The DCIT, Circle-10,, Ahmedabad v. Smt. Shantaben K.Patel, Ahmedabad

IN THE INCOME TAX APPELLATE TRIBUNAL : B BENCH : AHMEDABAD (BEFORE HONBLE SHRI T.K. SHARMA J.M. & HONBLE SH RI N.S. SAINI A.M.) I.T.A. NO. 1552/AHD./2007 ASSESSMENT YEAR : 1984-1985 DEPUTY COMMISSIONER OF INCOME TAX -VS.- SMT. SH ANTABEN K. PATEL AHMEDABAD CIRCLE-10 AHMEDABAD (APPELLANT) (RESPONDENT) APPELLANT BY : SMT. NEETA SHAH S R. D.R. RESPONDENT BY : SHRI HIMANSHU SHAH O R D E R PER SHRI T.K. SHARMA JUDICIAL MEMBER : THIS APPEAL FILED BY THE REVENUE IS AGAINST THE OR DER DATED 15.02.2007 OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS)-II AHMEDABAD F OR THE ASSESSMENT YEAR 1984-85. 2. AT THE TIME OF HEARING BEFORE US ON BEHALF OF R EVENUE SMT. NEETA SHAH SR. D.R. APPEARED AND CONTENDED THAT IN THE IMPUGNED ORDER THE LEARNED COMMISSIONER OF INCOME TAX(APPEALS) DIRECTED THE ASSESSING OFFICER TO ALLO W INTEREST UNDER SECTION 244A FOLLOWING THE DECISION DATED 07.07.2006 OF THE ITAT SPECIAL BENC H AHMEDABAD IN THE CASE OF SANTABEN K. PATEL SPECIFIC DEFERRED FAMILY TRUST FOR THE ASSESS MENT YEAR 1983-84. SHE POINTED OUT THAT AGAINST THE SAID DECISION THE REVENUE HAS FILED A REFERENCE APPLICATION TO THE HON'BLE JURISDICTIONAL HIGH COURT IN TAX APPEAL NO. 1514 TO 1797 OF 2006 & OTHERS IN THE CASE OF COMMISSIONER OF INCOME TAX(APPEALS)-II VS.- PUNITA BEN KARSANBHAI PATEL WHICH IS PENDING FOR ADJUDICATION. THEREFORE IT MAY BE HELD THAT TH E ASSESSEE IS NOT ENTITLED TO INTEREST UNDER SECTION 244A OF THE INCOME TAX ACT 1961. 3. ON THE OTHER HAND SHRI HIMANSHU SHAH APPEARING ON BEHALF OF ASSESSEE CONTENDED THAT NOW THIS ISSUE IS SQUARELY COVERED BY THE JUDGMENT DATED 26.06.2008 OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF CIT VS.- PUNITABEN KARSANBHAI PATEL OSDFT & OTHERS 284 CASES IN TAX APPEAL NOS. 1514 TO 1797 OF 2006. THE LD. COUNSEL O F THE ASSESSEE FURTHER EXPLAINED THAT THE APPEAL BEING ITA NO. 2158/AHD/2003 FOR THE ASSESSME NT YEAR 1983-84 FILED BEFORE ITAT 2 ITA NO. 1552/AHD/200 7 SPECIAL BENCH AHMEDABAD IN THE CASE OF SANTABEN K. PATEL SPECIFIC DEFERRED FAMILY TRUST C/O. S.K. PATEL FAMILY TRUST VS.- ITO WARD-10(4) AHME DABAD INCLUDED WITH OTHER 284 CASES. THE VIEW TAKEN BY THE ITAT SPECIAL BENCH AHMEDABAD IN THE CASE OF SHANTABEN KARSANBHAI PATEL ORAL SPECIFIC DEFERRED FAMILY TRUST WITH REGARD TO INTEREST UNDER SECTION 244A IS UPHELD WHICH IS RELIED BY THE LEARNED COMMISSIONER OF INCOME TAX (APPEALS) IN THE IMPUGNED ORDER. ON THE BASIS OF THIS HE SUBMITTED THAT THE CONTROVERSY IN VOLVED IN THE GROUND OF APPEAL OF REVENUE NOW STAND COVERED BY THE JUDGMENT OF THE HON'BLE GUJARA T HIGH COURT IN THE CASE OF PUNITABEN K. PATEL (SUPRA). THEREFORE THE VIEW TAKEN BY THE LEA RNED COMMISSIONER OF INCOME TAX(APPEALS) BE UPHELD. 