TaxTMI 
TaxTMI 
TaxTMI 
2015 (3) TMI 609
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....2 was adjusted from the refund based on a rectification order of March, 2002. But the rectification order was cancelled by the Commissioner of Income-tax (Appeals) and effect was given to order of the Commissioner of Income-tax (Appeals) by proceedings dated December 30, 2004. The additional levy of Rs. 1,18,092 was cancelled. According to the assessee, the position therefore is that the refund due is Rs. 3,58,726 with interest. The appeal filed by the Department against appellate order has been dismissed by the Tribunal. On receipt of the Tribunal order, the assessee made an application to rectify the order and issue the refund as per letter No. 1330/2009. The Assistant Commissioner by order under section 154 dated March 19, 2010 has computed the refund based on the proceedings dated December 30, 2004 by taking the refund due as Rs. 1,18,092. The demand of Rs. 1,18,092 was thus raised under section 154 dated March 28, 2002 and this amount was collected from refund of Rs. 3,58,726 on July 10, 2003. This demand was subsequently reduced by the order of the Commissioner of Income-tax (Appeals). As per order under section 154 dated March 19, 2010, the demand of Rs. 1,18,092 was refunde....
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..... State Bank of Travancore reported in [2007] 106 ITD 308 (Cochin). This is final as no appeal appears to have been filed by the Department. So the learned authorised representative contended that the limited issue is whether judgment in CIT v. Narendra Doshi [2002] 254 ITR 606 (SC) is applicable, as held by this Tribunal and judgments of various High Courts. 6. Pursuant to the order passed by the Assessing Officer dated July 10, 2003, the sum of Rs. 3,58,726 was recovered from Bank of Baroda invoking section 226 on December 30, 1998 which is the amount refundable to the assessee from the date of realisation namely December 30, 1998. 7. The Commissioner of Income-tax (Appeals) in the appellate order has found that the Assessing Officer accepted that Rs. 3,58,726 was adjusted against the demand for 1990-91. But the demand was reduced to nil under KVSS and hence the above amount has to be refunded. 8. The learned authorised representative relied on the following case law : CIT v. Gujarat Fluoro Chemicals [2013] 358 ITR 291 (SC) wherein it was held that : "The judgment in Sandvik Asia Ltd. v. CIT [2006....
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....ple interest at fifteen per cent. per annum on the amount by which the aggregate sum of any instalments of advance tax paid during any financial year in which they are payable under sections 207 to 213 exceeds the amount of the assessed tax, from the 1st day of April next following the said financial year to the date of the regular assessment for the assessment year immediately following the said financial year, and where any such instalment is paid after the expiry of the financial year, during which it is payable by reason of the provisions of section 213, interest as aforesaid shall also be payable on that instalment from the date of its payment to the date of the regular assessment." 11. The learned authorised representative drew our attention to section 214 which deals with only excess advance tax paid over the assessed tax from the 1st day of April following the said financial year to the date of regular assessment. The learned authorised representative submitted that section 240 deals with interest payable without making a claim. In the facts of the case there is no advance tax payment resulting in refund on assessment. The Legislature inserted section 244A of the Income-ta....
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....principle in the contextual background." 14. CIT v. Travancore Titanium Products Ltd. [2004] 265 ITR 526 (Ker) wherein it was held as follows : "Even if the decision of the Tribunal rendered in the earlier case is wrong, a Bench of co-ordinate jurisdiction has ordinarily to follow it, unless it doubts the correctness of the said decision and refers the matter to the President of the Tribunal." 15. He relied on the judgment in the case of Haralal Harendralal Roy Estates Ltd. v. Union of India reported in [2012] 340 ITR 69 (Cal) wherein it considered the effect of decision of the Supreme Court in CIT v. Narendra Doshi [2002] 254 ITR 606 (SC) and held as under (headnote of 340 ITR 69 ) : "Normally the decision of the Supreme Court enunciating a prin ciple of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is in fact, the law from inception. The principle laid down by the Supreme Court in the case of CIT v. Narendra Doshi [2002] 254 ITR 606....
