CHEMICAL TERMINAL TROMBAY LTD, MUMBAI v. ACIT CIR 2(1), MUMBAI

ITA 3939/MUM/2009 | 1996-1997
Pronouncement Date: 03-12-2010 | Result: Allowed

Appeal Details

RSA Number 393919914 RSA 2009
Assessee PAN AAACC2889E
Bench Mumbai
Appeal Number ITA 3939/MUM/2009
Duration Of Justice 1 year(s) 5 month(s) 14 day(s)
Appellant CHEMICAL TERMINAL TROMBAY LTD, MUMBAI
Respondent ACIT CIR 2(1), MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 03-12-2010
Appeal Filed By Assessee
Order Result Allowed
Bench Allotted C
Tribunal Order Date 03-12-2010
Date Of Final Hearing 25-11-2010
Next Hearing Date 25-11-2010
Assessment Year 1996-1997
Appeal Filed On 19-06-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES C MUMBAI BEFORE SHRI R.S.SYAL ACCOUNTANT MEMBER AND SHRI VIJAY PAL RAO JUDICIAL MEMBER ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) CHEMICAL TERMINAL TROMBAY LTD THE TATA POWER CO.LTD PAREL RECEIVING STATION 2 ND FL PAREL TANK ROAD MUMBAI-400033 APPELLANT PAN: AAACC2889E VS ACIT CIR (2)(1) AAYAKAR BHAVAN M K ROAD MUMBAI-400020 . RESPONDENT APPELLANT BY : SHRI F V IRANI RESPONDENT BY : SHRI MAYANK PRIYA DARSHI O R D E R PER VIJAY PAL RAO JM THIS APPEAL BY THE ASSESSEE IS DIRECTED AGAINST THE ORDER DATED 06.05.2009 OF THE LEARNED CIT(A)-II MU MBAI FOR THE ASSESSMENT YEAR 1996-97 ARISING FROM THE ORDER PASSED U/S 154 PASSED BY THE AO.. 2. THE ASSESSEE HAS RAISED VARIOUS GROUNDS IN THIS APPEAL HOWEVER THE ONLY ISSUE ARISES FOR OUR CONSIDERATIO N AND ADJUDICATION IS WHETHER IN THE FACTS AND CIRCUMSTAN CES OF THE CASE THE LEARNED CIT(A) IS JUSTIFIED IN CONFIRMIN G THE ORDER PASSED BY THE AO THEREBY THE CREDIT FOR TAX DEDUCTE D AT ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 2 SOURCES OF RS.11 80 492/- WAS DENIED BY HOLDING TH AT THE RECTIFICATION PETITION FILED BY THE ASESEEE IS BEYO ND TIME LIMIT. 3. BRIEF FACTS OF THE CASE ARE THAT THE ASSESSEE FI LED ITS RETURN OF INCOME ON 29.11.1996 AND CLAIMED FOR REF UND OF TAX IN FORM NO.30 FOR RS.35 26 041/-. THE ASSESSMENT WAS COMPLETED U/S 143(3) ON 30.11.1998 WHEREBY THE INCO ME RETURNED BY THE ASESEEE WAS ACCEPTED BY THE AO HO WEVER THE AO HAS GRANTED THE CREDIT FOR TDS ONLY FOR RS.2 9 93 597/- WHILE DETERMINING THE REFUND DUE TO THE ASSESSEE. 4. SINCE THE ASSESSEE CLAIMED CREDIT FOR THE TDS OF RS.41 74 365/- BUT THERE WAS A DIFFERENCE OF RS.11 80 768/- BETWEEN THE CREDIT GRANTED BY THE AO AND THE CLAIM MADE BY THE ASSESSEE. SUBSEQUENTLY THE ASSESSEE FILED AN APPLICATION DATED 20.5.1999 REQUESTING FOR RECTIFICATION AND GR ANTING FURTHER REFUND FOR THE BALANCE OF TDS OF RS..11 80 768/- ALONG WITH THE INTEREST PAYABLE THEREON. THE AO FINALLY INFORMED THE ASSESSEE IN THE MONTH OF JULY 2006 THAT THE CREDI T WAS NOT GRANTED BECAUSE OF CERTIFICATE OF TDS TOTALING TO RS.11 80 492/- ARE HAVING SOME DEFECTS. THE ASSE SSEE THEN SUBMITTED LETTER DATED 01.08.2006 TO THE JOINT COM MISSIONER OF INCOME TAX (OSD) ALONG WITH THE DUPLICATE COPI ES OF THE CERTIFICATES FOR TDS AND INDEMNITY BOND ON THE STA MP PAPER FOR REFUND OF RS.1180 492/- TOGETHER WITH INTERES T THEREON. THE ASSESSEE AGAIN FILED A LETTER DATED 04.1.2007 R EITERATING ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 3 ITS CLAIM FOR REFUND OF RS.11 80 492/-. ULTIMATELY THE ACIT HAS PASSED THE ORDER DATED 17.01.2007 U/S 154 AND R EJECTED THE CLAIM OF THE ASSESSEE ON THE GROUND THAT THE AP PLICATION DATED 7.08.2006 CANNOT BE CONSIDERED AS THE SAME I S MADE AFTER THE EXPIRY OF FOUR YEARS FROM THE END OF THE FINANCIAL YEAR IN WHICH THE ORDER SOUGHT TO BE AMENDED WAS PASSED. 