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Hira Lal Jagarnath Prasad Vs. Commissioner of Income-tax and ors. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtAllahabad High Court
Decided On
Case NumberCivil Miscellaneous Writ No. 389 of 1969
Judge
Reported in[1969]74ITR732(All)
ActsIncome Tax Act, 1922 - Sections 66(1) and 66(7); Income Tax Act, 1961 - Sections 244(1) and 297(2)
AppellantHira Lal Jagarnath Prasad
RespondentCommissioner of Income-tax and ors.
Appellant AdvocateU.B. Upadhyay, Adv.
Respondent AdvocateShanti Bhushan and ;R.R. Misra, Advs.
Excerpt:
- - '6. admittedly, the petitioner became entitled to the refund by virtue of the answer given by this court on november 1, 1966, and by virtue of the order passed by the appellate tribunal under section 66(5) of the act on june 6, 1968. clearly, therefore, the refund fell due after the commencement of the 1961 act......in an appeal before the appellate assistant commissioner and then by a second appeal before the income-tax appellate tribunal. this also did not succeed. thereafter, at the instance of the assessee, a reference was made to this court under section 66(1) of the act. thereference was answered in favour of the petitioner by this court on november 1, 1966. the income-tax appellate tribunal passed the order under section 66(5) of the act on june 6, 1968, in conformity with the decision of this court. 2. both on the date when this court answered the reference in favour of the petitioner as also on the date when the tribunal passed the order under section 66(5) of the act, the act of 1961 was in force. 3. we have heard mr. upadhyay for the petitioner and dr. misra for theincome-tax.....
Judgment:

Jagdish Sahai, J.

1. Messrs. Hira Lal Jagarnath Prasad (hereinafter referred to as the petitioner) has sought a writ of certiorari from this court to quash the communication (wrongly described as order) issued on behalf of the Commissioner of Income-tax, Lucknow, refusing to allow interest on the amount due to the petitioner by way of refund of excess income-tax paid by him. Admittedly, the petitioner paid large sums of money by way of income-tax under an assessment order. It challenged successively the assessment order in an appeal before the Appellate Assistant Commissioner and then by a second appeal before the Income-tax Appellate Tribunal. This also did not succeed. Thereafter, at the instance of the assessee, a reference was made to this court under Section 66(1) of the Act. Thereference was answered in favour of the petitioner by this court on November 1, 1966. The Income-tax Appellate Tribunal passed the order under Section 66(5) of the Act on June 6, 1968, in conformity with the decision of this court.

2. Both on the date when this court answered the reference in favour of the petitioner as also on the date when the Tribunal passed the order under Section 66(5) of the Act, the Act of 1961 was in force.

3. We have heard Mr. Upadhyay for the petitioner and Dr. Misra for theincome-tax department.

4. The only question that requires consideration is whether, for the purposes of the refund, the provisions of the 1961 Act or the provisions of the Act would apply in the present case.

5. Section 297 of the 1961 Act deals with repeals and savings. Clause (2)(i) of that provision reads :

'297. (1).....

(2) Notwithstanding the repeal of the Indian Income-tax Act, 1922 (XI of 1922) (hereinafter referred to as the repealed Act),--....

(i) where, in respect of any assessment completed before the commencement of this Act, a refund falls due after such commencement or default is made after such commencement in the payment of any sum due under such completed assessment, the provisions of this Act relating to interest payable by the Central Goverment on refunds and interest payable by the assessee for default shall apply. '

6. Admittedly, the petitioner became entitled to the refund by virtue of the answer given by this court on November 1, 1966, and by virtue of the order passed by the Appellate Tribunal under Section 66(5) of the Act on June 6, 1968. Clearly, therefore, the refund fell due after the commencement of the 1961 Act. We are, therefore, of the opinion that the provisions of the new Act relating to refund would apply in supersession of the provisions of the Act.

7. The provision in the 1961 Act which, for purposes of refund, is relevant in the present case is Section 244. That provision reads :

'244. (1) Where a refund is due to the assessee in pursuance of an order referred to in Section 240 and the Income-tax Officer does not grant the refund within a period of six months from the date of such order, the Central Government shall pay to the assessee simple interest at nine per cent. per annum on the amount of refund due from the date immediately following the expiry of the period of six months aforesaid to the date on which the refund is granted . . . . '

8. Mr. Upadhyay's argument is that inasmuch as the reference was made to this court under Section 66(1) of the Act and answered by it under Section 66(5) of the Act, the refund of the excess amount became due undersection 66(7) of the Act. We have already said earlier that, so far as refund is concerned, Sub-clause (i) of Clause (2) of Section 297 is a self-contained provision which makes the provisions of the 1961 Act apply to the exclusion of those of the Act. We are, therefore, unable to agree with Mr. Upadhyay that he is entitled to the benefit of Sub-section (7) of Section 66 of the Act.

9. Mr. Upadhyay puts the same argument in a different form by contending that assuming that the provisions of the 1961 Act apply, the amount of refund, for purposes of Section 244(1) of the 1961 Act, would be the excess tax plus interest. This he claims by virtue of Section 66(7) of the Act. In our judgment, the submission is not correct Section 244(1) of the 1961 Act does not contemplate payment of any interest, except after six months of the refund becoming due or payable. In the present case, the refund of tax was made to the petitioner within six months of the order passed by the Appellate Tribunal under Section 66(5) of the Act.

10. We have already held earlier that, inasmuch as Section 297(2)(i) is a self-contained and exhaustive provision with regard to refunds, no help in respect of refunds can be taken from any of the provisions contained in the Act. If any amount could be due as interest in respect of the excess tax, it must be the one under the Act and not under the new Act. We have already said earlier that the effect of Sub-clause (i) of Clause (2) of Section 297 of the 1961 Act is that no provision of the Act can be looked into for purposes of refund ; and that the Act of 1961 will not only determine the amount of refund but would govern the entire matter relating to it.

11. Under these circumstances, in our opinion, the view taken by the Commissioner of Income-tax is correct and requires no interference. The petition is dismissed. There is no order as to costs.


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