TMI Blog2017 (7) TMI 1402X X X X Extracts X X X X X X X X Extracts X X X X ..... ssee delineated here-in-above. We follow the same and hold that the rectification order dated 20.07.2010 passed by the AO is neither erroneous nor prejudicial to the interest of revenue. - ITA No. 2018/MUM/2012 - - - Dated:- 14-7-2017 - Shri Mahavir Singh (Judicial Member) And Shri N.K. Pradhan (Accountant Member) For the Assessee : Shri Girish Dave Shri K.K. Ved, AR. For the Revenue : Shri Rajat Mittal, DR. ORDER PER N.K. PRADHAN, A.M This is an appeal filed by the assessee. The relevant assessment year is 2009-10. The appeal is directed against the order u/s 263 of the Income Tax, 1961 (the Act ) dated 28.02.2012 passed by the Commissioner of Income Tax (CIT) -2, Mumbai. 2. The grounds of appeal filed by the assessee read as under: - 1. The order of the learned CIT is contrary to the provisions of law and without appreciation of the facts and circumstances of the case in their right perspective. 2. The learned CIT erred in invoking the provisions of section 263 and holding that the order passed by the Assessing Officer was erroneous and prejudicial to the interest of the Revenue. 3. The learned CIT erred in directing the Assessing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44A was ₹ 399,22,18,915/- instead of ₹ 252,55,06,630/- granted to them. The AO verified the contentions of the assessee from the office record and found the same to be same correct subject to re-calculation of interest u/s 244A of the Act. The AO passed the rectification order as under: Rs. Rs. Total Income of the assessee vide order dated 04.06.2010 as per order giving effect to CIT(A) s order: 1406,91,94,640 Less deduction under Chapter VIA as per order u/s 143(3) dated 04.02.2002: 2,79,67,197 Less Interest on securities to be taxed on due basis and not on accrual basis vide para 46 of CIT(A) s order Difference between interest accrued but not due as on 31.03.1999 and 31.03.1998: (2060,08,39,619 1641,56,06,400) 418,52,33,219 421,32,00,416 985,59,94,224 Add: Deduction u/s 36(1)(viia) allowed as per order u/s 143(3) dated 04.02.2002 793,82,28,183 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e CIT held the grant of interest u/s 244A in the order u/s 154 dated 20.07.2010 amounting to ₹ 221,39,24,597/- to be erroneous and directed the AO to re-compute the interest by taking the excess tax paid with respect to interest on securities on due basis from the date of CIT(A) s order to the date of order under review. 4. Before us, the Ld. Counsel of the assessee submits the facts in brief as under: 1. Date of filing the return of income 30.12.1999 2. Total Income returned 860,81,77,400/- 3. Refund claimed as per return 648,52,70,249/- 4. Date of processing of return 31.03.2001 5. Refund allowed u/s 143(1) 648,52,70,249/- 6. Interest u/s 244A allowed on the above sum 155,64,64,860/- 7. Date of assessment order u/s 143(3) 04.02.2002 8. Assessed Income 1959,2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the quantum of income returned. The Ld. DR further submits that as per the judgment of the Hon ble Supreme Court in GoetzeIndina Ltd. 284 ITR 323 (SC) any variation in claim before the AO has to be by way of a revised return of income and not by filing any revised computation of income. In the case of the assessee there was no revised return of income. 6. We have heard the rival submissions and perused the relevant material on record. The issue raised in this appeal is summarized as under: The CIT views the allowance of interest u/s 244A allowed in the order dated 20.07.2010 of rectification u/s 154 by the AO as excessive for the reason that the assessee included the amount of interest on securities on accrual basis and paid self assessment tax thereon, though claimed by way of a note accompanying the return of income the said income as not taxable in that year as it has not become due. 6.1 A similar issue arose before the ITAT E Bench Mumbai in the case of the assessee i.e. State Bank of India, Financial Reporting and Taxation Department vs. DCIT-2 (2) in ITA No. 6817 6823/Mum/2012 (AY 2001-02) and ITA No. 6818 6824/Mum/2012 (AY 2002-03). The Tribunal has sum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed on due basis. While completing the assessment the AO ignored the said note, but he took note about the broken period interest (note 13) and accordingly taxed it. The selective approach of the AO is beyond comprehension. As a representative of the sovereign, he was collect due taxes only he is not mere tax gatherer. It was his duty to consider both the notes whatever would have been the result. But, he conveniently overlooked the note that would have gone against him. If he had considered the facts about broken period, he should have deliberated upon claim made by the assessee for taxing on securities on due basis. 6.2 We find that the issue in the instant appeal is covered in favour of the assessee by the above order of the Co-ordinate Bench. 7. We now turn to the decision in the case of Goetze (India) Ltd. (supra) relied on by the Ld. DR. The issue relates to whether the assessee could make a claim for deduction other than by filing a revised return. The assessment year in question was 1995-96. The return was filed on 30.11.1995 by the assessee for the assessment year in question. On 12.01.1998 the assessee sought to claim a deduction by way of a letter before the AO. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue contends that in the absence of tax on self assessment finding mention in Section 244A(1)(a) of the Act, no interest is payable under Section 244A(1) of the Act and Section 244A(1)(b) of the Act would have no application. This contention is opposed to the meaning of the provision disclosed even on a bare reading. If the tax paid is not covered by clause (a) of Section 244A(1), it falls within clause (b), which is a residuary clause. Besides, this contention stands negatived by the CBDT Circular bearing No.549 dated 31 October 1989 wherein reference is made to Section 244A and para 11.4 thereof reads as under :- 11.4 The provisions of the new section 244A are as under:- (i) Sub-section (1) provides that where in pursuance of any order passed under this Act, refund of any amount becomes due to the assessee then- (a) if the refund is out of any advance tax paid or tax deducted at source during the financial year immediately preceding the assessment year, interest shall be payable for the period starting from the 1st April of the assessment year and on the date of grant of the refund. No interest shall, however, be payable, if the amount of refund is less than 10 per ce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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