAL DEVELOPMENT COPRPORATION HYD. ============================ 2 IS LESS THAN 10% OF ASSESSED TAX AND THEREBY THE PR OVISO TO CLAUSE (A) OF SUB-SECTION (1) OF SECTION 244A IS AP PLICABLE ON THE FACTS AND THE CIRCUMSTANCES OF THE CASE. 3. THE CIT (A) ERRED ON FACTS AND IN LAW IN IGNORIN G THE MATERIAL FACT THAT THE ASSESSEE HAD FIRST BEEN GRAN TED IN THE YEAR 2005 REFUND OF MORE THAN RS.17 CRORES UNDE R SECTION 143(1) AND LATER IN THE YEAR 2006 ON COMP LETION OF ASSESSMENT UNDER SECTION 143(3) IT HAD PAID RS.13.0 6 CRORES EVIDENTLY PLUGGING BACK THE REFUND MONEY ALR EADY IN ITS POSSESSION AND AGAIN ON REASSESSMENT UNDER SECT ION 147 IN THE YEAR 2009 REFUND OF RS.11.77 CRORES WAS GRANTED I.E. OUT OF RS.13.06 CRORES WHICH WAS ESSEN TIALLY OUT OF FIRST REFUND OF RS.17 CRORES WHICH WAS OUT O F TDS AND ADVANCE TAX PAID BY THE ASSESSEE AND HENCE THE ASSE SSEE IS NOT ENTITLED TO INTEREST U/S 244A(1). 4. ANY OTHER GROUND THAT MAY BE TAKEN AT THE TIME O F HEARING. 2. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE COMPA NY IS A PUBLIC SECTOR UNDERTAKING ENGAGED IN MINERAL EXPL ORATION. FOR THE ASSESSMENT YEAR UNDER CONSIDERATION IT FILED I TS RETURN OF INCOME ON 29-10-2004 ADMITTING TOTAL INCOME OF RS.4 41 98 06 740/-. SCRUTINY ASSESSMENT UNDER SEC TION 143(3) WAS COMPLETED ON 10-3-2006. SUBSEQUENTLY THE ASSE SSMENT WAS REOPENED UNDER SECTION 147 OF THE ACT AND NOTICE UN DER SECTION 148 WAS ISSUED TO THE ASSESSEE ON 26-3-2009. IN RE SPONSE TO THE NOTICE ISSUED THE ASSESSEE FILED A LETTER DATED 9- 4-2009 STATING THAT THE RETURN OF INCOME FILED ON 29-10-2004 SHALL BE TREATED AS INCOME FILED IN RESPONSE TO THE NOTICE UNDER SECTIO N 148 OF THE ACT. THE CASE WAS TAKEN UP FOR HEARING AND NOTICE UNDER SECTION 143(2) ITA NO.129 OF 2011 M/S NATIONAL MINERAL DEVELOPMENT COPRPORATION HYD. ============================ 3 WAS ISSUED TO THE ASSESSEE AND THE ASSESSEE FILED L ETTER DATED 16- 11-2009 DULY EXPLAINING ITS POSITION AND THE SUBMIS SIONS OF THE ASSESSEE ARE CONSIDERED AND THE ASSESSMENT IS COMPL ETED DETERMINING THE TOTAL INCOME AT RS.4 55 23 62 050/- AS PER THE CONSEQUENTIAL ORDER DATED 3-12-2007. THE ASSESSIN G OFFICER AT THE TIME OF PASSING CONSEQUENTIAL ORDER GIVING EFFE CT TO THE CIT (A)S ORDER DATED 14-9-2007 A REFUND WAS ISSUED AL ONG WITH THE INTEREST UNDER SECTION 244A AMOUNTING TO RS.1 23 63 586/-. HOWEVER THE CASE WAS REOPENED UNDER SECTION 147 OF THE ACT AND THE AFOREMENTIONED INTEREST ON REFUND WAS WITHDRAWN BY APPLYING THE PROVISIONS OF SECTION 244A [1][A] OF THE ACT BY HOLDING THAT THE ASSESSEE COMPANY IS NOT ELIGIBLE FOR THE INTEREST A S THE AMOUNT REFUNDED IS LESS THAN 10% OF THE TAXES PAID AND AS SUCH THE PROVISO TO SECTION 244A(1)(A) IS APPLICABLE. AGAIN ST THE ORDER OF THE ASSESSING OFFICER THE ASSESSEE WENT IN APPEAL BEFORE THE CIT (A). ON APPEAL THE CIT (A) HELD THAT THE CASE DO ES NOT FALL WITHIN THE PURVIEW OF SECTION 244A(1)(A) BUT FALLS IN CLAU SE (B) OF SECTION 144A(1) OF THE ACT. HENCE THE CIT (A) FOUND FORCE I N THE ARGUMENTS OF THE ASSESSEE AND ALLOWED THE APPEAL FI LED BY THE ASSESSEE. AGGRIEVED AGAINST THE ORDER OF THE CIT ( A) THE REVENUE IS IN APPEAL BEFORE US. 3. THE LEARNED DEPARTMENTAL