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TMI Blog2016 (2) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the CIT(A) ought to have, on the facts and in the circumstances of this case, cancelled the order under section 154 dated 27th June 2008 passed by the Assessing Officer. 3. The relevant material facts are in a narrow compass. The assessee before us is a non resident and its assessment under section 143(3) was completed on 28th March 2005 at an assessed income of Rs. 24,18,54,060. Subsequently, however, the revenue audit party pointed out certain mistakes said to have crept in this assessment order. The mistakes so pointed out, on the basis of which the impugned rectification of mistakes under section 154 is said to have been carried out- as is started in the impugned order itself, were as follows: "It was observed by the audit as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Rs. 7,827 and reducing the interest claim under section 244A by Rs. 30,10,338), the assessee carried the matter in appeal before the CIT(A) but without any success. As for the first point, learned CIT(A) noted the assessee's reliance on a special bench decision of this Tribunal in the case of ABN Amro Bank NV Vs ADIT [(2005) 97 ITD SB 89 (Kol)], but simply brushed it aside and upheld the stand of the Assessing Officer. He did refer to the CBDT circular 740 and relied upon the same. As for the second point, learned CIT(A) was of the view that the amount of interest payable under section 244A has been wrongly calculated by the Assessing Officer and he was, therefore, justified in rectifying the said mistake in computation of interest. On th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... debatable point of law is not a mistake apparent from the record........ 7. Let us, in this light, revert to the facts of this case. 8. As for the point as to whether the tax is required to be deducted tax at source from payments made by a foreign bank's Indian branch to its overseas head office, a Special Bench of this Tribunal, in the case of ABN Amro Bank (supra), had decided the issue in favour of the assessee. It was held since, in such a situation, the payment is made by the non resident to himself, there is no obligation to deduct tax at source from such payments. Hon'ble Calcutta High Court, in the case of ABN Amro Bank NV Vs CIT [(2012) 343 ITR 81 (Cal)], has held that there is tax deduction at source requirement, under section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... provided that "If the proceedings resulting in the refund are delayed for reasons attributable to the assessee, whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable, and where any question arises as to the period to be excluded, it shall be decided by Chief Commissioner or Commissioner whose decision thereon shall be final". In this light, when we revert to the facts of this case, we find that there is nothing more the fact of delayed claim under section 10(23G) which has been put against the assessee to deny the interest under section 244A, for the period of the beginning of the relevant assessment year till the date of making the claim by way of a letter, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 244A could be declined for this period on merits, not declining the interest under section 244A could not be treated as a mistake apparent on record within the inherently limited scope of Section 154. In any event, when a question arises as to the period for which such interest under section 244A is to be excluded, this is to be decided by the Commissioner or the Chief Commissioner. The law is quite unambiguous on this aspect as it provides that "where any question arises as to the period to be excluded, it shall be decided by Chief Commissioner or Commissioner whose decision thereon shall be final". Undoubtedly, such a decision by the Commissioner of the Chief Commissioner cannot be a subject matter of then the call about the period ..... X X X X Extracts X X X X X X X X Extracts X X X X
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