Otis Elevators Company (I) Ltd, Mumbai vs Assessee

सव[ौी जोगींि िसंह, Ûयाियक सदःय एवं नरे Ûि कुमार ǒबãलैáया, लेखा सदःय के सम¢

BEFORE SHRI JOGINDER SINGH, JUDICIAL MEMBER AND

SHRI N.K. BILLAIYA, ACCOUNTANT MEMBER

आयकर अपील सं./I.T.A. No. 4855/Mum/2013 िनधा[रण वष[ / Assessment Year : 2008-09 (िनधा[ Otis Elevators Company बनाम The DCIT-9(2), बनाम/ (India) Ltd., Aayakar Bhavan, th Vs. 9 Floor, Magnus Towers, Mumbai-400 020 Mindspace, Link Road, Malad, Mumbai-400 064 ःथायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAACO 0481E (अपीलाथȸ /Appellant) .. (ू×यथȸ / Respondent) अपीलाथȸ ओर से/ Appellant by: Shri Firoze Andhyarujina ू×यथȸ कȧ ओर से/Respondent by: Shri Neil Philip

सुनवाई कȧ तारȣख / Date of Hearing :19.01.2015 घोषणा कȧ तारȣख /Date of Pronouncement :19.01.2015

आदे श / O R D E R

PER N.K. BILLAIYA, AM:

This appeal by the Revenue is directed against the order of the Ld. CIT(A)-20, Mumbai dt.15.4.2013 pertaining to A.Y.2008-09.

2. The assessee has raised three substantive grounds of appeal. With ground No. 1, the assessee has challenged the assumption of jurisdiction u/s. 154 of the Act by the DCIT.

2 ITA No. 4855/M/2013 3. Facts relating to the issues show that in this case the assessment order was passed u/s. 143(3) of the Act vide order dated nil. Pursuant to the assessment order, the assessee was granted refund with interest u/s. 244A of the Act. The AO sought to rectify the assessment order u/s. 154 of the Act. The notice was issued to the assessee for withdrawing the interest granted u/s. 244A of the Act. The AO completed the proceeding by rectifying the assessment order u/s. 154 of the Act holding that no interest is payable to the assessee and withdrew the interest granted u/s. 244A of the Act.

4. Aggrieved by this, the assessee carried the matter before the Ld. CIT(A). It was strongly contended that the AO grossly erred in assuming jurisdiction u/s. 154 of the Act inasmuch as the issue is debatable and it is not a mistake apparent from record which can be rectified u/s. 154 of the Act. The Ld. CIT(A) was not convinced as he was of the opinion that there is no debatable issue regarding refund due is less than 10% of the total tax payable. Therefore, the assessee was not entitled for interest on excess tax. The appeal filed by the assessee was dismissed.

5. Aggrieved by this, the assessee is before us. The Ld. Counsel for the assessee stated that a mistake apparent on the record must be an obvious and patent mistake and not something which can be established by a long drawn process of reasoning on the points on which there may be conceivably be two opinions. The Ld. Counsel relied upon the decision of the Hon'ble Supreme Court in the case of T.S. Balram ITO Vs Volkart Brothers & Others, 82 ITR 50. The Ld. Counsel further stated that the Hon'ble Jurisdictional High Court in the case of Stock Holding Corporation of India Ltd. in Writ Petition No. 823 of 2000 has held that interest is payable from the date of payment of the tax on self 3 ITA No. 4855/M/2013

assessment to the date of refund of the amount u/s. 244A of the Act. It is the say of the Ld. Counsel that looking from any angle assumption of jurisdiction u/s. 154 of the Act is erroneous.

6. Per contra, the Ld. Departmental Representative strongly supported the order of the Ld. CIT(A).

7. We have carefully perused the orders of the authorities below. It is not in dispute that the refund granted to the assessee was withdrawn by way of rectification order u/s. 154 of the Act. It is also not in dispute that the Hon'ble High Court of Bombay in the case of Stock Holding Corpn. Of India (supra) has held that the assessee is entitled for interest on refund u/s. 244A of the Act in respect of self assessment tax paid. Considering the facts in the light of the judicial decisions referred to hereinabove, in our considered view, the AO erred in assuming the jurisdiction u/s. 154 of the Act on a debatable issue. The Ld. CIT(A) further erred in confirming the order of the AO. We, therefore, set aside the order of the Ld. CIT(A) and hold that the order passed by the AO u/s. 154 of the Act is bad in law.

8. In the result, the appeal filed by the assessee is treated as allowed for statistical purposes.

Order pronounced in the open court at the time of hearing on 19th January, 2015.

Sd/- Sd/- (JOGINDER SINGH ) (N.K. BILLAIYA)

Ûयाियक सदःय JUDICIAL MEMBER/ लेखा सदःय / ACCOUNTANT MEMBER मुंबई Mumbai; Ǒदनांक Dated : 19th January, 2015 व.िन.स./ RJ , Sr. PS 4 ITA No. 4855/M/2013

आदे श कȧ ूितिलǒप अमेǒषत/Copy षत of the Order forwarded to :

1. अपीलाथȸ / The Appellant

2. ू×यथȸ / The Respondent.

3. आयकर आयुƠ(अपील) / The CIT(A)-

4. आयकर आयुƠ / CIT

5. ǒवभागीय ूितिनिध, आयकर अपीलीय अिधकरण, मुंबई / DR, ITAT, Mumbai

6. गाड[ फाईल / Guard file.

आदे शानुसार/ ार BY ORDER, स×याǒपत ूित //True Copy// उप/सहायक उप सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपीलीय अिधकरण, अिधकरण मुंबई / ITAT, Mumbai