TMI Blog2015 (3) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest. Such a situation has not happened in the present case as the amount of interest is calculated and refunded along with the refundable tax amount. The Hon'ble Supreme Court has made adverse remarks about the decision of Sandvik Asia Ltd. [2006 (1) TMI 55 - SUPREME Court] in the decision of Gujarat Fluoro Chemicals [2012 (8) TMI 740 - SUPREME COURT], wherein held that it is only that interest provided for under the statute which may be claimed by an assessee from the Revenue and no other interest on such statutory interest. Therefore, following Gujarat Floura Chemicals and the decision of Hon'ble Delhi High Court in case of The Motor & General Finance Ltd. vs. CIT [2009 (10) TMI 51 - DELHI HIGH COURT], the stand of the AO is upheld and the grounds of appeal of the appellant are dismissed. - ITA No. 5680/Mum/2013 - - - Dated:- 11-3-2015 - Shri R. C. Sharma, AM And Shri Sanjay Garg, JM,JJ. For the Petitioner : Ms. Rachana Kanoi For the Respondent : Shri Asghar Zain ORDER Per R. C. Sharma (A. M. ) This is an appeal filed by the assessee against the order of CIT(A), dated 15-2-2013 for assessment year 1999-2000 in the matter of order passed u/s.254 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arat Flouro Chemicals, reported in 24 Taxman 338 (SC) (2012) has observed as under: 'we have serious doubts about the correctness of the judgement in Sandvik Asia (supra). In our view the judgement of this court in the case of Modi Industries Limited vs. Commissioner of Income Tax, 1996 (6) SSC 396 correctly holds that Advance Tax or TDS loses its identity as soon as it is adjusted against the liability created by the Assessment Order and becomes tax paid pursuant to the Assessment Order..... : .... We say no more. With respect, we are of the view that Sandvik Asia (Supra) has not been correctly decided. In the circumstances, we direct the Registry to place this matter before Hon'ble the Chief Justice on the administrative side for appropriate orders. Thus, it is requested that no relief may be granted solely on the basis of decision of the Hon'ble Supreme Court relied upon by the assessee. Secondly, the decision relied upon by the assessee is distinguishable on facts and not applicable to the facts of the case. The Hon'ble Supreme Court's in the decision of Sandvik Asia was for AY 1977-78 to AY 1982-83 and was dealing with the provisions of secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CIT vs. Gujarat Fluro Chemical reported in 24 Taxmann 338 (SC) (2012) where the authenticity of ruling in the case of Sandvik Asia, has been doubted, and Chief Justice has been requested for appropriate order at the Administrative side. In this regard, we most respectfully submit that till today ruling given by the Sandvik Asia has not been overruled. Further, after the ruling given in Sandvik Asia, no change has been brought in the statute book. Therefore, as on date Sandvik, Asia ruling holding the field and further, this being ruling of the Hon'ble Supreme Court of India, this being the law of land. Therefore, objection raised in the remand report is not maintainable. Therefore, we would request your Honour to allow the interest u/s. 244A on interest. We further submit that when the department itself charge interest on interest why the same ,should not be allowed to the assessee. We would also draw your kind attention towards various other rulings relied upon under our letter dated 09.09.2011. In view of the above, we would request your honour to direct the AO to allow interest uh 244A till date and to issue further refund as claimed. 4.5 I have considered the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le interest at [fifteen) per cent per annum on the amount by which the aggregate sum of any instalments of advance tax paid during any financial year in which they are payable under sections 207 to 213 exceeds the amount of the 5[assessed tax) from the 1st day of April, next following the said financial year to the date of the regular assessment for the assessment year immediately following the said financial year, and where any such instalment is paid after the expiry of the financial year during which it is payable by reason of the provisions of section 213, interest as aforesaid shall also be payable on that instalment from the date of its payment to the date of regular assessment: Provided that in respect of any amount refunded on a provisional assessment under section 141A, no interest shall be paid for any period after the date of such provisional assessment. (lA) Where as a result of an order under section 147 or section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 8[or an order of the Settlement Commission under sub-section (4) of section 245D, the amount on which interest was payable under sub-section (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the period of the delay attributable to him shall be excluded from the period for which interest is payable. (2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the [Chief Commissioner or Commissioner] whose decision shall be final. (3) The provisions of this section shall not apply in respect of any assessment for the assessment year commencing on the 1st day of April, 1989 or any subsequent assessment years. 