4. HAVING HEARD BOTH THE SIDES WE HAVE CAREFULLY G ONE THROUGH THE ORDERS OF AUTHORITIES BELOW. FROM THE RECORD WE FIND THAT THE DIRECTION OF ITAT SPECIAL BENCH AHMEDABAD IN THE CASE OF SANTABEN K. PATEL SPECIFIC DEFERRED FAMILY TRUST (SUPRA) TO GRANT THE INTEREST UNDER SECTION 244A IS UPHELD BY THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PUNITABEN KARSANBHAI PATEL OSDFT & OTHERS 284 CASES IN TAX APPEAL NOS. 1 514 TO 1797 OF 2006 JUDGMENT DATED 26.06.2008. THE RELEVANT DISCUSSION IS CONTAINED ON PAGES 17 & 18 WHICH READS AS UNDER :- WE FIND THAT THIS IS THE ONLY CONCLUSION THAT ONCE ASSESSMENT IN THE SUBSTANTIVE CASE IS FINAL PROTECTIVE ASSESSMENT CA NNOT BE CONTINUED IN THE CASE OF BENEFICIARIES. WHEN CIT REVISED ORDER THER E EXIST ORDER OF THIS COURT DATED 30.07.2001. HENCE AT LEAST THIS IS ONE OF TH E VIEWS THOUGH WE FIND THAT THIS IS THE ONLY VIEW REVISION ORDER U/S. 263 IS N OT PERMISSIBLE ON JURISDICTIONAL GROUND. THIS IS THE DECISION OF HON' BLE SUPREME COURT IN THE CASES OF MALABAR INDUSTRIES CO. LTD. VS.- CIT 243 ITR 83 AND G.M. MITTAL 263 ITR 255. WHEN THE DECISION OF HIGH COURT WAS RE VERSED BY SUPREME COURT ON MERITS HON'BLE SUPREME COURT HELD THAT RE VISION ORDER CANNOT BE SUSTAINED AS ON THE DATE OF REVISION ORDER ORDER O F HIGH COURT DID EXIST. FOLLOWING THE SAME WE HOLD THAT CIT HAD NO JURISDI CTION TO PASS REVISION ORDER U/S. 263 ON 12.03.03. ON THAT DAY THE ORDER OF THIS COURT DT. 30.07.01 DID EXIST. ON THE CONTRARY THIS ORDER HAS BECOME FI NAL. AS REGARDS GRANT OF INTEREST ON REFUND WE FIND THA T TRIBUNAL WAS JUSTIFIED IN HOLDING THAT REFUND SHOULD BE GRANTED WITH INTEREST . WE THEREFORE FOLLOWING THE JUDGMENT DATED 26.06.2 008 OF THE HON'BLE GUJARAT HIGH COURT IN THE CASE OF PUNITABEN KARSANBHAI PATEL OSDFT & OTHE RS 284 CASES IN TAX APPEAL NOS. 1514 TO 1797 OF 2006 INCLINE TO UPHOLD THE ORDER OF LEARNED COMMISSIONER OF INCOME TAX(APPEALS) 3 ITA NO. 1552/AHD/200 7 WHEREBY HE DIRECTED THE ASSESSING OFFICER TO GRANT THE INTEREST UNDER SECTION 244A OF THE INCOME TAX ACT. 5. IN THE RESULT THE APPEAL FILED BY THE REVENUE I S DISMISSED. THE ORDER WAS PRONOUNCED IN THE COURT ON 16.04.2010 . SD/- SD/- (N.S. SAINI) (T.K. SHARMA) ACCOUNTANT MEMBER JUDICIAL MEMBER DATED : 16 / 04 /2010 COPY OF THE ORDER IS FORWARDED TO : 1) THE ASSESSEE (2) THE DEPARTMENT. 3) CIT(A) CONCERNED (4) CIT CONCERNED (5) D.R. ITAT AHMEDABAD. TRUE COPY BY ORDER DEPUTY REGISTRAR ITAT AHMEDABAD LAHA/SR.P.S.