REPRESENTATIVE SUBMITT ED THAT THE CIT(A) IS NOT JUSTIFIED IN HOLDING THAT PROVISO TO CLAUSE (B) OF SUB-SECTION (1) OF SECTION 244A ARE APPLICABLE ON T HE FACTS AND ITA NO.129 OF 2011 M/S NATIONAL MINERAL DEVELOPMENT COPRPORATION HYD. ============================ 4 CIRCUMSTANCES OF THE CASE AS THE REFUND IS ESSENTIA LLY OUT OF TAX DEDUCTED AT SOURCE AND ADVANCE TAX IT IS FURTHER SU BMITTED THAT THE CIT (A) IS NOT JUSTIFIED IN IGNORING THAT THE REFU ND PAYABLE IS LESS THAN 10% OF ASSESSED TAX AND THEREBY THE PROVISO TO CLAUSE (A) OF SUB-SECTION (1) OF SECTION 244A IS APPLICABLE ON TH E FACTS AND THE CIRCUMSTANCES OF THE CASE. IT IS ALSO SUBMITTED THA T THE ASSESSEE HAD FIRST BEEN GRANTED IN THE YEAR 2005 REFUND OF MORE THAN RS.17 CRORES UNDER SECTION 143(1) OF THE ACT AND LATER I N THE YEAR 2006 ON COMPLETION OF ASSESSMENT UNDER SECTION 143(3) OF THE ACT IT HAD PAID RS.13.06 CRORES EVIDENTLY PLUGGING BACK TH E REFUND MONEY ALREADY IN ITS POSSESSION AND AGAIN ON REASSE SSMENT UNDER SECTION 147 OF THE ACT IN THE YEAR 2009 REFUND OF RS.11.77 CRORES WAS GRANTED I.E. OUT OF RS.13.06 CRORES WHICH WAS E SSENTIALLY OUT OF FIRST REFUND OF RS.17 CRORES WHICH WAS OUT OF TD S AND ADVANCE TAX PAID BY THE ASSESSEE AND HENCE THE ASSESSEE IS NOT ENTITLED TO INTEREST UNDER SECTION 244A(1) OF THE ACT. 4. ON THE OTHER HAND THE LEARNED COUNSEL FOR THE ASSESSEE FULLY SUPPORTED THE ORDER OF THE FIRST APPELLATE AU THORITY AND SUBMITTED THAT THE INTEREST ON REFUND HAD BEEN WRON GLY WITHDRAWN BECAUSE SECTION 244A[1][A] WAS NOT APPLICABLE AND I NSTEAD SECTION 244A[1][B] WAS APPLICABLE. IT IS SUBMITTED THAT THE ASSESSEE COMPANY MADE THE PAYMENTS AGAINST THE DEMAND NOTICE ISSUED UNDER SECTION 156 OF THE ACT AND HENCE THE ORDER O F THE CIT[A] IS TO BE CONFIRMED. ITA NO.129 OF 2011 M/S NATIONAL MINERAL DEVELOPMENT COPRPORATION HYD. ============================ 5 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS AND PE RUSED THE MATERIAL AVAILABLE ON RECORD. FROM THE ORDER OF THE CIT [A] WE FIND THAT THE TAXES WERE PAID BY THE ASSESSEE COMPA NY NOT ON ACCOUNT OF ADVANCE TAX BUT ON ACCOUNT OF NOTICE OF DEMAND ISSUED BY THE DEPARTMENT ON 13-3-2006 AS PART OF THE SCRUT INY ASSESSMENT UNDER SECTION 143(3) OF THE ACT. THEREF ORE IT IS CLEAR THAT THE CASE UNDER CONSIDERATION DOES NOT FALL WIT HIN THE PURVIEW OF SECTION 244A (1)(A) OF THE ACT BUT FALLS IN CLAU SE (B) OF SECTION 144A(1) OF THE ACT. IN VIEW OF THIS MATTER AND AFTE R CONSIDERING TOTALITY OF FACTS AND THE CIRCUMSTANCES OF THE CASE WE DO NOT FIND ANY INFIRMITY IN THE ORDER PASSED BY THE CIT (A). ACCORDINGLY WE UPHOLD HIS ORDER AND REJECT THE GROUNDS RAISED BY T HE REVENUE. 6. IN THE RESULT THE APPEAL FILED BY THE REVENUE STANDS DISMISSED. ORDER WAS PRONOUNCED IN THE COURT ON 08- 07 -2011. SD/- ( G.C. GUPTA) SD/- (AKBER BASHA) VICE PRESIDENT ACCOUNTANT MEMBER DT.08-07-2011. JMR* COPY FORWARDED TO: ITA NO.129 OF 2011 M/S NATIONAL MINERAL DEVELOPMENT COPRPORATION HYD. ============================ 6 1. 2. 3. 4. 5. DCIT CIR-16(1) HYDERABAD. M/S NATIONAL MINERAL DEVELOPMENT CORPORATION LIMITE D 10-3-311/A KHANIJ BHAVAN MASAB TANK HYDERABAD. CIT (A)-V HYDERABAD. CIT AP HYDERABAD. THE DR ITAT HYDERABAD.