Bombay High Court
Pr.Commissioner Of Income Tax-1 vs M/S Tata Communications Ltd(Formerly ... on 6 March, 2019
Bench: Akil Kureshi, M.S. Sanklecha
6. os itxa 1852-16.doc
R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
O.O.C.J.
INCOME TAX APPEAL NO. 1852 OF 2016
Pr. Commissioner of Income Tax -1 .. Appellant
Vs
M/s. Tata Communications Ltd .. Respondent
...................
Mr. Suresh Kumar for the Appellant
Mr. Jehangir D. Mistri a/w Anil R. Wani & Supriya S. Devergudi i/by
ANS Law Associates for the Respondent
...................
CORAM : AKIL KURESHI &
M.S. SANKLECHA, JJ.
DATE : MARCH 6, 2019.
P.C.:
1. Revenue is in the appeal against the judgment of the Income Tax Appellate Tribunal ("the Tribunal" for short) raising following questions for our consideration:-
"(i) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in allowing the assessee's ground of appeal and in directing that in computing the interest u/S. 244A, the interest granted u/S. 244A should be excluded from the refund amount reduced?
(ii) Whether on the facts and in the circumstances of the case and in law, the Tribunal was justified in allowing the assessee's ground of appeal and in directing that in computing interest u/S. 234D, the interest granted earlier 1 of 4 ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 00:06:33 :::
6. os itxa 1852-16.doc u/S. 244A should be excluded from the refund amount considered for charging the interest u/S. 234D?"
2. It is agreed position that Question No. (i) is squarely covered by the decision of this Court in the case of CIT, Mumbai Vs. M/s. Tata Power Company Ltd (Income Tax Appeal No. 1560 of 2013 decided on 7.7.2015) in which it was held and observed as under:-
"3. The only controversy in this appeal before us is:
Whether while granting refund to the assessee, consequent to the Tribunal order is the revenue entitled to adjust only the refund paid earlier or is the revenue entitled to adjust also the interest paid along with the refund earlier and pay interest only on the balance.
4. In the present facts for the subject assessment year the revenue granted refund of Rs.76.43 crores in 2007 being the tax paid in excess. The same was handed over to the respondent - assessee along with interest of Rs.9.74 crores for the delayed refund of Rs.76.43 crores. Thereafter on 10 May 2010, the Assessing Officer while giving effect to the order of the Tribunal for the subject assessment year determined the assessee's refund at Rs.126.63 crores. The Assessing Officer while determining the interest payable on the refund, reduced the refund of Rs.86.17 crores (Tax amount of Rs.76.43 crores + Interest of Rs.9.74 crores) out of the refund of Rs.126.63 crores as determined. Consequent to the above adjustment the appellant granted interest to the respondent on Rs.40.46 crores and not on Rs.50.20 crores as claimed by the respondent - assessee.
5. Being aggrieved, the respondent- assessee carried the issue in appeal. Both the Commissioner of Income Tax (Appeals) (the 2 of 4 ::: Uploaded on - 08/03/2019 ::: Downloaded on - 14/03/2019 00:06:33 :::
6. os itxa 1852-16.doc 'CIT(A)') and the Tribunal have on examination of facts correctly held that when a refund of tax has to be reduced by refund already granted it is only the tax element which has to be adjusted and not the interest element paid on the delayed refund of the tax. This is so as the interest which is paid to the assessee is for the wrongful withholding of the assessee's refund by the revenue. It has no element of tax which would justify reducing the same from the refund due while computing the interest payable on the delayed payment of refund.
6. In appeal before us the revenue has not been able to point out how the questions of law as formulated arise in the present appeal. Further the ground of appeal also does not indicate in what manner does the impugned order on a reading of Section 244A of the Act gives rise to the question framed for our consideration."
3. So far as Question No. (ii) is concerned, the Tribunal in the impugned judgment has relied on its earlier order in case of this very assessee for the assessment year 2001-02.
Learned counsel for the assessee placed on record an order dated 21.1.2019 passed by this Court in Income Tax Appeal No. 1188 of 2016 in which the Revenue had challenged the Tribunal's judgment with respect to the said assessment year 2001-02 in which this question was not raised. It means the Revenue had accepted the verdict of the Tribunal in this respect.
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6. os itxa 1852-16.doc
4. In view of the above, no question of law arises. Income Tax Appeal is dismissed.
[ M.S. SANKLECHA, J. ] [ AKIL KURESHI, J ]
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