Moreover, The Itat Has Also, Relying On A Judgment Of This Courtin State Bank Of India v. Dcit-2 And Came To A Conclusion That The Order

IN THE HIGH COURT OF JUDICATURE AT BOMBAYORDINARY ORIGINAL CIVIL JURISDICTION INCOME TAX APPEAL NO. 100 OF 2018 Pr. Commissioner of Income Tax – 2 V/s.Bank of Baroda ….Appellant …Respondent ---- Mr. Suresh Kumar for Appellant.Mr. P.J. Pardiwalla, Senior Advocate i/b Mr. Atul K. Jasani for Respondent. ---- CORAM : K.R. SHRIRAM & M.M. SATHAYE, JJ. DATED : 7[th] JUNE 2023 P.C. : 1.The following substantial question of law is proposed : SUBSTANTIAL QUESTION OF LAW Whether on the facts and circumstances of the case and in law, theHon’ble Tribunal was right in cancelling the order made u/s 263directing the AO to exclude interest u/s 244A granted to it on excessrefund claimed through a revised return even when the Pr.Commissioner in Section 244A(2) is the final authority on this issuein law and the cases relied are distinguishable on facts ? 2.Respondent had filed return of income on 30[th] October 2007 for Assessment Year 2007-08 declaring total income of Rs.997,10,30,681/-.Subsequently revised return declaring income of Rs.615,19,97,000/- wasfiled on 19[th] March 2009. The assessment was completed under Section143(3) of the Income Tax Act, 1961 (the Act) on 23[rd] March 2009 assessingtotal income at Rs.19,04,69,88,000/-. Respondent preferred an appeal andthe Commissioner of Income Tax (Appeals) [CIT(A)] vide an order dated 15[th] June 2011 decided some issues in favour of respondent. An effect tothe CIT(A) order has been given by the Assessing Officer on 7[th] March 2012resulting in revised income being accepted at Rs.968,38,10,000/-. Thisresulted in refund of Rs.377,95,44,631/-. 3.On verification of records, the CIT(A) noticed that the AssessingOfficer had failed to conduct proper enquiries and examine the issues in anappropriate manner which give rise to an erroneous assumption in as muchas in the original return the assessee had claimed refund ofRs.21,19,54,764/- as against the claim of refund of Rs.337,74,22,347/- inthe revised return. The CIT(A) felt that the delay in claiming enhancedrefund was attributable to respondent and accordingly interest underSection 244(A) of the Act was not allowable on the refund ofRs.125,54,67,583/- for 11 months, i.e., from 1[st] April 2008 to 19[th] March2009. According to CIT(A) this resulted in excess allowance of interest ofRs.9,81,31,689/-. Consequently, notice under Section 263 of the Act wasissued. Respondent appeared, made submissions and CIT(A) passed anorder which was impugned by respondent before the Income Tax AppellateTribunal (ITAT). The ITAT allowed the appeal vide impugned order dated 9[th]November 2016. 4.Sub Section (2) of Section 244(A) of the Act reads as under : (2) 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 excluded fromthe period for which interest is payable, and where any questionarises as to the period to be excluded, it shall be decided by theChief Commissioner or Commissioner whose decision thereon shallbe final. As per this provision if the proceedings resulting in the refund 4.Sub Section (2) of Section 244(A) of the Act reads as under : (2) 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 excluded fromthe period for which interest is payable, and where any questionarises as to the period to be excluded, it shall be decided by theChief Commissioner or Commissioner whose decision thereon shallbe final. As per this provision if the proceedings resulting in the refund are delayed for the reasons attributable to the assessee, the period of delayso attributable to the assessee shall be excluded from the period for whichinterest is payable. There is nothing in the findings of the CIT as to howrespondent delayed the proceedings that resulted in the refund or whatwere the reasons that could be attributable to respondent. It is true thatrespondent had initially filed return of income on 30[th] October 2007declaring total income of Rs.997,10,30,681/- and subsequently on 19[th]March 2009 revised return declaring income of Rs.615,19,97,000/- wasfiled. The assessment was completed under Section 143(3) of the Act on23[rd] March 2009 assessing the total income at Rs.19,04,69,88,000/-.Against the assessment order respondent preferred an appeal and theCIT(A) vide an order dated 15[th] June 2011 decided some issues in favour ofrespondent in giving effect to CIT(A)’s order by the Assessing Officer on 7[th]March 2012 and it resulted in refund of Rs.377,95,44,631/-. Therefore itcannot be stated that proceedings resulting in the refund were delayed forreasons attributable to respondent wholly or in part. 5.Moreover, the ITAT has also, relying on a judgment of this courtin State Bank of India vs. DCIT-2 and came to a conclusion that the order passed by the Assessing Officer was neither erroneous nor prejudicial to theinterest of revenue and the Assessing Officer has allowed the amount ofinterest in question taking one of the possible view. The tribunal has heldthat where two views are possible and the Assessing Officer takes one of thepossible views, the CIT(A) could not have exercise revisional jurisdictionunder Section 263 of the Act. 6.The entire issue is fact based. The Tribunal having come to thefactual conclusion on the basis of materials on record, no question of lawarises. 7.Appeal dismissed. (M.M. SATHAYE, J.) (K.R. SHRIRAM, J.)