ORBIT SHELTER P. LTD ( AMALGAMATED IN ORBIT CORPORATION LTD), MUMBAI v. DCIT CEN CIR 47, MUMBAI

ITA 4848/MUM/2009 | 2008-2009
Pronouncement Date: 07-05-2010 | Result: Partly Allowed

Appeal Details

RSA Number 484819914 RSA 2009
Assessee PAN AAACO7137M
Bench Mumbai
Appeal Number ITA 4848/MUM/2009
Duration Of Justice 8 month(s) 17 day(s)
Appellant ORBIT SHELTER P. LTD ( AMALGAMATED IN ORBIT CORPORATION LTD), MUMBAI
Respondent DCIT CEN CIR 47, MUMBAI
Appeal Type Income Tax Appeal
Pronouncement Date 07-05-2010
Appeal Filed By Assessee
Order Result Partly Allowed
Bench Allotted C
Tribunal Order Date 07-05-2010
Assessment Year 2008-2009
Appeal Filed On 21-08-2009
Judgment Text
IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCH C MUMBAI BEFORE SHRI D.K. AGARWAL JM AND SHRI T.R. SOOD AM I.T.A.NO.4848/MUM/2009 ASSESSMENT YEAR : 2005-06 M/S. ORBIT SHELTER PVT. LTD. (AMLGAMATED IN ORBIT CORPORATION LTD.) 165 THE VIEW LST FLOOR DR. ANNIE BASENT ROAD WORLI MUMBAI 400 018. PAN: AAACO 7137 M VS. THE DY.COMMISSIONER OF INCOMETAX CENTRAL CIRCLE 47 MUMBAI. (APPELLANT) (RESPONDENT) APPELLANT BY : SHRI RAKESH DOSHI RESPONDENT BY : SHRI SUMEET KUMAR O R D E R PER T.R. SOOD AM: IN THIS APPEAL THE ASSESSEE HAS RAISED THE FOLLOWI NG GROUND: ON THE FACTS AND CIRCUMSTANCES OF THE CASE AS WELL AS IN LAW THE LEARNED CIT(A) HAS ERRED IN CONFIRMING THE ACTION O F A.O. IN REJECTING THE CLAIM FOR INTEREST RECEIVABLE U/S.244 A OF THE INCOME- TAX ACT 1961 ON THE REFUND GRANTED TO THE APPELLAN T AMOUNTING TO RS. 67 36 967/- WHICH THE APPELLANT WAS ENTITLED TO . 2. LEARNED COUNSEL FOR THE ASSESSEE SUBMITTED THAT THE ASSESSEE HAS PAID SELF- ASSESSMENT TAX AMOUNTING TO RS. 25 00 00 000/- ON 0 2.04.2008. ORIGINALLY THE RETURN WAS FILED ON 13.10.2008 ON WHICH TAX WAS PAY ABLE. HOWEVER THIS WAS REVISED ON 23.01.2009 AND TAX PAYABLE WAS REDUCED T O RS. 12 02 35 444/- + INTEREST AMOUNTING TO RS. 72 74 239/- AND THEREFORE THE ASS ESSEE BECAME ENTITLED FOR REFUND OF RS.12 24 90 320/-. THOUGH THIS AMOUNT WA S REFUNDED BY PROCESSING THE REVISED RETURN BUT NO INTEREST WAS GRANTED AND THER EFORE THE ASSESSEE FILED AN APPLICATION UNDER SECTION 154 OF THE ACT. SAME WAS REJECTED VIDE ORDER DATED 13.03.2009 ON THE GROUND THAT ASSESSEE WAS NOT ENTI TLED TO INTEREST ON SELF- ASSESSMENT TAX PAID BY IT BECAUSE THE SAME WAS NOT COVERED BY CLAUSE (B) READ WITH EXPLANATION TO SECTION 244A(1) OF THE ACT. ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 2 3. ON APPEAL THE LEARNED CIT(A) ALSO REFUSED TO EN TERTAIN THE CLAIM BECAUSE THE DELAY OCCURRED ON THE PART OF THE ASSESSEE. 