Panther Investrade Ltd, Mumbai vs Department Of Income Tax

आयकर अपील य अ धकरण, मंब ु ई IN THE INCOME TAX APPELLATE TRIBUNAL MUMBAI BENCHES 'C' MUMBAI सव ी जी.एस. प न,ू लेखा सद य एवं ी अ मत श ु ला, या यक सद य

BEFORE SHRI G.S.PANNU, ACCOUNTANT MEMBER AND

SHRI AMIT SHUKLA, JUDICIAL MEMBER आयकर अपील सं. / ITA No.243/MUM/2014 नधा रण वष /Assessment Year 1999-2000 The DCI T,Cen.Cir.40, बनाम/ M/s. Panther Investrade Room No.653, Limited, Vs. 6 t h Floor, Aaykar Bhavan, Radha Bhavan, 1st Floor, MK Road,Mumbai -20. 121-Nagindas Master Road, Mumbai 400 023. थायी ले खा सं . /जीआइआर सं . /PAN/GIR No. : AAACP 3259R (अपीलाथ# /Appellant) .. ($%यथ# / Respondent)

Appellant by Shri Vijay Mehta Respondent by Shri N.K.Chand सनु वाई क' तार(ख / Da te o f Hearing : 16/06/2015 घोषणा क' तार(ख /Date of Pronouncement : 31/07/2015

आदे श / O R D E R

PER G.S.PANNU, A.M:

The present appeal is preferred by the Revenue and is directed against the impugned order dated 10/10/2013 of the CIT(A)-38, Mumbai pertaining to the assessment year 1999-2000, with reference to the assessment order dated 31/10/2002 passed in terms of section 143(3) of the Income Tax Act, 1961 (the Act).

2. In this appeal, although Revenue has raised multiple grounds of appeal but the solitary grievance is against the action of the Ld. CIT(A) holding that 2 आयकर अपील सं. / ITA No.243/MUM/2014 नधा रण वष /Assessment Year 1999-2000

the order passed by the AO under section 154 of the Act dated 20/09/2012 was beyond jurisdiction.

3. In brief, the relevant facts are that assessment under section 143(3) of the Act was completed on 31/10/2002, wherein the total income was determined at Rs.10,76,54,900/- as against the returned income of Rs.78,59,520/-. It transpires that certain reliefs were allowed by Ld. CIT(A) and while giving effect to the order of Ld. CIT(A), AO granted refund of Rs.42,35,425/- which included interest under section 244A of the Act amounting to Rs.15,82,504/-. Subsequently, the AO noticed that the self assessment tax of Rs.19,03,221/- was included while computing interest payable under section 244A of the Act, whereas according to him self assessment tax is not includible while computing interest under section 244A of the Act. Therefore, the AO passed a rectification order under section 154 of the Act dated 15/3/2011, whereby excess interest of Rs.9,97,018/- paid to the assessee in terms of section 244 of the Act was withdrawn.

4. The assessee carried the matter in appeal before Ld. CIT(A) by pointing out that the subject matter of allowability of interest under section 244A of the Act was beyond the purview of section 154 of the Act and further referred to the decision of Honble Delhi High Court in the case of CIT vs. Sutlej Industries Ltd. 325 ITR 331(Del) and of the Hon'ble Madras High Court in the case of CIT vs. Cholamandalam Investment & Finance Co. Ltd., 294 ITR 438 (Mad) to say that assessee was entitled for interest on the self assessment tax paid earlier. Ld. CIT(A) has considered the submissions put forth by the assessee and has set aside the order passed by the AO under section 154 of the Act by making following discussions:-

"6.0 I have carefully examined the facts of the case, the stand taken by the Assessing Officer in the order u/s.154 of the Act, the grounds of appeal and the written submissions filed by the appellant during the appeal proceedings. The 3 आयकर अपील सं. / ITA No.243/MUM/2014 नधा रण वष /Assessment Year 1999-2000

Delhi High Court in the case of Sutlej Industries Ltd. (325 ITR 331) and the Madras High Court in the case of Cholamandalam Investment & Finance Co. Ltd. (294 ITR 438) held that the assessee is entitled for interest on the self assessment tax paid. Where there are decisions of the Hon'ble High Courts contrary to the view taken by the assessing officer in the order u/s 154, then the mistake sought to be rectified in such order cannot be a mistake apparent from the record. Therefore it is hereby held that the order passed u/s 154 of the Act without jurisdiction and accordingly the appeal"

Against the aforesaid findings of Ld. CIT(A) the Revenue is in appeal before us.

5. Rival stands have been considered in the above background. First and foremost, it has to be appreciated that section 154 of the Act provides for rectification of such mistakes which are " apparent from the record". As per the Hon'ble Supreme Court in the case of T.S.Balram, ITO vs. Volkart Brothers & Ors. 82 ITR 550 (SC) the mistake apparent from 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 point on which there may conceivably be two opinions. It is also a well settled proposition that the expression "mistake apparent from the record" would not cover an issue which is debatable. In the context of the present controversy before us, Ld. CIT(A) has pointed out the judgments of Hon'ble Delhi and Madras High Courts in the cases of Sutlej Industries Ltd.(supra) and Cholamandalam Investment & Finance Co. Ltd.(supra) respectively to support to support the proposition that interest under section 244A of the Act can be granted on the amount of self assessment tax paid also.

6. At the time of hearing, the Ld. Representative for the respondent assessee relied upon the judgment of the Hon'ble Bombay High Court in the case of Stock Holding Corporation of India Ltd. vs. CIT, 373 ITR 282 (Bom), wherein interest under section 244A of the Act has been held to be payable on the excess amount of self assessment tax paid.

4 आयकर अपील सं. / ITA No.243/MUM/2014 नधा रण वष /Assessment Year 1999-2000

6.1 Considering the aforesaid precedents, we find that Ld. CIT(A) made no mistake in holding that the mistake sought to be rectified by the AO by passing an order under section 154 of the Act was not a "mistake apparent from the record" within the meaning of section 154 of the Act. Therefore, we hereby affirm the action of the Ld. CIT(A) in holding the order passed by the AO under section 154 of the Act as being bereft of jurisdiction.

7. In the result, the appeal filed by the Revenue is dismissed.

Order pronounced in the open court on 31/07/2015 आदे श क' घोषणा खल ु े यायालय म- .दनांकः 31/07/2015 को क' गई ।

Sd/- Sd/- ( अ मत श ु ला / AMIT SHUKLA) (जी.एस. प नू / G.S.PANNU) या यक सद य / JUDICIAL MEMBER लेखा सद य / ACCOUNTANT MEMBER मंब ु ई Mumbai; .दनांक Dated 31/07/2015 आदे श क त ल प अ!े षत/Copy of the Order forwarded to : 1. अपीलाथ# / The Appellant 2. $%यथ# / The Respondent. 3. आयकर आयु त(अपील) / The CIT(A)- 4. आयकर आयु त / CIT

5. 3वभागीय $ त न5ध, आयकर अपील(य अ5धकरण, मुंबई / DR, ITAT, Mumbai

6. गाड फाईल / Guard file.

आदे शानुसार/ BY ORDER, स%या3पत $ त //True Copy// उप/सहायक पंजीकार (Dy./Asstt. Registrar) आयकर अपील य अ धकरण, मुंबई / ITAT, Mumbai व. न.स./Vm, Sr. PS