TMI Blog2001 (11) TMI 6X X X X Extracts X X X X X X X X Extracts X X X X ..... BRIJESH KUMAR J.- This civil appeal arises out of judgment and order passed by the Delhi Court, dated July 31 1997 (see [1998] 230 ITR 9), directing the appellant, namely, the Revenue to dispose of the claim of interest preferred by the respondent, viz., D.D.A., on the amount of refund and to release the amount thereof, in their favour. The facts which admit of no dispute are that the Delhi Development Authority (for short "the DDA"), was to construct and allot flats to the buyers within the time stipulated in their agreements. On failure to do so, the D.D.A. was liable to pay interest to the buyers on the amount paid by them, for the period of delay. The D.D.A. defaulted as a consequence whereof it made payment of interest to the bu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h Court raising a grievance that the interest as calculated by the Income-tax Department was not correct. According to the D. D. A. interest under section 244(1A) of the Act should have been paid for the year 1987-88 and under the provisions of section 244A for the year 1988-89 and 1989-90. The Income-tax Department resisted the claim on the ground that the amount refunded to the D. D. A. was not the amount taxed nor involved any advance tax or the tax paid by the D. D. A. so as to attract section 244A. The High Court negatived the plea of the Income-tax Department. while allowing the writ petition the High Court gave direction to the Income-tax Department to dispose of the claim of the D. D. A. for interest in the light of para. 12 of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble since the payment of tax was not made in pursuance of any order or assessment. This contention in our view has no force. It would not be necessary that in all cases, before payment is made, there must always be an actual order of assessment. Tax is payable in advance as well. It is deducted at source also, as in the present case. On a perusal of section 244 what seems to be important is that the amount becomes refundable to the assessee by virtue of an order passed in appeal or any proceedings under the Act. Section 240 of the Income-tax Act deals with refund as a result of any order passed in appeal or proceedings under the Act. It reads as under: "240. Where, as a result of any order passed in appeal or other proceeding under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing been found in appeal or other proceeding under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted: Provided that . . ." In the case in hand, as indicated earlier, the direction to refund the amount has been made in appellate proceedings before the Tribunal. The amount is to be refunded to the assessee. It cannot be said that the "refundee" will not be an assessee only for the reason that actually no assessment proceeding had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raising the demand and the amount of tax was paid. The order of refund was passed in appellate proceedings under the Act attracting section 240 of the Act. Certain decisions were cited at the Bar to show the meaning of the words "assessee" and "assessment" and different stages of the assessment proceedings, need not be dealt with in view of the clear definition of the word "assessee" under the Act as quoted above. The High Court has rightly provided in para. 12 of its judgment quoted earlier for applying sub-section (1A) of section 244 of the Act for determining interest for the period covered by the assessment year 1988-89. It is so also for the reason that the amount was paid by way of deductions after March 31, 1975, as provided unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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