Itta/149/2022 Of Pr. Commissioner Of Income Tax - 2 v. M/S Icomm Tele Ltd

IN THE HIGH COURT FOR AT HYDERABAD TUESDAY ,THE TWENTY TWO THOUSAND AND PRESENT THE HON'BLE SRI JUSTICE AND THE HON'BLE SRI JUSTICE INCOME TAX TRIBU NAL [EALNO:149OF2022] AppealUnderSection260AofthetncomeTaxAct,l96lagainstorderof the lncome Tax [Appellate Tribunal, ][Hyderabad ]['A' ][, ][Bench ][, ][Hyderabad ][in]l.T.A. No. 1281 tHydl2O17 [( ][Assessment ][Year ][2009-10) ][dated ][22-07-2021]preferred against the order dated 30-03-2017 [in ] [No. ][OzO ][lDCft, ][Ctcle ][-2](1) t 2016-17 on the file of the Commissioner [of ][lncome-Tax (Appeals ][)-9']Hyderabad [preferred ]against [the ][order ][of ][the ][Deputy ][commissioner ][of ][lncome]Tax, Circle -2 (1) , Hyderabad [dated ][25-03-20 ][15 ][in ][F'No' ] [-2 ][(1)l]AAECAI 326Q/14-1 [5] Between: Pr. Commissioner of lncome [Tax ][- ][2, Hyderabad.] ...APPELLANT/ Appellant AND Ir//s ICOMIV Tele Ltd, 304, Trendset [Towers, Road No.2, ][Ban.iara ][Hills, ][Hyderabad-]5OOO34. PAN- AAECA1 326Q ...RESPONDENT/ ResPondent Counsel for the Appellant: SRl. [P. ] Counsel forthe Respondent: [A. ][V. ][A. ] The Court delivered the following [Judgment:] THE HONOURABLE SRI JT'STICE AND THE HONOURABLE SRI [RAJF,SHWAR ] I.T.T.A. No.149 of 2022 JUDGMENT: (per Hon'ble Sri Justice [Sujoy ][Paul)] Heard on admisston. 2. Sri P. Murali Krishna, [learned ][Senior Counsel ][for ][Income]Tax Department, appears for [the ][appellant ][and Sri ][A.V.A'Siva]Kartikeya, learned counsel [appears ][for the ][respondent.] 3. Learned counsel for the appellant [submits ][that ][the]present appeai contains lollowing substantial [question ][of ][law:] "The ITAT erred in not [appreciating ][that ][the ][order ][u/s ][154]dated 25.03.202 l5 was [pursuant to an ][application ][of ][the ][Assessee]and ought to have held [that ][any ][dispute ][as ][to the ][attribution ][of ][the]delay could only have been [trnally ][decided ][by ][the ][authorities]empowered under Section [244A(2]'."] 4It is submitted that the [period ][for ][which ][interest ][is]granted by Assessment order to the [respondent ][is ][between]01.04.2009 to February, 2013. [The ][appellate ][authority ][as ][well]as the Tribunal committed error in [granting interest ][to ][the]appellant on delayed payment of [refund. ][Neither ][the ][appellate]authority nor the Tribunal [was ][competent ][to ][decide ][the ][question]regarding the period of interest. He [placed heavy reliance ][on]Sub-Section 2 of Section 244( l of the [Income ][Tax ][Act, ][1961 ][(for] 4 short "the Act") to submit that r,r,hether interest is to be grantedor not, was required to be decided by the Principal ChlefCommissioner or Chief Commissioner or Principal Commissioneror Commissioner, whose decision thereon shali be final. Thus,both the appellate authority and learned Tribunal have gonewrong in determining the question of interest and for thissingular reason, both orders must be set aside. 5. Learned counsel for the appellalt is unable to apprisethe Court whether this question of competence/jurisdiction wasraised by the Revenue before the appellate authority and beforethe Tribunal. 6. Learned counsel for the appellant submits that Section244 (A) of the Act is a complete code in itself. Both authoritieshave committed error of 1aw in granting interest to therespondent. The pure question of law can be dealt with by thisCourt for the first time, even if it was not raised before theappellate authority and the Tribunal. 7Learned counsel for the respondent supported theimpugned order and submits that credit was given through Form26-A(5) belatedly in February, 2013 itself. There is no delay onthe part of the respondent. l' B. We have heard the [parties ][on ][this ][aspect.] 