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TMI Blog2013 (3) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed on identical grounds for all the three Assessment Years and the same are disposed off by way of a common order. 2. The solitary issue arising out of all the appeals is pertaining to not granting interest u/s 244A of the Income Tax Act (shortly 'Act') upon the refund of the interest levied u/s 201(1A) of the Act. 3. Briefly stated, during the years under consideration, the assessee, a nonresident company incorporated in Hong Kong had failed to deduct taxes at sources as required u/s 195 of the Act on the amounts paid by the assessee company to various channel companies. Consequently, the AO levied interest u/s.201(1A) on the assessee company for failure to deduct taxes at source. 3.1 The said levy of interest u/s. 201(1A) of the A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 154 could have been challenged u/s 246(1)(c) before the Ld.CIT(A). Claim for interest on refund u/s 244A could not be filed directly before the CIT(A). On merits, the Ld.CIT held that an order u/s 195 had to be seen as different from an assessment order u/s 143(3) wherein actual issue of taxability of a receipt is decided by the AO. The TDS could be viewed merely as a security for likely tax demand in future and the same could not be treated as tax in view of Circular No. 7 of the 2007 issued by the CBDT dated 23-10- 2007. The orders passed by the AO u/s 201(1A) had become time barred because of technical reasons. When an order u/s 201(1A) of the Income-tax Act would not survive as it got time barred for whatever reasons, then the amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, the Ld.DR has relied on the orders of the Ld.CIT(A) in support of the case of the Revenue's case. 5. We have heard both the parties and perused the material on record. As regards the view of the Ld.CIT(A) that orders passed by the AO u/s 254 of the Act giving effect to the order of the ITAT cannot be appealed against u/s 246A, it is pertinent to mention that the Jurisdictional High Court in the case of Caltex Oil Refining India (Ltd) Vs Commissioner of Income Tax has held that fresh order to give effect to an appellate order is also an assessment order and can be a subject matter of appeal before the appellate authorities. Relying on the said decision, we are of the view that the ratio of Ld.CIT that the appeal before him being not main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 244A of the Act are applicable thereafter. 5.2 Regarding the reasoning of the Ld.CIT(A) that an order u/s 195 has to be seen as different from an assessment order u/s 143(3) wherein actual issue of taxability of a receipt is decided by the AO. The TDS can be viewed merely as a security for likely tax demand in future and the same cannot not be treated as tax in view of Circle No. 7 of the 2007 issued by the CBDT dated 23-10-2007, it is to be noted that the circular is applicable only in respect of voluntary deduction of tax at source which ultimately is found as not payable to the Government in respect of the remittances, which in our view, is not applicable to the facts in this case. In ITO v. Delhi Development Authority (2001) 252 ITR 7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund the amount to the assessee without his having to make any claim in that behalf. The crucial expressions in section 240 are 'any amount which becomes due to the assessee as a result of any order passed in any appeal or other proceedings under the Act and the 'amount becomes due to the assessee'. Section 244 refers to the liability fastened on the Central Government in case of failure to grant refund within the stipulated time in a case where refund is due to the assessee in pursuance of an order referred to in Section 240. A combined reading of both the provisions makes the position crystal clear that it is any amount which becomes due to the assessee and not necessarily the tax component". Also, for the purposes of granting interest o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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