Ita/802/2008 Of The Commissioner Of Income Tax v. M/S M N Dastur & Co Pvt Ltd

IN THE HIGH COURT OF KARNATAKA AT BANGALOREDATED THIS THER 1 DAY OF AUGUST, 2014| PRESENT THR HON' BLE MR. JUSTICK N.KUMAR ANT) THR HON' BLE MRS. JUSTICK RATHNAKALA| Income Tax Appeal No 802 OF 2008 BETWEEN| 1.THR COMMISSIONBR OF INCOME TAXCR BUILDINGQUEENS ROADBANGALORE,CR BUILDINGQUEENS ROADBANGALORE, 2.THER ASSISTANT COMMISSIONEROF INCOME TAXCIRCLE-12(1)BANGALOREAPPELLANTSOF INCOME TAXCIRCLE-12(1)BANGALOREAPPELLANTS (BY SRI K V ARAVIND, ADVOCATE) AND M/S MN DASTUR & CO PVT LTD.7TH FLOOR, RAHEJA TOWERS.206/27, M.G.ROADBANGALORE, RESPONDENT o (BY SMT: S R ANURADHA, ADVOCATE) This Income Tax Appeal is filed under Section 260-A ofIncome Tax Act, 1961 praying to formulate the substantialquestions of law and to allow the appeal and set aside theOrder passed by the ITAT Bangalore in ITA No. 500/BNG/2007dated 28-03-2008 contirm the orders of the AssistantCommissioner of Income Tax , Circle-12(1), Bangalore in theinterest of justice and equity. This Income Tax Appeal coming on for Hearing this day,N. Kumar J., delivered the following: JUDGMENT The revenue has preferred this appeal challenging the|order passed by the Tribunal which has set aside the order|passed under Section 154 of the Income Tax Act by the|Assessing Authority. 2. The refund of Rs.1,59,58,769 was issued on 3.3.2005,to the assessee which included the interest under Section|244A(1)(3) of the Act granted from 1.4.1998 till 3.3.2005. The|Assessing Authority initiated proceedings under Section 154 ofthe Act on the ground that there was a delay attributed to the|assessee while granting refund. The return of income was due on 30.11.1998 but the return was filed on 6.5.1999. Therefore,the delay in filing the return from 1.12.1998 to 30.4.1998 wasattributable to the assessee, but the delay was not excluded forcalculation of interest on refund. Therefore the AssessingAuthority proceeded to pass an order to rectify the aforesaidmistake under Section 154 oft the Act in order to withdraw theexcess of interest granted i.e., Rs.29,20,056/-. Aggrieved bythe said order, the assessee preferred an appeal to theTribunal. 3. The Tribunal held that there was no occasion for|withdrawing the interest already granted to the assessee inaccordance with the provisions of the Income Tax Act dulyapproved by the Commissioner of Income Tax and definitely notfor carrying out rectification under Section 154 for withdrawingthe same. Therefore, the appeal filed by the assessee wasallowed and direction was issued to the assessing authority tosrant refund so withdrawn. Aggrieved by the said order, therevenue has preferred this appeal. | v 4. It was contended on behalf of the revenue that prior|permission of the Commissioner is not required under law and,therefore, the Tribunal erred in passing the impugned order. Oo. sub-section (2) of Section 244A of the Act provides|that, if the proceedings resulting in the refund are delayed forreasons attributable to the assessee, whether wholly or in part,the period of the delay so attributable to him shall be excludedfrom the period for which interest is payable. It furtherprovides that, where any question arises as to the period to beexcluded, it shall be decided by the Chief Commissioner orCommissioner|whosedecisionthereonshallbe|final.Therefore, as rightly held by the Tribunal as the prior approvalof the Commissioner is not obtained, the order passed by theassessing|authority1S Onewithout.jurisdictionandunsustainable in law. Therefore, the Tribunal was justified in |setting aside the orders passed by the lower authorities and, B 5#� #�� $��!<�?#�8!:�9�8$:'<�A6<5����5#;#�67��!�"#;6<�6��<567�$&&#$'�$�9�$ !;96�>'=�6<�67�967"677#9��� �90,���:9>#� �90,��:9>#