TMI Blog2023 (7) TMI 349X X X X Extracts X X X X X X X X Extracts X X X X ..... eration. Since the matter is old, petitioners shall file a copy of the settlement application that was originally filed on 27th April 1997 before the Board within two weeks of this order being uploaded. - WRIT PETITION NO.919 OF 2008 - - - Dated:- 30-6-2023 - K.R. SHRIRAM FIRDOSH. P. POONIWALLA, JJ For the Applicant/original Petitioner : Mr. Nitesh Joshi a/w Ms Sheetal Shah and Ms Dimple D Bitra i/b Mehta Girdharilal. For the Respondents : Mr. Suresh Kumar. P.C. : 1. This Petition was filed by one Mr. S. N. Malpani (original petitioner). In view of the death of the original petitioner, his Legal heirs viz; his widow and three children were brought on record as petitioners. The widow of original petitioner expired on 6th January 2023 and in view thereof, petition has been further amended to delete the name of the widow of the original petitioner. 2. Petitioners are aggrieved by an order dated 3rd January 2008 passed by the Income Tax Settlement Commission dismissing the application of the original petitioner for AY-1989-1990 to 1996-1997 on the ground that provisions of Section 245D (2D) of the Income Tax Act 1961 (the Act) cast an obligation on orig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ested respondent no. 2 to revise the calculations. 6. During the hearing on 5th November 2007 before the Settlement Commission, original petitioner has informed that original petitioner has not complied with the mandatory requirement of Section 245D (2D) of the Act. The matter was thereafter stood over to 5th December 2007. Original petitioner received a letter dated 7th November 2007 from respondent no. 2 asking petitioner to produce the proof of payment to tax and interest and working and that was to be submitted on or before 14th November 2007. Original Petitioner was also informed by respondent no. 2 vide letter dated 29th November 2007, that a balance amount of Rs. 1,16,511/- was payable. To cover the shortfall, original petitioner made payment of Rs. 1,30,000/- on 5th December 2007 and by a letter dated 10th December 2007 intimated the same to respondent nos. 1 and 2. 7. On 3rd August 2008, the impugned order came to be passed by respondent no. 1 holding that petitioner having failed to comply with the amended provisions of Section 245D (2D) of the Act, the application of original petitioner was not maintainable and the application was held to have abated under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 68,668 9,710 15,171 93,549 8. 1996-97 3,84,980 1,27,992 13,669 23,909 1,69,570 44,69,044 19,52,372 4,46,578 10,57,008 34,55,958 TOTAL TAX PAID Sr A.Y TDS Advance Tax S A Total S A Paid on Dt 10.07.07 1. 1989-90 9,250 57,460 66,710 55,855 2. 1990-91 8,500 32,522 41,022 69,782 3. 1991-92 17,000 75,000 92,000 6,45,782 4. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by AO Interest on refund 1. 1989-90 60,611 19,517 81,640 1,61,768 66,710 55,855 2. 1990-91 57,116 13,614 63,568 1,34,298 41,022 69,782 3. 1991-92 3,24,475 1,10,691 4,21,914 8,57,080 92,000 6,45,782 4. 1992-93 3,58,355 1,61,983 2,80,890 8,01,228 4,69,100 2,37,023 5. 1993-94 2,55,692 1,00,825 13,3852 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Total 19,52,372 4,46,578 10,57,008 34,55,958 20,06,280 12,83,690 49,477 46,583 21,998 4,145 Upto column 9 the total of figures are available from the statement supplied by respondent no. 2 as quoted above. The break up for column 9, i.e., Refund as considered by AO, of Rs. 49,477/- is available in paragraph 6 of the affidavit in reply affirmed on 31st August 2009 by one Gurbinder Singh on behalf of respondents (the said affidavit). The break up as provided in paragraph 6 of Rs. 49,477/- is Rs. 37,339/- for AY-1997-1998, Rs. 8,384/- for AY-1999-2000, Rs. 3,754/- for AY-2000-2001. The total of Rs. 37,339/- + Rs. 8,384 + Rs. 3,754/- is Rs. 49,477/-. In paragraph 6, respondent no. 2, however, has stated that these refund amounts including the interest were adjusted already. If interest had already been adjusted, that in our view would have reflected in the Statement-A made available by respondent no. 2 vide his letter dated 29th November 2007. Since only credit for Rs. 49,477/- as refund adjus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not stand covered by Section 244A(1)(a) of the Act. This is so as it is neither the payment of tax by way of advance tax or by way of tax deducted at source. Thus tax paid on self assessment would fall under Section 244A(1)(b) of the Act, i.e. a residuary clause covering refunds of amount not falling under Section 244A(1) of the Act. The revenue contends that in the absence of tax on self assessment finding mention in Section 244A(1)(a) of the Act, no interest is payable under Section 244A(1) of the Act and Section 244A(1)(b) of the Act would have no application. This contention is opposed to the meaning of the provision disclosed even on a bare reading. If the tax paid is not covered by clause (a) of Section 244A(1), it falls within clause (b), which is a residuary clause. Besides, this contention stands negatived by the CBDT Circular bearing No.549 dated 31 October 1989 wherein reference is made to Section 244A and para 11.4 thereof reads as under :- 11.4 The provisions of the new section 244A are as under: (i) Subsection (1) provides that where in pursuance of any order passed under this Act, refund of any amount becomes due to the assessee then- (a) if th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act and evidence of the same in the form of challan was enclosed to the Return of Income. In fact when the Assessing Officer passed the Assessment Order on 31 December 1996, he accepted the entire amount paid as tax on self-assessment as a payment of tax. One more feature to be noticed is that when any refund becomes due to an assessee out of tax paid, it becomes so only after holding that it is not the tax payable. Thus we find no substance in the first objection of the revenue that the amount paid as tax on self-assessment is not tax and therefore no interest can be granted on refund of such amounts which are not tax. 14 In the circumstances, the original petitioner would be entitled to interest on the excess payment of Rs. 53,098/- which according to petitioner is Rs. 50,674/-. If we add together the amount of Rs. 46,583/- interest on refund of AY-1997-1998, 1999-2000 and 2000-2001, Rs. 26,143/- towards refund and interest thereon relating to AY-1998-1999 and 2003-2004 and interest of Rs. 50,674/- on excess payment of tax of Rs. 53,908/-, the original petitioner would have paid Rs. 1,23,400/- (Rs. 46,583/- + Rs. 26,143/- + Rs. 50,674/-), which is more than the short ..... X X X X Extracts X X X X X X X X Extracts X X X X
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