4. BEFORE US THE LEARNED COUNSEL FOR THE ASSESSEE A RGUED THAT THE HONBLE DELHI HIGH COURT HAS ALREADY HELD IN THE CASE OF CI T V. SUTLEJ INDUSTRIES LTD. ITA NO.1204/2005 (COPY OF THE ORDER IS FILED ON RECOR D) THAT INTEREST HAS TO BE PAID UNDER SECTION 244A EVEN IN A CASE OF SELF-ASSESSMEN T TAX AND THEREFORE IS COVERED BY THE DECISION OF THE DELHI HIGH COURT. 4. ON THE OTHER HAND THE LEARNED DEPARTMENTAL REPR ESENTATIVE STRONGLY SUPPORTED THE ORDERS OF THE LOWER AUTHORITIES. 5. WE HAVE CONSIDERED THE RIVAL SUBMISSIONS CAREFUL LY AND FIND THAT THE LEARNED CIT(A) HAS ADJUDICATED THE ISSUE VIDE PARA 2.2 WHICH READS AS UNDER: I HAVE CAREFULLY CONSIDERED THE FACTS AND SUBMISSI ONS AND DO NOT FIND MERIT IN THE APPELLANTS CLAIM. IT IS SEEN THA T THE CLAIM OF REFUND AS MADE THROUGH REVISED RETURN FILED ON 19.1.2009 A ND THE SAME WAS PROMPTLY PROCESSED BY THE A.O. ON 26.2.2009 AND THE REFUND OF RS.12 24 90 314/- WAS ALLOWED AND ADJUSTED AS PER T HE REQUEST OF THE APPELLANT. THUS IN THIS CASE THERE WAS NO DELA Y ON THE PART OF THE A.O. IN GRANT OF REFUND. WHATEVER DELAY HAD OCC URRED IT WAS ONLY ON ACCOUNT OF THE FACT THAT THE APPELLANT HAD NOT MADE CLAIM OF REFUND WAS ATTRIBUTABLE TO THE ASSESSEE WHO HAD MAD E THE DELAYED CLAIM OF REFUND BY FILING A REVISED RETURN ON 19.1. 2009 ONLY. THUS THE PROVISIONS OF SUB-SECTION (2) OF SECTION 244A WERE SQUARELY APPLICABLE IN THE INSTANT CASE. IT WILL BE PERTINEN T TO REPRODUCE THE PROVISIONS BELOW: IF THE PROCEEDINGS RESULTING IN THE REFUND ARE DEL AYED FOR REASONS ATTRIBUTABLE TO THE ASSESSEE WHETHER WHOLLY OR IN PART THE PERIOD OF THE DELAY SO ATTRIBUTABLE TO HIM SHALL BE EXCLUDED FROM THE PERIOD FOR WHICH INTEREST IS PAYABLE AND WHERE ANY QUESTION ARISES A S TO THE PERIOD TO BE EXCLUDED IT SHALL BE DECIDED BY THE CHIEF COMMISSI ONER OR COMMISSIONER WHOSE DECISION THEREON SHALL BE FINAL. AS IS APPARENT FROM THE FACTS OF THE CASE THE CLAI M OF REFUND WAS MADE FOR THE FIRST TIME BY THE APPELLANT ON 19.1.20 09 BY FILING A REVISED RETURN SUCH CLAIM WAS PROMPTLY PROCESSED A ND REFUND ALLOWED ON 26.2.2009. THUS THERE IS NO DELAY IN GR ANT OF REFUND. IF AT ALL THE DELAY IS COMPUTED WITH REFERENCE TO THE ORIGINAL RETURN SUCH DELAY IS ATTRIBUTABLE TO THE ASSESSEE WHO FILE D DELAYED CLAIM OF REFUND THROUGH REVISED RETURN. THUS THE PROVISION S OF SUB-SECTION (2) OF SECTION 244A WAS NOT ALLOWABLE AND WAS RIGHT LY REJECTED U/S.154 OF THE I.T.ACT. THIS GROUND OF APPEAL IS DI SMISSED. ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 3 6. WE FURTHER FIND THAT HONBLE DELHI HIGH COURT IN THE CASE OF CIT V. SUTLEJ INDUSTRIES LTD. (SUPRA) HAS HELD AS UNDER: THEREFORE IN OUR VIEW WHERE THE SELF-ASSESSMENT T AX PAID BY THE ASSESSEE UNDER SECTION 140A IS REFUNDED THE ASSESSEE SHOULD BE ON PRINCIPLE ENTITLED TO INTEREST THEREON SINCE THE SELF-ASSESSM ENT TAX HAS TO BE IN TERMS OF SECTION 244A(1)(B) I.E. FROM THE DATE OF PAYMEN T OF SUCH AMOUNT UP TO THE DATE ON WHICH REFUND IS ACTUALLY GRANTED. WE FI ND SUPPORT FOR THE CONCLUSION FROM THE DECISION OF THE MADRAS HIGH COU RT IN CHOLAMANDALAM INVESTMENT AND FINANCE CO. LTD. 294 ITR 438 THE SL P AGAINST WHICH ORDER WAS DISMISSED BY THE SUPREME COURT. EVEN OTHERWISE IT IS TRITE LAW THAT WHEREVER THE ASSESSEE IS ENTITLED TO REFUND THERE IS STATUTORY LIABILITY ON THE REVENUE TO PAY THE INTEREST ON SUCH REFUND ON G ENERAL PRINCIPLES TO PAY THE INTEREST ON SUMS WRONGFULLY RETAINED (SANDVIK A SIA LTD. 280 ITR 643). 7. THEREFORE WE ARE OF THE VIEW THAT IN VIEW OF TH E DECISION OF THE HONBLE DELHI HIGH COURT THE ASSESSEE IS ENTITLED TO INTER EST EVEN IN RESPECT OF SELF- ASSESSMENT TAX PAYMENT. HOWEVER AT THE SAME TIME WE FIND THAT SELF-ASSESSMENT TAX PAYMENT WAS MADE ON 2 ND APRIL 2008 AND THEREFORE THE ASSESSEE CANNOT CLA IM INTEREST FOR THE MONTH OF APRIL 2008. THIS POSITION WAS FAIRLY ACCEPTED BY THE LEARNED COUNSEL FOR THE ASSESSEE. THEREFORE WE SET ASIDE THE ORDER OF THE LEARNED CIT(A) AND DIRECT THE A.O. TO PAY INTEREST U/S.244A IN RES PECT OF SELF-ASSESSMENT TAX EXCEPT FOR THE MONTH OF APRIL 2008. 7. IN THE RESULT THE ASSESSEES APPEAL IS PARTLY A LLOWED. ORDER PRONOUNCED IN THE OPEN COURT ON THIS 7 TH DAY OF MAY 2010. SD. SD (D.K. AGARWAL) (T. R. SOOD) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE 7 TH MAY 2010. KN COPY TO: 1. THE ASSESSEE 2. THE REVENUE 3. THE CIT CENT.I MUMBAI 4. THE CIT(A) CENTRAL -III MUMBAI 5. THE DR C BENCH MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR ITAT MUMBAI ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 4 ORDER PRONCOUNCED ON . 2. AT THE TIME OF HEARING NONE APPEARED ON BEHALF O F THE ASSESSEE- APPELLANT AS WELL AS NO PETITION FOR ADJOURNMENT WA S FILED. WE FIND FROM THE RECORDS THAT ASSESSEE-APPELLANT WAS SERVED NOTICE B Y REGISTERED POST ACKNOWLEDGEMENT DUE TWICE AND THE ACKNOWLEDG EMENT CARDS DULY SIGNED BY THE ASSESSEE ON 25.07.2007 AND 16.11.2 007 RECEIVED BACK. IT IS THEREFORE PRESUMED THAT THE ASSESSEE IS NOT INTERE STED IN PURSUING THE APPEAL FILED BY IT. IT HAS BEEN HELD BY THE HONBLE MADHYA PRADESH HIGH COURT IN ESTATE OF LATE TUKOJIRAO HOLKAR VS. CWT (223 ITR 480)(MP) THAT IF THE