Income Tax Appellate Tribunal - Ahmedabad
Gujarat Urja Vikas Nigam Ltd.,, Baroda vs Assessee on 12 October, 2012
IN THE INCOME TAX APPELLATE TRIBUNAL,
" C " BENCH, AHMEDABAD
Before
Shri D. K. TYAGI, JUDICIAL MEMBER
and Shri ANIL CHATURVEDI, ACCOUNTANT MEMBER
I.T.A. No.356 / Ahd/2011
(Assessment year 2001-02)
Gujarat Urja Vikas Nigam Ltd., Vs. ACIT Circle 1(1),
(Erstwhile Gujarat Electricity Baroda
Board),
Sardar Patel Vidyut Bhavan,
Race Course Circle, Baroda
PAN/GIR No. : AAACG8540N
(APPELLANT) .. (RESPONDENT)
Appellant by: Shri J P Shah, AR
Respondent by: Shri D C Patwari, CIT DR
Date of hearing: 12.10.2012
Date of pronouncement: 30.11.2012
ORDER
PER SHRI D. K. TYAGI, JM:-
This is assessee's appeal directed against the order of Ld. CIT(A) I, Baroda dated 27.12.2010 for the assessment year 2001-02. The only ground of the assessee is as under:
"The Ld. CIT(A) erred in law and on facts that he has confirmed the rejection of claim of interest under section 244A of the Income tax Act, 1961 on refund for the period form date of issue of original refund, not received by the appellant till the date of fresh refund order."
2. The brief facts of the case are that the assessee is engaged in the business of generation and distribution of electricity. The assessee field 2 I.T.A.No.356 /Ahd/2011 A.Y.2001-02 its return of income on 31.10.2001 and subsequently revised it on 19.06.2002. This revise return of income was processed u/s 143(1) of the Act on 27.11.2002 resulting into a refund of Rs.3,43,88,944/-. This refund included interest of Rs.44,75,110/- u/s 244A of the Act for the period from April 2001 to November 2002 in respect o excess taxes paid by the assessee. The refund order was issued by the A.O. on 13.12.2002 and subsequently, the assessee appealed before the A.O. on 21.02.2004 claiming that it had not received any refund for the year. In support of its claim, the assessee submitted the indemnity bond along with banks letter confirming therein that the original refund order was not encashed. Subsequently, the A.O. issued cash refund order of Rs.3,43,88,944/- on 29.04.2005. After receiving this refund order, the assessee again applied u/s 154 of the Act on 24.05.2005 claiming that it should be paid interest for the entire period i.e. from April 2001 to April 2005 which according to him worked out to Rs.92,73,288/- against Rs.44,75,110 paid to it. The A.O. vide order dated 21.07.2005, passed u/s 154 of the Act, rejected this claim of the assessee stating that the original refund was duly granted to the assessee on 13.12.2002 and was immediately sent it through RPAD. The assessee failed to encash it although the bank advice issued for refund was received by the bank on 20.12.2002. Thus, the delay in granting the refund was not on the part of Revenue but it was attributable to the assessee. Against this order of the A.O., assessee filed appeal before Ist appellate authority.
