Income Tax Appellate Tribunal - Mumbai
Orbit Corporation Ltd, Mumbai vs Department Of Income Tax
IN THE INCOME TAX APPELLATE TRIBUNAL, MUMBAI BENCH "C", MUMBAI BEFORE SHRI D.K.AGARWAL (J.M) AND SHRI R.K.PANDA(A.M) ITA NO.5756/MUM/2009(A.Y. 2007-08) The DCIT, Cen. Cir.47, Room No.658, 6th Floor, Aaykar Bhavan, MK Road, Mumbai - 20. (Appellant) Vs. M/s. Orbit Corporation Ltd., 165, The View, 1st Floor, Dr. Annie Besant Road, Worli, Mumbai - 18. PAN: AACO3920A (Respondent) Appellant by : Shri Devdasan Respondent by : Shri Rakesh Joshi ORDER PER D.K.AGARWAL, J.M
This appeal preferred by the revenue is directed against the order 7/8/2009 passed by the ld. CIT(A), Cen. III, Mumbai for the assessment year 2007-08.
2. Briefly stated facts of the case are that the assessee a domestic company filed its return of income declaring an income under section 115JB of the Income Tax Act, 1961 (the Act) amounting to Rs. 84,38,098/- claiming refund of Rs. 2,23,31,925/-. Subsequently the assessee filed revised return claming the same amount of Refund of Rs. 2,23,31,925/-. The revised return was processed but the assessee was not allowed interest under section 244A of the Act. By an application under section 154 the assessee requested to grant of interest on the refund arising due to excess of payment of self assessment tax of Rs. 3.00 crores deposited on 5.4.2007. However, the A.O after referring to the provisions of section 244A(1) of the Act was of the view that as per explanation to clause (b), the interest under section 244A(1) is not allowable on the self assessment tax paid by the assessee and accordingly he rejected the assessee's petition under section 154 of the Act vide order dated 17.4.2009. On appeal ld. CIT(A) following the decision in DCIT vs. BSES Ltd. (113 TTJ 227), Addl. CIT vs. Grindwell Norton Ltd. (285 ITR 13), CIT vs. Cholamandalam Investment & Finance Co. Ltd (294 ITR 438) and Hooghly Mills Co. Ltd. vs. DCIT (74 ITD 309) held that the appellant is entitled to interest under section 244A with regard to excess tax paid by way of self assessment tax from date of payment of self assessment tax paid upto the date of issue of refund excluding delay if any attributable to the assessee and accordingly allowed the appeal.
3. Being aggrieved by the order of the ld. CIT(A) the revenue is in appeal before us challenging in all the grounds the order of ld. CIT(A) in allowing the interest under section 244A of the Act on excess payment of Rs. 3.00 crores paid by the assessee under self assessment tax.
4. At the time of hearing ld. D.R supports the order of the AO.
5. On the other hand, ld. counsel for the assessee submits that the issue is squarely covered in favour of the assessee by the order of the Tribunal in assessee's own case in M/s. Orbit Shelter Pvt. Ltd. vs. DCIT in ITA No.4848/M/2009 for assessment year 2008-09 dated 7.5.2010, wherein the Tribunal following the decision of Hon'ble Delhi High Court in CIT vs. Sutlej Industries Ltd. has held that the assessee is entitled to interest even in respect of self assessment tax payment except for the month of April, 2008 as the payment was made on 2.4.2008. He also placed on record copy of the said order of the Tribunal.
6. Having carefully heard the submissions of the rival parties and perusing the material available on record we find merit in the plea of the ld. counsel for the assessee that the issue stands covered in favour of the assessee by the judgment of the Hon'ble Delhi High Court in CIT vs. Sutlej Industries Ltd. since reported in (2010) 190 Taxman 136(Del) wherein it has been held vide para 15 as under:-
"Therefore, in our view where the self-assessment tax paid by the assessee under section 140A is refunded, the assessee should be, on principle, entitled to interest thereon since the self-assessment tax falls within the expression "refund of any amount". The computation of interest on self-assessment tax has to be in terms of section 244A(1)(b), i.e. from the date of payment of such amount upto the date on which refund is actually granted. We find support for the conclusion from the decision of the Madras High Court in Cholamandalam Investment and Finance Co. Ltd.(supra) {(2007) 294 ITR 438,} the SLP 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 general principles to pay the interest on sums wrongfully retained(Sandvik Asia Ltd's., case (supra) {(2006) 280 ITR 643}"
7. The Tribunal in the assessee's own case(supra) following the decision in Sutlej Industries Ltd.(supra) has held as under:-
7. Therefore, we are of the view that in view of the decision of the Hon'ble Delhi High Court, the assessee is entitled to interest even in respect of self-assessment tax payment. However, at the same time we find that self assessment tax payment was made on 2nd April, 2008 and, therefore, the assessee cannot claim 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 AO to pay interest u/s. 244A in respect of self-assessment tax except for the month of April 2008."
8. In the absence of any distinguishing feature brought on record by the revenue, we respectfully following the consistent view hold that the assessee is entitled to interest in respect of self assessment tax payment of Rs. 3.00 crores which was made on 5.4.2007 from 1.5.2007 upto the date of issue of refund excluding the delay if any attributable to the assessee and accordingly the grounds taken by the revenue are rejected.
9. In the result, the revenue's appeal stands dismissed.
Order pronounced in the open court on the 25th day of June, 2010
Sd/- Sd/-
(R.K..PANDA) (D.K.AGARWAL)
ACCOUNTANT MEMBER JUDICIAL MEMBER
Mumbai, Dt. 25th June, 2010
Copy to: 1. The Appellant 2. The Respondent 3. The CIT ,Cen.III Mumbai
The CIT(A)- Cen.VIII , Thane. 5. The D.R "C" Bench.
(True copy) By Order
Asst. Registrar, ITAT, Mumbai Benches
MUMBAI.
Vm.
Details
Date
Initials
Designation
1
Draft dictated on
22/6/2010
Sr.PS/PS
2
Draft Placed before author
22/6/2010
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
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ITA NO.5756/MUM/2009(A.Y. 2007-08)