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TMI Blog2014 (8) TMI 157X X X X Extracts X X X X X X X X Extracts X X X X ..... The sole issue arising for the current year is the confirmation of the levy of interest u/s.234D by the ld. CIT(A). The same is admittedly in terms of the law, having been since clarified per the retrospective amendment to the provision, i.e., by Finance Act, 2012 w.e.f. 01.06.2003 - the date from which the provision of section 234D stood coopted on the statute book, by way of Explanation 2 thereof. The same reads as under: 'Interest on excess refund. 234D. (1) Subject to the other provisions of this Act, where any refund is granted to the assessee under sub-section (1) of section 143, and- (a) no refund is due on regular assessment; or (b) the amount refunded under sub-section (1) of section 143 exceeds the amount refundable on regular assessment, the assessee shall be liable to pay simple interest at the rate of 33[one-half] per cent on the whole or the excess amount so refunded, for every month or part of a month comprised in the period from the date of grant of refund to the date of such regular assessment. (2) ................. Explanation 1 ............ Explanation 2.-For the removal of doubts, it is hereby declared that the provisions of this section shall also apply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rd. 3.1 The respective cases of the parties stand delineated hereinbefore. The assessee does not, as we discern, deny that there is no estoppel against law, which cannot be, but that it (law) could only be followed by adopting the process known to or has the sanction of law. The Revenue could, for example, upon retrospective amendment, move a rectification u/s.154; it being well settled that the same would give rise thereto where an order is inconsistent therewith (refer: Ester Industries Ltd. vs. Union of India [2013] 39 taxmann.com 107 (Del)), or perhaps even move the tribunal in-as-much as its order is rendered, on account of the retrospective amendment, at variance with the clear position of law in the matter. However, the Revenue cannot proceed de hors and in disregard with the established law; the decision by a higher appellate authority being binding on the subordinate authority, which in the instant case is only in respect of the order appealed against, so that there is no discretion available to the authority while passing the appeal effect giving order, making a reference to the decision in the case of Lopamudra Misra vs. Asst. CIT [2011] 337 ITR 92 (Orissa). 3.2 The is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, as we have sought to. But perhaps did not do so as he considered it as largely academic in-asmuch as the said levy, impugned before him, could not be set aside or canceled by him. It needs to be appreciated that the law itself has intervened to provide a clear and unambiguous answer to the legal issue decided by the tribunal, which the assessee seeks to be given effect to, besides having been clarified by the hon'ble jurisdictional high court. To the extent, therefore, the order by the tribunal is inconsistent therewith; it ceases to have the force of law, and from the date of its pronouncement. The law represents the sovereign will of the Parliament. As explained by the apex court in A.K. Gopalan v. State of Madras [1950] AIR SC 27 'It is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority.' We, accordingly, find no merit in the assessee's challenge to the impugned order. We decide accordingly. A.Y. 2002-03 (in ITA No. 2727/Mum/2013) 4. The only issue arising for this year, as projected before us by the ld. AR, is that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 57,36,018/-, as against Rs. 10,20,000/- disallowed suo motu by the assessee, so that a further disallowance of Rs. 47.16 lacs came to be made. The ld. CIT(A) observed the assessee to have earned income, claimed and allowed as tax exempt, at Rs. 373.19 lacs. There was also substantial investment activity during the year, and the A.O. had, upon being dissatisfied with the assessee's claim in the matter, worked out the disallowance under rule 8D, being since mandatory, so that no infirmity therein was found by him. Aggrieved, the assessee is in appeal. 7. The assessee's contention before us was that the A.O. was, before proceeding to apply rule 8D, admittedly mandatory w.e.f. A.Y. 2008-09, obliged to express his nonsatisfaction with the assessee's accounts leading to the expenditure incurred in relation to the income not forming part of the taxable income, which had been worked out by the assessee at Rs. 10.20 lacs. On being enquired by the Bench as to the basis of the assessee's working, it was pointed out by the ld. AR that the assessee maintains time sheets, booking expenditure in respect of the corresponding activity yielding income not forming part of the total income. No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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