TMI Blog2014 (5) TMI 437X X X X Extracts X X X X X X X X Extracts X X X X ..... paid under sub-sec.(1) has been reduced, the interest shall be reduced accordingly, and the excess, if any paid, shall be deemed to be tax payable by assessee and the provisions of this Act shall apply - where the tax deducted at source and advance tax paid by the assessee did not exceed the tax assessed either on regular assessment or after giving effect to the orders or the Tribunal, interest u/s 214 & 244 (IA) granted to the assessee was not due at all and had to be recovered from the assessee – no substantial question of law arises for consideration – Decided against Assessee. - ITA No. 25 of 2004 - - - Dated:- 2-5-2014 - Rajive Bhalla And Dr. Bharat Bhushan Parsoon,JJ. For the Appellant : Mr. Alok Mittal, Advocate For ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that assessment be framed in substantive capacity. The Assessing Officer gave effect to this order which led to withdrawal of interest of Rs.29,380/- already allowed to the assessee. The assessee filed an appeal before the Deputy Commissioner of Income Tax which was dismissed. The appeal filed by the assesee before the Income Tax Appellate Tribunal against withdrawal of interest was dismissed by relying upon a judgment of the Hon'ble Supreme Court in Modi Industries Ltd. and another Versus Commissioner of Income Tax and another (1995) 216 ITR 559 (SC), by holding as follows: - Here, we are concerned with the third conclusion was arrived at by their lordship. As per this conclusion, w.e.f. April 1, 1985, interest payable under sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... With regard to the question that whether the interest paid under sec. 214 to the assessee can be withdrawn or can be recovered or can be adjusted, sub-section (IA) of section 214 provides that where on completion of the regular assessment the amount on which the interest so paid under sub-sec.(1) has been reduced, the interest shall be reduced accordingly, and the excess, if any paid, shall be deemed to be tax payable by assessee and the provisions of this Act shall apply. Admittedly, the net result after regular assessment as well after giving effect to the orders of the Tribunal for the asstt. years 1978-79 is that the assessee has not paid the tax deducted at source or advance tax more than the tax assessed. Therefore, in any case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee after giving effect to the appellate order. 5.2. As regards the decision of the Chandigarh Bench of the I.T.A.T., as relied upon by the learned counsel for the assessee is concerned, the assessment years involved in that case were 1983-84 84-85 i.e. before the amendment which came into effect from April 1, 1985. It is pertinent to mention here that the Hon'ble Gujarat High Court in the case of CIT Vs. Ahemdabad New Cotton Mills Co. Ltd. (1993) 201 ITR 507 (Guj.) held that the interest cannot be withdrawn under sec. 244 (IA) of the I.T. Act, even when the order as a result of which refund became payable, is subsequently reversed. However, the Hon'ble Supreme Court has granted Special Leave to the Department to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... failed to consider the judgment of the Gujarat High Court in CIT Versus Ahmedabad New Cotton Mills Co. Ltd. (1993) 201 ITR 507, wherein it has been clearly held that interest cannot be withdrawn under Section 244(1A) of the Act even when the order as a result of which the refund became payable, is subsequently reversed. It is further submitted that Section 244 of the Act does not apply to the facts of the present case. It is further submitted that as judgment of the Gujarat High Court in CIT Versus Ahemdabad New Cotton Mills Co. Ltd.(supra) has been affirmed by the Hon'ble Supreme Court, the impugned order may be set aside. It is further submitted that the Rajasthan High Court has taken a similar view in Commissioner of Income Tax V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said judgment as counsel for the parties could not inform the Income Tax Appellate Tribunal about the fate of the appeal pending before the Hon'ble Supreme Court. We have repeatedly asked counsel for the parties to inform us about the fate of the appeal pending before the Hon'ble Supreme Court and even kept the judgment reserved for a few months but neither counsel has come forward to inform us about the fate of the appeal. An attempt was also made to search for this judgment on the internet but to no avail. In this view of the matter, we are not inclined to accept the appeal or to hold that any substantial question of law arises for adjudication particularly in view of judgment of the Hon'ble Supreme Court in Modi Indus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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