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Ram Gopal and Others Vs. Commissioner of Income-tax, Delhi, and Another. - Court Judgment

LegalCrystal Citation
SubjectDirect Taxation
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Writ No. 288-D of 1959
Reported in[1963]50ITR537(P& H)
AppellantRam Gopal and Others
RespondentCommissioner of Income-tax, Delhi, and Another.
Excerpt:
.....because the authority making the order had made a default in formally communicating the order to him. allowing a party to do so would amount to placing a premium on the lack of diligence of a party, who is remiss in seeking a remedy that was available to it. therefore, knowledge whether actual or construction of the order passed by the state or regional transport authority should result in commencement of the period of limitation. thus,. in cases where the state or regional transport authority has not communicated the order of refusal passed to the persons concerned, the period of limitation for filing an appeal would commence from the date when the parties concerned acquire knowledge of passing of the said order......made but the amount due is not returned due to the laches of the applicant within one year of the date of such application, it shall lapse to government.'the only question that falls for determination is the question of limitation.the learned counsel for the petitioners contends that the jaipur act was repealed on the 31st of march, 1950, and before his right to make an application for refund arose, and, therefore, there is now no period of limitation for refund and he can claim the refund at any time. this argument would have considerable force but for section 13 of the finance act, 1950. section 13 of the finance act is in these terms :'13. if immediately before the 1st day of april, 1950, there is in force in any part b state other than jammu and kashmir or in manipur, tripura or.....
Judgment:

This is a petition under article 226 of the Constitution by certain assessees who were assessed under the Jaipur Excess Profits Tax Act, 1944 - hereinafter referred to as the Jaipur Act - for refund of tax. Originally in the petition prayer was made with regard to two amounts of tax, but at the time when the petition was admitted, the controversy merely centred round one of the items, that is, a sum of Rs. 5,881-8-0 deposited on the 7th May, 1948. According to the Jaipur Act, a sum of Rs. 2,352 was to become refundable to the assessee after two years from its deposit, that is, this amount became refundable on the 7th of May, 1950, and according to sections 43 and 44 of the Jaipur Act an application for refund had to be made within a period of six months. In the present case the application was made on the 18th of December, 1951, that is, beyond the period of limitation prescribed by the Jaipur Act and on this ground the department refused to refund the tax. That is what had led to the present petition.

At this stage it will be proper to set out the relevant provisions of the Jaipur Act, which are sections 39 to 44, and are in these terms :

'39. All amounts recovered under this Act shall be deposited in the State Treasury and a separate account thereof shall be maintained both at the Treasury and by the Accountant-General under the name of the Jaipur Excess Profits Fund, in this Act referred to as the Fund. Such account shall show separately the amount recovered from each person.

40. (1) Subject to the general control of the Government, the Fund shall be operated upon by the Accountant-General with the approval of the Finance Minister to Government.

(2) All amounts of the Fund over and above a maximum to be fixed by the Government shall be invested in securities of the Government of India or in war loans floated by that Government or in such other manner as the Government may approve.

41. All expenses incurred in the administration of this Act shall be met out of the Fund and shall be charged against each person in such proportion and in such manner as the Government may prescribe.

42. The amount of excess profits tax recovered from any person, which has not been refunded under section 36, and is shown to be still at his credit in the excess profits tax account kept under section 39 shall on application be repayable to such person or his legal representative after deducting the expenses allowed under section 41 and twenty per cent. of the excess profits tax, upon the expiration of twelve months after the date of the termination of the present war or of twenty-four months after the date of recovery whichever is the later date. The twenty per cent. deducted as aforesaid shall upon such repayment be credited to Government.

43. An application for repayment shall be made by the person entitled to such repayment within six months of the date on which any amount claimed by him becomes due to be repaid.

44. If no application for repayment is made within the time-limit fixed under section 43, or

Where an application has been made but the amount due is not returned due to the laches of the applicant within one year of the date of such application, it shall lapse to Government.'

The only question that falls for determination is the question of limitation.

The learned counsel for the petitioners contends that the Jaipur Act was repealed on the 31st of March, 1950, and before his right to make an application for refund arose, and, therefore, there is now no period of limitation for refund and he can claim the refund at any time. This argument would have considerable force but for section 13 of the Finance Act, 1950. Section 13 of the Finance Act is in these terms :

'13. If immediately before the 1st day of April, 1950, there is in force in any Part B State other than Jammu and Kashmir or in Manipur, Tripura or Vindhya Pradesh or in the merged territory of Cooch-Behar any law relating to income-tax or super-tax or tax on profits of business, that law shall cease to have effect except for the purposes of the levy, assessment and collection of income-tax and super-tax in respect of any period not included in the previous year for the purposes of assessment under the Indian Income-tax Act, 1922 (XI of 1922), for the year ending on the 31st day of March, 1951, or for any subsequent year, or, as the case may be, the levy, assessment and collection of the tax on profits of business for any chargeable accounting period ending on or before the 31st day of March, 1949 :

Provided that any reference in any such law to an officer, authority, tribunal or court shall be construed as a reference to the corresponding officer, authority, tribunal or court appointed or constituted under the said Act, and if any question arises as to who such corresponding officer, authority, tribunal or court is, the decision of the Central Government thereon shall be final :

Provided further that where under any such law, tax is chargeable on the total income including agricultural income, the assessment shall be made by the corresponding officer or authority referred to in the preceding proviso only in respect of income other than agricultural income, and the tax payable on such income shall be amount bearing to the total amount of tax which would have been payable under the State law if a combined assessment had been made, the same proportion as such income bears to the total income including the agricultural income, so however that for this purpose any reduction of tax allowed on the agricultural income by the State law shall not be taken into account.

2. If immediately before the 1st day of April, 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to but other than, and Act referred to in sub-section (1) or (2) of section 11, such law is hereby repealed with effect from the said date; and if immediately before the said date there is in force in the State of Jammu and Kashmir a law corresponding to the Indian Post Office Act, 1898, such law is hereby repealed with effect from the said date :

Provided that such repeal shall not affect (a) the previous operation of the corresponding law, or (b) any penalty, forfeiture or punishment ordered in respect of an offence committed against any such law, or (c) any investigation, legal proceedings or remedy in respect of such penalty, forfeiture or punishment, and any such investigation, legal proceedings or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if this Act had not been passed.'

It will appear from this provision that the Jaipur Act was kept alive for certain assessments and the present assessment is one of those, and, therefore, by reason of this provision the Jaipur Act was kept alive and therefore the application for refund has to be made within six months from May 7, 1950. That being so, it must be held that the application made on the 18th December, 1951, for refund is beyond time. In this view of the matter I would reject this petition but as in a welfare State it will be hard to conceive that the Government would appropriate moneys belonging to its citizens merely by reason of the bar of limitation it is not a fit case where costs should be awarded to the respondents. Therefore, there will be no order as to costs.


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