5. ON APPEAL THE LEARNED CIT(A) HAS CONFIRMED THE REJECTION MADE BY THE ACIT ON THE SIMILAR GROUNDS. 6. BEFORE US THE LEARNED AR HAS SUBMITTED THAT TH E ASSESSEE SOUGHT CREDIT FOR TAX DEDUCTED BUT SHORT C REDIT WAS GRANTED BY THE DEPARTMENT. NO REASONS WERE GIVEN TO THE ASSESSEE FOR NOT GRANTING THE CREDIT OF TDS FOR A SUM OF RS.11 80 780/-. MOREOVER IT HAS ALSO NOT BEEN INT IMATED TO THE ASSESSEE REGARDING WHICH TDS CERTIFICATE CRED IT WAS NOT GIVEN. THE ASSESSEE FILED ITS LETTER DATED 20.05.1 999 FOR RECTIFICATION AND GRANTED OF REFUND OF THE BALANCE TDS ALONG WITH THE INTEREST. THE LEARNED AR HAS FORCIBLY CO NTENDED THAT NO REPLY WAS RECEIVED BY THE ASSESSEE TO THIS LETTE R AND THE RECTIFICATION OF THE ASSESSMENT REMAINED PENDING D ISPOSAL. THE ASSESSEE HAS BEEN REGULARLY FOLLOWING UP FOR CL AIM OF REFUND OF THE ABOVE SHORT CREDIT BUT THE DEPARTMEN T WAS REPEATEDLY TAKING THE STAND THAT THE RELEVANT FILE/ FOLDER FOR THE ASSESSMENT YEAR UNDER CONSIDERATION WAS NOT TRACEA BLE. THE MATTER WAS FURTHER DELAYED DUE TO TRANSFER OF TA/ INSPECTORS ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 4 WHO WERE HANDLING THE ASSESSEES CASE IN THE DEPART MENT. AFTER CONTINUOUS FOLLOW UP WITH THE DEPARTMENT THE ASSESSEE WAS INFORMED IN THE MONTH OF JULY 2006 THAT THE CR EDIT WAS NOT GIVEN FOR TWO TDS CERTIFICATES. HOWEVER TO EXPEDI TE THE CASE THE ASSESSEE WAS ASKED TO FILE DUPLICATE COPIES OF TDS CERTIFICATES ALONG WITH THE INDEMNITY BONDS ON THE STAMP PAPERS. ACCORDINGLY THE ASSESSEE FILED DUPLICATE TDS CERTIFICATES THE INDEMNITY BOND ALONG WITH LETTER DATED 1.08.2006. WHEN NO ACTION WAS TAKEN THE ASSESSEE FILED LETTER DATED 4.01.2007 WITH THE ADDITIONAL COMMISS IONER OF INCOME TAX WITH A COPY TO THE ASSISTANT COMMISSI ONER OF INCOME TAX. THUS THE LD. AR OF THE ASSESSEE HAS SUBMITTED THAT THE RECTIFICATION APPLICATION FILED BY THE AS SESSEE ON 20.5.1999 WAS PENDING DISPOSAL AND SUBSEQUENT LETTE RS FILED BY THE ASSESSEE WERE PURSUING THE RECTIFICATION AP PLICATION FILED BY THE ASSESSEE EARLIER. THEREFORE FOR THE PURPOSES OF LIMITATION THE APPLICATION FILED ON 20.05.1999 HA S TO BE CONSIDERED AND NOT THE SUBSEQUENT LETTER FILED BY THE ASSESSEE FOR COMPLYING WITH THE REQUIREMENT FOR DEC IDING THE SAID PETITION. HE HAS THUS PLEADED THAT THE PETIT ION FILED BY THE ASSESSEE FOR RECTIFICATION OF THE ORDER WAS WE LL WITHIN THE TIME AND THE LOWER HAVE COMMITTED AN ERROR AND ILLE GALITY IN HOLDING THAT THE SUBSEQUENT PETITION FILED BY THE A SSESSEE IS TIME BAR AND ALLOWED BY CONSIDERING THE SUBSEQUENT LETTERS ONLY. ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 5 7. ON THE OTHER HAND THE LEARNED DR RELIED ON THE ORDERS OF THE LOWER AUTHORITIES. 