TMI Blog2016 (2) TMI 342X X X X Extracts X X X X X X X X Extracts X X X X ..... stainable in law. Accordingly, the impugned disallowance, by way of rectification of mistake under section 154, is wholly unsustainable in law. The CIT(A) was indeed in error in upholding the impugned rectification order on this aspect of the matter. Interest under section 244A not admissible in respect of delay in making claim of exemption under section 10(23G) - Held that:- The law is quite unambiguous on this aspect as it provides that “where any question arises as to the period to be excluded, it shall be decided by Chief Commissioner or Commissioner whose decision thereon shall be final”. Undoubtedly, such a decision by the Commissioner of the Chief Commissioner cannot be a subject matter of then the call about the period for exclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3. The relevant material facts are in a narrow compass. The assessee before us is a non resident and its assessment under section 143(3) was completed on 28th March 2005 at an assessed income of ₹ 24,18,54,060. Subsequently, however, the revenue audit party pointed out certain mistakes said to have crept in this assessment order. The mistakes so pointed out, on the basis of which the impugned rectification of mistakes under section 154 is said to have been carried out- as is started in the impugned order itself, were as follows: It was observed by the audit as under: 1. In cycle no. 44, it was observed that no tax was deducted at source on interest payment of ₹ 78,27,840 to the head office, and hence deduction was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... before the CIT(A) but without any success. As for the first point, learned CIT(A) noted the assessee s reliance on a special bench decision of this Tribunal in the case of ABN Amro Bank NV Vs ADIT [(2005) 97 ITD SB 89 (Kol)], but simply brushed it aside and upheld the stand of the Assessing Officer. He did refer to the CBDT circular 740 and relied upon the same. As for the second point, learned CIT(A) was of the view that the amount of interest payable under section 244A has been wrongly calculated by the Assessing Officer and he was, therefore, justified in rectifying the said mistake in computation of interest. On the assessee s claim that refund determined vide order dated 20th November 2006, giving effect to the CIT(A) s order and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e facts of this case. 8. As for the point as to whether the tax is required to be deducted tax at source from payments made by a foreign bank s Indian branch to its overseas head office, a Special Bench of this Tribunal, in the case of ABN Amro Bank (supra), had decided the issue in favour of the assessee. It was held since, in such a situation, the payment is made by the non resident to himself, there is no obligation to deduct tax at source from such payments. Hon ble Calcutta High Court, in the case of ABN Amro Bank NV Vs CIT [(2012) 343 ITR 81 (Cal)], has held that there is tax deduction at source requirement, under section 195, from the payment of interest made by the Indian branch of a foreign bank to its offices abroad. It is thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee, 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 Chief Commissioner or Commissioner whose decision thereon shall be final . In this light, when we revert to the facts of this case, we find that there is nothing more the fact of delayed claim under section 10(23G) which has been put against the assessee to deny the interest under section 244A, for the period of the beginning of the relevant assessment year till the date of making the claim by way of a letter, but then it is not the delay in claim but the delay in the proceedings resulting in refund which are cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be treated as a mistake apparent on record within the inherently limited scope of Section 154. In any event, when a question arises as to the period for which such interest under section 244A is to be excluded, this is to be decided by the Commissioner or the Chief Commissioner. The law is quite unambiguous on this aspect as it provides that where any question arises as to the period to be excluded, it shall be decided by Chief Commissioner or Commissioner whose decision thereon shall be final . Undoubtedly, such a decision by the Commissioner of the Chief Commissioner cannot be a subject matter of then the call about the period for exclusion of interest is to be determined by the Commissioner or the Chief Commissioner. Obviously, n ..... X X X X Extracts X X X X X X X X Extracts X X X X
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