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TMI Blog2010 (2) TMI 844X X X X Extracts X X X X X X X X Extracts X X X X ..... e for interest u/s 244A, refund granted to the assessee is not out of MAT credit available to the assessee but is out of excess amount of advance tax paid by the assessee. There is no dispute on this aspect that if the refund is on account of excess payment of advance tax, interest u/s 244A is allowable to the assessee as per clause (a) of sub section (1) of section 244A, appeal of the revenue is dismissed. - ITA No. 4612/Del/2009, - - - Dated:- 19-2-2010 - R.P. Tolani, A.K. Garodia, JJ. A.K. Pandey, CIT-DR for the Appellant Ajay Vohra, Adv. for the Respondent ORDER A.K. Garodia, Accountant Member 1. This is revenue's appeal directed against the order of Ld CIT(A)-V, New Delhi dated 30.9.2009 for assessment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r the provisions of section 115JAA (1) read with section 115JAA(5) of the IT Act. It was held by the Assessing Officer in the same order that no interest u/s 244A is to be allowed to the assessee on this amount of tax credit of Rs.961.45 lakhgs in view of proviso to sub section (2) of section 115JAA of the IT Act. Against this second direction of Ld Assessing Officer that no interest is allowable to the assessee u/s 244A, the assessee carried the matter in appeal before Ld CIT(A). One more issue was raised by the assessee before the Ld CIT(A) that the Assessing Officer was not justified in charging interest u/s 234C amounting to Rs.55.52 lakhs befoe giving effect to the MAT credit relief available to the assessee u/s 115JAA. Both these aspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h it had already paid. Hence, this aspect of the matter is squarely covered in favour of the assessee by the judgment of Hon'ble Delhi High Court that for charging interest u/s 234C, tax credit available to the assessee u/s 115JAA has to be reduced from the liability of the assessee for making payment of advance tax and such interest has to be computed after setting off the tax credit available to the assessee. We, direct accordingly. 6. Regarding the claim of the assessee that the assessee is eligible for interest u/s 244A, we find that this aspect has been decided by the ld CIT(A) as per para No.4.2. and 4.3. of his order which are reproduced below: "4.2. The expression 'advance tax' has also been considered by the Hon'ble Delhi H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e MAT credit which is available for set off in a year falls within the meaning of 'advance tax' because the context requires us to give such a purposive meaning. 4.3. In view of such analysis of the expression 'advance tax' as made by the jurisdictional Delhi High Court in the case of Jindal Exports (supra) which has been affirmed by ther Madras high Court in the case Chemplast Sanmar Ltd. (supra), as well as keeping into consideration the availability of such MAT credit on the very first day of the relevant previous year even before the due date of the advance tax installment, it is clear that for the purpose of calculation of demand, the adjustment and set off of the MAT credit would be given effect even prior to the actual advance ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spect that if the refund is on account of excess payment of advance tax, interest u/s 244A is allowable to the assessee as per clause (a) of sub section (1) of section 244A. Regarding the first aspect as to whether the refund given to the assessee is out of MAT credit or out of advance tax, we are in agreement with Ld CIT(A) that as per the judgment of Hon'ble Delhi High Court rendered in the case of Jindal Exports Ltd. (supra), the effect of MAT credit u/s 115JAA has to be first considered and the assessee is liable to pay only the balance amount as advance tax and if the assessee paid lesser amount of advance tax as compared to this amount of advance tax payable by the assessee after considering MAT credit u/s 115JAA, the assessee is liab ..... X X X X Extracts X X X X X X X X Extracts X X X X
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