TMI Blog2008 (12) TMI 432X X X X Extracts X X X X X X X X Extracts X X X X ..... k out the exact period of delay attributable to the assessee and thus wrongly observing that provisions of section 244A of Income-tax Act, 1961, were complied with. 4. That the assessee may be allowed to add, alter, modify or delete all or any of the grounds as mentioned hereinabove. 5. That the appeal is within time as the order of the Learned CIT(A) was received only on 31-8-2004." 2. The assessee is a Public Sector Undertaking. Therefore, it was required to furnish approval from COD to contest these appeals. The ld. AR of the assessee has submitted before us such approval which is vide letter dated 26-7-2005 and according to Item Nos. 6 and 7 the COD has permitted the assessee to contest these appeals. Accordingly, we proceed to decide these appeals after hearing both the parties. 3. The ld. AR of the assessee has submitted before us synopsis on the basis of which he had argued these appeals. Facts summarized for assessment year 2001-02 ( i )The return of income originally was filed on 30-10-2001 at an income of Rs. 3,25,99,88,520. ( ii )The above original return was processed vide intimation dated 14-5-2002 under section 143(1) granting the refund of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould be allowed for June and July, 2002; ( c )Interest of Rs. 56,92,955 under section 244A on the refund of tax of Rs. 3,48,54,827 from 1st April of the assessment year till the date of grant of refund i.e., from 1-4-2001 to 31-3-2003 should also be allowed." 4. All these facts are mentioned in copy of rectification application filed at pages 12 and 13 of the paper book. 5. The calculation of such claim was made as per computation annexed with that application a copy of which is placed at page 14 which is reproduced below:- Computation of interest u/s 244A Refund of Tax based on revised return after adjustment of refund granted on original return is given below : Rs. 3,48,54,827.00 Interest u/s 244A April 2001 to May 2001 1% 3,48,54,827 2 months 6,97,097.00 June 2002 to May, 2002 3/4% 3,48,54,827 12 months 31,36,934.00 June 2002 to March, 2003 2/3% 3,48,54,827 10 months 23,23,655.00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 244A(2). He further found that for both assessment years original returns were filed within the time prescribed under the statute and, therefore, delay for the period from 1st April of the relevant assessment year till the date of filing of original return cannot be held as attributable to the assessee and had the assessee made the claim of additional refund in the original return itself as it was claimed in the revised return, then the Assessing Officer was bound to allow interest under section 244A of such additional refund. Thus, he directed the Assessing Officer to allow interest under section 244A on full amount of refund determined as a result of furnishing the revised return for both the assessment years for the period 1st April of the relevant assessment year till the date of filing the original return for both the assessment years. 7. Similarly, for assessment year 2002-03, the original return was filed on 30-10-2002 at Rs. 502,38,25,290 which was processed on 27-2-2003 granting the refund as well as interest. Revised return was filed on 23-12-2003 revising the income at a sum of Rs. 4,92,95,99,070 which was again processed on 28-1-2004. While processing the second re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on (1) of section 115WE or sub-section (1) of section 143 or on regular assessment; ( b )in any other case, such interest shall be calculated at the rate of one-half per cent for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of the tax or penalty to the date on which the refund is granted. Explanation. For the purposes of this clause, "date of payment of tax or penalty" means the date on and from which the amount of tax or penalty specified in the notice of demand issued under section 156 is paid in excess of such demand. (2) If the proceedings resulting in the refund are delayed for reasons attribu-table 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 the Chief Commissioner or Commissioner whose decision thereon shall be final. (3) Where, as a result of an order under sub-section (3) of section 115WE or section 115WF or section 115WG or sub-section (3) of section 143 or section 144 or section 147 or sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e purpose of grant of interest under section 244A(1) was necessarily and mandatorily to be decided either by Chief CIT or CIT. Thus, in the facts and circumstances of the case, the Assessing Officer did not work in accordance with the provisions of law which in itself is a mistake apparent from record. What was required to be done by the Assessing Officer was to refer the matter either to Chief Commissioner or Commissioner for determination of period for which the assessee was not entitled to grant of interest under section 244A(1). Ld. CIT(A) is also wrong in holding that the Assessing Officer was right in excluding such period. No such authority is vested in Assessing Officer to exclude period and if any question has arisen for exclusion of any period, the manner provided in sub-section (2) has to be adopted by the Assessing Officer. Thus, neither the Assessing Officer nor the CIT(A) were right in ordering the exclusion of any period as the exclusion, if any was outside their powers. To that extent the order of the Assessing Officer and CIT(A) suffers from legal infirmity. Keeping in view the entirety of facts and the relevant provisions of law, we are of the opinion that it woul ..... X X X X Extracts X X X X X X X X Extracts X X X X
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