Bharat Serums And Vaccines Ltd, Mumbai vs Department Of Income Tax

ी डी. म मोहन, उपा य एवं ी संजय अरोड़ा, लेखा के सम ।

BEFORE SHRI D. MANMOHAN, VP AND SHRI SANJAY ARORA, AM आयकर अपील सं./I.T.A. No. 5209/Mum/2012 ( नधा रण वष / Assessment Year: 2007-08)

Asst. CIT, Circle 3(1) Bharat Serums and Vaccines Ltd., Room No. 607, 6th Floor, बनाम/ 27th Floor, Hoechst House, Aayakar Bhavan, Nariman Point, Vs. Mumbai-400 020 Mumbai-400 021

थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. AAACB 2431 M (अपीलाथ" /Appellant) : (#$यथ" / Respondent)

अपीलाथ" क% ओर से / Appellant by : Shri Asghar Zain

#$यथ" क% ओर से/Respondent by : Shri Nitesh Joshi & Shri Vipul Mody

ु वाई क% तार+ख / सन : 10.02.2015 Date of Hearing घोषणा क% तार+ख / : 11.03.2015 Date of Pronouncement

आदे श / O R D E R Per Sanjay Arora, A. M.:

This is an Appeal by the Revenue directed against the Order by the Commissioner of Income Tax (Appeals)-5, Mumbai ('CIT(A)' for short) dated 12.06.2012, partly allowing the Assessee's appeal contesting the order dated 13.07.2011, passed u/s. 154 of the Income Tax Act, 1961 ('the Act' hereinafter) modifying its assessment u/s.143(3) for the assessment year (A.Y.) 2007-08 vide order dated 18.12.2009.

2. The only issue raised by the Revenue per its instant appeal, as evident from the sole ground no. 1, is the validity of the withdrawal of the interest allowed u/s.244A(1) of 2 ITA No. 5209/Mum/2012 (A.Y. 2007-08) Asst. CIT vs. Bharat Serums and Vaccines Ltd.

the Act on excess payment of self assessment tax. As per the Revenue, the same is covered neither u/s. 244A(1)(a) nor section 244A(1)(b). The ld. CIT(A) allowed the assessee's plea based on the decision by the tribunal in the case of Sutlej Industries Ltd. vs. Asst. CIT [2003] 86 ITD 335 (Del), so that, aggrieved, the Revenue is in appeal.

3. Before us, the ld. Authorized Representative (AR) pleaded the assessee's case as squarely covered by the decision by the hon'ble jurisdictional high court in the case of Stock Holding Corporation of India Ltd. vs. CIT (Writ Petition No. 823 of 2000 dated 17.11.2014) and CIT vs. Indian Oil Corporation Limited (in ITA No. 801 of 2012 dated 12.09.2014), placing copies of the same on record and taking us through the relevant parts thereof, including the substantial question/s of law raised before the hon'ble high court, so as to exhibit the issue as squarely covered by the said decisions. The ld. Departmental Representative (DR) would concede to the issue being covered, i.e., in principle, by the said decisions by the hon'ble jurisdictional high court.

4. We have heard the parties, and perused the material on record.

There is no denying the fact that the issue is in principle squarely covered by the decision by the hon'ble jurisdictional high court in the case of Indian Oil Corporation Limited (supra) and Stock Holding Corporation of India Ltd. (supra). The hon'ble high court has clarified that the provision of section 244A(1)(b), which speaks of refund in any other case, would therefore also cover the refund arising out on account of excess payment of self assessment tax. The subsequent decision by the hon'ble jurisdictional high court would warrant a rectification, as explained by the hon'ble apex court in the case of Asst. CIT vs. Saurashtra Kutch Stock Exchange Ltd. [2008] 305 ITR 227 (SC). This leaves us, however, with one surviving question, i.e., that the said decisions were not in existence at the time the ld. CIT(A) upheld the withdrawal of interest by the Assessing Officer (A.O.) to be a mistake, or at the time of the latter's order denying the interest. Could, in the absence of the said decisions, we wonder, the same, i.e., the withdrawal or non-allowance of interest u/s. 244A(1) of refund of self assessment tax, be 3 ITA No. 5209/Mum/2012 (A.Y. 2007-08) Asst. CIT vs. Bharat Serums and Vaccines Ltd.

said to be a mistake apparent from the record? Rather, the very fact that the matter travelled to the hon'ble high court, and in fact also to the apex court, as observed by the hon'ble high court in Stock Holding Corporation of India Ltd., adverting to the former's decision in the case of Union of India v. Tata Chemicals Ltd. [2014] 363 ITR 658 (SC) (which is dated 26.02.2014), as settling the issue, would only be regarded as debatable, precluding rectification. The answer, therefore, should be in the negative. The decision by the tribunal in the case of Sutlej Industries Ltd. (supra), relied upon by the first appellate authority, though otherwise binding on him, however, cannot be said to lay down the law, even where under its territorial jurisdiction, so as to render a contrary view as mistaken.

At the same time, we observe that the withdrawal itself stands effected by the A.O. by the recourse to section 154, i.e., under rectification proceedings, and not in regular assessment. The same clearly could not be withdrawn in the first place u/s. 154, and toward which we may also advert to the decision by the tribunal in the case of Nirma Chemicals Works Ltd. vs. Jt. CIT [2009] 29 DTR 76 (Ahbd.). Further on, the impugned withdrawal can in view of the said decisions certainly be now said to be a 'mistake'. A rectification of section 154 order dated 13.07.2011, withdrawing interest; the time limit for which is available, where now moved by the assessee, would merit acceptance (refer:

Hind Wire Industries Ltd. vs. CIT [1995] 212 ITR 639 (SC)). In-as-much as the appellate proceedings are only a continuation of the assessment proceedings, and the rectification proceedings are of the same genre as the original proceedings, in our view, such a move by the assessee would not be necessary, and that a like direction, i.e., as in the case of the original proceedings, could be rendered in the appellate proceedings as well. Reliance toward the same is placed also on the decision in the case of Blue Star Engineering Co. (Bombay) (P.) Ltd. vs. CIT [1969] 73 ITR 283 (Bom). We, accordingly, hold the order under section 154 withdrawing interest u/s.244A(1) on the refund of self assessment tax, as not valid in law. We hold accordingly, confirming in result the impugned order, i.e., for the two separate reasons as explained above. We decide accordingly.

4 ITA No. 5209/Mum/2012 (A.Y. 2007-08) Asst. CIT vs. Bharat Serums and Vaccines Ltd.

5. In the result, the Revenue's appeal is dismissed.

प1रणामतः राज व क% अपील खा1रज क% जाती है ।

Order pronounced in the open court on March 11, 2015

Sd/- Sd/-

(D. Manmohan) (Sanjay Arora) उपा य / Vice President लेखा सद य / Accountant Member मुंबई Mumbai; 5दनांक Dated : 11.03.2015 व.6न.स./Roshani, Sr. PS

आदे श क" # त%ल&प अ'े&षत/Copy of the Order forwarded to :

1. अपीलाथ" / The Appellant

2. #$यथ" / The Respondent

3. आयकर आय7 ु त(अपील) / The CIT(A)

4. आयकर आयु7त / CIT - concerned

5. :वभागीय #6त6न=ध, आयकर अपील+य अ=धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड? फाईल / Guard File आदे शानस ु ार/ BY ORDER,

उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai