TaxTMI 
TaxTMI 
2010 (11) TMI 753
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....case, the Appellant submits that the learned Commissioner of Income-tax (Appeals) be directed to entertain the said appeal, and decide the same on merits. 4. The appellant submits that the Assessing Officer be directed to grant credit amounting to Rs.8,38,764/- under sections 90 and 91 of the Income Tax Act as claimed in the Return of Income." 3. The factual matrix of the case is that the assessee was engaged in the business of providing I.T. enabled services and BPO services. Return declaring total income of Rs.98,90,146 was e-filed on 29.11.2006 claiming tax refund at Rs.22,76,152. The Assessing Officer finalized the assessment u/s.143(3) accepting the total income of Rs.98,90,150 as determined vide ITNS-150A. Tax on total income was worked out at Rs.33.29 lakhs. The A.O. considered the amount of TDS at Rs.30,66,412 and advance tax at Rs.17,00,000. After charging interest u/s.234C and allowing interest u/s.244A, he issued refund for Rs.16,62,165. The assessee preferred appeal before the learned CIT(A) on the following two grounds:- "1. The appellant objects to the tax determined refundable. 2. The Assessing Officer erred in not granting tax....
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....1 at Rs.8,38,764; and advance tax paid amounting to Rs.17 lakhs. In this way tax refundable was determined at Rs.22,76,152. The copy of computation of income filed along with the return of income has been placed at page 1 of the paper book depicting the above calculation. The Assessing Officer, in assessment u/s.143(3) accepted the assessee's computation of total income at Rs.98.90 lakhs without making any addition and also the calculation of tax payable at Rs.33.29 lakhs. However while granting refund, he only considered the amount of TDS at Rs.30.66 lakhs and that of advance tax at Rs.17 lakhs. The amount of Withholding tax u/ss. 90/91 at Rs.8,38,764 was not considered by the A.O. The detail of foreign tax credit amounting to Rs.8.38 lakhs is available at page 20 of the paper book. The Assessing Officer did not mention any reason in ITNS-150A for not allowing credit for the Withholding tax u/ss.90/91. It is notwithstanding the fact that column no.18 of ITNS-150A specifically provides for DIT relief u/ss.90/91, which has been left blank by the A.O. in the aforesaid income-tax computation form. When the assessee challenged the non-granting of credit for withholding tax before the l....
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....an be possibly considered only under the second part viz. "to the amount of tax determined" and not under the remaining parts as the non-granting of benefit in respect of the Withholding tax u/ss. 90/91 can neither be considered as "the income assessed" nor "the loss computed" nor "the status under which he is assessed". We, therefore, need to examine as to whether the non-granting of refund in respect of the withholding tax u/ss.90/91 amounting to Rs.8.38 lakhs can be considered under the expression "amount of tax determined". 10. There is no dispute that the assessment in this case was made u/s.143(3) of the Act. The finalization of assessment involves various stages starting with the filing of return and ending with the issuance of notice of demand u/s.156 of the Act. The amount of tax can be determined only on the conclusion of assessment. When we see the expression "amount of tax determined" in juxtaposition to "any order u/s.143(3)", it become manifest that the reference in the provision is to determination of the final amount of tax which is distinct from income assessed or the amount of loss computed or the status under which the assessee is assessed. 11....
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....ing of "tax determined" as referring to the determination of the sum payable by the assessee, it becomes vivid that not only the calculation of tax on the total income but also the adjustment of taxes paid by or on behalf of the assessee, is also covered within the determination of sum payable by the assessee u/s.156 of the Act. 14. The Hon'ble Bombay High Court in Caltex Oil Refining (India) Ltd. vs. CIT [(1993) 202 ITR 375 (Bom.)] considered a case in which interpretation of section 246 was involved. In this case the ITO assessed total income of the assessee at Rs.82.72 lakhs and allowed interest u/s.214 of the Act. The Tribunal reduced the total income to Rs.80.70 lakhs. While giving effect to the order of the Tribunal, the ITO observed that the interest payable to the assessee u/s.214 would remain unchanged. The assessee went in appeal before the Appellate Assistant Commissioner alleging that the interest ought to have been recalculated u/s.214 of the Act. The appeal was dismissed by the AAC as not maintainable on the ground that no appeal was provided for in respect of interest u/s.214 of the Act. When the matter finally came up before the Hon'ble Bombay High Court, ....
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....unt of tax. If the expression 'amount of tax determined' is narrowly construed as cabining to the calculation of tax aspect only by applying the relevant rates, as has been done by the learned CIT(A), it would set to naught the language of section. 16. It is noticed that a provision, in the shape of section 246A, has been embodied in the Act giving right to the assessee to file appeal before the Commissioner (Appeals). The language of the section is such as to envisage different aspects of assessment which have the effect of determining the tax liability of the assessee. If we accept the view point of the learned CIT(A), that the appeal is not maintainable in respect of non-allowing of relief for tax withheld u/ss.90/91, it would amount to violating the language of this section, which has otherwise given the right to the assessee to appeal broadly against on any aspect of the "amount of tax determined". 17. We are reminded of the judgement of the Hon'ble Supreme Court in CIT vs. Ashoka Engineering Co. [(1992) 194 ITR 645 (SC)] in which the question of right of appeal was considered. It was held that although there is no inherent right of appeal to any assessee, ....