244. (1) Where a refund is due to the assessee in pursuance of an order referred to in section 240 and the [Assessing] Officer does not grant the refund within a period of 3[three months from the end of the month in which such order is passed], the Central Government shall pay to the assessee simple interest at 4[fifteen] per cent per annum on the amount of refund due from the date immediately following the expiry of the period of 5[three] months aforesaid to the date on which the refund is granted. (1A) Where the whole or any part of the refund referred to in sub-section (1) is due to the assessee, as a result of any amount having be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Further, the Hon'ble Delhi High Court in the case of The Motor General Finance Ltd. VS CIT-6, Delhi has held on 30.10.2009 as under: 13. When we examine the facts of the present case, we feel that the aforesaid judgement of the SC would not come to the aid of the assessee and permit the assessee to claim interest on interest in the given situation. As far as the appeals at hands are concerned, it is not in dispute that on filing the return by the assessee and processing the case under section 143(1)(a), the excess amount of TDS and advance tax paid by the assessee was refunded along with interest u/s. 244(a) within the prescribed time period. When the assessment orders were passed u/s. 143(3) of the Act and the assessee was called upon to make the payments as per the demand made on the basis of the assessment order, the assessee has started making the payments in instalments. It had not completed the payments till the decision of CIT(A). Though the CIT(A) reduced the demand, but even as per the reduced demands, certain payments were still due. It is only after the orders of the Tribunal that the refunds became payable. The appeal effect, i.e. the effect to the order of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re a refund is due to the assessee in pursuance of an order referred to in section 240 and the Assessing Officer does not grant the ,refund within a period of three months from the end of the month in which such order is passed, the Central Government shall pay to the assessee simple interest at 4[fifteen] per cent per annum on the amount of refund due from the date immediately following the expiry of the period of 5[three] months aforesaid to the date on which the refund is granted. (lA) Where the whole or any part of the refund referred to in sub-section (1) is due to the assessee, as a result of any amount having been paid by him after the 31st day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceeding under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted: Provided tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present case, the order of the Tribunal would demonstrate that it had taken into consideration various dates on which orders were passed by the successive authorities, Including the order of efund. It has also taken into consideration the interest on the basis of those orders. Summary of interest allowed along with refund to the assessee as per the calculations made by the Department is as under:- .... ... It is clear from the above that the assessee had been paid the refund of the amounts collected/paid within the statutorily permissible periods. 17. On the other hand, in Sandvik Asia ltd. (supra), only refund of excess tax had been given, but no interest on refund had been given to the assessee along with that. This interest was retained by the department for a period of 12 to 17 years in respect of various assessment years. It was under these circumstances, the Court opined that withholding of interest was also unjustified as this had become part of the refund due to the assessee along with tax, interest on this amount was also payable. 8. It is, thus, manifest that at both the stages, namely, while passing intimation u/s. 143(1)(a) of the Act, refund along ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that interest on interest should be allowed in view of the judgement passed by the Hon ble Supreme Court in the case of Sandvik Asia Ltd.280 ITR 643. We found that the CIT(A) has dealt with various judicial pronouncements with regard to allowability of the interest 244A. The CIT(A) has applied the judicial pronouncements of latest decision of Hon ble Supreme Court in the case of Gujarat Flouro Chemicals, 24 Taxmann 338 (SC) and held that facts of the instant case are distinguishable from the facts in the case of Sandvik Asia Ltd. (supra), where only refund of excess tax has been given but no interest has been given to the assessee along with that, the interest was retained by the department for a period of 12 to 17 years in respect of various assessment years. The Hon ble Supreme Court keeping in view the peculiar facts and circumstances of the case directed the AO to pay interest and observed that withholding of interest was also unjustified as this had become part of the refund due to the assessee along with tax, interest on this amount was also payable. We found that the correctness of the decision of Hon ble Supreme Court in the case of Sandvik Asia Ltd(supra) was doubted and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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