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TMI Blog1983 (9) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... filed return showing a positive total income and duly paid self-assessment tax attributable to such income. The positive income in each of the years resulted because the assessee, while filing the return, had included incomes attributable to minor children under section 64(1)(iii) of the Act. Later on, the assessee preferred appeals raising the contention that since the incomes excluding the incomes aggregated under section 64(1)(iii) were below the taxable income, no aggregation could be made by having resort to the provisions of section 64. Suffice it to say that this contention met with success at the stage of the Tribunal in the first year and the stage of the AAC in the second year and, therefore, the self-assessment tax paid became re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance only till the initial regular assessment was made and thereafter it had no separate existence by itself, but got merged in the tax payable by the assessee. In other words, when the regular assessment was made, the advance tax paid earlier had to be treated as having been paid in pursuance of the regular assessment and in satisfaction thereof, and carrying the fiction to its logical conclusion, the assessee would be entitled to interest on the amount of advance tax also to the extent it was found refundable from the date of excess payment right up to the actual refund. 4. The learned departmental representative, on the other hand, opposed the plea and relied on the decision of the Delhi High Court in Orissa Cement Ltd. v. CBDT [1972] ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 : Provided that where the amount so found to be in excess was paid in instalments, such interest shall be payable on the amount of each such instalment or any part of such instalment, which was in excess, from the date on which such instalment was paid to the date on which the refund is granted : Provided further that no interest under this sub-section shall be payable for a period of one month from the date of the passing of the order in appeal or other proceeding : Provided also that where any interest is payable to an assessee under this sub-section, no interest under sub-section (1) shall be payable to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... towards such regular assessment. It was observed by Lord Asquith of Bishopstone in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952] AC 109 : "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it." The aforesaid observations have been referred to with approval in various decisions of the Supreme Court as in M. K. Venkatachalam, ITO v. Bombay Dyeing Mfg. Co. Ltd. [1958] 34 ITR 143, 146. The provisions of section 140A(2) require that on completion of the regular assessment, the advance tax paid has to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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