3. Before ld. CIT(A), the assessee's contention was that the A.O. has not mentioned anything about this service o original refund order dated 13.12.2002 through RPAD which clearly establishes that the assessee had not received the same and, therefore, the delay was not attributable to the assessee. Secondly, the assessee should be paid interest till the date of 3 I.T.A.No.356 /Ahd/2011 A.Y.2001-02 fresh refund order i.e. 29.04.2005. Ld. CIT(A) directed the A.O. to verify the records and intimate the date of service of original refund order i.e. 13.12.2002. The A.O. replied that the service of the same was not traceable in this case. However, he submitted a copy of the refund register of that period maintained by his office in all the cases of refund mentioning therein that the assessee was issued refund order No.009592 on 13.12.2002 for Rs.3,43,88,944/-. The A.O. also submitted a copy of the Despatch register of his office mentioning there in that this refund order No.009592 was dispatched through RPAD on 20.12.2002. In response to the reply of the A.O., the assessee's contention was that the copy of refund register and copy of the dispatch register cannot be considered as good evidence in absence of RPAD acknowledgement. It was also reiterated that he could not receive the refund order dated 13.12.2002 and, therefore, delay was not attributable to it. After taking into consideration all these facts Ld. CIT(A) dismissed the appeal of the assessee by observing as under:
"4.6 I have carefully considered the facts of the case, the submissions of the appellant. I have also gone through the refund register and the dispatch register. It is noticed that there are no interpolations in both these registers. It is also noticed that the department has indicated that refund advice was received by bank on 20.12.J02. It is also surprising that right from processing of return on 27.11.02 till Feb 04 the appellant did not make any correspondence to inquire about the refund order and the matter was raised by the assessee only in Feb.'04. It is also observed that in its letter dated 6-12-04 to SBI, Mandvi branch it is informed by appellant that the refund order no. 9592 is not traceable in their office and that a non-payment certificate be issued. Under the circumstances it does not appear that the delay in issuing the refund is attributable to the department and therefore the request of the appellant to grant interest u/s 244A for the period 13.12.02 to 20.9.05 is rejected."4 I.T.A.No.356 /Ahd/2011
A.Y.2001-02
4. Before us, Ld. counsel for the assessee reiterated the submissions made before the lower authorities and prayed that the balance interest amount of Rs.47,98,178.54 u/s 244 A of the Act may be granted till the date of fresh refund order i.e. 29.04.2005 by the department. For making this submission reliance was placed on the decision of Delhi High Court in the case of CIT vs. Satlaz Industries Ltd. 325 ITR 331 and on the decision of jurisdictional High Court in the case of Jadeja Jitendrasingh Chandrasingh vs. Tax Recovery Officer Range 3 & 2 in Special Civil Application No.4600 of 2002. Ld. D.R. on the other had relied on the orders of authorities below.
5. After hearing both the parties, perusing the record and going through the order of authorities below, we find that there is no dispute on the fact that refund order no.009592 of Rs.3,43,88,944/- dated 13.12.2002 was dispatched through RPAD on 20.12.2002. It is also not in dispute that the bank advice issued for refund was received by the bank on 20.12.2002. It is also not in dispute that the assessee came to know only on 21.02.2004 that it had not received any refund due to him. The only issue before us to be decided is whether the interest should be granted to the assessee till the date of grant of refund on 13.12.2002 or till the date of fresh refund order i.e. on 29.04.2005. We find that the relevant provisions in this regard is clause (a) of sub-section (1) of Section 244A of the Act which reads as under:
"244A(1)(a) Where the refund is out of any tax paid under section 115WJ or collected at source under section 206C or paid by way of advance tax or treated as paid under section 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of one half percent for every month or part of a month comprised in the period form the 1st day of April of the assessment year to the de on which the refund is granted."5 I.T.A.No.356 /Ahd/2011
A.Y.2001-02
6. It is clear from the above that in clause (a) the words have been used 'refund is granted'. In our considered opinion, the refund is granted the moment the A.O. has signed the order regarding payment of interest u/s 244A of the Act which, in this case, has been done by the A.O. on 13.12.2002 and, therefore, interest u/s 244A is to be granted till this date only and not up to the date of fresh order. This view of ours gets support from the decision of Hon'ble Rajasthan High court in the case of Rajasthan Electricity Board vs CIT as reported in 281 ITR 274 (Raj.). In the case of Satlaz Industries (supra) relied by assessee Hon'ble Delhi High Court also held that interest will be paid up to date on which refund was actually granted. In view of these direct decisions on the issue the decision of jurisdictional High Court in the case of Jadeja Jitendrasingh Chandrasingh (supra) was not considered as the same does not relate to the income tax proceedings. In view of above we find no infirmity in the order of ld. CIT(A) and the same is hereby upheld.
7. In the result, appeal of the assessee is dismissed.
8. Order pronounced in the open court on the date mentioned hereinabove.
Sd/- Sd/-
(ANIL CHATURVEDI) (D.K. TYAGI)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Sp
Copy of the Order forwarded to:
1. The applicant
2. The Respondent
3. The CIT Concerned
4. The Ld. CIT (Appeals)
5. The DR, Ahmedabad By order
6. The Guard File
AR,ITAT,Ahmedabad