PARTY AT WHOSE INSTANCE THE REFERENCE IS MADE FAI LS TO APPEAR AT THE HEARING OR FAILS IN TAKING STEPS FOR PREPARATION OF PAPER-B OOKS SO AS TO ENABLE HEARING OF THE REFERENCE THE COURT IS NOT BOUND TO ANSWER THE REFERENCE. THE DECISION OF THE DELHI BENCH OF THE TRIBUNAL IN CIT VS. MULTIPLAN (INDIA) PVT. LTD. 38 ITD 320 (DEL.) IS ALSO TO THE SAME EFFECT. IN THE FACTS OF THE CASE WE HOLD THAT THE ASSESSEE IS NOT INTERESTED IN PURSUIN G THE PRESENT APPEAL BEFORE THE TRIBUNAL ACCORDINGLY THE APPEAL OF THE ASSESSE E IS DISMISSED AS UNADMITTED. THE ASSESSEE IF SO ADVISED SHALL BE FREE TO MOVE THE TRIBUNAL PRAYING FOR RECALLING OF THIS ORDER PROVIDED THE AS SESSEE IS ABLE TO ESTABLISH THE REASONABLE CAUSE BEHIND THE NON-APPEARANCE ON T HE DATE OF HEARING AND IN THAT CASE THE TRIBUNAL MAY IN ITS DISCRETION REC ALL THIS ORDER AND THE APPEAL MAY BE RESTORED FOR RE-HEARING. 3. IN THE RESULT APPEAL OF THE ASSESSEE IS DISMISS ED. ORDER PRONOUNCED IN THE OPEN COURT ON 18.12.2 007. 2. FROM THE GROUNDS FILED BY THE ASSESSEE BEFORE TH E LEARNED COMMISSIONER OF INCOME-TAX (APPEALS) WE FIND THAT THE LEVY PERTAINE D TO CONCEALMENT OF INCOME OF ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 5 RS. 1 02 744/- AND THE PENALTY LEVIED WAS RS. 22 24 8/-. THEREFORE IN VIEW OF CBDT CIRCULAR F.NO. 279/MISC.142/2007-IT DATED 15 TH MAY 2008 THE APPEAL IS NOT MAINTAINABLE TAX EFFECT BEING LESS THAN RS. 2 LAKH S. VIDE PARA 4 OF THIS CIRCULAR IT IS CLEARLY MENTIONED THAT THE TAX EFFECT IN ASCERTAINI NG MONETARY LIMITS FOR FILING OF APPEALS IN THE CASE OF PENALTY ORDERS WOULD MEAN QUANTUM OF PENALTY DELETED OR REDUCED. 3. THEREFORE APPEAL OF THE REVENUE IS DISMISSED AS NOT MAINTAINABLE. ORDER PRONOUNCED ON THIS _______ DAY OF MAY 2009 . (G.C. GUPTA) (ABRAHAM P. GEORGE) JUDICIAL MEMBER ACCOUNTANT MEMBER MUMBAI DATED THE ______MAY 2009. KN COPY TO: 6. THE ASSESSEE 7. THE ITO-26(1)(2) MUMBAI. 8. THE CIT CITY-XXVI MUMBAI 9. THE CIT(A)-XXVIII MUMBAI 10. THE DR G BENCH MUMBAI BY ORDER /TRUE COPY/ ASST. REGISTRAR ITAT MUMBAI S.NO. DETAILS DATE INITIALS DESIGNATION 1 DRAFT DICTATED ON 18.05.09 SR.PS/PS 2 DRAFT PLACED BEFORE AUTHOR 18.05.09 SR.PS/PS 3 DRAFT PROPOSED & PLACED BEFORE THE SECOND MEMBER JM/AM 4 DRAFT DISCUSSED/APPROVED BY SECOND MEMBER JM/AM 5. APPROVED DRAFT COMES TO THE SR.PS/PS SR.PS/PS 6. KEPT FOR PRONOUNCEMENT ON SR.PS/PS 7. FILE SENT TO THE BENCH CLERK SR.PS/PS 8 DATE ON WHICH THE FILE GOES TO THE HEAD CLERK 9 DATE OF DISPATCH OF ORDER ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 6 ITA NO.4848/M/09 M/S.ORBIT SHELTER P.LTD.. 7