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TMI Blog2009 (12) TMI 571X X X X Extracts X X X X X X X X Extracts X X X X ..... volved herein. 2. The sequence of events reveals that the predecessor-in-interest of the petitioner, the late Lucy Kochuvareed was a co-owner of the "Vellanikkara and Thattil Rubber Estate", which was acquired by the Government of Kerala on March 15, 1974. Challenging the inadequacy of compensation awarded, the matter was taken up before the reference court and also before this court, whereby the compensation was enhanced, granting inter-est at the rates stipulated under the amended Land Acquisition Act. The said proceedings became final as per the judgment delivered by this court on August 28, 1987, in the concerned land acquisition appeal. The total amount awarded by this court towards interest on the enhanced compen-sation for the period from May 1, 1973, to August 28, 1987, was Rs.96,56,593, out of which the deceased Lucy Kochuvareed obtained a two-thirds share, i.e., Rs. 64,37,728 ; which was disbursed to her in three instalments during the year ended on March 31, 1988, March 31, 1989 and March 31, 1990 respectively. 3. On March 30, 1989, the assessee (Lucy Kochuvareed) remitted a sum of Rs. 26,58,000 as borne by exhibit P1 challan receipt, wherein the assessment year ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as replied by the petitioner as per letter dated July 28, 1983, stating that, her main source of income was interest receivable on the additional compensation, if any, that was to be allowed by the High Court of Kerala (where the matter was pending consideration) and hence that she was not in a position to file the returns till the proceedings before the High Court were got finalized. Accordingly, time was sought for to file the returns on different occasions (according to the petitioner she was granted time till October 24, 1989, as stated in paragraph 5 of the writ petition). It was after finalisation of the proceedings before this court in the land acqui-sition appeal, that she chose to file the returns on October 11, 1989 for the 11 assessment years 1979-80 to 1989-90, though the returns in respect of the assessment years 1979-80 to 1984-85 were belated. 6. The assessing authority who did not accept the returns in respect of the assessment years 1979-80 to 1984-85 being time barred, issued fresh notices under section 148 of the Income-tax Act on January 18, 1990. Instead of filing fresh returns, the deceased assessee, as per exhibit P4 series letters dated February 20, 1990 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence the Department could not have validly levied, imposed or collected any tax, thus seeking to refund the sum of Rs.17,23,123 with interest as prescribed. 8. The respondents have filed a counter-affidavit rebutting the various averments and allegations raised by the petitioner also pointing out that though notice under section 148 and other relevant provisions of law were admittedly issued on July 4, 1980 and July 15, 1983, no return was filed but for sending a reply dated July 28, 1983, stating that the matter could not be finalized because of the proceedings pending before the High Court of Kerala and thus seeking for further time as conceded in paragraph 7 of the writ petition. It is also conceded in the very same paragraph that in response to the subsequent notice dated January 18, 1990, issued by the Department under section 148 of the Income-tax Act, the assessee, vide exhibit P4 series letters dated February 20, 1990, had requested the Income-tax Officer to treat the returns already filed on October 11, 1989 as the valid returns in response to the notice. The contention of the petitioner that the remittance made on March 30, 1989 vide exhibit P1 challan was only i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... does come to the petitioner's rescue and hence that the tax paid by the deceased assessee, as assessed and shown in the returns filed by her, is not liable to be refunded. Reference is also made to proviso (b) to section 240 of the Income-tax Act (which, however, was brought into force only from April 1, 1989) in support of the said contention, pointing out that the exhibit P6 appellate order was passed only on November 21, 2005. 11. It is conceded by both the sides that interest payable on the compen-sation pursuant to the land acquisition proceedings taken by the Govern-ment of Kerala was got quantified and became final only on passing the judgment by this court in the concerned land acquisition appeal in the year 1987 and the said amounts were disbursed to the assessee in three instal-ments, during the year ending on March 31, 1988, March 31, 1989 and March 31, 1990. It is beyond doubt that the said amounts, though dis-bursed in a particular year/years is liable to be distributed for the different years concerned, in view of the declaration of law in this regard by a Full Bench of this court in Peter John v. CIT [1986] 157 ITR 711 and by the apex court in Sankari Manickyamm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the land acquisition proceedings before this court, contending that the main income was by way of interest obtainable on enhancement of the compensation by the High Court in the said proceed-ings. Admittedly, the proceedings became final only in the year 1987 ; whereby a sum of Rs. 64,37,728, being the share of the deceased assessee, was disbursed to her by way of three instalments in the years ended on March 31, 1988, March 31, 1989 and March 31, 1990. It was only on finali-zation of the quantum as above, that the deceased assessee volunteered to pay the sum of Rs. 26,58,000 towards the tax liability on March 30, 1989, as borne by exhibit P1. Though the assessment year was shown in exhibit P1 challan as "1989-90", it was subsequently sought to be corrected vide exhi-bit R1(A) dated October 7, 1989, to have it apportioned in respect of the 11 different assessment years from 1979-80 ; followed by the returns filed on October 11, 1989. It was without mentioning anything about exhibit R1(A) letter written by the deceased assessee, that the petitioner chose to mould the writ petition, wrongly stating that exhibit P1 payment was only in respect of the assessment year 1989-90. The cours ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... payable including the rate of interest as per the judgment and decree passed by the High Court of Kerala in the year 1987. After getting the proceedings initiated by the Department stalled, referring to the pendency of the proceedings before this court and after remitting the tax voluntarily on finalization of the said proceedings (on the basis of the exact income obtained by way of interest), followed by filing of the necessary returns and also after requesting the Department vide exhibit P4 series letters dated February 20, 1990 to treat the returns already filed on October 11, 1989 as valid returns in response to the notice dated January 18, 1990, issued by the Department under section 148 of the Income-tax Act, the petitioner is estopped from contending that the payment effected by the assessee was not voluntary and that no amount could have been appropriated by the Department in respect of the tax admitted and shown as due for the different assessment years as requested by the assessee herself in exhibit R1(A) letter dated October 7, 1989 and as shown in the returns filed on October 11, 1989. The petitioner cannot be permitted to blow hot and cold simultaneously and the conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion has become crystal clear by virtue of the decision rendered by the apex court in CIT v. Shelly Products [2003] 261 ITR 367 holding that the assessee is not entitled to have refund of tax paid on self-assessment. 17. Admittedly, the deceased assessee made a "self-assessment" of tax and remitted the same as per exhibit P1 challan ; which was later sought to be distributed in respect of the different assessment years as stated in exhibit R1(A) letter dated October 7, 1989. This is in conformity with the figures given in the returns filed by her voluntarily on October 11, 1989. Filing of the return itself is a mode of assessment of tax, though by way of self-assessment. The deceased assessee admittedly having effected self-assess-ment and paid the tax amount, it is no more open to contend that the said amount paid voluntarily by the deceased assessee, is to be refunded to the petitioner merely because the subsequent proceedings taken by the also charging interest for the delay under different heads happened to be annulled by the appellate authority vide exhibit P6. As per exhibit P6, only the assessment orders passed by the Department have been annulled and it has not set aside ..... X X X X Extracts X X X X X X X X Extracts X X X X
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