9911796707
TMI Blog1990 (11) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... ------------------- Assessment was completed on the basis of which a refund of Rs. 20,903 was granted to the assessee. Application under section 154/214 of the Income-tax Act, 1961 was filed on20th August, 1985requesting the Assessing Officer to grant interest under section 214. The Assessing Officer vide order dated 8th November, 1985 held that the payment of advance-tax by the assessee was not in accordance with sections 207 to 212 of the Income-tax Act, 1961 and accordingly interest under section 214 was not payable to the assessee. Assessee appealed to the CIT(A)-I,New Delhiagainst this order who vide its order dated7-11-1986directed the Assessing Officer to pay interest under section 214 of the Income-tax Act, 1961 to the appellant considering the entire payment made during the financial year 1981-82 as advance-tax payment. The matter did not rest there. Assessee filed another application under section 154 dated 7th October, 1986 requesting the Assessing Officer for adjustment of brought forward losses determined in consequence of the order of the CIT(A) for asst. years 1979-80 and 1981-82. By this application assessee also requested the Assessing Officer to grant interest u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the Supreme Court in the case of National Agricultural Marketing Federation of India Ltd. has been considered by various benches of the Tribunal and the position of law analysed. According to Shri Gupta, the view of various benches is in accordance with the decision of the Andhra Pradesh High Court in the case of Koduru Venkata Reddy v. LAO [1988] 170 ITR 15 wherein it has been held that when a judgment of Full Bench of a High Court is suspended, the only effect of such suspension is that the judgment cannot be executed or implemented. But so long as the Full Bench judgment stands, the dicta laid down therein are binding on all courts including single judges and Division Benches of that High Court. The dicta laid down therein cannot be ignored unless the Court after hearing a particular case doubts and correctness of the dicta and thinks it proper to consider them afresh. The learned counsel cited the following decisions of the Tribunal in support of the above proposition : 1. Filmistan Exhibitors (P.) Ltd. v. ITO [1990] 34 ITD 166 (Delhi). 2. Somany Pilkington's Ltd. v. IAC [1990] 34 ITD 531 (Delhi). 3. Phelps Co. (P.) Ltd. v. ITO [1988] 25 ITD 96 (Delhi) (TM). 4. IAC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assessing Officer shall, except as otherwise provided in the Act, refund the amount to the assessee without his having to make any claim in that behalf. Section 244 of the Income-tax Act, 1961 provides for payment of interest @ 15% p.a. if the refund due to the assessee in pursuance of an order referred to in section 240 is not paid within three months from the end of the month in which such order is passed. Section 244(1A) which is subject matter of dispute in this case is reproduced hereunder : " Where the whole or any part of the refund referred to in sub-section (1) is due to the assessee, as a result of any amount having been paid by him after the 31st day of March, 1975, in pursuance of any order of assessment or penalty and such amount or any part thereof having been found in appeal or other proceedings under this Act to be in excess of the amount which such assessee is liable to pay as tax or penalty, as the case may be, under this Act, the Central Government shall pay to such assessee simple interest at the rate specified in sub-section (1) on the amount so found to be in excess from the date on which such amount was paid to the date on which the refund is granted. " ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions. Thus we are of the view that it was necessary for the Assessing Officer to consider the applicability of provisions of section 244(1A) after having determined a refund on adjustment of brought-forward losses of earlier years. 8. The Calcutta High Court in the case of Chloride India Ltd. v. CIT [1977] 106 ITR 38 has held that the order giving effect to the appellate order is in the nature of regular assessment. Similar view has been expressed by Bombay High Court in the case of Binod Mills Co. Ltd. v. S.A. Kadri, EPTO [1980] 122 ITR 778 and by the Madras High Court in the case of Rayon Traders (P.) Ltd. v. ITO [1980] 126 ITR 135. In the case of Central Provinces Manganese Ore Co. Ltd. v. CIT [1986] 160 ITR 961, their Lordships of the Supreme Court have held that levy of interest under the provisions of the Income-tax Act is part of process of assessment. By the same analogy the grant of interest to the assessee under the provisions of the Income-tax Act could be held as part of process of assessment. Viewing the issue in the light of aforementioned decisions we are of the firm view that the Assessing Officer has acted in accordance with law in considering the claim of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubordinate authorities functioning in its jurisdiction in the case of Koduru Venkata Reddy their Lordships of the Andhra Pradesh High Court held as under : " When a judgment of a Full Bench of a High Court is the subject-matter of an appeal and the said judgment is suspended, the only effect of such suspension is that that judgment cannot be executed or implemented. But, so long as the Full Bench judgment stands, the dicta laid down therein are binding on all courts including single judges and Division Benches of that High Court. The dicta laid down therein cannot be ignored unless the court after hearing a particular case doubts the correctness of the dicta and thinks it appropriate that it should be reconsidered. " 13. In the case of State of Andhra Pradesh v. CTO [1988] 169 ITR 564 Andhra Pradesh High Court and in the case of Siemens India Ltd. v. K. Subramanian, ITO [1983] 143 ITR 120, Bombay High Court have held that merely because an appeal has been filed or a Special Leave Petition is pending against the decision, would not denude that decision of its binding effect, and until set aside, that decision is binding on all upon whom it operates as a precedent, unless the ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issue on consideration of the other decisions of the High Courts and the decisions of the Tribunal if any, on the issue and arrive at its independent decision. Thus, in our view, the controversy as to whether the dicta laid down by the jurisdictional High Court is binding upon the subordinate Tribunals and authorities is of no consequence as the matter has got to be decided on merits, in any case. 15. In this case assessee has made payment of advance-tax during the financial year and on the basis of the appellate orders refund has been determined in favour of the assessee. Interest under section 214 has been directed to be granted in respect of the payment of advance-tax made by the assessee. Now for purposes of payment of interest under section 244(1A) various Benches of the Tribunal have taken the view that payment made in advance or under section 140A is converted into payment in pursuance of regular assessment on the completion of regular assessment. As and when a regular assessment is made the payment made in advance loses its character as advance-tax payment and gets converted into payment towards regular assessment by virtue of section 219 of the Income-tax Act, 1961. Thu ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