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....onths on Rs. 45,73,528." So the issue stands concluded. 18. India Trade Promotion Organisation v. CIT reported in [2014] 361 ITR 646 (Delhi) ; 263 CTR 18 wherein it was held as under : "Words used by the Legislature in section 244A are 'any amount' and 'said amount'-Words are, therefore, much wider and broader than the tax amount which is to be refunded. Words 'any amount' would include within its scope and ambit the interest element, which has accrued and is payable on the date of the refund." "The Legislature has not used the words 'tax paid' or 'the principal amount of tax paid'. The words used by the Legislature in section 244A are 'any amount' and 'said amount'. The words are therefore, much wider and broader than the tax amount, which is to be refunded. The words 'any amount' would include within its scope and ambit the interest element, which has accrued and....
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....ile construing the provision of taxing statute." 23. The apex court in the case of Sundeep Kumar Bafna v. State of Maharashtra [2014] 2 KHC SN 23 (SC) at 41, wherein it was held as under : "It is often encountered in High Courts that two or more mutually irreconcilable decisions of the Supreme Court are cited at the Bar. We think that the inviolable recourses is to apply the earliest view as the succeeding ones would fall in the category of per incuriam." 24. According to the learned authorised representative, the decision in the Narendra Doshi's case [2002] 254 ITR 606 (SC) by the three-member Bench is dated July 26, 2001. But the three-member Bench decision in the case of Gujarat Fluoro Chemicals [2013] 358 ITR 291 (SC) is dated September 18, 2013. So based on the above, the judgment in the case of Gujarat Fluoro Chemicals fall in the category of per incuriam. Moreover the judgment is not relevant, and there is no irrecoverable decisions after introduction of section 244A. 25. The learned authorised representative submitted that in spite of written arguments filed relying on the ord....
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.... wherein it was clarified that only that interest provided for under the statute which can be claimed by an assessee from the Revenue and no other interest on such statutory interest. On perusal of the summary of the arguments of the assessee for the assessment year 1990-91, the learned Departmental representative observed that the assessee is trying to brush aside the said observation stating that the issue is still kept open. Under these circumstances, the relevant para of the order of Supreme Court in S. L. P. No. 11406 of 2008 (dated September 18, 2013) is reproduced hereunder (page 294 of 358 ITR) : "8. Further, it is brought to our notice that the legislature by the Act No. 4 of 1988 (with effect from April 1, 1989) has inserted section 244A to the Act which provides for interest on refunds under various contingencies. We clarify that it is only that interest provided for under the statute which may be claimed by an assessee from the Revenue and no other interest on such statutory interest." 9. With the aforesaid clarifications we....
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....ppeals). Against the disallowance of interest on interest on refund, the assessee is in appeal before us. 29. We have heard both parties and perused the material on record. In this case, the assessee's claim is with regard to interest on interest on refund and the learned authorised representative placed much reliance on the judgment of the Supreme Court in the case of CIT v. Narendra Doshi [2002] 254 ITR 606 (SC). The appeal filed by the Revenue was dismissed by the hon'ble Madhya Pradesh High Court. Later, the Supreme Court held as follows (headnote) : "Held, that, since the Appellate Tribunal, whose decision the High Court had affirmed, had relied upon the decision of the Gujarat High Court in D. J. Works v. Deputy CIT [1992] 195 ITR 227 (Guj), to the effect that the Revenue was liable to pay interest on the amount of interest on advance tax which it should have paid to the assessee but has unjustifiably failed to do so, and that decision was followed by the Gujarat High Court in Chimanlal S. Patel v. CIT [1994] 210 ITR 419 (Guj), and the Department had not challenged the correctness o....
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....in granting the refund within the period of three months aforesaid is attributable to the assessee, whether wholly or in part, the period of the delay attributable to him shall be excluded from the period for which interest is payable. (2) Where any question arises as to the period to be excluded for the purposes of calculation of interest under the provisions of this section, such question shall be determined by the Commissioner whose decision shall be final." "244. Interest on refund where no claim is needed.-(1) Where a refund is due to the assessee in pursuance of an order referred to in section 240 and the Income-tax Officer does not grant the refund within a period of three months from the end of the month in which such order is passed, the Central Government shall pay to the assessee simple interest at twelve per cent. per annum on the amount of refund due from the date immediately following the expiry of the period of three months aforesaid to the date on which the refund is granted. (1A) Where the whole or any part of the refund referred to in sub- section (1) is due to the assessee, as a res....