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2016 (3) TMI 416 - AT - Income TaxRectification of mistake - order u/s 154 on debatable issues - in order u/s 154 AO allowed refund and interest thereon u/s 244A - Held that:- From the orders passed by AO u/s 154 there is neither any hint nor any reference that any delay was attributable to the assessee. Ld. CIT(Appeals) instead of deciding the grounds raised by the assessee has decided a new issue by holding that AO's order u/s 154 was to be upheld and 244A(2) should be examined. Instead of deciding the main issue raised in assessee's appeal, a new direction has been given to examine the interest u/s 244A, which required ascertainment of new facts inasmuch as in none of the earlier orders, there is any whisper to the delay attributable to the assessee. Thus, ld. CIT( Appeals) instead of deciding the merits of the AO's order in terms of rectificatory order has traveled into debatable issue which require mere factual finding, arguments and ascertainment of facts which does not fall in the realm of rectification of mistake. Be that as it may, Sec. 244A(2) postulates that where any dispute arises about the delay for reasons attributable to the assessee the same should be referred to the CCIT/ CIT, whose decision is final on this issue. The reference is not applicable to assessee alone but when the AO raises a dispute, he can also refer the matter to CCIT/ CIT. Surprisingly, in all these proceedings there is no whisper of delay attributable to assessee or any issue raised by AO in first order giving effect to ITAT order. Even in the order of Id. CIT(Appeals) there is no accusation. In the absence of any accusation against assessee in the order sought to be rectified, ld. CIT(Appeals) should not have given a direction to examine afresh the assessee's case u/s 244A(2). We are unable to agree with Id. DR that ITAT has no jurisdiction inasmuch as either there is allegation for attributable to reasons for delay in granting of refund nor AO ever raised this dispute in first order giving effect to ITAT order. On the plain reading of the provisions of sec. 244A(3) if the assessee's refund is increased in that case the increased interest u/s 244A is to be given by way of a statutory exercise. The merits about delay and reasons attributable to assessee fall within the realm of arguments and regular proceedings and not rectification of mistakes, more so amount of refund is concurred by Addl. CIT & CIT. Thus the impugned order of AO passed u/s 154 cannot be upheld. Similarly, ld. CIT(Appeals) also erred in not deciding the dispute as raised in grounds of appeal and instead gave a fresh direction to verify facts and examine the applicability of sec. 244A which would require ascertainment of fresh facts, reasons and accountability. In view of these facts we hold that the impugned order passed by the AO u/s 154 cannot be sustained. - Decided in favour of assessee
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