TMI Blog2009 (3) TMI 970X X X X Extracts X X X X X X X X Extracts X X X X ..... n the contention raised by the petitioner on the basis of section 59 of the Indian Contract Act. The mere fact that the payment is made earlier to the enforcement of section 55C by itself would not result in any shield against recomputation. It further requires the actual appropriation by an officer towards the principal amount. By necessary implication it means that even prior to section 55C if payment is made it was certainly open to the officer to adjust it against interest. In fact, the petitioner may not have the right to contend that even prior to section 55C there was a legal right to have the amount appropriated on a mere request to demand for tax. In fact, the language used in section 55C as already noted embraces the word "prin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made after January 1, 2000. The representation filed by the petitioner before the honourable Minister for Finance is produced as exhibit P1a. It is stated in that representation that the amounts may be received towards tax. The prayer in the writ petition is to issue a writ of mandamus directing the respondent to consider the judgment dated March 31, 2006 of the honourable Sales Tax Appellate Tribunal, Additional Bench I, Ernakulam in T.A. Nos. 372 and 373 of 2005 and the payment of Rs. 21,43,405 made by the petitioner may be appropriated towards the principal amount and not towards interest for the tax amount payable up to December 31, 1999 as per exhibit P3. I heard learned counsel for the petitioner Sri Mayankutty Mather and learn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is regard, the learned counsel relied on the decision of the apex court in Reliance Jute and Industries Ltd. v. Commissioner of Income-tax, Calcutta, West Bengal [1979] 120 ITR 921; AIR 1980 SC 251, Commissioner of Income-tax, West Bengal II v. Ram Kumar Agarwalla and Bros. (P.) Ltd. [1980] 122 ITR 322 (Cal), Laxmi Cement Distributors Pvt. Ltd. v. Sales Tax Officer (2), Jamnagar [1998] 110 STC 188 (Guj), V.V.S. Sugars v. Government of Andhra Pradesh [1999] 114 STC 47 (SC) and Hitendra Vishnu Thakur v. State of Maharashtra [1994] 4 JT SC 255. As far as the first contention is concerned I would not see much merit in the said contention. The premise of the provision is that there is one debt. Section 59 predicates existence of several disti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision as amended by the Finance (No. 2) Act, 1957. There is no question of the assessee possessing any vested right under the law as it stood before the amendment. The assessment for one assessment year cannot, in the absence of a contrary provision, be affected by the law in force in another assessment year. Therefore, the unabsorbed loss of Rs. 15,50,189 of the assessment year 1950-51 cannot be carried forward for more than eight years, and consequently cannot be set off against the business income of the assessment year 1960-61. The other decisions are also essentially on the same lines, namely, that the law prevailing in the assessment year would govern the issue. If I analyse section 55C it consists of 2 sub-sections. Sub-s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I take note of the fact that there is no merit in the contention raised by the petitioner on the basis of section 59 of the Indian Contract Act. As I have already noted, the learned counsel for the petitioner did not pursue the said contention. It is the provisions of section 59 which contemplate adjustment of amounts towards such as debt when a request is made and payment is received. When the said provision admittedly is not applicable in respect of payment of principal and interest I fail to see on what principle the learned counsel can urge that even prior to section 55C being incorporated there was a legal right to insist that in view of the request made, the amount received has to be appropriated towards the amount as requested. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
