9911796707
TMI Blog1984 (10) TMI 241X X X X Extracts X X X X X X X X Extracts X X X X ..... year ending December 31, 1942. For the said chargeable accounting period, the respondent filed before appellant No. 1 a return showing a turnover in the taxable territories of ₹ 28,397 on which, according to the respondent, no tax was payable under the said Act. The appellant No. 1 made a provisional assessment under section 14A of the said Act in the sum of ₹ 2,20,000 which was demanded as tax payable by way of provisional assessment under the said Act. The respondent paid the said amount under protest. On October 31, 1962, the appellant No. 1 passed an assessment order under section 14 holding that the excess profits which had accrued to the respondent in the taxable territories amounted to ₹ 1,62,686 and the tax thereon was determined at ₹ 1,08,579. Appellant No. 1 thereupon effected a refund of ₹ 1,11,421 out of ₹ 2,20,000 paid by the respondent as aforesaid. The respondent preferred an appeal against this order and the Appellate Assistant Commissioner allowed the appeal and directed appellant No. 1 to determine the profit that had accrued to the respondent in the taxable territories in the same manner as determined by the Income-tax Appellat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as levied under the said Act on such profits as were in excess of such standard profits Section 4 of the said Act was the charging section under the said Act. Section 6 laid down the manner in which the excess profits were to be determined. Section 7 provided for relief being granted on deficiency of profits, namely, the amount by which profits in any chargeable accounting period fell short of the standard profits, whether such deficiency occurred prior to the chargeable accounting period or thereafter. Section 13 contained provisions for the issuance of notices before assessment was made under section 14 and for filing of returns and so on. Sub-section (1) of section 14 provided as follows: (1) The Excess Profits Tax Officer shall, by an order in writing after considering such evidence, if any, as he has required under section 13, assess to the best of his judgment the profits liable to excess profits tax and the amount of excess profits tax payable on the basis of such assessment, or if there is a deficiency of profits, the amount of that deficiency and the amount of excess profits tax, if any, repayable and shall furnish a copy of such order to the person on whom the assess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h was refunded to the respondent pursuant to the order passed by appellant No. 1 on April 25, 1968, which order was passed by appellant No. 1 in carrying out the directions given in appeal by the Appellate Assistant Commissioner, as set out earlier. The submission of Mr. Parekh is that interest under sub- section (7) of section 14A is payable only on the amount refunded under an order of regular assessment . It is urged by Mr. Parekh that an order of regular assessment is only an order passed under section 14, which, according to him, means the first order of assessment and not any order passed by the Excess Profits Tax Officer pursuant to or in carrying out the directions given on appeal by the Appellate Assistant Commissioner or other appellate authority. It was submitted by him that in the present case, interest was payable only in respect of the amount of ₹ 1,11,421 which was ordered to be refunded by appellant No. 1 pursuant to his order of assessment passed on October 31, 1962, as that was the only order passed by him under section 14, and that was the only order of regular assessment. The learned counsel for the respondent-petitioner contended that interest is also p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Commissioner. The second order of refund was made in the course of that order and, as far as we can see, that order must also be regarded as having been made by way of regular assessment under section 14. As pointed out by a Full Bench of this court in CIT v. Carona Sahu Co. Ltd. [1984] 146 ITR 452, under the Income-tax Act, 1961, for the purpose of appealability, even an order made by the Income-tax Officer pursuant to the directions of a higher appellate authority would have to be treated as an order of regular assessment made under sections 143 and 144 of that Act, but not for the purposes of sections 214 and 215 of that Act which deal with payment of interest on excess advance tax. The principle, therefore, is that in the absence of a specific provision which is directly applicable, the question whether a particular type of assessment is a regular assessment has to be decided in the light of the language and the setting of the section or sections in respect of which that question arises as well as the other relevant provisions of the Act in question, including the definitions contained therein. Looking to the language of section 14A of the said Act and to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be from the date of payment of such excess tax to the date of the order of refund, both days inclusive , and, hence, the expression regular assessment in that section can only mean the last assessment made by the Excess Profits Tax Officer under section 14, for only then can an order for refund be made in favour of the assessee and the second point of time for calculation of interest comes to be fixed. The assessee is, therefore, as of right, entitled to interest on the excess tax from the date of payment up to the date of refund, after the assessment under section 14 pursuant to the directions of the Appellate Tribunal. In that case, of course, the facts were slightly different. On the initial assessment under section 14, the Excess Profits Tax Officer determined the amount of tax assessed as more than the amount assessed under the provisional assessment. On appeal to the Income-tax Appellate Tribunal, the orders of the Excess Profits Tax Officer were set aside with a direction to the Excess Profits Tax Officer to make a fresh assessment according to law and it was on such fresh assessment being made that the amount of tax assessed was reduced and the order for refund ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the assessee interest on the amount by which the advance tax paid by him during any financial year exceeds the amount of tax determined upon such first order of regular assessment from 1st April next following the said financial year to the date of such first order of regular assessment. It was submitted by Mr. Parekh that the same meaning should be given to the term regular assessment as used in section 14A of the said Act as was given by the Full Bench to the said expression in sub-section (1) of section 214 of the Income-tax Act. We find that on a proper reading of the judgment it has no application to the case before us. It may be pointed out that the judgment pertains to the construction of the term regular assessment as used in section 214 of the Income-tax Act. Under the scheme of the Income-tax Act, 1961, there is a provision for advance payment of income-tax which is contained in Chapter XVII which deals with collection and recovery of tax. Part 'C' of the said Chapter contains the provisions for advance payment of tax. Section 214 therein contains provisions whereunder the Government is liable to pay interest where the aggregate sum of any instalments pai ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
