TMI Blog2022 (10) TMI 835X X X X Extracts X X X X X X X X Extracts X X X X ..... cope of mistake apparent on record on which no two views are possible. In any case, there is not adjudication by the Chief Commissioner or the Commissioner on the period to be excluded-something hotly contested by the assessee. Unless that adjudication is done, the denial of interest under section 244A cannot reach finality, and, for this reasons also, the impugned order does not meet our approval. We uphold the plea of the assessee and vacate the impugned rectification order. The assessee gets the relief accordingly. - ITA No.216/Mum/2022 - - - Dated:- 18-10-2022 - Pramod Kumar (Vice President) And Sandeep S Karhail (Judicial Member) For the Appellant : Ronak Doshi along with Ayushi Modani For the Respondent : Chetan M Kacha ORDER PER PRAMOD KUMAR, VP 1. By way of this appeal, the assessee appellant has challenged the correctness of order dated 20th January 2022 passed by the learned CIT(A) in the matter of rectification of mistake under section 154 of the Income Tax Act 1961, for the assessment year 2007-08. 2. Grievances raised by the appellant are as follows:- 1. Ground No. 1 1.1 On the facts and the circumstances of the case and in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the Hon'ble ITAT was relating to the CIT (Al's direction to re-compute the disallowance u/s 14A of the Income Tax Act, 1961, made by the Assessing Officer u/r 8D(2) (fir) of the IT Rules, 1962 and did not contain objection or agitation on the suo motto disallowance made by the assessee in the return of income and during the proceedings before the First appellate authority and also in the original grounds of appeal before the Hon'ble ITAT. 4.2. The Hon'ble ITAT, observing that the additional ground was a legal issue; not containing any additional or new facts, has admitted this additional ground and has clubbed this issue with that of the original ground of the assessee; being appeal against CIT (A)'s directions to rework based on earlier precedence, and has directed that this issue be restored to the Assessing Officer to re-work the entire disallowance us 14A of the Income Tax Act, 1961, without applying Rule 8D of the IT Rules, 1962. 4.3. The Assessment Order, consequential to the directions of the Hon'ble ITAT'S order, u/s 143(3) r.w.s. 254 of the Income Tax Act, 1961, was passed on 16/05/2016, determining the assessee's income at Rs. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... During the course of these proceedings, as evident from copies of submissions filed by the assessee-copies of which have been placed before us in the paper book, the assessee has taken the stand, supported by elaborate arguments, that the delay in refund was not attributable to the assessee. The assessee had also made references to various judgments of Hon ble Courts above, such as CIT vs South Indian Bank Ltd [(2012) 340 ITR 574 (Ker)], Ajanta Mtg Ltd vs DCIT [(2017) 391 ITR 33 (Guj)], and ITO vs Volkart Bros (1971) 82 ITR 50 (SC)]. It was thus clearly a seriously contended issue as to whether or not the assessee was responsible for delay in refund of tax, and, as such, whether interest under section 244A could have been declined to the assessee at all. None of these submissions, however, had any impact on the Assessing Officer. He proceeded to withdraw the interest-as evident from the extracts of his rectification order, reproduced above. Aggrieved assessee carried the matter in appeal before the learned CIT(A) but without any success. The assessee is not satisfied and is in further appeal before us. 6. We have heard the rival contentions, perused the material on record and du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake under s. 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. 9. As for the second point on which the impugned rectification order was passed, we have noted that the stand of the AO is that interest under s. 244A is not admissible in respect of delay in making claim of exemption under s. 10(23G). In the assessment order, at p. 6, there is a mention that the assessee's letter dt. 20th Jan., 2005 has been considered and, accordingly, it is held that Rs. 2,50,65,961.57 will not form part of the income under s. 10(23G) of the Act . The stand of the AO, at p. 2 of the impugned rectification order, thus is that since the claim itself was made on 20th Jan., 2005, the period of delay in issuing refund from the period 1st April, 2002 to 20th Jan., 2005, being attributable to the assessee, is required to be excluded . The AO has proceeded on the basis that mere making of belated claim under s. 10(23G), even if that be so, is reason enough to hold that the delay in issuance of refund, to that extent, is attributable to the assessee. Sec. 244A(2) as it then stood, however, provided th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as to the period for which such interest under s. 244A is to be excluded, this is to be decided by the CIT or the Chief CIT. Even if the interest under s. 244A could be declined for this period on merits, not declining the interest under s. 244A could not be treated as a mistake apparent on record within the inherently limited scope of s. 154. In any event, when a question arises as to the period for which such interest under s. 244A is to be excluded, this is to be decided by the CIT or the Chief CIT. In any event, when a question arises as to the period for which such interest under s. 244A is to be excluded, this is to be decided by the CIT or the Chief CIT. 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 CIT or CIT whose decision thereon shall be final . Undoubtedly, such a decision by the CIT of the Chief CIT cannot be a subject-matter of then the call about the period for exclusion of interest is to be determined by the CIT or the Chief CIT. Obviously, no such exercise was carried out at the assessment stage or even at the stage of the rectification proceedings, and it wa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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