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TMI Blog2018 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... d during which the tax amount, which has been refunded now as per order of ITAT, has remained with the Government. 2. That the CIT(A) erred in not considering and deciding the issues on merits and holding that : (a) the appellant company was duly entitled to the interest u/s 244A of the Income-tax Act in respect of refund of Rs, 5,19,12,000./- for the period from 1.4.2003 to 24.3.2006 also ; (b) there was no delay attributable tG the appellant and interest u/s 244A of the Act was duly allowable for the full period, including the period from 1.4.2003 to 24.3.2006, during which period money has remained with the Govt. ; (c) the Assessing Officer could not have taken a view at this late stage that the appellant company was not entitled to interest u/'s 244A of the Act on the refund granted pursuant to the order of ITA1 for the period from 1.4.2003 to 24.3.2006; and (d) the refund under reference was relating to the claim u/s dUlA of the Act which was not allowable as per the stand of the Department and, therefore, the Assessing Officer could not take a view while granting refund as per order of ITAT that there was any delay in granting the refund in respect to the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ater on. The Ld. assessing officer issued and intimation under section 143 (1) on 29/03/2004 determining the refund of Rs. 3348 7398/- along with interest under section 244A of the act of Rs. 2132156/- from 1-4-2003. Return of income was picked up for scrutiny under section 143 (2) of the act and during the course of assessment proceeding assessee submitted with respect to the claim of the deduction of Third power plant for which it gave the note in the computation wide letter dated 24/03/2006 computing the claim of Rs. 192119620/-. The Ld. assessing officer passed an assessment order under section 143 (3) of the act on 30/3/2006, without allowing deduction under section 80 IA of the income tax act in respect to the power plants for which original claim was made in the return of income as well as with respect to the claim of the assessee made by the computation note as well as details during the course of assessment proceedings. The Ld. assessing officer determined the taxable income of the assessee at Rs. 5 0980 5310/- and tax payable was determined at Rs. 1 8735 3452/-. The assessee paid the outstanding demand of Rs. 91430825/- because of the assessment order. 6. Against that or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner as stipulated in the statute. Therefore, he directed the Ld. assessing officer to refer the issue to the Chief Commissioner or the Commissioner as stipulated in the statute. He allowed the appeal of the assessee for statistical purposes. 11. The assessee aggrieved with the order of the Ld. assessing officer as well as the Commissioner of income tax appeals preferred appeal before us. 12. The Ld. authorized representative submitted that interest under section 244A (1) is duly allowable from 1st April of assessment year to the date of the granting of the refund in case the refund is out of advance tax or tax deducted at source. He stated that the assessing officer has not given full effect to the order and cannot reduce the amount of refund. He submitted that there has been no delay attributable to the appellant company because the claim of deduction under section 80 IA had been duly made in the return of income, computation of the claim was submitted during the course of assessment proceedings. He further stated that tribunal had specifically held that the computation and audit report were submitted in respect of the claim during the course of assessment proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... power plants were made. However, claim with respect to the Bharuch (Third) power plant has been made by way of notes on computation of taxable income attached with the return of income. The assessee mentioned vide note No. 6 in that computation that during the year 94- 95, the company had commission a 30 MW power plant at its SFC unit at Kota. Further, during the financial year 1999 - 2000, the company had commission a 10.3 MW power plant at its SMC unit at Kota. The aforesaid flower plants are new industrial undertaking under section 80 IA of the Income Tax Act and are eligible for deduction under section 80 IA. Accordingly, the deduction under section 80 IA is claimed in respect of above undertakings of Rs. 11, 07, 93, 211/- and Rs. 6 233 0771/- respectively. The above figures were given as per the accounts duly audited for these undertakings. The working were further certified by chartered accountants vide their reports in form No. 10 CCB and 3 CD which were also submitted along with the return of income. It was further stated that the company has one more power plant of 18 MW, which was commissioned in 1995 - 96 at Bharuch. The plant was also eligible as new industrial undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion under section 80 IA with respect to Bharuch plant should be allowed to it and revenue contesting the order of the Ld. CIT (Appeal) in granting deduction with respect to other 2 power plants. The coordinate bench passed the order on 16/10/2009 wherein it allowed the deduction in respect of all plants to the assessee and dismissed the appeal of the revenue. Consequent to that assessee made several request to the Ld. assessing officer to grant consequent refund. Subsequently on 10/06/2013, The Ld. assessing officer passed an order giving effect to the order of the coordinate bench determining the refund and interest allowable to the assessee wherein he had mentioned that the interest under section 244A is not allowable from the date of filing of return to 24/03/2006 the date on which assessee submitted the audit report in the prescribed form in respect of that power plant to the assessing officer during the course of assessment proceedings giving computation of the claim made by the assessee. The Ld. assessing officer was of the view that the about delay is attributed to the assessee and therefore, interest is not allowable to the assessee for that period. Therefore, the only issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs cannot be said to be the reasons for delaying the proceedings, which can be attributable to the assessee. 18. In the present case before us, e assessee has made the claim by way of noting in the original return of income filed and merely the computation and audit report have been filed during the course of the assessment proceedings. This itself proves that the assessee has made the claim during the course of the assessment proceedings. The claim made by the assessee in the original return of income and further quantified during the assessment proceedings cannot be said that there is any delay on part of the assessee. Ld AO could not say that there is any delay in any of the proceedings of the Income tax Act. We do not find that there is any delay on part of the assessee. Therefore, based on the above-cited judicial precedent, it is apparent that there is no delay, which can be attributed on the part of the assessee. In the present case, the Ld. CIT (A) has directed the Ld. assessing officer to refer the matter to the Chief Commissioner of income tax. The order of the Commissioner of Income Tax was passed on 03/07/2014, the revenue till to date could not show us any evidence t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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