TMI Blog2023 (12) TMI 1232X X X X Extracts X X X X X X X X Extracts X X X X ..... date of deposit by the Executive Engineer, Irrigation department till the date of granting of refund. For passing such direction of issuance of the refund with interest under section 244A, similar reasons as given by this Court in case of Special Civil Application No. 12466/2021 [ 2023 (12) TMI 1165 - GUJARAT HIGH COURT] the words or the deductor, as the case may be, which is inserted with effect from 01.04.2017 would not be applicable as the petitioners have been permitted to file the refund claim for the AY 2013-2014 after condonation of delay and such delay in claiming the refund cannot be said to be attributable to the petitioners as the petitioners were not made aware about the deduction of tax at source by the deductor in absence of issuance of Form No. 16-A which was mandatorily required as per Rule 31(3) of the Rules. In view of the foregoing reasons, the petitions succeed and are accordingly allowed. The respondents are directed to pass the order to condone the delay in filing the return for the Assessment Year 2013-2014 and to issue the refund with interest under section 244A of the Act, 1961 from the date of deposit of the amount of TDS till date of payment o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tained with a nationalized bank for five years. 5.5) While depositing 50% of the awarded amount with the Court, the Irrigation Department deducted Tax at Source (TDS) on the interest portion of the amount deposited and withdrawn. However, the Executive Engineer of the Irrigation Department did not inform the petitioners about the deduction of TDS and did not issue Form-16A as required under the provisions of the the Act, 1961 ) and Income Tax Rules, 1962 (for short the Rules ). The petitioner therefore could not file the return of income to claim refund before the due date under the Act, 1961. 5.6) This Court by common Judgment and Order dated 10.08.2015 remanded all the appeals to the Reference Court for deciding the same afresh and it was observed that 25% of the amount which was already paid to the petitioners-claimants would not be recovered. 5.7) Reference Court after remand passed the Judgment and Award dated 08.07.2016 which was challenged by the State Government by preferring First Appeal Nos. 2615/2016 to 2632/2016 before this Court. These appeals were admitted vide order dated 2.12.2016 and in the stay application it was observed that 50% of the amount with int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncome under section 119(2)(b) of the Act, 1961 and the refund has been paid without interest and therefore, the similarly situated persons have preferred petitions before this Court being Special Civil Application No. 12466/2021 and other allied matters claiming interest on the amount of refund paid to the petitioners. 6.1) It was submitted that the respondents could not have rejected the application to condone the delay in filing the return of income on the ground that no reason and evidence for the delay in filing the application was furnished by the petitioners. It was submitted that the respondent cannot take a contrary view to what is taken in the cases of similarly situated persons. 6.2) It was, therefore, submitted that the impugned order of rejecting the application to condone the delay is required to be quashed and set aside. 7. On the other hand, learned advocate Mr. Karan Sangani for the respondent submitted that there is no explanation given by the petitioners for the inordinate delay in filing the return of income as the tax was deducted in the financial year 2012-2013 and as per Circular no. 9/2015 issued by CBDT, delay cannot be condoned in absence of any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt had passed an order in Risal Singh v. Union of India [Risal Singh v. Union of India, 2010 SCC OnLine P H 276 : (2010) 321 ITR 251] directing the Income Tax Department to refund the amount to the Collector with a direction to the Collector to determine whether the compensation is paid for property other than agricultural land or otherwise and whether deduction of tax at source was permissible under any provision of law. The manner in which the Land Acquisition Collector has to proceed further after determining the aforesaid issue is contained in Para 8 of Writ Petition No. 9912 of 2009 decided on 11-1-2001, which is reproduced below: 8. Accordingly, we allow this petition and direct the Income Tax Department to refund the amount to the Collector within one month from the date of receipt of a copy of this order. Thereafter, the Collector will determine whether compensation paid is for property other than agricultural land or otherwise and whether deduction of tax at source was permissible under any provision of law. Whether deduction is permissible or not will be decided by the Collector within two months from the date of receipt of a copy of this order. If deduction is f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... turn of income to claim the refund as the deductor i.e. Executive Engineer, Irrigation department neither informed the petitioners about the deduction of tax nor Form-16A which is mandatory was issued. On the contrary, when the petitioners made representations by informing the Executive Engineer, Irrigation department about the wrong mentioning of the provision for deduction of tax in Form No. 26AS issued as per return of TDS to be filed by the deductor, no reply was given. Therefore, it is clear that the petitioners were not at fault for the delay caused in filing the return of income claiming the refund of the tax deducted at source as no tax was payable by the petitioners on the amount of interest under section 194LA of the Act, 1961. 12. The Hon ble Apex Court in case of Tata Chemicals Limited (supra) while considering the issue of payment of interest in case of refund has held as under: 37. A tax refund is a refund of taxes when the tax liability is less than the tax paid. As per the old section an assessee was entitled for payment of interest on the amount of taxes refunded pursuant to an order passed under the Act, including the order passed in an appeal. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no ought to be refunded, the right to interest follows, as a matter of course. 13. It is true that in the said case, the refund was claimed in the return of income which was filed in time. However, the ratio of the said judgment is with regard to the entitlement of the assessee to receive interest on the amount of refund when the collection was illegal and the revenue was obliged to refund such amount with interest as money so deposited is retained and enjoyed by the revenue whereas in the facts of the present case delay in filing the return of income is not attributable to the petitioners and such fact is also not in dispute as the respondent has condoned delay and granted refund to the petitioners. 14. Reliance placed by the respondent authority on Circular No. 9/2015 is also misplaced because paragraph no.6(ii)of the said circular is to the effect that no interest will be admissible on belated claim of refund when such application is for supplementary claim of refund i.e. claim of additional amount of refund after completion of assessment for the same year. Therefore, reliance placed by the respondent upon the said circular for denying the interest on the refund claim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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