Rp/369/2017 Of M/S.state Bank Of Travancore v. Chief Commissioner Of Income Tax

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE WEDNESDAY, THE 14TH DAY OF MARCH 2018 / 23RD PHALGUNA, 1939 RP.No. 369 of 2017 IN WPC. 19283/2007 AGAINST THE ORDER/JUDGMENT IN WP(C) 19283/2007 of HIGH COURT OF KERALA DATED 23-9-2016 REVIEW PETITIONER/PETITIONER M/S.STATE BANK OF TRAVANCORE HEAD OFFICE, POOJAPPURA, TRIVANDRUM-695012, REPRESENTED BY ITS DEPUTY GENERAL MANAGER (FINANCE AND ACCOUNTS) BY ADVS.SRI.A.KUMAR SMT. G.MINI(1748) RESPONDENTS/RESPONDENTS: 1. CHIEF COMMISSIONER OF INCOME TAX AYAKAR BHAVAN, THIRUVANANTHAPURAM-695003. 2. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE (I), THIRUVANANTHAPURAM-695003. 3. DEPUTY COMMISSIONER OF INCOME TAX (ASSESSMENT) SPECIAL RANGE, THIRUVANANTHAPURAM. 4. THE CENTRAL BOARD OF DIRECT TAXES DEPARTMENT OF REVENUE, MINISTRY OF FINANCE, GOVERNMENT OF INDIA, NEW DELHI-110001. BY SRI.JOSE JOSEPH, SC, FOR INCOME TAX THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 24-01-2018,THE COURT ON 14/03/2018 PASSED THE FOLLOWING: RP NO.369/2017INWPC NO.19283/2007 APPENDIX REVIEW PETITIONER'S EXHIBITS ANNEXURE A:CERTIFIED COPY OF THE JUDGMENT DATED 23.09.2016 INWRIT PETITION NO.19283 OF 2007. //True Copy// Rp PS to Judge A.M.SHAFFIQUE, J - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 14[th] day of March, 2018 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ORDER This review petition has been filed seeking to review thejudgment dated 23.9.2016 in W.P.(C).No.19283 of 2007 inter aliacontending that an earlier judgment of a Division Bench of thisCourt with reference to the very same subject matter could not beplaced when the matter was heard. Learned counsel for thepetitionerreliesonCommissionerofIncome-tax,Thiruvananthapuram v State Bank of Travancore [2014] 42taxmann.com 572 (Kerala). That was a case filed by the revenuechallenging an order passed by the lower authorities, directingpayment of interest under section 244A of Income-tax Act, 1961 forthe delay caused by the assessee for correcting the TDS certificates.It was held at paragraph 4 as under. “4. As per the decisions referred to above, once the creditfor TDS given, automatically logical consequence isdetermination of interest on the tax credit. Similarly theauthorities below opined that the interest cannot be deniedfor the time taken by the appellant assessee to cure thedefects in the TDS certificates as no amount is due from theassessee so far as TDS certificates and the amount waslying with the revenue. The interest is payable on accountof the amount in excess of what is payable was remaining with the revenue and not for the delay caused by the revenuein determining the refund of the amount. In that view of thematter as the excess amount was remaining with the revenue,interest is to be paid on the amount to be refunded to theappellant assessee. We find no good reason to differ from thetwo opinions of the Divisions Benches of Bombay and Punjaband Haryana High Courts, therefore we decline to interfere.Accordingly, the appeal is dismissed.” 2. Learned counsel for the petitioner submits that in the present case also the issue is related to denial of interest under 244A of theAct on the finding that there was delay on the part of assessee incuring the defects in the TDS certificates. When an identical case hasbeen decided by the Division Bench as referred earlier, the petitioner isalso entitled to have the same benefit to be adopted in the presentcase also. 2. Learned counsel for the petitioner submits that in the present case also the issue is related to denial of interest under 244A of theAct on the finding that there was delay on the part of assessee incuring the defects in the TDS certificates. When an identical case hasbeen decided by the Division Bench as referred earlier, the petitioner isalso entitled to have the same benefit to be adopted in the presentcase also. 3. As far as the present case is concerned, this Court upheld anorder passed by the Chief Commissioner by which it was found thatinterest was not payable to the petitioner for the period of delay whichoccurred in curing the defects in the TDS certificates. This Courthaving taken note of Section 244 A (1) and (2) opined that if the delayis on the part of the department in finalizing the difference, interest ispayable from the date on which it becomes due. However, in terms ofsub Section (2), if the delay in the proceedings resulting in refund is with reference to finalisation of returns and is not in regard to theproceedings for refund, with reference to contention that the periodtaken is for curing the defects in the TDS certificates cannot be areason which could be attributable to the assessee. 4. Based on the counter affidavit filed by the first respondent,this Court had taken note of the fact that the delay was substantial andwhen the statute clearly specifies that the interest need not be paid ifthe proceedings of refund is delayed for reasons attributable to theassessee, and the respondents having refused interest on the basis ofa factual finding placing reliance on a statutory provision, there is noreason to interfere in the said direction. The question to be consideredis whether the judgment referred above is to be applied to the facts ofthe present case. 5. Commissioner of Income-tax, Thiruvananthapuram v State Bank of Travancore (supra) was a case filed by the Revenue,wherein the department itself has arrived at a conclusion that interestis not required to be paid under Section 244A. In fact, theCommissioner of Income Tax (Appeals) allowed the appeal filed by theassessee, against which the Revenue approached the Tribunal and theTribunal confirmed the view placing reliance on the decision of the R.P. No.369 of 2017 Bombay High Court in CIT v. Larsen & Turbo Ltd. [2011] 330 ITR340 and decision of Punjab & Haryana High Court in CIT v. PunjabState Co-operative Bank [IT Appeal No.674 of 2008, dated16.12.2008], wherein the orders passed by the Revenue was notinterfered by the Bombay High Court as well as the Tribunal. 6. It is pointed out by the learned Standing Counsel for theRevenue that this Court had decided the case after evaluating thescope of Section 244A (2), which clearly indicates that if theproceedings resulting in the refund of delay for the reasonsattributable to the assessee, whether wholly or in part, the period ofthe delay so attributable shall be excluded from the period for whichinterest is payable. Statue also indicates that, if any question arises asto the period to be excluded, it has to be decided by the Principal ChiefCommissioner or the Chief Commissioner. Under what allcircumstances can such an eventuality arise is a matter to beconsidered by a competent authority. Once the competent authorityhad taken such a decision, this Court, in a petition under Article 226 ofthe Constitution of India will not go into the merits of the contention,unless the decision is illegal or perverse. Each case has to be decidedon its own facts. R.P. No.369 of 2017 -5- 7. InCIT, Thiruvananthapuram v State Bank of R.P. No.369 of 2017 -5- 7. InCIT, Thiruvananthapuram v State Bank of Travancore (supra), the Division Bench was considering a case inwhich interest was directed to be paid by the Commissioner of IncomeTax, which was confirmed by the Tribunal. The said case rests on itsown facts. In the present case, the Commissioner of Income Tax haddenied the grant of interest on specific grounds which had beenindicated in the order itself and it was after arriving at a conclusionthat such a power is vested with the Commissioner, that this Court hadupheld the view expressed by the Commissioner. 8.In the said circumstances, I do not think that the decision in CIT, Thiruvananthapuram v State Bank of Travancore (supra)is an authority to review the judgment. Accordingly, this review petition is dismissed. Sd/- A.M.SHAFFIQUE, JUDGE