5. Learned counsel for the appellalt is unable to apprisethe Court whether this question of competence/jurisdiction wasraised by the Revenue before the appellate authority and beforethe Tribunal. 6. Learned counsel for the appellant submits that Section244 (A) of the Act is a complete code in itself. Both authoritieshave committed error of 1aw in granting interest to therespondent. The pure question of law can be dealt with by thisCourt for the first time, even if it was not raised before theappellate authority and the Tribunal. 7Learned counsel for the respondent supported theimpugned order and submits that credit was given through Form26-A(5) belatedly in February, 2013 itself. There is no delay onthe part of the respondent. l' B. We have heard the [parties ][on ][this ][aspect.] 9Sub-section 2 of Section 244-A [of ][the Act ][on ][the]foundation of rvhich, entire argument [is ][developed ][reads ][thus:] "If [the ][proceedings ][resulting ][in ][the ][refund ][are delayed ][for]reasons attributable to the assessee, [whether wholly ][or ][in]part, the periocl of the delay so attributabie to [him ][shall ][be]excluded lrom the period for [which ][interest ][is ][payable, and]where any question arises as [to ][the ][period ][to ][be ][excluded, ][it]shall be decided try the Chiel [Commissioner or ][Commissioner]whose decision thereon shall be [final."] (Emphasis SuPPlied) 10. A microscopic reading of this [provision makes ][it ][clear]that it relates to such [proceeding, ][where reason ][for ][delay ][on]refund is attributable to the [Assessee, ][only ][in ][such ][cases, sub-]Section 2 of Section 244-A of the [Act ][can be ][pressed ][into ][service.]Whether there exists any delay for which [assessee ][is ][responsible]is a question of fact. The appellate authority and [the ][Tribunal]has given a finding of fact that respondent [is ]not [responsible ][for]the delay. Further, a careful reading of sub-section [2 of ][Section]244-A of the Act makes it clear that when the [proceedings ][were]delayed or in other ltords, delay is attributable [to ][the ][Assessee]and a question arises, whether [period reiating ][to ][such ][delay ][is to]be excluded, the point can be [decided ][by ][one ][of the ][aforesaid]authorities, whose designations are [mentioned ]in [sub-Section ][(2)]aforesaid. In the instant case, since concurrent finding of [fact] I iI shows that the respondent was not responsible for the delay, thesub-Section 2 does not come to the rescue of the Revenue andquestion of excluding the period, '.vhich resulted in delay doesnot arise. Thus, in our opinion, sub-section 2 of Section 244-4of the Act has no application in the fact situation of the presentcase. In our opinion, there efsts no substantial question, whichneeds to be decided in this matter. 1 1 . The admission is declined and the Appeal is herebydismissed. No costs.Interlocutory applications, if any pending, shall alsostand closed.dismissed. No costs.Interlocutory applications, if any pending, shall alsostand closed. Sd/. K. SRINIVASA RAOJOINT REGISTRARSECTION OFFICER //TRUE COPY//SECTION OFFICERTo1. The lncome Tax Appellate Tribunal, Hyderabad 'A' , Bench ,Hyderabad.2. The Commissioner of lncome-Tax [(Appeals ])-9, [Hyderabad]3. The Deputy Commissioner of lncome Tax, Circle [-2 ][(1) ], [Hyderabad-]4. One CC to SRl. P. MURALI KRISHNA, Advocate 5. One CC to SRl. A. V. A. SIVA KARTIKEYA, [Advocate ] 6. Two CD Copies kul/ghg HIGH COURT DATED:2710812024 1HE S IA/C<)^otJUDGMENTo7 [0]liOI/2tl24.t'lTTA.No.149 [of ][2022]or"O s PATC DISMISSING'tIIE [ITI'A]WITHOUT COSI'S @q'4kP {t