TMI Blog2022 (8) TMI 138X X X X Extracts X X X X X X X X Extracts X X X X ..... be filed in time. At best it could be said the delay between 1997 to 2000 alone could be attributed to the petitioner and the delay between 2000 to 2008 cannot be attributed to the petitioner as the delay occasioned in the adjudication of the writ petition. The argument though appears to be persuasive and fails to notice that the delay in adjudication of the petition filed for condonation of the delay for refund cannot burden the Department for payment of interest as compensation. The refund claim is complying with the direction of this Court. According to us, the effort was to get refund, the refund was ordered by this Court and what happened in the interregnum since cannot prejudice the writ petitioner and should not also prejudice the Department by directing the payment of interest for the delay period. The claim of the petitioner for interest on the refunded amount is rightly considered and rejected by both the Commissioner in Ext.P9 and the judgment under appeal. The judgments relied on by the petitioner, after going through the circumstances and ratio laid down therein, we are of the view that the judgments are distinguishable in all fours. No other ground is canvassed. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... request of the petitioner for condoning the delay in filing the refund application was rejected. The petitioner challenged the order dated 17.11.2006 in W.P.(C) No.21977/2007. On 26.11.2007, W.P.(C) No.21977/2007 was allowed and the operative portion of the said judgment reads as follows: In the circumstances, I quash Ext.P9 declaring petitioner s entitlement for condonation of delay 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-pai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd to the extent found eligible as directed by the High Court and within the time period mentioned by the High Court. There was no delay attributable to the department from the date the return was treated as valid and hence, the question of issuing interest u/s 244A does not arise. Hence, the petition u/s 264 stands rejected. The petitioner filed W.P.(C) No.17664/2013 challenging the order dated 25.03.2013 (Ext.P9). Through the judgment under appeal, the writ petition was dismissed. Hence the appeal. 6. Adv.Leo Luckose appearing for the petitioner contends that an error in appreciation of circumstances resulted in denial of interest on refund of advance tax credited by the petitioner. He separates the periods viz. between 31.10.1997 and 01.02.2000 on one hand, and on other hand, between 01.02.2000 to 01.02.2008. Assuming without admitting that the returns filed on 01.02.2000, then the former period referred to above can be attributed as delay or omission on the part of the assessee disentitling interest on refund of advance tax. The assessee moved an application under Section 119 (2) (b) of the Act, for condoning the delay in filing the application for refund of advance ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the assessee to cure the defects in finalising the assessment is excluded for interest calculation. As it stood for the applicable assessment 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 called upon to compensate by way of interest. 7. Learned Sr. Advocate P.K.R Menon invites our attention to the application made under Section 119(2)(b) of the Act and submits that the prayer was for condoning the delay in filing the application for refund of excess tax paid by the petitioner. Keeping the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 64 of the Societies Act, 1969 returns could not be filed in time. At best it could be said the delay between 1997 to 2000 alone could be attributed to the petitioner and the delay between 2000 to 2008 cannot be attributed to the petitioner as the delay occasioned in the adjudication of the writ petition. The argument though appears to be persuasive and fails to notice that the delay in adjudication of the petition filed for condonation of the delay for refund cannot burden the Department for payment of interest as compensation. The refund claim is complying with the direction of this Court. 8.3 According to us, the effort was to get refund, the refund was ordered by this Court and what happened in the interregnum since cannot prejudice the writ petitioner and should not also prejudice the Department by directing the payment of interest for the delay period. The claim of the petitioner for interest on the refunded amount is rightly considered and rejected by both the Commissioner in Ext.P9 and the judgment under appeal. The judgments relied on by the petitioner, after going through the circumstances and ratio laid down therein, we are of the view that the judgments are dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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