TMI Blog2015 (3) TMI 639X X X X Extracts X X X X X X X X Extracts X X X X ..... tion Ltd. Vs. ACIT (2008 (12) TMI 432 - ITAT DELHI) and keeping in view the entirety of facts, circumstances and the relevant provisions of the law, we are of the considered opinion that it would serve the interest of justice if the matter is restored back to the file of AO with a direction to refer the issue regarding exclusion of period as prescribed in sub-section (2) of sec. 244A of the Act either to the Chief Commissioner of Income Tax or Commissioner of Income Tax, as the case may be, to get it determine. We may also point out that as per provision of sec. 244A(2) of the Act the decision of Chief Commissioner of Income Tax or Commissioner of Income Tax shall be final on this issue and, therefore, revenue authorities are duty bound to refer the matter to the competent authority for determination of the issue regarding exclusion of period as per provisions of the Act. - Decided in favour of assessee for statistical purposes. - ITA No. 1414/Del/2011 - - - Dated:- 2-3-2015 - Shri G.D. Agarwal And shri C.M. Garg JJ. For the Appellant : Sh. Ajay Vohra, Sr. Adv., Rohit Jain, Adv. Deepashree Rao, CA For the Respondent : Sh. Gunjan Prashad, CIT-DR ORDER Per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erest u/s 244A of ₹ 1,21,03,381/-. Interest is admissible on ₹ 77,44,730/- (being the difference between ₹ 84206916 and ₹ 7,64,62,186) 6. The AO has on facts and in the circumstances of the case and in law erred in withdrawing ₹ 19,46,200/- being the interest allowed on the refund of self assessment tax u/s 143(1) of the Act as per ITNS 150 dt. 29.5.2000 forming part of order u/s 250/143(1)(a), whereas the ITNS-150 accompanying the impugned order starts with post section 143(1) orders only, thereby reducing the refund admissible to the Appellant. 7. The AO has on facts and in the circumstances of the case and in law erred in not complying with the mandatory provisions as contained in sec. 245 by not intimating the appellant in writing before setting off the refund against the amount payable under for different years, the adjustment is thus illegal and deserves to be reversed. 8. The AO has on facts and in the circumstances of the case and in law erred in not issuing the balance refund of ₹ 49,21,194/- to the appellant as worked out in the ITNS-150 accompanying the impugned order. 3. Briefly stated the facts giving rise to the appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eme of amalgamation was to take effect from 01/04/1994, the benefit of tax credit was to be allowed to the assessee company for the A.Y. 1995-96 and not for 1996-97 as held by the CIT(A) in terms of his order passed u/s 154 of the Act dated 22/07/2004. While giving effect to the order of the ITAT the AO vide order dated 12/03/2009 u/s 254/143(3) of the Act. The claim of the assessee company of the interest u/s 244A of the Act has been denied. 6. The empty handed assessee further carried out the matter before CIT(A) and action of the AO was upheld by dismissing the ground of appeal of the assessee company pertaining to interest u/s 244A of the Act. Now the aggrieved assessees before this Tribunal with the grounds as reproduced hereabove. 7. We have heard the argument of both the sides and carefully perused the relevant material placed on record before us, inter-alia, order of the AO, order of the first appellate authority, paper books submitted by the assessee and case was relied by both the parties. 8. Since the main issue is revolving around the provision of section 244A of the Act and the main contention of the assessee is that the delay in proceedings is not attributabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (3) of the Act. 10. Reply to the above, the ld. Departmental Representative (DR) supported the action of the authorities below and submitted that the assessee company cannot take double benefit and the delay was fully attributable to the assessee company as per sequence of events noted by the AO and the CIT(A) in the impugned order para 4.4 at page 3 to 7 of the impugned order. The ld. DR further submitted that as per provisions of section 244A(2) of the Act where any question arises as to the period to be excluded for the calculation of interest on refund, it shall be decided by the Principal Chief Commissioner or Chief Commissioner or Principal Commissioner or Commissioner and whose decision thereon shall be final. 11. The ld. DR further contended and fairly accepted that the AO in this case has not referred the matter either to the Chief CIT or CIT for the determination of the period for which the assessee was not entitled to the interest u/s 244A(1) of the Act. Ld. DR has placed his reliance on decision of Power Finance Corporation Ltd. Vs. ACIT, ITAT Delhi E Bench (2009) 28 SOT 220 (Del.). 12. On careful consideration of above rival submissions of both the parties a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 u/s 156 is paid in excess of such demand. (2) If the proceedings resulting in the refund are delayed for reasons attributable 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 CIT or CIT whose decision thereon shall be final. (3) Where, as a result of an order under sub-s. (3) of s. 115WE or s. 115WF or s. 115WG or sub-s. (3) of s. 143 or s. 144 or s. 147 or s. 154 or s. 155 or s. 250 or s. 254 or s. 260 or s. 262 or s. 263 or s. 264 or an order of the Settlement Commission under sub-s. (4) of s. 245D, the amount on which interest was payable under sub-s. (1) has been increased or reduced, as the case may be, the interest shall be increased or reduced ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isions of law which in itself is a mistake apparent from record. What was required to be done by the AO was to refer the matter either to Chief CIT or CIT for determination of period for which the assessee was not entitled to grant of interest u/s 244A(1). Ld. CIT(A) is also wrong in holding that the AO was right in excluding such period. No such authority is vested in AO to exclude period and if any question has arisen for exclusion of any period, the manner provided in sub-s. (2) has to be adopted by the AO. Thus, neither the AO 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 AO 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 would serve the interest of justice if the matter is restored back to the file of AO with a direction to refer the issue regarding exclusion of period as prescribed in sub-s. (2) of s. 244A either to Chief CIT or CIT (as the case may be) to get it determined. We find that similar action of the Tribunal was upheld by Hon ble Kerala High Court in the case of Kerala ..... X X X X Extracts X X X X X X X X Extracts X X X X
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