8. WE HAVE CONSIDERED THE RIVAL CONTENTIONS AND REL EVANT RECORD. IT HAS NOT BEEN DISPUTED BY THE REVENUE TH AT THE ASSESSEE HAS FILED THE RECTIFICATION APPLICATION ON 20.5.1999. THE ACIT WHILE PASSING THE IMPUGNED ORDER DATED 17 .01.2007 HAS RECORDED FINDINGS IN PARAGRAPH 3 AS UNDER : 3. THEREAFTER YOU FILED LETTER DATED 20.05.1999 REQUESTING FOR RECTIFICATION TO GIVE CREDIT FOR T DS OF RS.11 80 768/-. IT IS SEEN THAT ALONG WITH THIS LE TTER YOU HAD STILL NO FILED THE ORIGINAL TDS CERTIFICATE S NOR ANY INDEMNITY BOND HENCE NO ACTION WAS TAKEN ON THE SAME 9. THUS IT IS CLEAR FROM THE ORDER OF THE ACIT TH AT THE APPLICATION WAS DULY ACKNOWLEDGED BY THE REVENUE BU T IT WAS NOT CONSIDERED BY THE ACIT ON THE GROUND THAT THE ASSESSEE DID NOT FILE ORIGINAL TDS CERTIFICATES OR ANY INDE MNITY BY THE ASSESSEE ALONG WITH THE SAID PETITION. WE NOTE THA T THE ORIGINAL CERTIFICATES WERE FILED BY THE ASSESSEE AL ONG WITH THE RETURN OF INCOME AND IT WAS NOT THE CASE OF THE DEP ARTMENT WHILE NOT GIVING THE SHORT CREDIT OF RS.11 80 768 /- THAT THE ASSESSEE DID NOT FILE THE ORIGINAL TDS CERTIFICATE S. WE FURTHER NOTE THAT THE REVENUE HAS NOT RESPONDED FOR LONG TIME AFTER FILLING THE SAID APPLICATION DATED 20.5.1999 BY THE ASSESSEE. EVEN THERE WAS NO RECORD FOR ASKING THE ASSESSEE TO SUBMIT THE DUPLICATE TDS CERTIFICATES ALONG WITH THE INDEM NITY BOND. ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 6 HOWEVER THE ASSESSEE HAS FILED A LETTER DATED 7.08 .2006 ALONG WITH THE DUPLICATE TDS CERTIFICATES AND INDE MNITY BOND. WE ARE OF THE VIEW THAT THE SUBSEQUENT LETTER FILE D BY THE ASSESSEE ARE IN FURTHERANCE AND PERSUASION OF THE FIRST LETTER DATED 20.5.1999. THEREFORE THESE SUBSEQUENT LETT ERS CANNOT BE SAID TO BE A SEPARATE RECTIFICATION PETITION B UT ARE IN THE NATURE OF FULFILLING THE SOME REQUIREMENT FOR PROCESSING AND DECIDING THE ORIGINAL LETTER DATED 20.5.1999. THEREFORE THE LIMITATION AS PRESCRIBED U/S 154(7) WILL BE CO UNTED UPTO THE FIRST LETTER DATED OF 20.5.1999 FILED BY THE ASSESSEE. ONCE THE ASSESSEE HAS FILED THE RECTIFICATION WHICH REMAINS UNADJUDICATED THE LIMITATION STOPS AT THAT POINT OF TIME AND EVEN IF ANY DEFICIENCY IS THERE IN THE SAID RECTIFI CATION PETITION WHICH MAY HAVE BEEN REMOVED BY FILING THE SUBSEQUE NT LETTER. THIS WOULD NOT MEAN THAT THE SUBSEQUENT LE TTER IS AN INDEPENDENT AND FRESH RECTIFICATION PETITION. THER EFORE IN THE FACTS AND CIRCUMSTANCES OF THE CASE THE PETITION F ILED BY THE ASSESSEE VIDE LETTER DATED 20.5.1999 FOR RECTIFICAT ION OF THE ORDER AND GRANTING OF CREDIT OF RS.11 80 768/- ALO NG WITH THE INTEREST IS WELL WITHIN THE TIME PRESCRIBED U/S 15 4. HENCE WE SET ASIDE THE ORDERS OF THE LOWER AUTHORITIES AND D IRECT THE DEPARTMENT TO GRANT THE REFUND OF THE SAID AMOUNT ALONG WITH THE INTEREST AS PER LAW. ITA NO. 3939/MUM/2009 (ASSESSMENT YEAR: 1996-97) 7 10. THE APPEAL OF THE ASSESSEE IS ALLOWED. PRONOUNCED IN THE OPEN COURT ON 3/12/2010 SD SD (R.S.SYAL) (VIJ AY PAL RAO) ACCOUNTANT MEMBER JUDICIAL MEMBER MUMBAI DATED 3 RD DEC 2010 SRL:291110 COPY TO: 1. APPELLANT 2. RESPONDENT 3. CIT CONCERNED 4. CIT(A) CONCERNED 5. DR CONCERNED BENCH BY ORDER TRUE COPY ASSTT. REGISTRAR ITAT MUMBAI