TMI Blog1990 (5) TMI 15X X X X Extracts X X X X X X X X Extracts X X X X ..... annum besides the costs of the writ petition. The petitioner was assessed to income-tax for the assessment year 1974-75 on October 5, 1974, by the Income-tax Officer, 'A' Ward, Circle II, Lucknow. Thereafter, a notice was issued under section 164 of the Incometax Act, 1961 (for short "the Act"), to the assessee regarding the excess rebate allowed to him. It appears that the assessee had no objection to the proposed rectification ; hence the mistake was rectified by the Income-tax Officer -under section 154 of the Act on February 12, 1975. Thereafter, the Commissioner of Income-tax took up the matter suo motu and passed an order under section 263(1) of the Act on the ground that the Income-tax Officer had wrongly omitted to charge interes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated March 19, 1979. The proceedings initiated under section 263 of the Income-tax Act for the assessment year 1974-75 have been dropped." The second assessment order dated February 15, 1977, which was passed in pursuance of the Commissioner's order dated September 30, 1976, stood automatically set aside when the Appellate Tribunal passed the order dated October 13, 1978, setting aside the Commissioner's order dated September 30, 1976. As the Income-tax Commissioner finally dropped the proceedings under section 263 of the Act on March 29, 1979, what remained in force was the original assessment order dated October 5, 1974. Under that assessment order, the petitioner was assessed to a tax of Rs. 18,433. The amount realised in excess of thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling a suit before the civil court. This contention has no force. This writ petition was filed on April 19, 1983, on which date, learned counsel for the respondent was given time to obtain instructions by the 3rd week of May, 1983, on which date the writ petition could have been decided finally. Thereafter, on August 24, 1983, the writ petition was admitted by the court. It appears that, at that time, its maintainability was not challenged from the side of the respondent who was given time earlier under the court's order dated April 19, 1983. The respondent filed his counter-affidavit subsequently in 1984 taking up the plea of non-maintainability of this writ petition on the ground of availability of an alternative remedy. Further, in the w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the refund arises, due to second appeal or reference under the Act and not as a result of the provisions under section 263 of the Act. Section 240 of the Act, which provides for refund runs as under : "Where, as a result of any order passed in appeal or other proceeding under this Act, refund of any amount becomes due to the assessee, the Income-tax Officer shall, except as otherwise provided in this Act, refund the amount to the assessee without his having to make any claim in that behalf. " Section 244 of the Act provides for payment of interest on refund due to the assessee in pursuance of the order referred to in section 240 which is not paid to him within a period of three months from the end of the month in which such order is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her proceedings", s. (sic) of the repealed Act, i.e., Indian Income-tax Act, 1922, should be relied upon does not seem to be correct. The assessment in question was not made under the repealed Act, but was made under the Act of 1961 of which section 240 read with section 244 fully applies to this case. The petitioner is, therefore, entitled to get interest on Rs. 73,728 to which amount he was entitled as refund at the rate of 12 per cent. per annum for the period envisaged under section 244 of the Act keeping in view the fact that the petitioner's claim for the refund arose in pursuance of the order dated March 29, 1979, under section 263 of the Act and the refund of Rs. 73,728 was made to the petitioner on October 12, 1982. The writ pe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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