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TMI Blog2022 (8) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... r in W.P.(C) No.17664/2013 is the appellant. The Commissioner of Income Tax and another are the respondents. Parties are referred to as arrayed in the writ petition. The petitioner prayed for the following reliefs: "i) Issue a writ of certiorari or other appropriate writ order or direction quashing Ext.P9. ii) Issue a writ of mandamus or other appropriate writ order or direction, directing the respondents to pay interest on refund as per Section 244(A) of the Income Tax Act in favour of the petitioner from 01.04.1997 till the date of refund. iii) Issue such other appropriate writ order or direction that may be deemed to be just and equitable in the facts and circumstances of the case." 3. Through Ext.P9, the request of the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y under Section 119(2)(b) of the Act and consequently direct the 4th respondent to process petitioner's claim for refund under Section 237 and grant refund to the extent found eligible within a period of three months from the dates production of copy of this judgment by the petitioner." 5. On 11.02.2008, the Assistant Commissioner of Income Tax, Circle-1, had given effect to the judgment of this Court dated 26.11.2007. The order reads thus: On giving effect to the order of the Kerala High Court cited above in the case of M/s.Pala Marketing Coop. Society Ltd., Palai for the A.Y 1997-98, the refund payable is arrived at as under: Advance tax paid Rs. 10,00,000 TDS Rs.47,957 Total pre-paid tax Rs.10,47,957 Refund due Rs.10,47,95 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ne is the cause and the other is the effect. The logic behind assessee's claim of refund from 01-02-2000 is also difficult to understand. On the said date there was no valid return available before the department and hence the refund can, by no means, be issued to the assessee It was only on the order of the Hon. High Court (dated 26-11-2007) that the return became valid. As directed by the High Court, the refund was issued within three months of receipt of the order. Hence, there is no delay whatsoever in issuing the refund and the question of interest on refund does not arise at all. (12) Hence, after considering the counter arguments as well as facts and based on the merits of the case I am to conclude that the assessee has already ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oner is entitled to interest on the tax amount refunded by the Department. The petitioner cannot be blamed for the period 01.02.2000 to 01.02.2008 and the delay is on account of the disposal of the writ petition by this Court. The principle of actus curiae neminem gravabit and the remedy of refund are statutorily protected and the remedy is available in common law for interest. Therefore, the appreciation of delay by the judgment in appeal is erroneous. He places reliance on South Eastern Coalfields Ltd v. State of M.P and others (2003) 8 SCC 648 and Kerala State Electricity Board and another v. M.R.F Limited (1996) 1 SCC 597, mainly for the proposition of restitution together with the compensation to the person who was denied the amount. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent years, sub-Section (2) merely refers to reasons attributable to the assessee. Therefore, omission or commission in the return filed by the assessee resulting in a delay in assessment is attributable to the assessee; hence, the time taken to cure those omissions and defects is excluded for interest calculation. Having availed the time for rectifying the defects and claiming interest for the defect rectification time is unavailable. Such an interpretation does not fit into the requirement of filing a return fully compliant with the order of assessment, levy of interest, refund etc. The period taken by the assessee for curing the defects cannot be excluded while calculating interest; then, for no fault of the Department, the Department is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the writ petition. For our purpose, we would look at the claim of the petitioner from this perspective. The petitioner before us did not press for interest for the period 31.10.1997 to 01.02.2000. Now the interest claim is confined to the period 01.02.2000 and 01.02.2008 on the ground that once the refund is ordered, payment of interest follows suit. 8.1 The contention that the judgment of this Court automatically enables claim for interest for the period 2000 to 2008 is not based on proper appreciation of the relief granted by this Court and/or the entitlement of the writ petitioner. The petitioner claimed for refund by condoning the delay. The delay is condoned and held that the petitioner is entitled to refund. Now the Department is st ..... X X X X Extracts X X X X X X X X Extracts X X X X
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