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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 ..... 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 that AO has made any reference for the opinion of the Chief Commissioner of the Income Tax. AO has not done so before rejecting the application for the refund of the assessee for a particular period for which he is not empowered to. In view of the above startling facts before us, we do not find that there is any delay attributable on part of the assessee. Therefore we reverse the order of the Ld. CIT (Appeal) in directing AO to refer the matter to the Chief Commissioner of Income Tax for his opinion and direct the Ld. Assessing Officer to grant interest to the assessee under section 244A of the income tax act w.e.f. 01/04/2003 to 24/03/2006, the period for which AO held that delay is attributable on part of the assessee. - Decided in favour of assessee. - ITA No. 5172/Del./2014 - - - Dated:- 29-12-2017 - SHRI BHAVNESH SAINI, JUDICIAL MEMBER AND SHRI PRASHANT MAHARISHI, ACCOUNTANT MEMBER For The Assessee : Shri Pradeep Dinodia, CA Shri VP G ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble and, therefore, he ought to have directed the Assessing Officer to grant the interest. 4. That the CIT(A) also erred in not giving a direction to the Assessing Officer to grant interest on interest as per provisions of section 244A of the Act in terms of decisions of Hon ble Supreme Court in the cases of CIT Vs. Narendra Doshi 254 ITR 606 (SC) and Sandvik Asia Ltd. Vs. CIT and Others 280 ITR 643 (SC) for the reason that Assessing Officer had not given effect to the order of Tribunal dated 16.10.2009 within a reasonable period and had wrongly withheld the amount of refund, causing financial hardship and interest loss to the appellant. 5. That the CIT(A) also failed to appreciate that the interest is granted by the Govt, only @ 6% as against interest charged by the Govt. @ 12% and, therefore, for any period during which the money has remained with the Govt, interest should be duly allowed to the appellant and same should not be denied taking unjustified and unreasonable view. 3. Though assessee has raised several grounds of appeal but the issue before us is whether assessee is entitled to interest U/s 244A of the act with respect to the period 1-4-2003 to 24/03/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claimed with respect to the third power plant for which the claim was made during the course of assessment proceedings.. 7. Against the order of the Ld. CIT (A), The assessee as well as revenue filed an appeal before the coordinate bench who vide order dated 16/10/2009 directed the Ld. AO to allow deduction under section 80 IA of the act in respect of the third power plant also which was claimed during the course of assessment proceedings. Moreover, certain other disallowances paid by the Ld. AO confirmed by the Ld. CIT (A) were also allowed. The appeal of the revenue was also dismissed by the coordinate bench. The revenue challenged the order of the coordinate bench before the Hon ble high court, which was dismissed. 8. After passing of the order of the coordinate bench on 16/10/2009 to give effect to the order and grant the consequential refund the assessee was requesting to the Ld. assessing officer. However, after 3 years, the refund was granted to the assessee of ₹ 89850574/- vide order dated 10/6/2013 and the refund was given on 18/6/2013. In the income tax computation form, the Ld. assessing officer mentioned that the interest under section 244A is not allow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has erred in stating that delay, which is attributable to the assessee, has to be determined only by the Chief Commissioner of income tax, he submitted that in case the delay is not attributable to the assessee but is attributable to the Ld. assessing officer. He stated that the Ld. assessing officer has determined the tax payable/refundable on various occasions and has also given interest for the full period in past, but now he has reduced the same for the reasons mentioned in that particular income tax computation sheet. He further submitted that Ld. CIT (A) should not have directed the Ld. assessing officer to refer the matter to the Chief Commissioner of income tax but should have decided the issue on the merits because the delay was not attributable to the assessee. He further submitted a date chart to show the delay is not attributable to the assessee. In the end, he submitted that the assessee must be granted interest under section 244A of the income tax act in accordance with the law. 13. The Ld. Departmental representative vehemently contested the arguments of the assessee and submitted that the delay is attributable to the assessee because merely stating in the comput ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wer plant is not being claimed for the time being the same will be claimed subsequently. Consequently, on 29/3/2004 intimation under section 143 (1) of the income tax act was passed and refund was allowed by the Ld. AO on 31/3/2004 wherein interest under section 244A (1) of the act was granted from 01/04/2003 date of intimation vide refund voucher. Further, the assessee during the course of assessment proceedings, on 24/3/2006 submitted audit report in the prescribed form in respect of Bharuch power plant wherein the computation of the claim was provided. Consequently, the assessment order under section 143 (3) was passed by the Ld. assessing officer wherein deduction claimed under section 80 IA of the income tax act all the 3 power plants were disallowed. In consequence, thereto, while computing the tax payable by the assessee, The Ld. assessing officer withdrew the interest already allowed under section 244A of the act. Subsequently, on appeal by assessee before the Ld. CIT (A) the deduction claimed by the assessee and disallowed by the Ld. assessing officer with respect to 2 industrial undertaking producing power were allowed but on Bharuch (3rd) power plant disallowance was con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on part of the assessee. 15. The identical situation arose in case of CIT versus South India bank Ltd 340 ITR 574 (Ker) wherein the claim was made during the course of assessment proceedings by the assessee with respect to the deduction of provision for bad and doubtful debts, the tribunal in that particular case held that assessee is entitled for the interest w.e.f. 01/04/1999 onwards. The above order of the coordinate bench was challenged before the Hon ble Kerala High Court, who vide para No. 6 upheld the finding of the coordinate bench holding that assessing officer does not have any escape for granting interest to the assessee in terms of section 244A (1) (a) of the act. Therefore, the Hon ble Kerala High Court held that even if the claim is made during the course of assessment proceedings and if the AO does not make out any case of delay attributable to the assessee that AO is duty bound to grant interest w.e.f. the 1st day of April. 16. The coordinate bench in case of ACIT versus Tata Power company in ITA No. 3035/MUM/2009 for assessment year 2002 03 vide order dated 20/4/2012, while deciding the issue of interest under section 244 wherein the TDS certificates were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particular period for which he is not empowered to. In view of the above startling facts before us, we do not find that there is any delay attributable on part of the assessee. Above view is also supported by the decision of the Hon ble Gujarat High Court in Ajanta manufacturing Ltd versus deputy CIT ( supra) as well as the decision of the Kerala High Court in case of CIT versus South Indian bank Ltd., ( supra). The issue of reference to the Ld. Commissioner of income tax is also covered in favour of the assessee by the decision of the coordinate bench in case of Tata Power Company (supra). In view of this we are of the opinion that the assessee is eligible for interest w.e.f. 01/04/2003 to 24/03/2006 as for the above period there is no delay attributable on the part of the assessee. Therefore we reverse the order of the Ld. CIT (Appeal) in directing the Ld. Assessing Officer to refer the matter to the Chief Commissioner of Income Tax for his opinion and direct the Ld. Assessing Officer to grant interest to the assessee under section 244A of the income tax act w.e.f. 01/04/2003 to 24/03/2006, the period for which the Ld. assessing officer held that delay is attributable on part of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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