Shantaben Karshanbhai Patel Vs Dy. CIT
ITAT BENCH ‘B’ AHMEDABAD
ITA No. 371/Ahd/2009
Assessment Year: 2001- 2002
Decided on: 31 December 2010
Per: Bhavnesh Saini, JM:
This appeal by the assessee is directed against the order of the CIT(A)-XVI, Ahmedabad dated 18th November, 2008 for assessment year 2001-02, challenging the order of the learned CIT(A) holding that the appeal of the assessee was not maintainable for granting interest u/s 244A of the IT Act.
2. Briefly, the facts of the case are that the AO passed order u/s 154 of the IT Act. The AO noted that credit of 16 challans was not given to the assessee because the assessee had misquoted the Permanent Account Number. Permanent Account Number of Hiren K. Patel was quoted instead of the assessee; therefore credit of these challans went in the computerized ledger of Hiren K Patel. Due to this mistake, this credit could not be given in the case of the assessee. The assessee filed grievance petition. Therefore, a meeting was held between the CITs and Additional CITs in the chamber of CCIT-II and CCIT-III and minutes of meeting was passed on 18-02-2006 on the above issue of giving credit of taxes paid by the assessee. The decision is quoted in the impugned order. According to the decision in the meeting of the CCITs and the minutes thereof the assessee was directed to furnish indemnity bond and Shri Hiren K. Patel was asked to file disclaimer. Accordingly, credit was given for these 16 challans. The assessee had quoted wrong Permanent Account Number in the challans and refund cannot be given on account of assessee’s fault, no interest was allowable to the assessee as per section 244A (2) of the IT Act. The AO accordingly, issued demand notice and refund challans etc. The order u/s 154 of the IT Act was challenged before the learned CIT(A). The submissions of the assessee have been recorded in the impugned order. The learned CIT (A) noted that there is specific mention in the provisions where any question arises as to the period to be excluded, it shall be decided by the CCIT whose decision will be final. However, the AO was directed to verify the claim of the assessee that in one of the chalans, the Permanent Account Number of the assessee was correctly mentioned and it was accordingly directed to pay interest u/s 244A of the IT Act up to the date of issue of refund. However, as regards disputed challans, since action u/s 244A of the IT Act is not appeal able on this point and that only authority to decide the issue is the CCIT whose decision will be final, he accordingly dismissed the appeal on this ground, the ground being not maintainable.
3. On consideration of the rival submissions, we do not find it to be a fit case for interference. The learned Counsel for the assessee initially submitted that once the AO passed the order u/s 154 of the IT Act, such an order would be appeal able before the learned CIT(A). Ultimately, the learned Counsel for the assessee submitted that the learned CCIT/CIT concerned may be directed to re decide the issue in accordance with law. The learned DR relied upon the orders of the authorities below and submitted that the appeal of the assessee is not maintainable; however, the matter can be remanded to the concern CCIT/CIT for doing the needful in accordance with law. We agree with the submissions of the parties that the matter shall have to be decided only by the learned CCIT or CIT concerned according to section 244A (2) of the Act. Section 244A of the IT Act reads as under:
“244A. (1) [Where refund of any amount becomes due to the assessee under this Act], he shall, subject to the provisions of this section, be entitled to receive, in addition to the said amount, simple interest thereon calculated in the following manner, namely :—
(a) where the refund is out of any tax [paid under section 115WJ or] [collected at source under section 206C or] paid by way of advance tax or treated as paid under section 199, during the financial year immediately preceding the assessment year, such interest shall be calculated at the rate of [one-half per cent] for every month or part of a month comprised in the period from the 1st day of April of the assessment year to the date on which the refund is granted:
Provided that no interest shall be payable if the amount of refund is less than ten per cent of the tax as determined [under] ]sub-section (1) of section 115WE or] sub-section (1) of section 143 or] on regular assessment;
(b) in any other case, such interest shall be calculated at the rate of [one-half per cent] for every month or part of a month comprised in the period or periods from the date or, as the case may be, dates of payment of the tax or penalty to the date on which the refund is granted.
Explanation.-For the purposes of this clause, “date of payment of tax or penalty” means the date on and from which the amount of tax or penalty specified in the notice of demand issued under section 156 is paid in excess of such demand.
(2) If the proceedings resulting in the refund are delayed for reasons attributable to the assessee, whether wholly or in part, the period of the delay so attributable to him shall be excluded from the period for which interest is payable, and where any question arises as to the period to be excluded, it shall be decided by the Chief Commissioner or Commissioner whose decision thereon shall be final.
(3) Where, as a result of an order under [sub-section (3) of section 115WE or section 115WF or section 115WG or] [sub-section (3) of section 143 or section 144 or] section 147 or section 154 or section 155 or section 250 or section 254 or section 260 or section 262 or section 263 or section 264 or an order of the Settlement Commission under sub-section (4) of section 245D, the amount on which interest was payable under sub-section (1) has been increased or reduced, as the case may be, the interest shall be increased or reduced accordingly, and in a case where the interest is reduced, the Assessing Officer shall serve on the assessee a notice of demand in the prescribed form specifying the amount of the excess interest paid and requiring him to pay such amount; and such notice of demand shall be deemed to be a notice under section 156 and the provisions of this Act shall apply accordingly.
(4) The provisions of this section shall apply in respect of assessments for the assessment year commencing on the 1st day of April, 1989, and subsequent assessment years :]
[Provided that in respect of assessment of fringe benefits, the provisions of this sub-section shall have effect as if for the figures “1989”, the figures “2006” had been substituted.]”
Merely because the AO passed the order u/s 154 of the IT Act would not make it appealable before the learned CIT(A) u/s 246A of the IT Act. The claim of interest simpliciter is not appeallable order before the learned CIT(A) as per section 246A of the IT Act. The crux of the matter shall have be seen in entirety and quoting wrong provisions of law would make it appeal able order before the learned CIT(A). The provisions of section 244A (2) are specific and on such a matter on issue the point shall have to be decided by the CCIT or CIT whose decision thereof shall be final. Accordingly, we are of the view that appeal of the assessee is not maintainable in the present form. The same is dismissed. However, the assessee is at liberty to agitate the issue before the concerned CCIT/CIT in accordance with law. The learned CCIT or CIT concerned shall decide the issue on such agitation by the assessee in accordance with law.
4. With his observation, the appeal of the assessee is dismissed.